KLEIN, P. J.
Defendant and appellant, Juan Manuel Juarez, appeals the judgment entered following his conviction for second degree murder and attempted murder, with a principal armed enhancement finding (Pen. Code, §§ 187, 664/187, 12022).
The judgment is affirmed.
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
On October 24, 2008,
Juarez and Padilla exited the Toyota. Padilla asked where Denise was and Candido told him not to worry, that she was fine. But Padilla said, "No, I want my sister." Padilla then went back to the Toyota and retrieved a shotgun from between the two front seats. Candido told Padilla not to do anything silly, but Padilla pointed the gun at him and threatened to shoot him if he didn't get out of the van.
Just then, Candido's brother Isaac came out of the house. Padilla pointed the shotgun at Isaac and said, "Where is my sister[?]" Candido testified Isaac was walking toward the street and trying to hide, but Juarez "came up . . . and he did not let my brother go by." Unable to get to the street, Isaac turned around and Padilla shot him in the abdomen. Isaac fell to the ground.
Candido jumped over Isaac and tried to take the shotgun from Padilla. As they struggled, Juarez hit Candido in the back of the head with a heavy object, knocking him to the ground. Padilla shot at Candido, but missed. Saying "Let's go," Juarez pushed Padilla into the Toyota and drove off. During the entire incident, Juarez had done nothing to stop Padilla from firing the shotgun.
Candido drove Isaac to the hospital, where he died the following morning. Solomon Riley, the deputy medical examiner who conducted the autopsy, determined Isaac had sustained a single fatal gunshot wound to the left side of his torso.
Gloria Martinez, Juarez's fiancé, owned a four-door, golden Toyota Camry. When Detective Gene Parshall spoke to her on December 2, Martinez was initially reluctant to give him any information, but eventually she admitted having lent her car to Juarez on the day of the shootings. Martinez said Juarez had gone to Texas and she gave Parshall a phone number. Parshall called Juarez: "I asked him when he could come in and talk and he said never." Juarez was subsequently arrested, and extradited to California on December 18.
One of the passengers in the back seat of the Toyota on the night of the shootings had been Erick Rodriguez, a close friend of Padilla's. They were both members of the Pacoima Trece gang. Rodriguez testified Juarez had been trying to get "jumped in," i.e., become a member of the gang. Shown a photograph, Rodriguez identified Juarez and another man flashing gang signs at the gravesite of a mutual friend, gang signs associated with Pacoima Trece.
Rodriguez testified that on the night of the shootings, Juarez and Padilla picked him up in the Toyota. Juarez was driving and Padilla was sitting in the front passenger seat. Juarez first drove to a clinic because Rodriguez had a medical marijuana card. Afterward, they stopped at a bus stop and picked up a man Rodriguez did not know. Padilla said they were going to Isaac's house to get his sister Denise. Rodriguez knew Padilla was upset with Isaac for dating Denise.
At Isaac's house, Padilla got out of the car with the shotgun and asked Candido about Denise. At first Padilla "was talking in a normal way . . . but then he started getting mad" and "[h]e was screaming, `Where is my sister?'" Isaac came out of the house, laughed in Padilla's face, and started to run away. Padilla ran after him, pointing the gun at him and asking where Denise was. Juarez, Rodriguez and the other man were still inside the Toyota at this point. After Padilla shot Isaac, Candido tried to grab the gun from him. Juarez got out of the car and joined the struggle for the shotgun. Candido fell to the ground.
Rodriguez was a reluctant witness who only testified because the prosecution granted him full immunity. Afraid someone was going to hurt him and his children, Rodriguez initially ignored a subpoena and only came to court to testify after a bench warrant had been issued.
Juarez testified in his own behalf. He had known Rodriguez for three or four years, Padilla for one year, and Isaac since the ninth grade. Juarez was close friends with Rodriguez, but not Padilla. Juarez denied ever telling Rodriguez he wanted to get jumped into a gang.
On the day of the shootings, Juarez borrowed his girlfriend's Toyota so he could hang out with his friends. At Raymond's house, Padilla, Padilla's cousin and Rodriguez got into the Toyota, and Juarez drove to the medical clinic so Rodriguez could purchase marijuana. They returned to Raymond's house. Padilla then asked for a ride to Isaac's house, saying "something about his sister." All four of them drove to Isaac's house. Juarez did not know Padilla intended to harm anyone.
Juarez testified that, when they arrived at Isaac's house, Padilla got out of the car: "I see [Padilla] on my right. I see him get a gun and . . . he starts talking to Candido . . . talking about where is his sister, where is his sister." Juarez denied having seen the shotgun in between the Toyota's driver's seat and front passenger seat while they were driving. Juarez got out of the car while Padilla was talking to Candido, but he remained standing next to the Toyota. When Isaac came out of the house, Padilla kept asking him about Denise and they started running around the driveway. Isaac was laughing at Padilla and then Padilla shot him. Juarez denied having blocked Isaac's path, and insisted he had no idea Padilla was going to shoot anyone.
After Isaac fell to the ground, Candido stepped in and started fighting with Padilla for the shotgun: "And then they come down towards my way where I'm at on the driver's side [of the Toyota], and they just start struggling right there in front of me. And that's where Candido falls. And that's . . . when [Padilla] shoots and . . . misses . . . ." Juarez denied having joined the fight for the gun or hitting Candido in the head. Juarez testified it was Padilla's cousin who joined in the struggle for the gun. Juarez also denied calling Rodriguez a bitch or making any comment like that to Rodriguez.
Juarez told his girlfriend a few days later about what had happened, but he was too scared to go to the police. The situation was so stressful he quit his job and moved to Texas because he had a sick brother there. He denied going to Texas because he believed he had done something wrong.
Juarez also testified about an incident that had occurred at Denise Padilla's 18th birthday party. Isaac told Juarez that Denise was "looking good." Padilla overheard Isaac's remark and warned him to leave his sister alone. Juarez acknowledged he knew the reason Padilla wanted to go to Isaac's house on the night of the shootings was to get his sister.
On cross examination, Juarez said there had been a fifth passenger in the Toyota that night, a Pacoima Treces gang member Juarez picked up from a bus stop at Padilla's direction.
Juarez insisted he did not know Padilla had entered the Toyota with a shotgun that night. He suggested Padilla must have been hiding the shotgun in his pants: "Q. He gets out with the gun? [¶] A. He gets out — I never saw a gun. When I seen him arrive, I seen him pulling it out. . . . I'm guessing[] he pulled it out of his pants, and . . . then he starts talking to Candido." "Q. So are you saying it was down his pants? [¶] A. Yes. [¶]. . . [¶] That's the only place he could have had it."
1. There was insufficient evidence to sustain Juarez's convictions.
2. The trial court erred by admitting gang-related evidence.
3. The trial court erred by admitting gruesome autopsy photographs.
4. The trial court improperly gave the jury a flight instruction.
5. Juarez was denied the effective assistance of counsel.
Juarez contends there was insufficient evidence to sustain his convictions for aiding and abetting the murder of Isaac and the attempted murder of Candido. This claim is meritless.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] `"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]"' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"`An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.' [Citation.] `Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].' [Citation.]" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) "Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, `without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction.' [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient." (Ibid.)
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) "When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person `must share the specific intent of the [direct] perpetrator,' that is to say, the person must `know[] the full extent of the [direct] perpetrator's criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator's commission of the crime.' [Citation.] Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing — which means that the person guilty of attempted murder as an aider and abettor must intend to kill." (People v. Lee (2003) 31 Cal.4th 613, 624.)
There was ample evidence showing Juarez aided and abetted the murder of Isaac and the attempted murder of Candido. That evidence consisted of the following.
Juarez wanted to get jumped into Padilla's gang. Knowing Padilla was upset about Isaac's dating his sister, Juarez drove Padilla to Isaac's house. Upon arrival, he parked the Toyota in a way that blocked Candido from leaving in his van. Although Juarez claimed he did not know Padilla was armed, Candido testified he saw Padilla retrieve the gun from between the front seats of the Toyota, i.e., from a place where Juarez almost certainly would have seen it while he was driving. As for Juarez's assertion Padilla must have been hiding the gun in his pants while sitting in the car, both Candido and Rodriguez testified the shotgun was three feet long.
After Padilla left the car and pointed the shotgun at Candido's chest, Juarez did not do or say anything to stop him, despite the fact Padilla threatened to fire the gun. There was evidence Juarez moved to block Isaac when Isaac tried to escape from Padilla by running into the street. Then, after Padilla shot Isaac, there was evidence Juarez intervened to prevent Candido from gaining control of the gun by hitting Candido in the head with a heavy object. Juarez then watched as Padilla fired the shotgun at Candido, again not making any effort to do or say anything to stop Padilla. Afterward, Juarez hurried Padilla back into the Toyota so they could escape. Juarez berated Rodriguez for not helping to subdue Candido. Subsequently, Juarez moved to Texas and he told Detective Parshall he would never come back and talk to him about the shootings. At trial, Juarez testified it had been Padilla's cousin, not he, who helped subdue Candido, although the evidence showed there had not been a fifth passenger in the car.
"Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense." (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Here, the evidence relating to those factors, in addition to the evidence of Juarez's conduct during the shooting incident, provided sufficient proof of his role as an aider and abettor.
Juarez contends the trial court erred by admitting certain gang-related evidence. This claim is meritless.
The admission of gang evidence always carries a risk of prejudice. "When offered by the prosecution, we have condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact." (People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) However, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation — including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like — can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 ["[e]vidence of gang activity and affiliation is admissible where it is relevant to issues of motive and intent"]; People v. Avitia (2005) 127 Cal.App.4th 185, 192 ["Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative."].)
The evidence Juarez is complaining about consisted of the photograph showing him flashing a gang sign at a friend's gravesite, and testimony indicating he wanted to join the Pacoima Trece gang. The prosecution theory was that Juarez had participated in the shootings in order to show his devotion to Padilla and Padilla's gang in the hope he might be invited to join. Although Padilla apparently had an entirely personal, non-gang-related reason for shooting Isaac, there was no evidence Juarez shared that personal motive. Hence, the gang evidence was extremely relevant to explain Juarez's participation. (See People v. Ruiz (1998) 62 Cal.App.4th 234, 239 [notwithstanding potential prejudicial effect of gang evidence, such evidence was admissible "when the very reason for the crime is gang related"]; People v. Martin (1994) 23 Cal.App.4th 76, 81 ["where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial"].)
Hence, the trial court did not err by admitting this evidence.
Juarez contends the trial court erred by admitting into evidence a photograph taken during Isaac's autopsy.
"This court is often asked to rule on the propriety of the admission of allegedly gruesome photographs. [Citations.] At base, the applicable rule is simply one of relevance, and the trial court has broad discretion in determining such relevance. [Citation.] `"[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant"' [citations], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative [citation]. A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value. [Citation.] Finally, prosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case. [Citation.]" (People v. Gurule (2002) 28 Cal.4th 557, 624.)
Juarez relies on People v. Smith (1973) 33 Cal.App.3d 51, disapproved on another ground in People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5, where photographs of the victims' bodies had been taken at the crime scene. Smith described the photographs as "gruesome; their impact . . . heightened by vivid coloration; the two pictures of Mrs. Fitzhugh's seminude, terribly mutilated, bloody corpse have a sharp emotional effect, exciting a mixture of horror, pity and revulsion." (People v. Smith, supra, at p. 69.)
The photograph at issue here is nothing like that. The photograph shows only a portion of the decedent's torso, there is no mutilation and, although the single gunshot wound is unpleasant to look at, it cannot be characterized as gruesome or shocking. (See People v. Mendoza (2000) 24 Cal.4th 130, 171 [defense objection to photograph of victim's charred body would not have succeeded where Court of Appeal reviewed photograph and concluded it was "not unduly gruesome or inflammatory"].)
The trial court did not err by admitting the autopsy photograph.
Juarez contends the trial court erred by giving the standard flight instruction (CALCRIM No. 372). This claim is meritless.
"In general, a flight instruction `is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citation.] `"[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested."' [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) "A flight instruction is proper whenever evidence of the circumstances of defendant's departure from the crime scene . . . logically permits an inference that his movement was motivated by guilty knowledge. [Citations.]" (People v. Turner (1990) 50 Cal.3d 668, 694.)
Here, the jury was instructed: "If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and the importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
The evidence showed Juarez fled the crime scene by hustling Padilla into the Toyota and driving off. The evidence also showed Juarez subsequently left California and moved to Texas. Juarez complains the flight instruction "indicated that Appellant was aware of some type of guilt by simply leaving the community." Not so. The flight instruction does "not assume that flight was established, leaving that factual determination and its significance to the jury." (People v. Visciotti (1992) 2 Cal.4th 1, 61.) Juarez argues the instruction was unwarranted because "there were other, reasonable explanations for his actions. Appellant was overwhelmed by what he observed on that fatal night and had a sick relative in another state. A change of environment seemed to be the appropriate course of action." But, as the flight instruction properly advised, it was for the jury to decide whether the evidence established Juarez had fled.
The flight instruction was proper.
Juarez contends he was denied the effective assistance of counsel with regard to a whole series of issues. These claims are meritless.
A claim of ineffective assistance of counsel has two components: "`First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' [Citation.] To establish ineffectiveness, a `defendant must show that counsel's representation fell below an objective standard of reasonableness.' [Citation.] To establish prejudice he `must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (Williams v. Taylor (2000) 529 U.S. 362, 390-391.) "[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence." (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
"[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance. [Citation.]" (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) An appellate court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
"Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence, we have held that the conviction should be affirmed." (People v. Bunyard (1988) 45 Cal.3d 1189, 1215; see People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [decision whether to put on witnesses is "matter[] of trial tactics and strategy which a reviewing court generally may not second-guess"].) "[T]he choice of which, and how many, of potential witnesses [to call] is precisely the type of choice which should not be subject to review by an appellate court." (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on other grounds by People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) "It is not sufficient to allege merely that the attorney's tactics were poor, or that the case might have been handled more effectively. [Citations.] [¶] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics." (People v. Floyd, supra, at p. 709.)
Juarez complains defense counsel failed to present any defense witnesses other than Juarez himself. He argues counsel should have called his brother who lived in Texas. Juarez does not assert, however, that his brother had any knowledge about the shootings, but merely that Juarez testified "he spoke to his brother after this incident. Appellant's brother is a former police officer. Appellant's brother was a credible witness." Juarez also complains: "None of the relevant Texas witnesses were spoken to, nor called as witnesses. Appellant testified that a brother was sick in Texas. Further, the jury heard that Appellant was arrested in Texas and brought back to California. Logical witnesses from Texas should have been called as defense witnesses to explain the emergency situation of Appellant's brother." But the trial record does not demonstrate Juarez's brother, or any of the unnamed witnesses, would have confirmed the brother's medical condition. Even if they had, this would not have precluded a finding of flight because the jury could have quite reasonably concluded Juarez intended to both assist his brother and avoid the police.
Juarez complains defense counsel failed to put on evidence showing he did not have any prior criminal history and that he had graduated from high school with honors. But even assuming the truth of these assertions, we cannot see how putting on this kind of good-character evidence would have persuaded the jury not to convict him.
Juarez argues there was psychological evidence defense counsel should have presented: "Appellant testified that his emotions were very high after the shooting. Appellant testified that he could not relax at work and was overwhelmed. A psychologist should have been retained . . . . Then, the jury could have heard how this incident truly affected Appellant through the testimony of a forensic psychologist." But as this evidence would have related to the effect of the shootings on Juarez's mental state, we cannot see what relevance it would have had to his role in the shootings. If Juarez means this evidence would have been useful for showing he went to Texas for innocent reasons, we have no doubt he would still have been convicted, even if the jury concluded he did not flee.
Juarez argues defense counsel should have objected to the gang evidence put on by the prosecution, and should have retained a defense gang expert. But defense counsel "is not required to make futile motions or to indulge in idle acts to appear competent" (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091), and we have already determined, ante, that the prosecution's gang evidence was properly admitted. Juarez fails to explain how a defense gang expert would have helped his case. He asserts "friends, teachers, workers and family members . . . should have [been called to testify] to the true fact that Appellant was not a gang member . . . ." But there is no showing any such evidence existed.
Juarez complains that, after initially reserving the right to make an opening statement, defense counsel made no statement to the jury after the prosecution rested its case. However, "decisions whether to waive opening statement . . . are matters of trial tactics and strategy which a reviewing court generally may not second-guess." (People v. Mitcham, supra, 1 Cal.4th at p. 1059.) Juarez fails to explain why an opening statement was so crucial in this case.
Juarez complains defense counsel neither requested nor objected to "any jury instructions to mitigate the conduct of the shooter or the `flight' instruction." "Mitigating the gunman's conduct" apparently refers to the possibility Padilla's malice might have been mitigated by evidence he acted from heat of passion. But even so, Juarez obviously did not share that state of mind and he would have been properly convicted of a greater crime than Padilla committed. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117 ["[T]he aider and abettor's guilt for the intended crime is not entirely vicarious. Rather, that guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state."].)
As for "mitigating the flight instruction," we have no idea what Juarez means.
Juarez complains defense counsel failed to object to either the autopsy photograph or the gang evidence. As discussed, ante, such objections would have been futile.
The judgment is affirmed.
KITCHING, J. and ALDRICH, J., concurs.
