People v. Lopez CA5
F067244
Cal. Ct. App.Feb 27, 2015Background
- On April 23, 2012, Marcelo Lopez chased and fired at a black car at a Pixley gas station; no one was injured but the car was struck by five .25‑caliber rounds. Lopez later admitted he shot to "scare" the occupants and left the gun in the truck.
- Surveillance and witness evidence placed Lopez in a green Chevy truck at the scene; one occupant (Pulido) made a Northerner gang hand sign toward the victims (Southerners).
- Gang expert Detective Darington testified that Northerners (Norteños) are an organized criminal street gang whose primary activities include assaults and other enumerated crimes; she identified Lopez as affiliated with the Infamous Youngstas (a Norteño subset) based on admissions, tattoos, writings, clothing, contacts, and associations.
- A jury convicted Lopez of two counts of attempted murder, shooting at an occupied vehicle, and two counts of assault with a firearm; gang (§186.22(b)) and firearm (§12022.53(c)) enhancements were found true.
- On appeal Lopez challenged (1) sufficiency of evidence for the gang enhancement, (2) ineffective assistance for failure to object to two items of gang-expert testimony, and (3) certain sentencing enhancements for counts 4 and 5.
- The Court affirmed convictions and most enhancements but (a) struck unauthorized 20‑year §12022.53(c) enhancements on counts 4 and 5, and (b) reduced the §186.22 gang enhancements on counts 4 and 5 from 10 to 5 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for gang enhancement (primary activities / benefit) | The People argued expert testimony established Northerners are a criminal street gang and the shooting furthered gang purposes. | Lopez argued prosecutor failed to prove primary activities of the Infamous Youngstas subset and therefore failed to prove the gang enhancement. | Affirmed: expert testimony about Northerners and evidence of Lopez’s Norteño identification/association sufficed; prosecution need not separately prove the subset’s primary activities. |
| IAC — failure to object to testimony about a prior gang‑related vehicle stop/drive‑by | People argued the testimony was relevant to motive, association, and gang enhancement proof. | Lopez argued counsel was ineffective for not objecting under Evid. Code §352 as cumulative/prejudicial. | Denied: failure to object was a tactical decision with conceivable justification; no prejudice shown and testimony admissible for motive/association. |
| IAC — failure to object to gang expert testimony about Lopez’s propensity for violence (writings) | People argued expert testimony on gang culture, indoctrination and writings was proper and did not invade the defendant’s subjective intent. | Lopez argued testimony improperly opined on defendant’s subjective intent/propensity (Killebrew/Vang limits). | Denied: testimony addressed gang culture and was a permissible basis for opinion; did not impermissibly opine on ultimate issue of defendant’s specific intent. |
| Sentencing errors for counts 4 & 5 (assault with a firearm) | People conceded the court imposed unauthorized enhancements and agreed to correction. | Lopez sought correction of unauthorized enhancements. | Modified: stricken unauthorized 20‑year §12022.53(c) enhancements; replaced unauthorized 10‑year §186.22(b)(1)(C) terms with five‑year §186.22(b)(1)(B) terms. Judgment otherwise affirmed. |
Key Cases Cited
- People v. Kraft, 23 Cal.4th 978 (establishes substantial-evidence standard and appellate review for sufficiency challenges)
- People v. Ortega, 145 Cal.App.4th 1344 (subset-versus-whole gang proof not required in context of gang enhancement)
- People v. Livingston, 53 Cal.4th 1145 (drive‑by shooting by gang member at rival is prototypical gang-related crime supporting enhancement)
- People v. Williams, 167 Cal.App.4th 983 (distinguishes proof of subset membership versus larger organization when insufficient proof links subset to larger gang)
- People v. Killebrew, 103 Cal.App.4th 644 (limits on gang expert testimony re: defendants’ subjective knowledge/intent)
- People v. Vang, 52 Cal.4th 1038 (clarifies that expert may opine a crime is gang‑related under a proper factual hypothetical and explains Killebrew’s limits)