47 Cal.App.5th 129
Cal. Ct. App.2020Background
- On June 22, 2011 at Penmar Park (Venice), Michael Mariscal (an admitted Culver City Boys gang member) approached five young men, challenged them about their gang, and opened fire from a stolen Volvo, killing two (Allan Mateo, Salvador Diaz) and wounding one (Christian Hernandez); two others were unharmed.
- Nine 9mm shell casings from a single gun were recovered; defendant’s fingerprints were on the stolen Volvo; cellphone and text evidence connected defendant to the scene and showed post-shooting messages about the news.
- Defendant was charged with two counts of murder, three counts of attempted murder, street terrorism (gang enhancement), and possession of a firearm by a felon; jury convicted on all counts and found gang and firearm enhancements true.
- At trial the court (without objection) instructed the jury on the “kill zone” theory of concurrent intent to kill; the prosecution’s gang expert testified linking the shooting to gang activity and that the driver likely was a gang member or associate.
- On appeal (after the Supreme Court remanded for reconsideration in light of People v. Canizales), the Court of Appeal held the kill zone instruction was unsupported by the evidence and therefore erroneous but harmless beyond a reasonable doubt given overwhelming evidence defendant intended to kill all five men; it affirmed convictions but reversed imposition of a stayed $200 parole-revocation fine, ordered 1,325 days of presentence custody credit, and directed corrections to the abstracts of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury should be instructed on the kill zone theory for attempted murder counts | Kill-zone instruction appropriate given multiple shots and multiple victims | No kill-zone evidence; defendant targeted all men rather than aiming to kill a primary victim by creating a zone | Instruction was unsupported and erroneous but harmless beyond a reasonable doubt (convictions affirmed) |
| Sufficiency of evidence driver of Volvo was a gang member for street terrorism (§186.22(a)) | Driver facilitated the shooting, used a stolen car, and thus was a gang member or an associate putting in work | Insufficient direct proof the driver was a gang member | Substantial evidence supported the jury’s finding; conviction on count 6 affirmed |
| Admission of testimony about Santiago’s psychological aftermath | Testimony relevant to consequences of the crimes and victim impact | Irrelevant and prejudicial; violated due process | Claim forfeited in part; any error harmless given overwhelming evidence of guilt |
| Sentencing and clerical errors (parole-revocation fine, presentence custody credits, abstracts) | Trial court properly imposed fines and omitted credits | Fine improper because determinate sentences were stayed; defendant entitled to presentence custody credits; abstracts inaccurate | $200 parole-revocation fine reversed; defendant awarded 1,325 days actual custody credit; indeterminate abstract amended to reflect consecutive terms and accurate parole status |
Key Cases Cited
- People v. Canizales, 7 Cal.5th 591 (2019) (defines narrow circumstances for permissible kill-zone instruction)
- People v. Aledamat, 8 Cal.5th 1 (2019) (harmless-error standard when an invalid legal theory is instructed alongside a valid one)
- People v. Rodriguez, 55 Cal.4th 1125 (2012) (§186.22(a) requires felonious conduct committed by at least two gang members)
- People v. Watson, 46 Cal.2d 818 (1956) (standard for reversal when error is factually unsupported)
- Chapman v. California, 386 U.S. 18 (1967) (harmless beyond a reasonable doubt standard for constitutional error)
- People v. Mitchell, 26 Cal.4th 181 (2001) (abstract of judgment must accurately reflect oral sentence)
- People v. Redd, 48 Cal.4th 691 (2010) (evidence of psychological impact of a victim is generally irrelevant in noncapital cases)