THE PEOPLE, Plaintiff and Respondent, v. JORGE HUMBERTO ANGUIANO, Defendant and Appellant.
A166206 (Contra Costa County Super. Ct. No. 05001512474)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 7/10/24
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the People charged defendant, Edwin Piedra Rodriguez, and Jose De Jesus Hernandez by information with conspiracy to commit a felony by active street gang participants (
In 2022, defendant filed a petition for resentencing pursuant to former
Over the course of two days in September 2022, the trial court held a hearing to determine whether the defendant was entitled to relief (
On August 26, 2012, Graciela V. was inside her home on Emeric Avenue near 23rd Street, when she heard four to five gunshots. She saw a young Hispanic male, very thin and not very tall, running in front of her house with a small gun in his hand. The man was running westbound on Emeric Avenue towards 21st Street.
On August 26, Margarita S. was outside her house when she heard about six gunshots. Around three minutes later, she saw a young, skinny, light skinned male in a black hoodie running down Emeric Avenue then turn onto 21st Street. He bumped into her and told her to “Move, move.” The man was putting a gun into the front pocket of his hoodie and then ran down California Avenue toward 23rd Street. Subsequently, two older men ran up to her and said the person just killed someone.
On August 26, Maria G. was in her car parked in an alley between Emeric Avenue and California Avenue off of 23rd Street when she heard gunshots. Then she saw a young man running on 23rd Street toward Richmond High School and getting into a car. The man was around 20 to 22 years old, tall with a medium build and short hair. He appeared to be holding something on the left side of his waist, and he had a rosary-bead style necklace that he took off and threw on the ground. She remembered identifying someone in a photo lineup, but—on a scale of one to ten with ” ‘one’ ” being not sure at all and ” ‘ten’ ” being absolutely certain—she was a three.
On August 26, Mohammed Z. was working at a tire shop on the corner of 23rd Street and Emeric Avenue when he heard a “big bang.” He went outside and saw a “larger” Hispanic man, about 20 to 25 years old, running on the opposite side of the street with a handgun in his hand, trying to put it in his pants. The man ran southbound on 23rd Street, toward Richmond High School and appeared to flag down and enter a car. Mohammed Z. walked into the street to see where the man came from and saw a body on the ground. He recalled telling the police that the man was wearing a red rosary.
Lieutenant Daniel Wiegers of the San Pablo Police Department—a detective at the time of the murder—arrived at the crime scene at around 12:30 p.m. the day of the murder and found the victim‘s blue shoes. At the hospital, he saw that the victim had multiple tattoos: a “VFL” tattoo on his left hand fingers; the number “13” on the inside of his left middle finger; the number “13” with three dots near his right shoulder; and a domino with the numbers ” ‘1’ ” and ” ‘3’ ” on each side of the domino. Wiegers observed the victim had gunshot wounds on both thighs, buttocks, neck, and in the stomach and upper abdomen area. Wiegers also attended the victim‘s autopsy and determined the victim had seven separate entry gunshot wounds. Two intact projectiles were recovered from the body at the autopsy, and two more at the scene; the bullets were approximately the size of .38 or .40 caliber rounds. At the victim‘s home was a drawing of the victim‘s left hand with “VFL” on the knuckles, photos of the victim with what appeared to be gang members throwing up gang signs, and a CD with “blue Sureño street gang raps.”
Lieutenant Wiegers reviewed surveillance video from the tire shop on 23rd Street, which showed a Hispanic male running southbound down 23rd Street who appeared to be motioning someone down the street to pick him up.
About three days after the shooting, Wiegers helped search a Chevy Monte Carlo that belonged to co-defendant Rodriguez and found an iPhone that showed at the time of the murder several incoming and outgoing calls from a phone number that was ultimately linked to co-defendant Hernandez.
After defendant‘s name and telephone number became relevant to the investigation, Lieutenant Wiegers searched defendant‘s house and found his cell phone, which showed calls made to Hernandez‘s phone on the morning of the murder, and also calls with Rodriguez‘s phone. He also found a red hat with a black “huelga” bird and the words ” ‘Northern Cal’ ” on it, and red rosary beads on top of a dresser.
Detective Robert Brady of the San Pablo Police Department was a gang investigator who knew the victim had the moniker ” ‘Domino’ ” and was a member of a Sureño street gang known as “Varrio Frontero Loco” or “VFL.” Around August 2012, there was an active and serious conflict between Norteño and Sureño street gangs, and Brady had assisted in investigating over a dozen murders between the gangs. Brady testified that perceived disrespect among gangs is often answered with violence, and he opined that this murder reflected a clear “disrespect” case.
Detective Brady testified that the area where the murder occurred was “claimed” by both Norteños and Sureños. After the murder, there was a memorial set up for the victim with tagging stating ” ‘RIP Domino’ ” and referencing VFL and other Sureño subsets. Around September 3, 2012, at another Sureño memorial for the victim, the tagging was crossed out and there was tagging that stated ” ‘WSB got one’ ” with a ” ‘1’ ” and a ” ‘4’ ” next to it.
Detective Brady reviewed relevant surveillance video and saw a potential suspect vehicle: a gold/silver 1990‘s model Chevy Monte Carlo with
Detective Brady searched Hernandez‘s home and found at least one red bandana and gang tagging related to Norteños in his room and a backyard shed. At defendant‘s home, police found a few pairs of red shoes, a black and red rosary, and red hats, including a red hat with a huelga bird and ” ‘Northern Cal’ ” on it. Brady explained the huelga bird is an “identifier” commonly used by the Norteño street gang.
Co-defendant Rodriguez testified he was convicted of a crime that took place in August 2012. At that time, he was driving a Chevy Monte Carlo with big rims. On the morning of the crime, co-defendant Hernandez had sent him a text and called him, so Rodriguez went to his house and “everybody” was there. After dropping Hernandez and defendant off close to a tire shop, Rodriguez went to a market. Rodriguez heard gunshots as he was leaving the market. When he picked up Hernandez and defendant, he had to drive fast because everybody was running and he did not know what had happened. Rodriguez recalled Hernandez and defendant “saying” they tossed their guns after the shooting, though he later testified he probably just thought they tossed their guns. Rodriguez testified he probably told the police that he thought Hernandez still had his gun, and recalled telling police that Hernandez left his gun with an uncle in Oakland. At some point prior to the shooting, Hernandez had shown him a revolver.
Rodriguez thought Hernandez and defendant were going to fight someone, and he denied knowing they were going to shoot anyone. Rodriguez
Mark Galios, a former police officer with the San Pablo Police Department and the lead investigator and detective at the time of the murder, reviewed surveillance video from a tire shop on 23rd Street and identified the suspect vehicle: a gold, gray Chevy Monte Carlo with large black rims. He also saw in the videos associated with the case that three people were in the suspect vehicle. He spoke to Rodriguez, who admitted driving defendant and Hernandez to the area of the crime that day and knew the two were going there to “do some business.” Rodriguez explained that the Friday before the shooting, he was with Hernandez and defendant when bottles were thrown at them from a moving car. Hernandez was very upset because his small child was with them. Hernandez and defendant knew the responsible person hung out in the “23rd Street area.” Rodriguez said Hernandez and defendant both stated they tossed their firearms after the shooting.
Galios spoke to Maria G. who described the person that she saw running from the scene wearing rosary beads. Maria G. identified defendant
Galios testified that no bullet casings were recovered at the crime scene, though a semiautomatic firearm expels casings after being fired. Standard revolvers hold six rounds; some larger caliber revolvers hold five rounds. In the course of his investigation, he listened to audio from a “ShotSpotter” system set up in San Pablo and Richmond and heard eight shots fired.
Defendant presented no witnesses but introduced a map of the area around 23rd Street and Emeric Avenue. The defense, with the assent of the People, introduced into evidence a video recording of a police interview of Rodriguez. Among other things, Rodriguez told police that he dropped off defendant and Hernandez at Emeric Avenue and Hayes Street knowing they were going to shoot someone. Rodriguez said he knew this based on the way the two were dressed, and that defendant had a “40 Glock” and they told him they were going to do “business.” After the shooting, Rodriguez first picked up defendant, who told him to pick up Hernandez. Defendant told Rodriguez that he threw out his gun and that he fired three or four shots from far away but his gun jammed. Hernandez said he used his revolver and came back with no bullets; Hernandez also said he thought he shot the victim “in the ass.” Rodriguez thought Hernandez probably still had the gun with him after the shooting and left it with a family member. Rodriguez told the police that the shooting occurred because someone threw bottles at him, defendant, Hernandez, and Hernandez‘s young child, while they were walking on the Friday before the shooting.
At the conclusion of the hearing, the trial court denied the petition upon determining the evidence showed, beyond a reasonable doubt, that defendant was guilty of murder either as an actual killer or as an aider and abettor. This appeal followed.
DISCUSSION
A. General Principles
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) which “eliminated the natural and probable consequences theory of liability as a basis for a murder conviction.” (People v. Reyes (2023) 14 Cal.5th 981, 984 (Reyes).) It did so by amending
Additionally, Senate Bill 1437 added
Where a petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause then hold “a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (
B. Sufficiency of the Evidence
Defendant argues the evidence was insufficient to support a finding beyond a reasonable doubt that he is guilty of murder under current law. We disagree.
“Murder, whether in the first or second degree, requires malice aforethought. (
“All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed.” (
We review the denial of a
Here, the record contains ample evidence substantially supporting defendant‘s guilt as a direct aider and abettor to the murder who, at the very least, acted with implied malice. As described in detail above, multiple eyewitnesses connected defendant directly to the crime. (Ante, at pp. 3–4.) After the gunshots, eyewitnesses saw a young, thin Hispanic male with a gun and a larger Hispanic man with a gun and wearing a red rosary run from the crime scene. Maria G., identified the larger man in a photo lineup as defendant. Both Mohammed Z. and Maria G. saw the larger man get into a car. Mohammed Z. saw a body on the ground where the larger man came from. Surveillance video led police to identify the suspect vehicle in the homicide, which led the police to pull over co-defendant Rodriguez, the admitted driver of the suspect vehicle.
Statements from Rodriguez provided additional evidence of defendant‘s guilt. Rodriguez told police he dropped off defendant and Hernandez at Emeric Avenue and Hayes Street knowing they were going to shoot someone. Rodriguez saw defendant with a “40 Glock.” After the shooting, defendant said he fired three or four shots but his gun jammed. Hernandez said he came back with no bullets and used his revolver, and he thought he shot the victim “in the ass.” The evidence established the victim had suffered seven separate entry gunshot wounds throughout his body, including his buttocks. Rodriguez‘s statements establish that defendant and Hernandez went to the location where the victim was with the intent to shoot him.
Moreover, a search of defendant‘s home revealed red rosary beads and a search of his cell phone showed calls made to Hernandez‘s phone the morning of the murder, and also calls with Rodriguez‘s phone. At around
There also was evidence of motive. As recounted in detail above (ante, at pp. 5–6, 8), the victim was a member of a Sureño street gang who was targeted because he allegedly threw bottles at defendant, Hernandez, and Rodriguez. There was a serious conflict between Sureños and Norteños at that time, and Detective Brady opined this murder was a “clear” case in which disrespect of one gang was met with violence by another. For instance, tagging at a memorial for the Sureño gang victim was crossed out with tagging that stated ” ‘WSB got one.’ ” WSB is a Norteño gang, and there was evidence that Rodriguez, Hernandez, and defendant all associated to some extent with Norteños. Rodriguez admitted he had clothing items associated with WSB and knew people in or associated with that gang, including his sister. Hernandez had a red bandana in his room, and gang tagging specific to Norteños appeared in his room and backyard. As for defendant, he had a few pairs of red shoes, a red and black rosary, and red hats, including one hat with a huelga bird on it, a common symbol used by the Norteño street gang.
Considering the totality of the record, we find substantial evidence supporting the trial court‘s determination beyond a reasonable doubt that defendant directly aided and abetted the murder, by knowingly participating in the shooting of Hernandez. At the very least, the evidence establishes defendant acted with implied malice, by intentionally seeking the victim out while armed and intending to aid in the victim‘s shooting, and thereby acting in conscious disregard for human life. (See, e.g., People v. Nieto Benitez (1992) 4 Cal.4th 91, 109–110 [“where the defendant obtains a lethal weapon and then engages the victim in an argument, malice may be implied“].)
C. Defendant‘s Other Contentions
1. Accomplice testimony
Defendant challenges the trial court‘s reliance on co-defendant Rodriguez‘s testimony on the ground that Rodriguez was an accomplice and his account of the events was not sufficiently corroborated. Specifically, he contends, there was no evidence corroborating Rodriguez‘s statements that defendant went with Hernandez to locate the victim while Rodriguez “simply dropped them off and went to the liquor store.” We disagree.
Here, it is undisputed that Rodriguez was an “accomplice” within the meaning of
As already discussed in depth, there was plenty of evidence pointing to defendant‘s guilt, including the testimony of the eyewitnesses near the crime scene, the items found in defendant‘s home, the call logs from defendant‘s phone and Rodriguez‘s phone, and the evidence of motivation. All this was more than sufficient to connect the defendant to the crime independently of Rodriguez‘s testimony.
2. Galios‘s Testimony Regarding the ShotSpotter Audio
Defendant argues the trial court erred by allowing former Officer Galios to testify that he heard eight shots fired while listening to the ShotSpotter audio. Defendant contends there was no expert or other evidence explaining how the ShotSpotter technology worked in 2012, its margin of error, or its capacity to differentiate and characterize the sound of gunfire as distinguished from other sounds such as a car backfiring or fireworks. Relying on People v. Hardy (2021) 65 Cal.App.5th 312, defendant contends the ShotSpotter technology was sufficiently novel, and its reliability unestablished, to have required a Kelly/Frye2 hearing. Moreover, he contends, “the prosecutor did not establish Galios’ training or experience with the system to establish the reliability of his discernment of sounds of gunshots versus other sounds,” nor had a foundation been laid to establish that the audio of the eight sounds was captured at the particular location and time of the victim‘s shooting.
Here, when the prosecutor asked Galios how many shots he heard on the ShotSpotter audio, defense counsel stated: “I‘m going to object as lack of foundation as it relates to what he heard in this case.” Because defense counsel did not specifically mention Kelly/Frye or otherwise identify the basis of her foundational objection,3 the review of the Kelly/Frye has been forfeited. (People v. Diaz (1992) 3 Cal.4th 495, 527 [objection on grounds of ” ‘lack of foundation’ ” and “hearsay” did not preserve the Kelly/Frye issue].)
But even assuming it was error to admit Galios‘s testimony, defendant fails to establish that a more favorable outcome was reasonably probable had the testimony been excluded. (People v. Venegas (1998) 18 Cal.4th 47, 93; Kelly, supra, 17 Cal.3d at p. 40 [applying Watson].) Defendant suggests the error was prejudicial because the trial court made a comment about it when denying the resentencing petition. Defendant, however, fails to provide a
3. Lieutenant Wiegers‘s testimony regarding the entry wounds
Defendant next contends Lieutenant Wiegers‘s testimony regarding the number of entry gunshot wounds on the victim‘s body lacked foundation and constituted inadmissible hearsay, as there was no showing Wiegers had sufficient expertise to make that determination and his opinion was based on what he was told by the coroner.
We provide some additional context here. Lieutenant Wiegers initially testified he has worked on well over a hundred homicide cases involving gunshot victims over the course of his career. Wiegers observed the victim‘s body at the hospital and later counted seven total gunshot wounds. Wiegers also documented the gunshot wounds at the autopsy.
After the People rested, the trial court invited the prosecutor to recall Wiegers to testify as to his experience in distinguishing between entry wounds and exit wounds. Wiegers testified on recall that through his training and experience as a police officer, he is familiar with gunshot wounds, including the difference between an entry and an exit wound.
Trajectory rods were used during the victim‘s autopsy, which showed the path that a bullet entered and exited the body. Wiegers made his “own personal determination” that the victim had seven separate gunshot wounds. Defense counsel indicated she had no cross-examination for Wiegers, but objected to the re-opening of his testimony, and also on grounds of lack of foundation and hearsay. Having anticipated and allowed further testimony regarding the gunshot wounds, the court implicitly overruled the foundation and hearsay objections.
We are not persuaded that Wiegers‘s recall testimony should have been barred as hearsay. As indicated, Wiegers concluded there were seven separate bullet wounds based on his own experience and personal observations. Defendant‘s assertion that Wiegers‘s “understanding was clearly based on what the coroner told him” is unsupported by the record.
Defendant‘s contention that Wiegers‘s testimony lacked foundation is likewise unavailing. Even if we were to overlook defendant‘s failure to specify the basis for the foundation objection (see
As the Evidence Code makes clear, a witness can give an expert opinion that is related to a subject “sufficiently beyond common experience” when that opinion is “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness.” (
As the record reflects, Wiegers became familiar with the difference between entrance and exit wounds based on his training and experience as a police officer. Over the course of his career, Wiegers had worked on over a hundred homicide cases involving gunshot victims. Defense counsel did not cross-examine Wiegers concerning his experience. On this record, we cannot say the trial court abused its discretion in allowing Wiegers to testify that his examination of the victim‘s wounds led him to conclude that the victim had been shot seven times.
4. Galios‘s testimony about defendant‘s text messages
Former Officer Galios testified that text messages on defendant‘s cell phone shortly after the murder caught his attention. As relevant here, on August 27, 2012, at 2:36 a.m., a text message from defendant‘s phone number to an unknown person stated, “What‘s good? . . . [T]rying to get out of town.” The unknown person responded, “You finna be getting out of the Rich?” Then defendant‘s phone number replied: “Trying to. I got nowhere to go, period. 187.”
Defendant now contends the evidence was hearsay and did not fall within the party admission exception (
A writing, including a text message, must be authenticated before it may be admitted into evidence. (
Here, Lieutenant Wiegers testified, without objection by the defense, that call logs for a cell phone found on defendant‘s bed stand showed calls were made between it and Hernandez‘s phone and Rodriguez‘s phone on the morning of the murder. Wiegers also searched Rodriguez‘s phone, and the number associated with defendant‘s phone was in Rodriguez‘s phone under the name “Jorge” (defendant‘s first name). This was more than sufficient to sustain a finding that the subject text messages were sent by defendant and therefore qualified as a party admission under
Defendant insists the prosecution provided no foundation to establish that he—and not one of his co-defendants or someone else—sent the text messages. But as the People point out, the defense presented no evidence suggesting that anyone else used the phone.
As for defendant‘s contention that the “prosecution did not provide the court a copy of the text message, nor did it establish that the criteria of
5. Defendant‘s youth
Finally, defendant argues a remand is required because: he was 22 years old at the time of the shooting; youth is a relevant factor that a trial court must consider in determining whether a defendant acted with malice; and the record does not reflect the court considered defendant‘s youth.
It appears defendant has forfeited this claim. Defendant does not indicate that he made this argument below, and our review of the record does not show that he did. Although various documents before the trial court, including the court‘s own minute orders, reflected defendant‘s date of birth, defendant never presented any evidence concerning his youth at the time of the crimes. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
Defendant urges that we exercise our discretionary authority to consider the issue. Defendant cites People v. Pittman (2023) 96 Cal.App.5th 400 (Pittman) for its holding that youth—“defined, roughly, as being 25 years of age and younger“—may be one factor in the totality of the circumstances bearing on whether a defendant acted with implied malice and so could still be found guilty of murder at a
In Pittman, the defendant, at the age of 21, was at a party with his two co-defendants who were around 16 and 17 years old, and all were drunk. (Pittman, supra, 96 Cal.App.5th at pp. 404, 418.) The defendant left the party momentarily, saw the victim doing drugs in a car, and devised a plan to
Here, as in Pittman, the defense did not present any evidence concerning defendant‘s youth. The record establishes defendant was 22 years old at the time of the murder, while his co-defendants were 19 years old. The murder in this case occurred on the Sunday following the Friday when the victim allegedly threw bottles at Hernandez, Hernandez‘s young child, Rodriguez, and defendant. There was no evidence of intoxication, and Hernandez and defendant waited more than a day after the victim allegedly
Taking our cue from Pittman, we conclude that youth was a factor for the trial court to consider at the resentencing hearing. (Pittman, supra, 96 Cal.App.5th at p. 417.) And because the matter was not addressed, we cannot rule out a reasonable possibility that the court‘s failure to consider the defendant‘s youth may have impacted its decision. (See ibid.) Accordingly, a remand is appropriate for the court to consider how, if at all, defendant‘s youth affected his ability to form the requisite mental state for murder. We express no opinion as to the appropriate outcome on remand.
DISPOSITION
The order denying the petition for resentencing is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.
Fujisaki, Acting P. J.
WE CONCUR:
Petrou, J.
Rodríguez, J.
People v. Anguiano (A166206)
Notes
Though the trial court independently asked the prosecutor if a Kelly/Frye hearing was needed, defense counsel offered no objection or comment when the prosecutor explained that the seven gunshots found on the victim‘s body essentially corroborated Galios‘s determination that he heard eight shots fired on the ShotSpotter audio.