THE PEOPLE, Plaintiff and Respondent, v. RAFAEL TOVAR, Defendant and Appellant.
No. A145498
First Dist., Div. One.
Apr. 10, 2017
7 Cal. App. 5th 750
Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Lawrence, Assistant Attorney General, Eric D. Share and Elizabeth W. Hereford, Deputy Attorneys General, for Plaintiff and Respondent.
HUMES, P. J.—A jury convicted defendant Rafael Tovar of first degree murder and conspiracy to commit murder based on his participation in the 2010 killing of Justice Afoa. Tovar‘s sole contention on appeal is that insufficient evidence supports the jury‘s finding that he committed the conspiracy offense “for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” (
A. The Murder.
During the fall of 2010, members of the Newark Memorial High School football team were involved in an ongoing conflict with other students affiliated with local Norteño street gangs. That September, Justice Afoa, one of the football players, and some teammates went to Tovar‘s home at the invitation of Tovar‘s younger sister, Daniela Guzman.2 When the group arrived, Guzman was not there, but Tovar, who was drunk, came outside.
Tovar was 29 years old at the time, and he was a self-admitted member of FMT (Fremont Mexican Territory), an East Bay Norteño gang. He was angry
The next day, Tovar‘s cousin, also a Norteño gang member, called Tovar‘s house from prison and spoke to Tovar, Guzman, and their younger sister. The younger sister indicated that she was trying to get the addresses of the football players. Referring to Daniel Howard, Tovar‘s longtime friend and a fellow gang member, she confirmed that “Danny Howard and JD” were “on it” and reported that Howard had said, “[W]e already got boys.”3 Guzman also said she wanted to retaliate for Tovar‘s beating. After Tovar and the cousin discussed the beating, the cousin asked whether “everything [was] good” and whether Tovar and Howard were “going to take care of that.” Tovar responded, “Yeah, it‘s all good.”
Over the next few months, Guzman and Howard exchanged several text messages in which Guzman reported on Afoa‘s movements.4 In late October, Guzman sent a text message to Howard that stated, “Justice is at a party that I‘m at right now!!” Later that night, a friend of Afoa‘s was driving when he saw Afoa running down the street away from a Halloween party. After the friend picked up Afoa, he noticed that Afoa was hurt and transported him to the hospital.5 Soon afterward, Guzman sent text messages bragging that Tovar was going to kill Afoa because Tovar was “a real OG” (original gangster).
On the afternoon of December 15, 2010, Afoa was stabbed to death on the street near Tovar‘s home. Two years later, Tovar, Guzman, and Howard were arrested for the murder. Tovar admitted to killing Afoa during a police interview, and a recording of this interview was played for the jury. Tovar also testified at trial.
Tovar claimed that a few days before the murder he learned that Afoa had “backhanded” Guzman at a party. Tovar said he did not intend to kill Afoa but wanted only to beat him up in retaliation for “putting hands on” Guzman. In explaining why he had taken a knife with him if he did not intend to kill Afoa, Tovar said Afoa was larger than he was and he did not want to lose a fight again. Tovar also claimed that he had been stabbed before and had not died, so he did not think stabbing Afoa would necessarily result in death.
Tovar denied participating in any plan to attack Afoa or having a gang-related motive for the murder. Tovar was aware that while he was in the hospital “[t]here was a meeting that was called to retaliate on... the people who” had assaulted him. Although he did not know who had attended, “anybody who was close to [him]” would have been at the meeting, and “it was considered a gang thing.” Tovar claimed that he had reacted to news of the meeting by discouraging any retaliation, however, because he was “going to be the first guy [the police were] going to come after” if anything happened. Indeed, he testified that he specifically told Howard that “nothing better ever happen to these guys,” referring to Anthony J., Afoa, and two of the other football players, and that he also specifically told Guzman he did not “want anything happening to any of these people.” Tovar denied knowing that Guzman and Howard had been communicating in the months before the murder about retaliating against Afoa, and he denied playing any role in the attack on Afoa at the Halloween party. Tovar did, however, admit to feeling good at the time of the murder about “getting a little bit of pay back” for the football players’ assault.
B. Gang Evidence.
Officer Andrew Gannam, a former detective with the Union City Police Department, testified as a gang expert. He explained that Norteños are “street gang member[s] from a predominantly Hispanic gang in Northern California
Officer Gannam testified that FMT is a local Norteño gang of approximately 450 members that “claim the city of Fremont as their territory” and are also loyal to Nuestra Familia. FMT does not have a “set hierarchy,” but members “who have committed violent crimes for the gang, have been to prison, [or] are active gang members who are out there... a fair amount doing gang[-]related crimes” are perceived as “higher gang member[s],” or OGs. FMT has “a lot of the same signs and symbols of Norteño gangs throughout Northern California,” including forms of the number 14 (because “N” is the 14th letter of the alphabet) and the color red. Officer Gannam testified that FMT‘s primary activities include assault, robbery, and murder, and the prosecution introduced evidence that FMT members had assault convictions.
Officer Gannam opined, and Tovar conceded, that Tovar was an active member of FMT at the time of Afoa‘s murder. Tovar had a gang moniker, “Payaso“; had several gang-related tattoos, including “East Bay FMT XIV” across his knees and “FMT” on his finger; had been arrested for gang-related crimes; had been seen wearing gang-related clothing; and had associated with other known gang members. In 2008, Tovar was found with a drawing that had Norteño-related symbols on it and said “Death B4 Dishonor,” which Officer Gannam characterized as “a highly gang[-]related phrase” that “Norteño gangs within the East Bay use” to highlight the importance of respect. The officer explained, “To be disrespected or dishonored is a huge thing within the Norteño gang world. Respect is one of the few things that they cherish and that they hold high.... And as the drawing says, they‘d rather die than be dishonored.”
Officer Gannam also opined that Howard was “a Norteño gang member” at the time of Afoa‘s murder. Howard had gang-related tattoos, including “Bay Area Warrior” and a Huelga bird (a common Norteño symbol) on his chest and “East Bay” and “Fremont” on his back. In regard to the latter tattoo, Officer Gannam explained that “Fremont is the city that [Howard‘s] gang claims as [its] territory.” Howard and Tovar had also been stopped together, which Officer Gannam considered evidence of Howard‘s gang association, and had fought “some rival Sureño members” in 2001.
Finally, Officer Gannam opined that Afoa‘s murder was gang related. In response to the prosecutor‘s question based on a hypothetical set of facts, Officer Gannam testified that if an OG was “beaten up by a much younger rival or considered rival,” the OG‘s “level of respect would drop significantly,
“The East Bay Norteño gangs, for the most part, are very closely ali[g]ned.
“Word travels fast amongst them, and... you know, something happens in Newark to a Norteño gang member, the guys from Hayward know about it almost immediately, the guys from Newark, Fremont, Union City, everybody kind of knows. There‘s a lot of family ties amongst the gangs, and a lot of them know each other and function together.
“So for this older guy with a little bit of respect to be attacked and lose in this fight, it‘s a significant slight to his respect and his gang‘s respect as a whole...
“... Other Norteño gangs from the area are going to say what‘s going on with whatever gang this is, because [its] more respect[ed] guys are getting their business handled on the street, and [its] reputation level as a whole is going to kind of fall.”
Thus, Officer Gannam agreed with the prosecutor that if “an OG... is beaten up by a rival, and one day he and another gangster find that individual and assault and kill that person,” the crime would “be for the benefit of the gang.” The officer explained that in particular, by retaliating for an assault by committing murder, the gang member would demonstrate to rivals that “that gang... is serious and not to be messed around with” and to other Norteño gang members that “hey, we can count on these guys, because this is what they do. They don‘t mess around. They get disrespected and the answer is extreme violence.” Officer Gannam also found it significant that a memorial at the site where Afoa died was defaced with “XIV” markings, because it suggested that Afoa “was murdered by Norteños for Norteños.”
C. Verdict and Sentencing.
The jury convicted Tovar of one count of first degree murder and one count of conspiracy to commit murder.7 The jury also found true the allegation that he personally used a deadly or dangerous weapon during the murder and the gang-enhancement allegation accompanying the conspiracy count, but it found not true the gang-enhancement allegation accompanying the murder count.8
A. General Legal Standards.
To determine whether there is sufficient evidence to support a sentencing enhancement, “we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact‘s findings, reversal of the judgment is not warranted simply because the circumstances might also
B. Sufficient Evidence Supports the Gang Enhancement.
Tovar claims the gang enhancement lacked substantial evidence and must be reversed. We are not persuaded.
Tovar apparently concedes that there was sufficient evidence both that he conspired to murder Afoa for the benefit of or in association with “the larger Norteño gang” and that FMT met the definition of a “criminal street gang” under
We agree with the Attorney General that there was ” ‘no need’ to connect FMT to the broader Norteño gang” here because there was sufficient evidence that Tovar conspired to murder Afoa for the benefit of FMT in particular.10 (Quoting Prunty, supra, 62 Cal.4th at p. 80.) After emphasizing the importance of respect in Norteño gang culture, Officer Gannam testified that if an older and more well-respected member of a particular East Bay Norteño subset lost a fight, other local subsets would learn about it and the first subset‘s “reputation level as a whole [would]... fall.” If the older member then killed the person who assaulted him, it would rehabilitate his subset‘s reputation by demonstrating that the subset “is serious and not to be messed around with.” This testimony, along with other evidence in the case supporting the hypothetical‘s facts, constituted substantial evidence that Tovar conspired to commit murder to benefit his subset, FMT, not just Norteños generally.
We also agree with the Attorney General that Tovar‘s self-admitted membership in FMT permitted the inference that Tovar intended to benefit FMT in particular. Prunty observed that the “ample evidence” in that case that the defendant claimed to be a member of a specific subset “was likely sufficient for the jury to infer that [the defendant] intended to benefit that group.” (Prunty, supra, 62 Cal.4th at p. 82, fn. 6.) Tovar dismisses this statement as dicta, as Prunty held that even if there was proof the defendant committed the crime to benefit his subset, the gang enhancement still lacked substantial evidence because the predicate offenses introduced were committed by members of other subsets and there was insufficient evidence to link those subsets to the defendant‘s subset. (See id. at p. 82 & fn. 6.) But “Supreme Court dicta generally should be followed, particularly where the comments reflect the court‘s considered reasoning.” (People v. Rios (2013) 222 Cal.App.4th 542, 563 [165 Cal.Rptr.3d 687].)
Moreover, Tovar is incorrect that Prunty‘s observation “conflate[s] membership with the separate element that the defendant intend[ed] to benefit the gang[,] jeopardiz[ing] the due process requirement that [a] gang enhancement does not criminalize mere gang membership.” The point Prunty made is not that a defendant‘s gang membership alone establishes the defendant committed a crime to benefit the defendant‘s gang. The point is that assuming there is otherwise evidence that the defendant committed a crime to benefit a gang, the defendant‘s membership in a particular subset is substantial evidence that the defendant committed the crime to benefit that subset, as opposed to a larger gang. (See Prunty, supra, 62 Cal.4th at p. 82 & fn. 6.) We conclude that Tovar‘s admitted membership in FMT constitutes further substantial evidence that Tovar conspired to commit murder for the benefit of FMT. Therefore, he fails to demonstrate that the gang enhancement lacked substantial evidence under Prunty.
The judgment is affirmed.
Dondero, J., and Banke, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied July 19, 2017, S241981.