Opinion
G054363
08-08-2018
In re JESUS VALDIVIA CRUZ on Habeas Corpus.
Ron Boyer, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF1009) OPINION Original proceedings; petition for writ of habeas corpus after a judgment of the Superior Court of Orange County, Richard M. King, Judge. Petition denied. Ron Boyer, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Respondent.
* * *
INTRODUCTION
By petition for writ of habeas corpus, Jesus Valdivia Cruz challenges his conviction for second degree murder, attempted murder, and active participation in a criminal street gang under Penal Code section 186.22, subdivision (a) (section 186.22(a)), and the true findings on an enhancement alleged under Penal Code section 186.22, subdivision (b)(1) (section 186.22(b)(1)). (Undesignated code references are to the Penal Code.) Cruz alleges his appellate counsel in a prior appeal, People v. Castaneda and Cruz (Nov. 9, 2015, G048862) (nonpub. opn.) (Cruz I), was ineffective by failing to argue the evidence was insufficient to support the gang allegations under section 186.22(a) and section 186.22(b)(1) and the convictions for second degree murder and attempted murder.
Specifically, Cruz alleges his prior appellate counsel was ineffective for not arguing: (1) the evidence was insufficient to show the primary activities of the gang brought it within the definition of a criminal street gang; (2) the evidence was insufficient to show Cruz knew of the criminal activities of the gang; and (3) without proof supporting the criminal street gang allegations, the evidence was insufficient under the natural and probable consequences theory of culpability presented at trial to support the convictions for second degree murder and attempted murder. In support of his habeas corpus petition, Cruz submitted a declaration from his appellate counsel in Cruz I stating counsel had no strategic reason for not making those arguments.
We conclude Cruz cannot establish prejudice from his appellate counsel's failure to make those arguments. We therefore deny the petition for writ of habeas corpus.
FACTS
In the order to show cause issued in this proceeding, we granted Cruz's request for judicial notice of the appellate record in Cruz I, supra, G048862 and in our prior nonpublished opinion in People v. Castaneda and Cruz (Mar. 9, 2018, G053328) (Cruz II). The following facts are taken from our opinion in Cruz I, supra, G048862:
"I.
"Murder at the Taqueria De Anda Restaurant
"At about 2:00 a.m. on July 25, 2010, a gray Lincoln Town Car and a black Chevrolet Suburban arrived at a Taqueria De Anda restaurant in Santa Ana. Inside the vehicles were friends and family members, including Jose [Miguel Quiroz] and David [Quiroz], who had come from a wedding they had attended earlier that evening and had decided to stop and get a bite to eat. Once everyone had gotten out of the vehicles, [Ivan] Castaneda and Cruz, who had been seen standing in the parking lot, approached them.
"Evidence was presented at trial to show that none of the wedding guests was affiliated with a gang and nobody had a weapon. Evidence was also presented that several of the wedding guests were affiliated with gangs or tagging crews, or had been involved in criminal activity.
"Castaneda and Cruz, who were drunk, made hand signs toward the wedding guests. Cruz told them this was his taqueria and his barrio. He yelled, 'where you from?' and 'Westside Compadres,' the name of a street gang. Someone from among the wedding guests replied, 'we just want to eat tacos. We don't want any problems.' Castaneda shouted he was 'Creeper' and told the wedding guests they could not eat at the Taqueria De Anda restaurant because it was in his gang's claimed territory. Two women and a man walked over from a nearby minimart and started arguing with men from the wedding party. One of the wedding guests announced they did not want any trouble and would leave.
"The wedding guests walked back to the vehicles. Castaneda and Cruz followed them. Castaneda shouted something in the direction of an alley leading to an apartment complex and appeared as though he was trying to contact someone. An unidentified person made a call on a cell phone. About two to three minutes later, two men, one of whom had a gun tucked under his waistband, appeared from the alley and ran toward the Suburban.
"One witness testified that one of the two women who had come from the minimart made the cell phone call. Another witness, Miguel Angel Quiroz, testified that '[t]he third guy' made the phone call.
"Some of the guests managed to get inside the Suburban. Castaneda opened a door of the Suburban and began to punch David [Quiroz] as he sat inside. David [Quiroz] struck back and knocked Castaneda to the ground. The Suburban quickly emptied of its occupants, and some of them joined in the fray. Miguel Angel Quiroz and Alejandro Martinez kicked Castaneda when he tried to get up from the ground.
"As he was getting out of the Suburban, Miguel Angel Quiroz saw the two men who were running toward the Suburban from the alley. The man carrying the gun ran up behind Castaneda and from there shot David [Quiroz] in the stomach. The gunman then fired five shots toward Jose [Miguel Quiroz], Alejandro Martinez, and two others, who were standing together about seven feet away. Jose [Miguel Quiroz] fell to the ground, mortally wounded. The assailants, except for Castaneda, fled. Castaneda, his face bloodied, was left behind lying on the ground.
"Santa Ana Police Officer Armando Chacon heard the gunshots and within minutes arrived at the parking lot of the Taqueria De Anda restaurant. He found Jose [Miguel Quiroz] lifeless. While Chacon was checking Jose [Miguel Quiroz]'s vital signs, David [Quiroz] approached, identified himself as the victim's cousin, and displayed a wound to his abdomen. Chacon requested additional police assistance and notified police dispatch that Jose [Miguel Quiroz] was dead.
"Santa Ana Police Officer Maybelline Solideo followed Chacon in her patrol car to the Taqueria De Anda restaurant's parking lot. On arriving at the scene, she saw Jose [Miguel Quiroz] lying next to a black Chevrolet Suburban and David [Quiroz] standing next to the Suburban with his shirt lifted to reveal the wound to his abdomen.
"Solideo also saw Castaneda lying on the sidewalk just to the west of the Suburban. She got out of the patrol car and walked toward him. As she approached Castaneda, he slowly sat up, and she noticed he was bleeding profusely from his face. Solideo told Castaneda to stay seated; he disobeyed her, stood up, and fell into the street. Solideo stepped into the street to block oncoming traffic. Castaneda stood up again and walked slowly through the parking lot, disobeying Solideo's command to stop. Solideo followed him. She became concerned when he reached for his front waistband because she thought he might have a weapon. Castaneda started running through the parking lot and turned into an alley. Solideo caught up with him, grabbed his waistband, and brought him to the ground. He grabbed at her legs. As Solideo pulled her Taser out of its holster, Castaneda stood and assumed a fighting stance with hands curled into fists. When Castaneda lunged at Solideo, she 'Tased' him. Castaneda fell, then got back up and ran. Solideo 'Tased' him again. He continued to run. Several other police officers joined the pursuit and eventually apprehended Castaneda.
"Another suspect, Marcos Barona, was also taken into custody a short distance from the crime scene. Cruz, who had escaped apprehension, appeared at a police station on July 26, 2010 to talk about the case. Cruz gave a brief statement to police after being read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
"II.
"Barona's Police Interview
"Santa Ana Police Detective Clinton Achziger interviewed Barona starting at about 6:00 a.m. on July 25, 2010. During the interview, Barona said he, Castaneda, and Cruz went to a minimart to buy beer. From the minimart, Barona and Castaneda walked to the Taqueria De Anda restaurant to use the restrooms, which, as it turned out, were not working. When Barona and Castaneda walked back outside, they saw Cruz doing a 'hit-up' of a group of people standing next to a black SUV. Castaneda ran over to help Cruz. Barona heard either Castaneda or Cruz shout the gang name, Los Compadres, and someone shout back, 'Brown' (possibly referring to a tagging crew).
"Barona, who was charged with first degree murder, testified for the prosecution under a grant of immunity. Barona denied any relationship with a gang despite having a gang tattoo on his neck. He claimed not to remember the events of July 25, 2010 or the police interview and testified he did not even know of a Taqueria De Anda restaurant. His answer to most questions posed to him was 'I don't know' or 'I don't remember.' The trial court found Barona was intentionally evasive and permitted the prosecution to impeach him with Achziger's testimony about Barona's prior inconsistent statements made during the police interview. (See Evid. Code, § 1235.)
"A hit-up occurs when a gang member asks someone, 'where you from,' meaning to identify his or her gang. It is considered a challenge.
"After the hit-up, Barona ran over to Castaneda and Cruz to act as backup, but did not join in the verbal confrontation. Instead, Barona claimed he tried to 'mediate' by telling the wedding guests 'it's cool' and they could eat tacos. Castaneda started a fistfight and Cruz joined in. Just three or four seconds later, Barona heard gunshots. Barona did not know who the shooter was or where he came from.
"Barona admitted being a Los Compadres gang member. He had joined the gang 20 years earlier. His gang moniker was 'Silent.' He said that Castaneda and Cruz were Los Compadres gang members too.
"III.
"Expert Testimony on Criminal Street Gangs
"Achziger testified as an expert on criminal street gangs. His qualifications as a gang expert are not disputed.
"Achziger's opinions, as relevant to this appeal, included the following:
"1. Los Compadres is a criminal street gang in Santa Ana. It is sometimes called 'Los Comps,' 'Westside Santa Ana Los Comps,' or 'W.S.L.C.'
"2. Cruz, Castaneda, and Barona were active members of the Los Compadres gang as of July 25, 2010.
"3. The Taqueria De Anda restaurant at which the shootings occurred is within the claimed territory of the Los Compadres gang.
"4. Gang members share firearms with other gang members. A gang often will have a 'gang gun' that is kept by one gang member. Other gang members can retrieve the gang gun when needed. Gang members let each other know where the gang gun is being kept.
"5. A hit-up occurs when a gang member asks someone, 'where you from,' meaning to identify his or her gang. It is considered a challenge. Achziger explained that in a hit-up, '[y]ou're challenging that person to see if they're going to represent their gang.'
"6. A person who is the subject of a hit-up, even if not a gang member, could be robbed, beaten, stabbed, or forced out of the area.
"7. Hit-ups often result in a shooting. Most of the murder cases Achziger investigated started with a hit-up.
"8. Gang members are more likely to conduct a hit-up within their gang's claimed territory. Sometimes hit-ups are planned, and sometimes they are 'crimes of opportunity.'
"9. Gang members act as 'backup' for fellow gang members. Achziger explained: '[I]f gang member A picks a fight and starts to lose, his backup is going to jump in and now also participate in the fight.'"
PROCEDURAL BACKGROUND
A jury convicted Cruz and his codefendant, Castaneda, of the first degree murder of Jose Miguel Quiroz (count 1) and the attempted murder of David Quiroz (count 2). The jury also convicted Cruz and Castaneda each of one count of street terrorism under section 186.22(a) (count 3). As to counts 1 and 2, and as against both Cruz and Castaneda, the jury found true the enhancements alleged under section 186.22(b)(1) and the enhancements alleged under section 12022.53, subdivisions (d) and (e)(1).
Cruz and Castaneda received the same sentence: 82 years to life in prison. The sentence was comprised of a 7-year term for attempted murder, a consecutive indeterminate term of 25 years to life for first degree murder, and consecutive indeterminate terms of 25 years to life on each of the enhancements alleged under section 12022.53, subdivisions (d) and (e)(1). The trial court stayed execution of sentence on count 3 pursuant to section 654.
In Cruz I, supra, G048862 we reversed the convictions for first degree murder based on People v. Chiu (2014) 59 Cal.4th 155. We concluded the evidence was sufficient to hold Cruz and Castaneda guilty of second degree murder and gave the People the option on remand of accepting a reduction of the convictions to second degree murder or of electing to retry the greater offenses. (Id. at p. 168.) Following remand, the People elected to accept a reduction in the degree of offense, and the convictions on count 1 were reduced to second degree murder. The trial court sentenced Cruz and Castaneda each to a 15-year-to-life term for second degree murder and left the remainder of their prior sentences unchanged, including the two consecutive 25-years-to-life sentences on the enhancements alleged and found true.
Cruz and Castaneda appealed after resentencing, and Cruz also filed this petition for writ of habeas corpus. We issued an order denying Cruz's motion to consolidate the petition for writ of habeas corpus with the appeal and, in that order, stated the petition would be considered with the appeal. In the appeal, Cruz argued the evidence at trial was insufficient to show that the primary activities of the gang brought it within the definition of a criminal street gang and that he knew of the criminal activities of Los Compadres, and therefore, the evidence was insufficient under the theory of culpability presented at trial to support the convictions for second degree murder and attempted murder. Cruz also argued, as he does in his petition for writ of habeas corpus, his prior appellate counsel was ineffective for not presenting those arguments in Cruz I.
In Cruz II, supra, G053328, we remanded this matter with directions to the trial court to exercise its discretion under recently amended section 12022.53, subdivision (h), but in all other respects affirmed. We concluded Cruz's arguments regarding the sufficiency of the evidence and ineffective assistance of counsel could not be presented on appeal due to the limited scope of remand.
In Cruz II, we stated: "In [Cruz I], supra, G048862, we remanded the matter solely for the purpose of giving the People the opportunity to exercise the option of accepting a reduction of the convictions or retrying the greater offense. We affirmed in all other respects and concluded the evidence was sufficient to hold Castaneda and Cruz liable for second degree murder and attempted murder. The issues in this appeal are limited by that limited reversal and remand, and 'only errors relating to the [proceedings after remand] may be considered in this subsequent appeal.' [Citation.] Because the People elected to accept a reduction in degree of murder, the only issues we may consider in this appeal are the validity of that election, any errors in resentencing, including the constitutionality of the sentences given, and the effect of any intervening changes in the law. [¶] Thus, issues regarding the sufficiency of the evidence, and whether appellate counsel was ineffective in the prior appeal, may not be considered in this appeal. The proper way to raise a claim of ineffective assistance of appellate counsel is by petition for writ of habeas corpus, not by appeal. [Citations.] In his petition for writ of habeas corpus, Cruz has raised issues of ineffective assistance of prior appellate counsel." (Cruz II, supra, G053328.)
We thereupon vacated the prior order, issued an order to show cause, and set a briefing schedule. The Attorney General filed a return to the petition for writ of habeas corpus, and Cruz filed a traverse.
DISCUSSION
I.
Legal Principles
To prevail on a claim of ineffective assistance of counsel, a defendant must prove both (1) his attorney's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his attorney's deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, at p. 694.) A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Ibid.) Strickland's prejudice standard applies when counsel's alleged error is the failure to preserve the defendant's federal constitutional rights. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008-1009.) "Similar concepts have been used to measure the performance of appellate counsel." (In re Harris (1993) 5 Cal.4th 813, 833.)
We usually would accord "'"great deference"'" to counsel's tactical decisions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) However, Cruz's appellate counsel from Cruz I submitted a declaration in support of the habeas corpus petition stating he "had no strategic reason" for not arguing insufficiency of the evidence to support the gang allegations, and for not arguing that without proof of the street gang allegations the evidence was insufficient under the natural and probable consequences theory to support the convictions for second degree murder and attempted murder.
II.
Failure to Argue the Sufficiency of the Evidence to Show
the Gang's Primary Activities
Cruz alleges his appellate counsel in Cruz I was ineffective because he failed to argue the evidence at trial was insufficient to show the primary activities of the Los Compadres gang brought it within the definition of a criminal street gang. His appellate counsel from Cruz I declares he had no rational tactical reason for not making that argument.
We do not address whether trial counsel's representation of Cruz was deficient because we conclude he cannot show prejudice. "[A] 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. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697; accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)
In Cruz II, we concluded, notwithstanding the limited scope of remand in Cruz I, we could consider issues regarding the effect of interviewing changes in law. (Cruz II, supra, G053328.) One such change in law was People v. Sanchez (2016) 63 Cal.4th 665, which was issued after Cruz filed his notice of appeal in Cruz II. Based on Sanchez, Cruz had argued the prosecution expert witness related as true case-specific facts made in hearsay statements and related testimonial hearsay in violation of the confrontation clause and Crawford v. Washington (2004) 541 U.S. 36.
In addressing Cruz's argument based on Sanchez, we concluded the prosecution expert related as true general background information about the gang, which is permissible under Sanchez. We also concluded any violation of the confrontation clause was harmless beyond a reasonable doubt because "[t]he sum total of the evidence," without the evidence challenged under Sanchez, "was sufficient to support a finding that Los Compadres had as one of its primary activities the commission of one or more of the criminal acts listed in Penal Code section 186.22, subdivision (e)." That conclusion forecloses Cruz's claim of prejudice from appellate counsel's failure to argue sufficiency of the evidence to support a finding the primary activities of the gang brought it within the definition of a criminal street gang.
III.
Failure to Argue Sufficiency of the Evidence to Show
Cruz Knew of the Gang's Pattern of Criminal Activity.
A. Substantive Offense: Section 186.22(a)
Cruz alleges his appellate counsel in Cruz I was ineffective by not arguing the evidence was insufficient to show Cruz knew of the criminal activities of the Los Compadres gang. An element of the offense of criminal street gang activity is the person actively participates in criminal street gang activity "with knowledge that its members engage in, or have engaged in, a pattern or criminal gang activity." (§ 186.22(a).) "[T]he Legislature expressly required in section 186.22(a) that a defendant not only 'actively participates' in a criminal street gang . . . but also that the defendant does so with 'knowledge that [the gang's] members engaging in or have engaged in a pattern of criminal activity.'" (People v. Castaneda (2000) 23 Cal.4th 743, 749.)
Cruz points out, and the Attorney General does not dispute, there was no evidence Cruz had previously been prosecuted for an offense or enhancement under section 186.22, no evidence he had been present when any Los Compadres member committed a crime, no evidence he had ever attended court proceedings in which a Los Compadres member was facing prosecution, and no evidence he had ever been told a Los Compadres member had committed a criminal offense. The Attorney General agrees that Cruz, unlike his codefendant Castaneda, never has been served with a STEP notice.
Police officers issue "STEP notices" to persons known to associate with gang members as part of a law enforcement effort to control gang activity. The acronym refers to the California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.). (People v. Sanchez, supra, 63 Cal.4th at p. 672, fn. 3.) --------
However, section 186.22(a) does not require a defendant's subjective knowledge of particular crimes committed by particular gang members. (People v. Carr (2010) 190 Cal.App.4th 475, 488, fn. 13.) In Carr, a great deal of evidence was presented of the gang's criminal activities and the defendant's gang affiliation, but the defendant argued the evidence was insufficient to support the substantive offense under section 186.22(a) because the prosecution had failed to prove he knew of the gang's illegal activities. (People v. Carr, supra, at pp. 478, 488-489.) The Court of Appeal, recognizing knowledge may be inferred from circumstantial evidence, observed, "just as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities." (Id. at p. 489, fn. omitted.) The Court of Appeal reviewed the evidence of the defendant's gang affiliation, the qualifying felony convictions, and expert testimony, and concluded the evidence was sufficient for the jury to infer the defendant knew about the gang's criminal activities. (Id. at pp. 489-490.)
The same can be said of the evidence presented in this case. The evidence established Los Compadres was a criminal street gang and its members had the qualifying felony convictions. Cruz was an active member of that gang. He had several gang tattoos, including one acquired between 2008 and 2010, and had frequent contacts with law enforcement in the 1990's. Barona confirmed that Cruz was a Los Compadres gang member.
Achziger explained a hit-up occurs when a gang member asks someone, "where you from," meaning to identify his or her gang; a hit-up is considered a challenge; and in a hit-up, "[y]ou're challenging that person to see if they're going to represent their gang." He testified a person who is the subject of a hit-up, even if not a gang member, could be robbed, beaten, stabbed, or forced out of the area, and hit-ups often result in a shooting. Most of the gang-related murder cases Achziger had investigated started with hit-up. He testified gang members act as "backup" for fellow gang members. Achziger explained: "[I]f gang member A picks a fight and starts to lose, his backup is going to jump in and now also participate in the fight." Achziger testified that gang members share firearms with other gang members, gangs often will have a "gang gun" kept by one gang member, and other gang members can retrieve the gang gun when needed.
Barona stated in his police interview that he, Cruz, and Castaneda—all three Los Compadres gang members—had gone together to a minimart to buy beer and from there walked to the Taqueria de Anda restaurant. Castaneda had been served with nine different STEP notices. The victims and the other wedding guests were in the parking lot of a Taqueria De Anda restaurant within the territory claimed by the Los Compadres gang.
Cruz and Castaneda, both Los Compadres gang members, approached the group in the Taqueria de Anda parking lot and conducted a hit-up. Cruz told the wedding guests this was his taqueria and his barrio. Cruz asked, "[w]here you from?" (the classic hit-up line) and yelled, "Westside Compadres." It is significant that Cruz initiated the hit-up because that fact confirms Cruz was an active member of Los Compadres and knew of the gang traits, characteristics, and practices to which Achziger testified.
The hit-up predictably escalated into a confrontation. According to Barona, Cruz joined in the fistfight Castaneda had started. Backup was called, and the situation escalated to murder. Cruz fled the scene.
This evidence was more than sufficient for the jury to infer Cruz knew of the criminal activities of the Los Compadres gang. We therefore reject Cruz's allegation that his counsel in Cruz I was ineffective for not challenging the sufficiency of the evidence to support the knowledge element of section 186.22(a). Had counsel made that argument, we would have rejected it and affirmed the conviction on count 3. B. Enhancement: Section 186.22(b)(1)
Knowledge of the gang's criminal activity is not statutorily required to impose punishment for the enhancement under section 186.22(b)(1). It reads, in relevant part: "[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows."
Cruz asserts the due process clause of the United States Constitution imposes a similar knowledge requirement "for any other gang allegations," including enhancements alleged under section 186.22(b)(1). In Scales v. United States (1961) 367 U.S. 203, 228, the United States Supreme Court held mere membership in an organization engaged in illegal conduct is not sufficient to establish the required nexus between the defendant's membership status and criminal activity. For a conviction to satisfy due process, the defendant must have actively participated in the organization, had knowledge of its criminal activities, and acted with the specific intent to further those goals. (Id. at pp. 226-227.) The Legislature, in enacting section 186.22(a), avoided punishing mere gang membership by requiring active gang membership and knowledge the gang's members engage in, or have engaged in, a pattern or criminal gang activity. (People v. Castaneda, supra, 23 Cal.4th at pp. 745, 749.)
The enhancement under section 186.22(b)(1), unlike the substantive offense under section 186.22(a), is not based on membership status in an association. Membership or active participation in a criminal gang is not required under section 186.22(b)(1), which instead imposes punishment for committing a felony for the benefit of, at the direction of, or in association with a criminal gang, and with the specific intent to promote, further, or assist criminal conduct by gang members. Because section 186.22(b)(1) imposes punishment for conduct, and not membership status, due process does not impose an additional requirement that the defendant knew of the gang's pattern of criminal activity. (See People v Loeun (1997) 17 Cal.4th 1, 11.)
IV.
Failure to Argue Insufficiency of the Evidence
to Support Convictions for Second Degree Murder
and Attempted Murder
Cruz alleges his counsel in Cruz I was ineffective for failing to argue that, without proof of the criminal street gang allegations, the evidence was insufficient under the natural and probable consequences theory to support the convictions for second degree murder and attempted murder. Because, as we have concluded, the evidence was sufficient to support the criminal street gang allegations and the conviction under section 186.22(a), we confirm our conclusion from Cruz I that the evidence was sufficient to support the murder and attempted murder convictions.
Cruz and Castaneda were prosecuted and convicted as aiders and abettors under a natural and probable consequences theory. "An aider and abettor is one who acts 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.'" (Chiu, supra, 59 Cal.4th at p. 161.) "'A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]' [Citation]. Liability under the natural and probable consequences doctrine 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.'" (People v. Medina (2009) 46 Cal.4th 913, 920.)
In Cruz I, we explained: "The evidence here presented the quintessential case of a gang hit-up escalating into a murder and attempted murder. Indeed, this case has striking similarities to Medina. The victims, Jose [Miguel Quiroz] and David [Quiroz], and the other wedding guests were in the parking lot of a Taqueria De Anda restaurant within the territory claimed by the Los Compadres gang. Cruz and Castaneda, both Los Compadres gang members, approached the group and conducted a hit-up. Cruz asked, '[w]here you from?' (the classic hit-up line) and yelled, 'Westside Compadres,' while Castaneda announced he was 'Creeper' and told the wedding guests they could not eat there.
"The hit-up escalated into a verbal confrontation. Castaneda shouted something in the direction of the alley and appeared as though he were trying to contact someone: A reasonable inference (supported by expert testimony) is Castaneda was calling for armed backup. Someone else made a cell phone call. The verbal confrontation escalated to a fight. Castaneda attacked David [Quiroz], who . . . fought back, held his own, and even knocked Castaneda to the ground. Jose Angel Quiroz and [Alejandro] Martinez joined in the fight.
"Within moments, two men—the backup called by Castaneda—appeared and ran toward the Suburban. One of the two backup men carried a gun: A reasonable inference, which we presume the jury drew, is that the gun was the gang gun. The fistfight escalated into gunfire. The gunman shot David [Quiroz], then turned his aim and fired five times in the direction of Jose [Miguel Quiroz], who was shot dead. All the assailants fled, except for Castaneda, who was injured." (Cruz I, supra, G048862.)
We concluded: "There is no question that Castaneda and Cruz aided and abetted the target offenses of assault, battery, and breach of the peace. The nontarget offenses of murder and attempted murder were a natural and probable consequence of those target offenses. 'In examining the whole record in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the shooting of the victim[s] was a reasonably foreseeable consequence of the gang assault in this case.'" (Cruz I, supra, G048862.)
DISPOSITION
The petition for writ of habeas corpus is denied and the order to show cause is discharged.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.