Opinion
F073542
04-24-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW EDUVIJES RAYGOZA, Defendant and Appellant.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF310457B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
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INTRODUCTION
Following an incident in which a group of young men attacked and beat a 56-year-old man into unconsciousness, defendant Andrew Eduvijes Raygoza was arrested and charged with attempted murder (Pen. Code, §§ 664/187, subd. (a))1 (count 1) and assault by means likely to cause great bodily injury (§ 245, subd. (a)(4)) (count 2). Defendant was tried by jury and convicted of both counts. The jury also found true the gang enhancement (§ 186.22, subd. (b)(1)) and enhancement for personal infliction of great bodily injury (§ 12022.7, subd. (a)) attached to both counts, but was unable to reach a verdict on the allegation the attempted murder was willful, deliberate and premeditated (§ 189).
All further statutory references are to the Penal Code.
The trial court sentenced defendant to the middle term of seven years for attempted murder, plus an additional, consecutive term of 10 years for the gang enhancement and an additional, consecutive term of three years for the great bodily injury enhancement, for a total determinate prison term of 20 years. The court also imposed the middle term of three years for assault, plus an additional, consecutive term of 10 years for the gang enhancement and an additional, consecutive term of three years for the great bodily injury enhancement, for a total determinate term of 16 years, stayed pursuant to section 654.
On appeal, defendant challenges his attempted murder conviction on the ground that the element of intent to kill is not supported by substantial evidence. The People dispute defendant's entitlement to relief from his conviction. We reject defendant's challenge and affirm the judgment.
FACTUAL SUMMARY
The victim, Frank V., was renting a room in an upstairs apartment unit from Benny. Benny's daughter, Mina, also lived there. Defendant, an active Norteño gang member, resided in the downstairs unit with his family at one point and then moved across the road to a house. Frank never had any problems with his downstairs neighbors and would greet defendant when he went down to retrieve his daily newspaper.
Defendant's gang moniker is T-rex and some witnesses referred to him by his moniker.
Prior to the crime, a rumor went around that Frank molested or raped someone, which upset Mina and she told others about it. She wanted Frank out of her father's apartment and, after calling the police several times, she said she would handle it herself after she was told Frank had 30 days to leave. Approximately two weeks prior to the attack on Frank, Mina called Frank's niece, Amanda, and asked her about the rumored incident.
On December 5, 2014, at approximately 9:30 p.m., Frank left his apartment to drive his girlfriend home. Amanda and her husband, Anthony, were at the apartment that day and they also prepared to leave. Neighbors in the house across the road were having a party and there were approximately 30 people there. Some of the downstairs neighbors were "homies," or gang members, according to Anthony and Mina, and they were related to the neighbors in the house across the road.
At the carport outside the apartment where his and Amanda's vehicles were parked, Frank, who had been drinking and was a little tipsy, asked Anthony for a shot of liquor. Anthony, an active Norteño at the time, was talking with defendant and another gang member, Kyle. Defendant was "talking shit" in Anthony's ear, calling Frank a child molester and saying they were going to "fuck [Frank] up." Kyle asked Anthony why he was hanging out with a child molester. Anthony told them Frank was not a child molester, but Kyle approached Frank and asked if he was a "chump" or a "chomo," which is slang for a child molester. Frank looked as if he did not know what Kyle was talking about, but before he could respond, Kyle punched him in the face, sending him to the ground. As Frank was in the process of getting up, he was hit again and then a group of 10 to 15 young men swarmed him.
Kyle and his identical twin brother, Derek, were both active Norteño gang members. One of the brothers was present that night, but witnesses disagreed on which brother it was. Which brother was present is irrelevant to this appeal and we shall identify him as Kyle in this opinion, which is consistent with Anthony's testimony that a car he connected with Kyle was there that night.
Amanda screamed and repeatedly told the group to stop, but Anthony held her back out of fear the group would turn on them. Amanda screamed she was going to call 911, but defendant's mother said, "You're not going to do shit, bitch," and Amanda felt threatened. Defendant's sister was also present and threatened Amanda.
Frank almost immediately curled up in a fetal position and was repeatedly punched, kicked and stomped by the group. The beating began in the carport and ended in the middle of the rocky, dirt road where Frank was dragged and kicked. Someone called 911 and when the group dispersed, Frank was breathing but unresponsive. Amanda thought he was dead and Benny testified he looked like he was dead.
Mina testified the beating only lasted 30 seconds to one minute, but Anthony estimated it lasted 15 minutes and stated it "[s]eemed like a long time." Amanda thought the beating lasted three to five minutes. Frank estimated he was punched at least two to three times and kicked at least three to four times, but he also remembered very little between being punched as the beating began and waking up in the hospital, although he recalled opening his eyes at one point and seeing defendant clawing at his face. Anthony testified Frank was hit and kicked more than 100 times, and Amanda said there were too many to count.
Defendant has a physical disability affecting his hands and there was no dispute that he is physically unable to punch anyone.
Frank required brain surgery, and was in the hospital for one and one-half months and then in a skilled nursing facility for another two months. He suffered broken facial bones and had some of his teeth knocked out, his vision in one eye remained blurred at the time of trial a year later, and he could not close one eye. He initially required a wheelchair and, at trial, he testified he is no longer able to ride a bike, or run or walk normally. His speech also remained impaired, and Amanda described his face as crooked after the attack.
Although defendant told police he was asleep in bed during the attack and did not see or hear anything, five witnesses placed him at the scene of the attack. Frank, Amanda and Anthony testified defendant was clawing or scratching at Frank's face or eyes. At trial, Amanda and Anthony testified they did not see defendant hit or kick Frank, but in their statements to police, Amanda said she saw defendant kicking and stomping Frank, and Anthony said defendant was kicking Frank. Amanda testified the events were fresher in her mind when she gave her statement to police and she told the truth at the time. Benny testified he did not know his neighbors and did not recognize any of Frank's attackers, but he told police he saw defendant kick Frank in the face.
At trial, neither Benny nor Mina placed defendant at the scene and Mina denied telling police he was there. However, Detective Adney testified both told police defendant was present during the attack on Frank.
Amanda and Anthony did not initially provide any information to the police, but Amanda subsequently gave a statement and, months later, Anthony gave a statement after deciding to drop out of the gang. The prosecutor elicited testimony regarding how snitches or rats are viewed by gang members and Amanda testified she was afraid of retaliation. After she gave a statement to police, Kyle drove by Anthony's grandmother's house and made a throat-slashing sign to Amanda as she cleaned her van outside. Anthony also testified that Kyle contacted him through Facebook and stated he hoped Amanda was not going to snitch. Anthony also testified that while he was in custody after he dropped out of the gang, deputies almost placed him in a transportation van with Norteño gang members. Defendant was in the van and Anthony heard him laugh and say, "Bring him over, we'll take care of him fucking real good."
DISCUSSION
I. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.)
II. Analysis
A. Elements of Attempted Murder
Murder is an unlawful killing with express or implied malice aforethought. (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220.) Attempted murder, in contrast, requires specific intent to kill, or express malice, "'and the commission of a direct but ineffectual act toward accomplishing the intended killing.'" (People v. Smith (2005) 37 Cal.4th 733, 739; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 653-654.) Express malice is shown when the defendant "'either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.'" (People v. Houston (2012) 54 Cal.4th 1186, 1217; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
B. Substantial Evidence Supports Attempted Murder Conviction
Defendant argues the evidence is insufficient to show he possessed the specific intent to kill Frank and, at most, it supports a finding of implied malice, which is insufficient for attempted murder. Defendant relies in part on People v. Guillen (2014) 227 Cal.App.4th 934 (Guillen) to support this latter argument and notes the People's failure to address the case in their response. We do not find the decision supports defendant's position, however, as we explain.
In Guillen, the five defendants challenged their second degree murder convictions, which arose from the fatal group beating of an alleged child molester. In determining there was substantial evidence of implied malice, the Court of Appeal stated, "We need not repeat that stomping on someone who has been severely beaten and is defenseless demonstrates a conscious disregard of life." (Guillen, supra, 227 Cal.App.4th at p. 990.) Quoting this statement, defendant argues "conscious disregard is synonymous with implied, not express, malice." However, Guillen addressed the sufficiency of the evidence supporting the defendants' second degree murder convictions in the context of implied malice, aiding and abetting, and conspiracy theories. (Id. at p. 982.) The prosecutor did not rely on express malice as a theory and, therefore, the appellate court had no occasion to determine whether the evidence in the case would also support a murder conviction based on express malice. (See People v. Brown (2012) 54 Cal.4th 314, 330 ["cases are not authority for propositions not considered"].)
Turning to the evidence in this case, "it is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] 'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions.'" (People v. Smith, supra, 37 Cal.4th at p. 741.)
Frank, who was 56 years old at the time, was viciously attacked by a group of 10 to 15 young men, who punched, kicked and stomped his upper body, face and head. Frank was not fighting back and was instead curled in a ball trying to protect himself. Amanda testified Frank was coldcocked by the first punch and had no chance. She also testified the beating lasted for minutes and was "brutal [and not] your average fight." Anthony was unsure how long the beating lasted, but he estimated it was 15 minutes and testified Frank was hit and kicked more than 100 times. Although there was conflicting testimony regarding defendant's specific actions, there was evidence that defendant kicked and stomped Frank, in addition to scratching at his face or eyes, and Amanda testified defendant made his way through the crowd to get to Frank.
When the attack was over, Frank was not moving and Amanda thought he was dead. She stated he had a hole in his head and there was a puddle of blood on the rocks. When the police arrived, Frank was still unresponsive.
Evidence of motive is not necessary to prove intent to kill, but it is often probative (People v. Smith, supra, 37 Cal.4th at p. 741) and, here, multiple witnesses testified to a rumor that Frank was a child molester. Immediately prior to the beating, defendant and Kyle were commenting to Anthony that Frank was a child molester, and defendant stated they were going to "fuck [Frank] up." Anthony explained that gang members have zero tolerance for child molesters and have a green light to attack them. He also testified that if one gang member fights, they all fight. The prosecution's gang expert testified to these aspects of gang culture as well.
Given the prolonged nature of the attack and its viciousness, and the attackers' belief Frank was a loathed child molester, we conclude there is substantial evidence supporting the jury's finding that defendant had the specific intent to kill, either as a direct perpetrator or as an aider and abettor. (See People v. Finley (1963) 219 Cal.App.2d 330, 339-341 [vicious beating resulting in victim's death afforded sufficient basis for finding of express malice].) This case did not involve a singular punch or kick, but a brutal group beating. (See People v. Cravens (2012) 53 Cal.4th 500, 508-509 [single sucker punch supported implied malice murder conviction].) Frank was not only greatly outnumbered by a group of much younger men, but he was down on the ground almost immediately and unable to do more than curl in a ball while his assailants repeatedly targeted his head and face with their fists and feet as minutes passed. That Frank was fortunate enough to survive does not "'"necessarily establish a less culpable state of mind."'" (People v. Smith, supra, 37 Cal.4th at p. 741.) The circumstances of the attack and defendant's participation in it support a determination that he either desired Frank's death or knew to a substantial certainty it would occur. (Ibid.) That the evidence might also have permitted the jury to reach a contrary conclusion is of no consequence. (People v. Covarrubias, supra, 1 Cal.5th at p. 890; People v. Houston, supra, 54 Cal.4th at p. 1215.) Accordingly, we reject defendant's claim that his conviction for attempted murder is unsupported by substantial evidence and we affirm.
The prosecutor proceeded on two theories in this case: that defendant was directly involved or that he aided and abetted the crime.
We observe that a minute may appear fleeting or unending, depending on the circumstances. When a person is down on the ground being punched, kicked and stomped in the head by multiple attackers, even a single minute is of significance. --------
DISPOSITION
The judgment is affirmed.