Filed 9/16/15 P. v. Pintor and Valtierra CA4/3



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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049653

         v.                                                            (Super. Ct. No. 10NF1124)

RAFAEL PINTOR AND RAFAEL                                               OPINION
MARTINEZ VALTIERRA,

     Defendants and Appellants.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed as modified.
                   Christopher Nalls, under appointment by the Court of Appeal, for
Defendant and Appellant Rafael Pintor.
                   Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant Rafael Martinez Valtierra.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
               A jury convicted Rafael Pintor and Rafael Martinez Valtierra (collectively
defendants) of the attempted murders of Danny L. and Christian B. (Pen. Code, §§ 664,
187, subd. (a); counts 2, 3; all further statutory references are to the Penal Code) and
street terrorism (§ 186.22, subd. (b); count 4), and found true an allegation the attempted
murders were willful, deliberate, and premeditated (§ 189).
               The jury also found Valtierra committed the attempted murders for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)), personally inflicted great bodily
injury (§ 12022.7, subd. (a)), intentionally and personally discharged a firearm causing
great bodily injury or death (§ 12022.53, subd. (d)), and personally discharged a firearm
(§ 12022.5, subd. (a)). The court sentenced Valtierra to a term of 40 years to life.
               The jury also found Pintor committed the attempted murders for the benefit
of a criminal street gang (§ 182.22, subd. (b)(1)) and vicariously discharged a firearm
causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). Pintor admitted having a
prior “strike” (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)) and a prior serious
felony conviction (§ 667, subd. (a)(1)). The court sentenced Pintor to a term of 39 years
to life, plus five years.
               Defendants argue substantial evidence triggered the court’s sua sponte duty
to instruct on the lesser included offense of attempted voluntary manslaughter under a
theory of provocation and heat of passion. We conclude the error, if any, is harmless
because the jury resolved adversely to defendants the factual question posed by the
omitted instruction.
               Pintor challenges the sufficiency of the evidence to prove he shared
Valtierra’s intent to kill, as required to sustain a conviction for attempted premeditated
murder under principles of aider and abettor liability. We conclude the record contains
substantial circumstantial evidence Pintor assisted, supported, and encouraged Valtierra
with knowledge Valtierra intended to kill the victims.



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              Finally, Valtierra asserts he is entitled to one additional day of presentence
custody credit, and the Attorney General concedes the point. We agree and modify the
judgment accordingly. With this modification, the judgment is affirmed.
                                          FACTS
1. Prosecution Case
              a. Gang Background
              In 2010, defendants were members of East Side Buena Park (ESBP), a
criminal street gang. EBSP claims the neighborhood around Franklin Avenue and
Kingman Street in Buena Park as its turf or territory.
              The victims, Danny and Christian, were members of Fullerton Tokers
Town (FTT), another criminal street gang and one of ESBP’s gang rivals. FTT claimed
the area around the 400 block of West Valencia Drive in Fullerton as its territory.
              b. The Crime
              In Apri1 2010, residents of West Valencia Drive saw Pintor drive his
parents’ truck up and down their street before coming to a stop in front of a house in the
400 block (referred to hereafter as the house). Witnesses said there were two males
inside the truck. They identified Valtierra as Pintor’s passenger. One of the two yelled,
“East Side Buena Park,” which led to a fist fight with the male occupants of the house.
              Four days later, Pintor and Valtierra returned to West Valencia Drive and
they brought two guns with them. According to a video recovered from a liquor store
next to the house and witness statements, Pintor’s truck is first seen driving on the
opposite side of West Valencia Drive, but he makes a U-turn to head back toward the
house. At the time, Danny, Christian, and three or four other unidentified male juveniles
were standing outside the house. Danny was riding a scooter on the sidewalk.
              As the truck passed by the house, someone on the street yelled, “Buena
Park.” Valtierra responded, “Fuck East Side Fullerton.” Danny, Christian and the other
young men charged the truck. Christian threw his scooter, and it hit the rear window.

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              The truck stopped abruptly. Danny, Christian, and the other members of
their group turned and scattered while defendants jumped out of the truck, guns in hand.
Pintor ran around the front of the truck and stood by Valtierra as Valtierra pointed his gun
at two of the fleeing victims and then ran after them. Pintor stood by the truck with his
gun at his side briefly before he got back into the truck. Pintor drove away after Valtierra
returned to the truck.
              Bleeding and dazed, Danny and Christian went to neighbors for help.
Paramedics transported them to the hospital. Christian had a blowout fracture to his
finger, which required irrigation, suturing, and antibiotics. Danny had rib and scapula
fractures, bruised lungs, and a gunshot wound to the chest. He spent the night in the
hospital and has bullet fragments permanently lodged in his chest.
              c. Investigation
              Within minutes of the shooting, Buena Park Police Officer Ronald
Catanzariti received a radio dispatch with a description of Pintor’s truck. About 30
minutes later, Catanzariti saw Pintor’s truck parked along the curb on Franklin Street at
Kingman Avenue in Buena Park, which is about four miles from the scene of the
shooting and in ESBP’s claimed turf.
              Catanzariti initially saw defendants standing by the truck, but when
Catanzariti made eye contact with them, defendants got into the truck and drove away.
Catanzariti followed them without activating his lights or sirens. When the truck
stopped, Pintor and Valtierra fled. Catanzariti and another officer quickly found and
arrested Valtierra. Pintor was arrested the following day.
              A search of Pintor’s truck yielded a small caliber bullet on the passenger
side floorboard. Crime scene investigators found a live round, three expended shell
casings, and a bullet fragment at the shooting scene. A firearms expert determined two of
the casings were fired from either a .22-caliber handgun or rifle. The other casing was
from a .22-caliber rifle.

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              d. Gang Evidence
              Buena Park Police Detective James Woo testified as the prosecution’s gang
expert. He explained gang culture, defined frequently used terms, and discussed the
behavioral patterns and expectations of gang members. Woo said “putting in work for
the gang” means committing crimes for the gang, and committing crimes enhances the
reputation of the gang member and the gang. When committing crimes, gang members
are expected to provide backup to one another.
              Woo also explained that notions of respect in gang culture drive many of
the violent crimes committed by gang members. Acts of disrespect can be as simple as a
hard stare, or “mad dogging,” but a violent response is likely. Yelling the gang’s name
during crimes helps to establish the gang’s identity and respect. Committing violent
crimes enhances respect, as does using firearms. Woo said gang members communicate
when one of them is armed, and that a gang member who participated in a shooting on a
rival gangs’ turf would gain respect.
2. Defense
              a. Pintor’s Testimony
              Pintor testified he joined ESBP when he was 15 years old, and he has been
shot at and attacked many times since then. He acknowledged the brutality of the gang
lifestyle, explaining “[i]t’s vice versa. You’re a gang member . . . they attack you, you
attack them.” He also admitted gang members carry weapons, saying, “there are some of
us that carry guns, carry knives, bats, [and] crowbars.” Pintor also confessed that he and
Valtierra put a .22-caliber rifle in the truck, “just in case somebody runs up on us, or if
something happens, you know, so we can defend ourselves.”
              According to Pintor, he and Valtierra worked on the day of the shooting.
After work, they drove to a liquor store in Buena Park, bought two 40-ounce cans of malt
liquor, and drove to a park to drink it. After drinking their beer, defendants left the park,
drove to a grocery store, and stole more beer before returning to the park to drink it. At

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this point, defendants decided to drive around, and eventually they ended up on West
Valencia Drive in Buena Park.
              Pintor testified the scooter hitting his truck sounded “like the first time I got
shot at” “I just hear like pa, you know? And then – and then whatever happened
happened.” He said he stopped the truck, “[a]nd then yeah, Valtierra got out of the car,
and what happened, happened, you know.”
              b. Defense Argument
              Defendants claimed the scooter hitting the back of the truck caused them to
either reasonably or unreasonably believe their lives were in danger. As Valtierra’s
attorney explained, “Self-defense. Okay. Again, major concept in this case. Both actual
self-defense and imperfect self-defense. They’re both real important in this case.”
Defendants asserted Christian instigated the confrontation, and they responded to a
perceived threat. Defendant’s also argued their gang-generated hyper-vigilance, and
intoxication, altered their perception, making them act out of fear, and not from any
deliberately conceived plan to kill.
                                       DISCUSSION
1. Instructional Error
              a. Standard of Review Claimed Instructional Error
              Defendants challenge the adequacy of the court’s instructions on attempted
murder. The trial court must instruct the jury, with or without a request, on the general
principles of law “closely and openly connected with the facts xtucker@example.com.”
(People v. Wickersham (1982) 32 Cal. 3d 307, 323, disapproved on other grounds in
People v. Barton, supra, 12 xtucker@example.com. 200-201.) The court’s obligation extends to
lesser-included offenses if the evidence “‘raises a question as to whether all of the
elements of the charged offense are present and there is evidence that would justify a
conviction of such a lesser offense.’” (People v. Lopez (1998) 19 Cal. 4th 282, 287;
People v. Barton (1995) 12 Cal. 4th 186, 195, fn. 4.)

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              However, an “[e]rror in failing to instruct the jury on a lesser included
offense is harmless when the jury necessarily decides the factual questions posed by the
omitted instructions adversely to defendant under other properly given instructions.”
(People v. Lewis (2001) 25 Cal. 4th 610, 646.) Further, under People v. Watson (1956) 46
Cal. 2d 824, 836, there must be “a reasonable probability, not a mere theoretical
possibility, that the instructional error affected the outcome of the trial.” (People v.
Blakeley (2000) 23 Cal. 4th 82, 94, 96, italics omitted.)
              b. Defendants’ Argument
              The court instructed the jury on attempted murder (CALCRIM No. 600),
deliberation and premeditation (CALCRIM No. 601), justifiable homicide/self-defense
(CALCRIM No. 505), attempted voluntary manslaughter based on imperfect self-defense
or defense of another (CALCRIM No. 604), and voluntary intoxication as it affects
deliberation and premeditation (CALCRIM No. 625).
              Defendants did not request instructions on attempted voluntary
manslaughter based on provocation and heat of passion.1 They assert evidence Christian
threw his scooter and hit the back of Pintor’s truck triggered the court’s duty to instruct
on attempted voluntary manslaughter under a theory of provocation and heat of passion
without a request. The Attorney General argues the evidence did not necessitate giving
such an instruction, but assuming otherwise, any error was harmless. We agree, but find
the final point determinative.

       1  CALCRIM No. 603 states, in pertinent part, “attempted murder is reduced to
attempted voluntary manslaughter if the defendant attempted to kill someone because of a
sudden quarrel or in the heat of passion. [¶] The defendant attempted to kill someone
because of a sudden quarrel or in the heat of passion if: [¶] . . . [¶] 1. The defendant took
at least one direct but ineffective step toward killing a person; [¶] 2. The defendant
intended to kill that person; [¶] 3. The defendant attempted the killing because (he/she)
was provoked; [¶] 4. The provocation would have caused a person of average disposition
to act rashly and without due deliberation, that is, from passion rather than from
judgment; [¶] AND [¶] 5. The attempted killing was a rash act done under the influence
of intense emotion that obscured the defendant’s reasoning or judgment.”

                                              7
                 True, the evidentiary basis for the heat of passion instruction is weak.
Defendants were long-time gang members and they repeatedly made incursions into a
rival gang’s turf. They issued verbal taunts the first time. However, they brought guns
the second time. Woo explained the role of firearms in gang culture, and he testified that
long-time gang members, like defendants, would know taunts and turf violations lead to
violence. Thus, when the victims responded to defendants’ second round of gang
challenges in a manner consistent with their mutual lifestyle, and defendants escalated
that violence from verbal taunts, fisticuffs, and thrown scooters, to shootings, the notion
they were simply reacting rashly and without due deliberation seems farfetched.
                 Defendants claim they reacted rashly to the loud noise caused by
Christian’s scooter, and that only instructions on attempted voluntary manslaughter under
provocation and heat of passion afforded them the possibility of a conviction on
attempted voluntary manslaughter. We disagree.
                 The court gave CALRIM No. 601, an instruction on premeditation and
deliberation that states, “The amount of time required for deliberation and premeditation
may vary from person to person and according to the circumstances. A decision to kill
made rashly, impulsively, or without careful consideration of the choice and its
consequences is not deliberated and premeditated.” Defendants do not challenge the
adequacy or propriety of this instruction, and it forced the jury to determine the factual
issue defendants now claim the court’s failure to instruct precluded.
                 The jury, with the option to find defendants acted rashly and without
reflection, nevertheless found defendants intentionally, and after reflection, tried to kill
the victims. And premeditation and deliberation is the antithesis mental state to voluntary
manslaughter under provocation and heat of passion. (People v. Pearson (2013) 56
Cal. 4th 393, 440; People v. Wharton (1991) 53 Cal. 3d 522, 572 [The mental state for
intentional attempted murder “is manifestly inconsistent with having acted under the heat
of passion”].)

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              In short, the theory of provocation and heat of passion requires evidence the
defendant acted through “strong passion aroused by a ‘provocation’ sufficient to cause an
“‘ordinary [person] . . . to act without due deliberation and reflection.”’” (People v.
Breverman, supra, 19 Cal.4th at p. 163.) But defendants’ jury resolved that factual
question adversely to their position by finding premeditation and deliberation under other
properly given instructions. Thus, the error, if any, was harmless. (People v. Elliot
(2005) 37 Cal. 4th 453, 475; People v. Lewis, supra, 25 Cal.4th at p. 646.)
2. Sufficiency of the Evidence
              Pintor also challenges the sufficiency of the evidence to prove he aided and
abetted Valtierra. When addressing such claims, the reviewing court evaluates the whole
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—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. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Story (2009) 45
Cal. 4th 1282, 1296; People v. Johnson (1980) 26 Cal. 3d 557, 578.)
              The substantial evidence standard also applies when the prosecution relies
primarily on circumstantial evidence. (People v. Zamudio (2008) 43 Cal. 4th 327, 357-
358.) On review, we accept any logical inferences the jury could have drawn from the
circumstantial evidence because the jury, not the reviewing court, must be convinced of
the defendant’s guilt beyond a reasonable doubt. (Ibid.)
              Aider and abettor liability is premised on the aider and abettor’s mental
state and the acts of the principals. (People v. McCoy (2001) 25 Cal. 4th 1111, 1120.)
When the intended crime is murder or attempted murder, the aider and abettor must know
and share the murderous intent of the actual perpetrator. (Id. at p. 1118.)
              Pintor is a long-time ESBP gang member. He twice drove Valtierra,
another long-time ESBP gang member, into their rival’s claimed turf. The first time they
yelled their gang name and recognized FTT insults, the result of which was a fist fight.

                                              9
               When Pintor drove Valtierra to the same neighborhood four days later, both
of them had guns. When their taunting provoked the victims to rush the truck and
Christian threw his scooter, defendants jumped out of the truck with guns in their hands
and stood united against a group of fleeing FTT gang members. Then, while Valtierra
chased and shot at two of the fleeing victims, Pintor took his gun and returned to the
truck in preparation for their getaway. On this record, the evidence is sufficient to find
Pintor encouraged and assisted Valtierra with full knowledge Valtierra intended to kill
the victims.
               Pintor also relies heavily on Christian’s decision to throw the scooter to
argue he reacted without thinking. We are not persuaded. Pintor and Valtierra instigated
the confrontation. Furthermore, Pintor assisted a fellow gang member commit a shooting
in rival gang territory. As Woo explained, “putting in work for the gang” means
committing crimes for the gang, and he testified gang members are expected to help each
other during the commission of crimes. Woo discussed the concepts of turf and respect,
and the tendency of gang members to react violently to assaults on either. As Pintor
admitted, in gangland, “they attack you, you attack them.” Seen in that light, defendants’
crime has all the earmarks of a classic premeditated and gang-related tit-for-tat.
               Given the recent history between defendants and FTT gang members in the
400 block of West Valencia Drive, the long-standing rivalry between their respective
gangs, the gang expert’s testimony about gang loyalty, backup, respect, and turf, and
Pintor’s admissions, substantial evidence supports the jury’s determination Pintor shared
Valtierra’s intent to kill. Pintor denied premeditating the attempted murders, and he
denied sharing Valtierra’s intent. But the jury was free to disbelieve him when, as here,
circumstantial evidence supports such an inference. (People v. Beeman (1984) 35
Cal. 3d 547, 558-559.) Thus, a rational trier of fact could find, beyond a reasonable
doubt, defendants committed willful, deliberate, and premeditated attempted murder.
(People v. Lewis, supra, 46 Cal.4th at p. 1293.)

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3. Custody Credits
              The trial court awarded Valtierra 1,388 days of actual presentence custody
credit plus 208 days of conduct credit. Valtierra claims, and the Attorney General
concedes, he is entitled to one additional day of presentence custody credit. We agree.
                                     DISPOSITION
              Valtierra’s abstract of judgment is modified to reflect an award of 1,567
presentence custody credits comprised of 1,389 actual days plus 208 conduct days. The
clerk of the court shall send a copy of the modified abstract to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.



                                                 THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.




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