Filed 4/28/15 P. v. Yepez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B249483
(Super. Ct. No. F474383)
Plaintiff and Respondent, (San Luis Obispo County)
v.
ARMANDO YEPEZ,
Defendant and Appellant.
Armando Yepez appeals a judgment following conviction of first degree
murder, attempted premeditated and deliberate murder, street terrorism, and assault with a
firearm (three counts), with findings regarding firearm, great bodily injury, and criminal
street gang enhancements, and a prior serious felony strike conviction. (Pen. Code,
§§ 187, subd. (a), 189, 664, 187, subd. (a), 186.22, subd. (a), 245, subd. (a)(2), 12022.53,
subd. (d), 12022.5, subd. (a), 12022.7, subd. (a), 186.22, subd. (b)(1), 667, subds. (b)-(1),
1170.12, subds. (a)-(d).)1 We modify the judgment to reflect imposition of six $40 court
security assessments and six $30 criminal conviction assessments, but otherwise affirm.
(§ 1465.8, subd. (a); Gov. Code, § 70373.)
FACTUAL AND PROCEDURAL HISTORY
Yepez is an admitted member of the "18th Street" criminal street gang, a Los
Angeles gang with members in San Luis Obispo County. The 18th Street gang members
1
All further statutory references are to the Penal Code unless stated otherwise.
and the "Oceano 13" gang members are rivals. In 2007, Yepez stabbed an Oceano 13 gang
member who had "punk[ed]" (disrespected) him. During his subsequent confinement in
juvenile hall, Yepez confronted Oceano 13 gang member Michael Nunez; they "were
always getting into it" and had "bad interactions."
In the fall of 2011, Nunez and a fellow gang member, Ivan Vargas, saw
Yepez in an Oceano alley. Vargas and Yepez then physically fought; Vargas knocked
Yepez to the ground three times. Before Nunez and Vargas drove away, Yepez threatened,
"You know what time it is." Later that day, Nunez saw Yepez sitting in the backseat of an
automobile that had pulled in front of him and stopped. Yepez held a handgun that was
partially concealed by a T-shirt.
Present Criminal Offenses
On November 17, 2011, Yepez drove a tan-colored Toyota Avalon
automobile that belonged to his girlfriend, Amanda Figueroa. Figueroa, Henry Ramos,
and Erik Valdovinos were passengers. In the afternoon, they drove to a Santa Maria
Target department store; security footage captured their visit and Figueroa's automobile.
Later, Yepez dropped off Valdovinos and Figueroa in Nipomo.
Yepez had asked Valdovinos to arrange a cocaine purchase in San Luis
Obispo. Yepez and Ramos drove to the Nipomo home of Ramos's brother-in-law, Leon
Baltazar, to obtain money. During the drive, Yepez informed Ramos that he had a firearm
under the backseat. Yepez asked Ramos to obtain another firearm, gloves, and clothing
from Baltazar in order to rob a drug dealer. Baltazar gave them a knife, gloves, money,
and clothing, but not a firearm. Yepez and Ramos then drove to Oceano to pick up
Yepez's brother, a fellow gang member.
Meanwhile, Gabriel S., Joshua R., Ricardo C., Sammy Garcia, and Sammy
Mota were playing "pick-up" football on the grounds of Oceano elementary school. When
darkness fell, the boys walked to the front of Garcia's apartment building on 21st Street
and stood near the mailboxes. As Yepez drove nearby, he saw the boys, stopped the
automobile, and directed Ramos to "grab the heat," a .38 Special handgun, from
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underneath the backseat. Yepez stated: "There's some Hoisters there," a derogatory
reference to Oceano 13 gang members.
Yepez "rolled up" to the mailboxes and directed Ramos to roll down the
passenger seat window. Yepez yelled "fuck Oceano" and "fuck [H]oisters." He then
leaned over Ramos and fired the handgun five or six times.
The boys ran when they saw the gun flashes and heard the gunshots.
Gabriel S. was shot in the head and Joshua R. was shot in the left leg and right ankle.
Emergency police and medical assistance soon arrived, but Gabriel S. lay unconscious and
dying. Joshua R. later received surgery and treatment for his serious injuries. The boys
were neither armed nor had they displayed gang signs.
Yepez drove away. Ramos discarded his shirt because it contained gunshot
residue. He also wiped the interior of Figueroa's automobile with urine believing that it
would remove any gunshot residue. Yepez placed the empty ammunition cases inside a
latex glove and Ramos tossed the glove from the window. That evening, Yepez used
Figueroa's cellular telephone to send and receive calls and text messages. Cellular tower
data placed Figueroa's telephone in the Oceano area at the time of the shootings.
Yepez and Ramos eventually returned to Baltazar's residence in Nipomo.
Ramos gave Yepez's firearm to Baltazar; he later buried the weapon in his backyard.
During their investigation, San Luis Obispo Sheriff's deputies recovered
spent ammunition rounds in the driveway of Garcia's apartment building. Forensic
evidence established that the bullets could have been fired from a .38 caliber, .380 caliber,
.357 caliber, or nine-millimeter gun.
Deputies also examined Figueroa's automobile and found Yepez's wallet and
identification in the center console. The dashboard and windows of the automobile had an
unusual sheen and wipe marks. Deputies found latex gloves in the back of the front
passenger seat and Yepez's fingerprint on the edge of the front passenger window. A
forensic examination of portions of the automobile's headliner, rear passenger seat, and
rear carpet revealed gunshot residue.
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In a recorded interview, sheriff's deputies questioned Ramos. He initially
denied knowledge of the shootings, but then stated that Yepez yelled "Fuck Oceano" and
shot four or five times at the boys. Ramos explained that Yepez leaned over and fired the
handgun through the front passenger window. Ramos stated that his brother-in-law "got
rid of [the gun]."
At trial, Figueroa testified that Yepez drove her automobile and sometimes
used her cellular telephone. In a recorded police interview, Figueroa stated that Yepez
kept a revolver in a dresser drawer in his residence, and that he carried a firearm in his
front waistband following the shooting. Following the shooting, Figueroa asked Yepez:
"Where is your stupid gun?" He replied that it was at the home of a friend.
At trial, Figueroa stated that she lied during the police interview and that
Yepez did not display a firearm. She also testified that she and Yepez sometimes went
target shooting with a rifle that they fired from inside her automobile. Figueroa also
admitted, however, that she was in a photograph depicting Yepez displaying an "18" gang
sign.
Yepez's Admissions
In May, 2012, Ramos agreed to wear a recording device and speak to Yepez
regarding the charged crimes. During their conversation, Yepez stated that he did not
know that he was "going to shoot anybody," and that he did not feel remorse. Yepez also
stated that he had been "droppin' niggas," but not like he shot Gabriel S. and Joshua R.
The prosecutor played the recording at trial.
Following his arrest, San Luis Obispo Sheriff's Detective David Marquez
interviewed Yepez. Yepez denied involvement in the shootings and claimed that he drove
to Oceano that evening to visit his brother. When Marquez showed Yepez a photograph of
Gabriel S.'s body, Yepez "started to smile."
Expert Witness Gang Testimony
Los Angeles Police Officer Winston Lee testified that the 18th Street gang is
a large Los Angeles criminal street gang whose primary activities include murder,
transportation of narcotics and firearms, burglaries, robberies, witness intimidation, and
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rape. Lee opined that respect is an important gang culture value that is created by instilling
fear in the community. A gang member who is "punked" would lose his credibility until
he retaliates against the rival gang member to save face.
San Luis Obispo County Sheriff's Detective Michael Hoier testified that
Yepez and his brothers are members of the 18th Street criminal street gang in San Luis
Obispo County. Yepez has gang-related tattoos and a history of altercations with rival
gang members. Other 18th Street gang members have committed and were convicted of
predicate criminal offenses in San Luis Obispo County. The phrase "what time is it?"
means that retaliation will ensue following the disrespecting of a gang member. Hoier was
also familiar with members of the Oceano 13 criminal street gang, including Vargas and
Nunez. Vargas is usually seen in the 21st Street area where the present shootings
occurred. Hoier opined that Yepez committed the shootings to benefit his criminal street
gang because the gang benefits from a reputation for violent retaliation.
Conviction and Sentencing
The jury convicted Yepez of first degree murder, attempted premeditated
murder, street terrorism, and assault with a firearm (three counts). (§§ 187, subd. (a), 189,
664, 187, subd. (a), 186.22, subd. (a), 245, subd. (a)(2).) It also found that he personally:
discharged a firearm resulting in great bodily injury, used a firearm, and inflicted great
bodily injury; and, committed the criminal offenses to benefit a criminal street gang.
(§§ 12022.53, subd. (d), 12022.5, subd. (a), 12022.7, subd. (a), 186.22, subd. (b)(1).) In a
separate proceeding, the trial court found that Yepez suffered a prior serious felony strike
conviction. (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d).)
The trial court sentenced Yepez to a prison term of 158 years eight months,
consisting of an indeterminate term of 130 years to life, and a determinate term of 28 years
8 months. It also imposed a $10,000 restitution fine, $10,000 parole revocation restitution
fine (stayed), $40 court security assessment, and a $30 criminal conviction assessment, and
awarded Yepez 390 days of presentence custody credit. (§§ 1202.4, subd. (b), 1202.45,
1465.8, subd. (a); Gov. Code, § 70373.)
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Yepez appeals and contends that there is insufficient evidence that he
harbored the specific intent to kill, a necessary element of murder and attempted murder.
The Attorney General responds and also asserts that the trial court did not impose certain
mandatory assessments.
DISCUSSION
I.
Yepez argues that there is insufficient evidence to support the judgment for
first degree murder or attempted murder because there is not sufficient evidence that he
intended to kill as he discharged the firearm.2 He relies upon his response to Ramos's
question whether he struck any of the boys: "No, and I don't care," and his later statement
to Ramos, "I didn't know that I was going to shoot anybody." Yepez asserts that his
statements, uttered privately to a friend, are reliable direct evidence of his lack of intent to
kill.
In reviewing the sufficiency of evidence to support a conviction, we examine
the entire record and draw all reasonable inferences therefrom in favor of the judgment to
determine whether there is reasonable and credible evidence from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People v. Jackson
(2014) 58 Cal.4th 724, 749.) Our review is the same in a prosecution primarily resting
upon circumstantial evidence. (People v. Watkins (2012) 55 Cal.4th 999, 1020.) We do
not redetermine the weight of the evidence or the credibility of witnesses. (People v.
Albillar (2010) 51 Cal.4th 47, 60; People v. Young (2005) 34 Cal.4th 1149, 1181
["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of
the trier of fact"].) We must accept logical inferences that the jury might have drawn from
the evidence although we would have concluded otherwise. (People v. Streeter (2012) 54
Cal.4th 205, 241.) "If the circumstances reasonably justify the trier of fact's findings,
2
Yepez concedes that there is sufficient evidence of premeditation and deliberation. For
this reason, we do not discuss the three categories of evidence relevant to establishing
premeditation and deliberation, as set forth in People v. Anderson (1968) 70 Cal.2d 15, 26-
27, and its progeny.
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reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding." (Albillar, at p. 60.)
A willful, deliberate, and premeditated killing with express malice
aforethought is first degree murder. (§§ 187, subd. (a), 189; People v. Chiu (2014) 59
Cal.4th 155, 166.) Express malice is "an intent to unlawfully kill a human being." (People
v. Moon (2005) 37 Cal.4th 1, 29; People v. Mejia (2012) 211 Cal.App.4th 586 604.) Intent
to unlawfully kill and express malice are "'one and the same.'" (People v. Smith (2005) 37
Cal.4th 733, 739.) Express malice is established by evidence that the assailant either
desired the resulting death or knew to a substantial certainty that death would occur.
(Ibid.)
The crime of attempted murder also requires the specific intent to kill, in
addition to the commission of a direct but ineffectual act toward accomplishing the
intended killing. (People v. Smith, supra, 37 Cal.4th 733, 739.)
The trier of fact may infer intent to kill or express malice from the
defendant's acts and the circumstances of the crime. (People v. Smith, supra, 37 Cal.4th
733, 741.) Rarely is there direct evidence of a defendant's intent; it must be inferred from
his acts and the factual circumstances. (Ibid.) "[T]he act of purposefully firing a lethal
weapon at another human being at close range, without legal excuse, generally gives rise to
an inference that the shooter acted with express malice." (Id. at p. 742.)
Sufficient evidence and all reasonable inferences therefrom support the
finding of intent to kill. From an idling automobile, Yepez fired a handgun at Gabriel S.
and Joshua R., who stood a short distance away on the sidewalk. Bullets struck Gabriel S.
in the head and Joshua R. in the legs. (People v. Smith, supra, 37 Cal.4th 733, 741
[purposeful use of a lethal weapon permits an inference of intent to kill].) Gabriel S. also
was struck in a vital area of his body. Yepez fired the handgun five or six times, more
times than would occur with an unplanned or accidental discharge, and he fired at
Joshua R. as he ran to hide between parked vehicles. (People v. Herrera (1999) 70
Cal.App.4th 1456, 1463-1464 [dozen shots fired during "drive-by," far more than would
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occur in unplanned shooting], disapproved on other grounds by People v Mesa (2012) 54
Cal.4th 191, 199.)
The jury considered and weighed Yepez's statements to Ramos regarding the
shooting and found the statements of insufficient verity. Moreover, Yepez's statement, "I
don't care," may be interpreted to mean that he was not remorseful for Gabriel S.'s death
and Joshua R.'s injuries. Detective Marquez testified that when Yepez was shown a
photograph of Gabriel S.'s body, Yepez "started to smile." (Cf. People v. Houston (2012)
54 Cal.4th 1186, 1216 [defendant's smile during killings supports conclusion that killings
were result of preexisting thought and reflection].) In his conversation with Ramos, Yepez
also casually admitted that he had "dropp[ed] niggas" before.
II.
The Attorney General correctly points out that the trial court did not impose
the proper court security assessments and criminal conviction assessments. (§ 1465.8,
subd. (a); Gov. Code, § 70373.) These fees are mandatory and may be added on review.
(People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2.) Yepez was convicted of
six criminal offenses; the trial court is required to impose six $40 court security
assessments ($240) and six $30 criminal conviction assessments ($180).
The judgment is modified to reflect imposition of six $40 court security
assessments and six $30 criminal conviction assessments, but otherwise affirmed. The
trial court shall prepare an amended abstract of judgment and forward the amended
abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
______________________________
David L. Polsky, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Peggy Z.
Huang, Deputy Attorney General, for Plaintiff and Respondent.
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