Filed 1/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B292976
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA462582)
v.
DAVID VENEGAS et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ronald Coen, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of
Appeal, for Defendant and Appellant David Venegas.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant Sebastian Santana.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Roberta L. Davis, Deputy
Attorney General, for Plaintiff and Respondent.
******
Sebastian Santana and David Venegas were trying to shoot
Juan Vargas but murdered Fabian Acevedo instead. The
appellate issues include two evidence problems, several
sentencing questions, challenges to the sufficiency of the evidence
and to a jury instruction, and requests for hearings under People
v. Dueñas (2019) 30 Cal.App.5th 1157. We affirm. Unspecified
citations are to the Penal Code.
I
Venegas and Santana were in the Winter Gardens gang,
which was locked in a border war with the Fraser Maravilla
gang. Vargas was in Fraser Maravilla. Venegas and Santana
sought to kill him but instead shot Acevedo, who belonged to no
gang and was just passing through.
Santana had a bad history with Vargas. Vargas had
wounded Santana’s brother, and Santana had vowed to shoot
Vargas on sight if he got the chance.
On the deadly day, Santana and Venegas were out
prowling for rivals to shoot. They were not looking for anyone in
particular. Any enemy would do. Santana drove a car and
Venegas was on a motorcycle along the contested frontier.
Santana spied Vargas on foot as he drove by. They made eye
contact, prompting Vargas to flee towards a nearby casino.
Santana directed Venegas to go shoot Vargas. Venegas rode to
the casino’s entrance and gunned down a man he thought was
Vargas but who actually was Acevedo. Venegas and Santana
fled. Vargas escaped. Acevedo died.
Separate juries convicted Venegas and Santana on all
counts. One jury found Venegas guilty of first degree murder,
while the second jury convicted Santana of aiding and abetting
murder in the second degree.
2
In addition to a murder sentence, the trial court imposed on
Santana a sentence enhancement of 25 years to life for
discharging a firearm that caused death. (§ 12022.53, subd. (d).)
The court imposed and stayed sentences for lesser gun
enhancements. The court followed the same sentencing pattern
for Venegas.
II
On appeal, Venegas and Santana have filed separate briefs.
Venegas makes two arguments for himself alone, while Santana
makes four arguments applying only to his case. Then they make
two shared arguments. We proceed in that order.
A
We begin with Venegas’s arguments.
1
Venegas’s first argument concerns evidence. This evidence
was a series of text messages from Santana to his brother, who
was not a defendant and who did not testify. These texts were
admissible.
The prosecution obtained the texts from Santana’s
brother’s phone. An officer read them to Venegas’s jury. Venegas
does not challenge this process. Rather Venegas claims the texts
were inadmissible hearsay and violated the Confrontation
Clause.
Venegas trains his attack on five texts Santana sent to his
brother. All five involved Venegas, whom Santana called
“Sponge.” These messages relate to an unchallenged earlier text,
which was a photo of a .45 caliber pistol. Other evidence
suggested Venegas used this gun to kill Acevedo.
3
Evidence analysts must pay close attention to the precise
words or things at issue. So we quote the five challenged
messages, adding bracketed context for clarity:
1. “[S]ee if sponge wants to sell that for five [hundred
dollars]. I just want [to] get rid of [the gun].”
2. “[S]ponge just texted me. . . . [$520 is a] done deal.”
3. “I’ll have Sponge meet you somewhere and give it to
you. And you’ll go sell it.”
4. “[S]ponge is only getting $450.”
5. “[S]ponge said he’ll drop [the gun] off before 5:00. . .
Be careful and drive normal. Stash it real good.”
We follow a standard agenda to determine admissibility.
First, the statements were relevant. The prosecution
claimed this gun was the murder weapon. Combined with other
proof, this series of messages tended to show Venegas and
Santana had access to the murder weapon before the shooting
and were trying to dispose of it soon afterwards. Relevance is
obvious.
Second, these texts were not unfairly prejudicial. The
evidence presentation was brief and lacked visceral impact. The
court exercised sound discretion under section 352 of the
Evidence Code.
Third, these texts were not hearsay. They were not offered
for the truth of the matter asserted. (See Evid. Code, § 1200.)
For instance, take the message that “[S]ponge said he’ll
drop [the gun] off before 5:00.” The prosecution did not offer this
evidence to prove Venegas would, or did, drop off a gun before
5:00. This evidence was not for the truth it asserted. Rather, it
was to show Venegas and Santana were working to get rid of a
4
gun. This tended to show consciousness of guilt and is textbook
nonhearsay.
Nor did the prosecution offer the statement “[$520 is a]
done deal” to prove $520 truly was a done deal. Nor was
“[S]ponge is only getting $450” offered to prove Sponge would get
$450. All this back-and-forth was offered for the nonhearsay
purpose of consciousness of guilt, not to establish a dollar amount
or to show Sponge’s cut. The texters were discussing how to
dispose of the .45. For the proponent of the evidence, deal terms
and dollar sums were hardly the point.
And so on. Each statement was nonhearsay. (See, e.g.,
People v. Dalton (2019) 7 Cal.5th 166, 232.) The trial court
rightly admitted this evidence.
Venegas was entitled to a limiting instruction, but it was
his burden to request it, and his option to abstain from the
request. (See Evid. Code, § 355; People v. Valdez (2012) 55
Cal.4th 82, 139.)
Venegas’s tactical decision to forgo a request for a limiting
instruction was customary. Many effective trial lawyers do
likewise. A good trial lawyer can share the Supreme Court’s
doubts about the utility of limiting instructions. (See Bruton v.
U.S. (1968) 391 U.S. 123, 132–133 & fn. 8.) Experienced trial
lawyers may worry limiting instructions can simply underline
evidence they would rather not highlight. And there can be some
strategic advantage in minimizing objections, for familiar
reasons. Venegas’s lawyer made a defensible decision that
Venegas cannot now protest.
Venegas incorrectly claims this evidence violated Crawford
v. Washington (2004) 541 U.S. 36, 59–60 footnote 9 (Crawford),
5
but Crawford does not apply to nonhearsay. (See also People v.
Hopson (2017) 3 Cal.5th 424, 432.)
2
Venegas’s second argument is about sentencing. He argues
the court erred by imposing a concurrent term on count two
instead of staying the sentence under section 654. Count two was
possession of a firearm by a felon. Count one was murder. The
jury convicted Venegas on both counts. The court imposed a
seven-year concurrent sentence for count two and a gang
enhancement.
This argument errs because the trial court correctly
construed its obligations under section 654.
The pertinent law begins with section 654, which prohibits
multiple punishments for a single act or course of conduct.
(People v. Ramirez (2006) 39 Cal.4th 398, 478.) Whether an
offense is an indivisible course of conduct is a fact question. We
uphold the trial court’s ruling when substantial evidence
supports it. (People v. Brents (2012) 53 Cal.4th 599, 618.) This
standard of review is exceedingly deferential. (People v. Lopez
(2011) 198 Cal.App.4th 698, 717.)
With respect to additional punishment for possessing a
gun, the conduct is divisible, and additional punishment
therefore proper, so long as Venegas purposefully possessed the
gun before the murder took place. (People v. Jones (2002) 103
Cal.App.4th 1139, 1144 (Jones).)
This question boils down to whether Venegas possessed the
gun at the beginning of his motorcycle ride or whether he got it
only after he arrived at the murder scene.
Substantial evidence supports the trial court’s
determination Venegas had the gun before arriving at the crime
6
scene. The evidence was Venegas was on the hunt. We indulge
all inferences favorable to the trial court’s determination under
this standard of review. The logical inference is the hunter
armed himself before the hunt. That is how hunts usually work.
Moreover, no evidence or logic suggested someone handed
Venegas the gun at the scene, or that Venegas happened upon a
loaded .45 on the street. Such events are uncommon. The
reasonable inference is Venegas began his motorcycle ride with
the gun. Thus Venegas purposefully possessed the gun before he
drew it to shoot Acevedo. The trial court decision was correct.
B
We now turn to Santana’s four issues.
1
Santana challenges the sufficiency of the evidence for his
aiding-and-abetting conviction of the murder of Acevedo.
Santana does not dispute he directed Venegas to shoot Vargas or
that Venegas did shoot Acevedo. Santana precisely targets his
argument. He postulates an imaginative alternative: that
perhaps Venegas shot Acevedo, not by mistake, but because
Venegas — after getting Santana’s instruction “shoot Vargas” —
for some unexplained reason formulated an independent decision
to shoot Acevedo instead of Vargas.
This creative argument founders on the standard of review,
which requires us to review the record in the light most favorable
to the prosecution. (People v. Virgil (2011) 51 Cal.4th 1210,
1263.) This standard of review requires us to reject Santana’s
fanciful speculation. Viewing the record as we must, ample
evidence showed Venegas meant, at Santana’s direction, to shoot
Vargas but then mixed up Acevedo with Vargas and shot Acevedo
by mistake.
7
Motive is key. Venegas and Santana were friends and gang
fellows and were working as a team. Santana admitted he “took
a few turns” around the neighborhood that day looking for rival
gang members. He said he would shoot Vargas on sight if he got
the chance. Santana made eye contact with Vargas. Thereafter
Santana pointed to an alley and Venegas went there and shot the
first person he saw, who was Acevedo. Santana’s desire to have
Venegas shoot Vargas is the parsimonious explanation for these
events.
Santana’s suggestion that perhaps Venegas independently
decided to shoot Acevedo for some unknown reason lacks
evidentiary support and makes no sense. Venegas had no motive
to act this way. By contrast, Venegas had ample motive to try to
kill gang rival Vargas, whom Santana wanted dead.
Santana cites the inapposite case of In re Brigham (2016) 3
Cal.App.5th 318, 324 (Brigham), in which three hired killers
hunted one Chuckie. Brigham — “an experienced hit man” —
saw a young guy. Brigham said it was Chuckie. As they got
closer, though, Brigham said “man, that is not Chuckie, man.”
(Ibid.) Yet Brigham’s fellow hit man persisted, saying “we’re
gonna get him.” Brigham implored his fellow: “Don’t do it. It
ain’t cool. That’s not the dude, man. Come on.” (Ibid.) Brigham
tried to grab this triggerman’s arm, but to no avail. The
triggerman shot the person anyway, even though this victim was
not Chuckie. The Brigham opinion ruled Brigham was not guilty
of aiding and abetting this murder because the triggerman made
an “independent, intentional, deliberate and premeditated
decision to kill” a different victim than Chuckie. That decision
reflected “a personal and subjective state of mind that was
8
insufficiently connected to [Brigham’s] culpability for aiding and
abetting the (intended) murder of Chuckie . . . .” (Id. at p. 329.)
Brigham is irrelevant. Brigham realized his killers had the
wrong target and tried to stop the murder. Santana did neither.
Substantial evidence supported Santana’s conviction.
2
Santana makes an erroneous argument about a jury
instruction. This argument is CALJIC 8.65 failed to clarify the
jury could convict Santana of murder only if it found beyond a
reasonable doubt that Venegas believed he was shooting the
intended target.
CALJIC 8.65 states “[w]hen one attempts to kill a certain
person, but by mistake or inadvertence kills a different person,
the crime, if any, so committed is the same as though the person
originally intended to be killed, had been killed.”
The trial court gave a proper reasonable doubt instruction.
The prosecution argued the case entirely in terms of reasonable
doubt. No one at trial mentioned some other standard of proof.
Santana does not dispute these points. The reasonable doubt
standard governed, undoubtedly. This argument is insubstantial.
3
Santana incorrectly argues the trial court violated his right
to due process by admitting evidence of a disassembled assault
rifle and several magazines found at Venegas’s house. This rifle
was not the murder weapon. Santana says admitting evidence of
a rifle different than the murder weapon was unfairly prejudicial
and was inadmissible propensity evidence.
The trial court correctly cited People v. Nguyen (2015) 61
Cal.4th 1015, 1073 (Nguyen) in support of admitting this
evidence. Justice Liu’s opinion approved of just such evidence as
9
tending to prove a defendant was a gang member at war with a
rival gang. The same rationale applied here. This assault rifle
tended to show Venegas had a stockpile of weapons he kept,
together with accompanying Winter Gardens gang
paraphernalia. It tended to show Venegas was a gang member at
war with a rival gang, and that Santana knew he could count on
Venegas to be armed for battle. The trial court’s ruling was right.
Santana responds to Nguyen only by saying it was
undisputed that “Santana was a gang member involved in a gang
war against rival Fraser Maravilla, of which Vargas was a
member . . . .” Santana suggests this gun evidence was irrelevant
because the proof about Vargas and the gang war was strong.
This is 20-20 hindsight. Santana never offered to stipulate to
these facts at trial. Santana entered a not guilty plea and thus
put every fact and issue in dispute. This argument fails.
4
Santana argues he is entitled to resentencing on the prior
serious felony conviction enhancement in light of Senate Bill
1393 (2017–2018 Reg. Sess.).
Santana received an additional five years as part of his
sentence under section 667, subdivision (a) for his prior serious
felony conviction. At the time of sentencing, imposition of the
section 667, subdivision (a) enhancement was mandatory. (See
People v. Valencia (1989) 207 Cal.App.3d 1042, 1045–1047.)
Senate Bill 1393 became effective January 1, 2019. It
removed the prohibition on striking the enhancement by deleting
the provision of the former version of section 1385, subdivision
(b), which stated: “This section does not authorize a judge to
strike any prior conviction of a serious felony for purposes of
10
enhancement of a sentence under Section 667.” (Sen. Bill No.
1393 (2017–2018 Reg. Sess.) § 2.)
Because Senate Bill 1393 has taken effect and Santana’s
judgment is not yet final, the new law applies to him
retroactively. (See People v. Garcia (2018) 28 Cal.App.5th 961,
971–974 [holding that Senate Bill 1393 applies to all cases not
yet final on appeal as of the statute’s effective date of January 1,
2019].)
Remanding for resentencing, however, is unnecessary. The
trial judge said he would not have dismissed the enhancements
even if he had the statutory authority to do so. “Although it’s not
the law at this time, it will be retroactive, I find the same
rationale would apply to [the] Penal Code section 667 subdivision
(a) subdivision (1) prior conviction. Consequently, if I had
discretion today, I would not strike that prior conviction.”
This statement makes remand unnecessary. (See People v.
Franks (2019) 35 Cal.App.5th 883, 892.)
C
Venegas and Santana make two arguments jointly.
1
Together Santana and Venegas request sentencing
remands under a new law about gun sentencing, but this relief
would be pointless. The new law gave trial judges sentencing
discretion over gun penalties. But here the trial judge said he
would not exercise his discretion to modify the gun sentences for
these two. We do not remand.
We briefly give background. The new statute is Senate Bill
620 (2017–2018 Reg. Sess.) (SB 620), which the Governor signed
on October 11, 2017. SB 620 amended section 12022.53 to give
11
trial courts discretion to strike firearm enhancements. (People v.
Morrison (2019) 34 Cal.App.5th 217, 221.)
This new discretion cannot aid Venegas or Santana because
the trial judge plainly stated it would be against the interests of
justice to reduce their sentences.
The trial court imposed 25-years-to-life firearm
enhancements under section 12022.53, subdivision (d), upon
Venegas and Santana.
Venegas did not ask the court to strike the 25-years-to-life
subdivision (d) enhancement. Nevertheless, the court said
“counsel had not asked this Court to exercise its discretion under
12022.53 subdivision (h), and I do realize I have that discretion,
and even if counsel had asked for it I would refuse, finding no
good cause to strike any use enhancement.”
Turning now to Santana, his attorney did ask the court to
exercise its discretion to strike the subdivision (d) enhancement.
The court refused. It noted that, while section 12022.53,
subdivision (h) gave it discretion to strike “one or more of the gun
allegations,” Santana’s criminal history made him a poor
candidate: he committed this offense in 2017, four years after
being discharged from parole for a robbery conviction, and he had
an extensive juvenile criminal history, including a weapons
violation. The court refused to strike “any weapon
enhancement.”
We deny Venegas’s and Santana’s request for sentencing
remands. The court’s statements make the requested remedy
worse than pointless: remands would force people to expend
resources but sentences would not change. There would be cost
but no benefit.
12
2
Venegas and Santana seek remands to determine their
ability to pay fines and fees. Neither defendant objected to the
fines and fees in the trial court. They have forfeited these
arguments. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
DISPOSITION
The judgments are affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
13