P. v. Lopez

Filed 3/1/04 P. v. Lopez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
FERNANDO LOPEZ et al.,
Defendants and Appellants.
2d Crim. No. B162333
(Super. Ct. No. BA1945465)
(Los Angeles County)
Appellants Fernando Lopez, Francisco Galindo and Francisco Lopez were
tried before a jury and convicted of second degree murder with gang and firearm
enhancements. (Pen. Code, §§ 187, subd. (a), 186.22, subd. (b), 12022.53, subds. (d) &
(e)(1).)1 They argue that the murder convictions must be reversed because the jury was
erroneously instructed that voluntary manslaughter based on provocation requires a
specific intent to kill. They also challenge the admission of gang expert testimony and
the true findings and sentences on the gang allegations. We order the sentence modified
in certain respects, but otherwise affirm.
1 All statutory references are to the Penal Code.

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FACTS AND PROCEDURAL HISTORY
Appellants are friends and members of the Breed Street gang. Pablo
Navarro was a founding member of the rival Tiny Boys gang. On the afternoon of
October 10, 1999, Navarro walked by the apartment complex on North Soto where
appellant Fernando Lopez lived. The complex was in Breed Street territory.
Navarro saw appellant Francisco Galindo, with whom he had fought in
1997. Galindo was not wearing a shirt and had several tattoos showing his loyalty to the
Breed Street gang. An altercation ensued. Galindo called out to "Shorty," the gang
moniker used by appellant Fernando Lopez. Appellants Fernando Lopez and Francisco
Lopez ran to Galindo from the back of the apartment complex, where they had been
smoking "primos" (cigarettes of marijuana and crack cocaine), and they joined in the
struggle with Navarro. Someone in their group yelled, "fuck him up." After Navarro was
on the ground, Fernando Lopez pulled out a gun and shot Navarro five times. Navarro
died of his wounds.
Fernando Lopez and Francisco Lopez fled the area in a stolen van and were
apprehended later that night. Galindo was arrested several months later as he was
crossing the border from Mexico into the United States using false documents.
Neighbors who saw the altercation between appellants and Navarro
identified Galindo and Fernando Lopez as having been involved. They described a scene
in which Galindo, Fernando Lopez and a third man struggled with and subdued Navarro
before Fernando Lopez shot him. No eyewitnesses placed Francisco Lopez at the scene
of the killing, but he was seen with Galindo and Fernando Lopez immediately afterward
and left in the van with Fernando Lopez. Blood matching the victim's was found on
Francisco Lopez's shoes.
The prosecution's theory of the case was that this was a classic gang related
shooting. In addition to the percipient witnesses, the district attorney presented the
testimony of Detective William Eagleson, who had worked for several years as a gang
coordinator for the Hollenbeck Division of the Los Angeles Police Department.

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Eagleson described Breed Street as a criminal street gang whose primary activities
included the commission of certain qualifying felonies, such as robberies, carjackings,
aggravated assaults and attempted murders. Given a hypothetical that matched the facts
of the Navarro shooting, Eagleson opined that the shooting was gang related and
benefited Breed Street by taking out an important member of the rival Tiny Boys gang
and sending a shockwave through the community.
At trial, the appellants all testified and admitted involvement in the
shooting. According to the defense version of events, Galindo had been standing outside
the apartment when Pablo Navarro walked by and began taunting him. Navarro, who is
much bigger than Galindo, pulled a gun out of a bag and held it in Galindo's mouth.
Fernando Lopez and Francisco Lopez came running and Navarro pointed the gun at them.
They began striking Navarro until he hit the ground. Fernando Lopez was carrying a
loaded .22 handgun and shot Navarro several times. Fernando Lopez and Francisco
Lopez took Navarro's gun and fled to Francisco Lopez's house, disposing of both
weapons on the way. According to Fernando Lopez, he had been up for several days
smoking primos and the only thing going through his mind when he fired the shots was
that he was mad. According to Francisco Lopez and Galindo, they did not realize that
Fernando Lopez would shoot Navarro.
None of the neighbors who witnessed the struggle between appellants and
Navarro saw Navarro with a gun. Gunshot residue was found on Navarro's hand during
the coroner's investigation, which meant that he had either recently fired a weapon, been
in the vicinity of a weapon being fired, or had touched a surface coated with residue.
Navarro had a blood alcohol level of .04 percent at the time of his death and cocaine was
found in his system.

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DISCUSSION
I.
Instructions on Voluntary Manslaughter
The jury was instructed on voluntary and involuntary manslaughter as
lesser included offenses of the charged murder. Appellants argue that the judgment must
be reversed because the court provided a version of CALJIC No. 8.40 that erroneously
defined voluntary manslaughter to require an intent to kill, in contravention of our
Supreme Court's decision in People v. Lasko (2000) 23 Cal.4th 101. We agree there was
error, but conclude it was not prejudicial.
Murder is the unlawful killing of a human being with express or implied
malice aforethought. (§ 187, subd. (a).) Malice is express when the defendant manifests
"a deliberate intention unlawfully to take away the life of a fellow creature;" i.e., a
specific intent to unlawfully kill. (§ 188; People v. Carpenter (1997) 15 Cal.4th 312,
391.) It is implied when the killing results from an intentional act, the natural
consequences of which are dangerous to life, which was deliberately performed by the
defendant knowing that his conduct endangers the life of another and who acts with
conscious disregard for life. (People v. Dellinger (1989) 49 Cal.3d 1212, 1217.) Implied
malice does not require an intent to kill. (People v. Swain (1996) 12 Cal.4th 593, 602.)
It has long been the rule that an intentional killing that would otherwise be
an express malice murder will be reduced to voluntary manslaughter when it is the
product of adequate provocation and heat of passion or a good faith but unreasonable
belief in the need for self-defense. (People v. Lasko, supra, 23 Cal.4th at p. 108.) The
court in Lasko clarified that this rule of mitigation also applies to implied malice murder,
so that a defendant who kills with a "conscious disregard for life" as a result of legally
adequate provocation is guilty only of voluntary manslaughter. (Id. at pp. 108-110.) In
the companion case of People v. Blakeley (2000) 23 Cal.4th 82, 85, the Supreme Court
held that a similar rule applies to a killing committed with conscious disregard of life, but
in the unreasonable and good faith belief in the need for self-defense.

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Before Lasko and Blakeley, a number of published cases had stated in dicta
that intent to kill was an essential element of voluntary manslaughter. (See People v.
Lasko, supra, 23 Cal.4th at p. 109.) The standard version of CALJIC No. 8.40, which
defines voluntary manslaughter, included intent to kill as an essential element of the
offense. (CALJIC NO. 8.40 (6th ed. 1996).)
In an attempt to comport with Lasko and Blakeley, the trial court in this
case initially instructed the jury with a modified version of CALJIC No. 8.40 that defined
voluntary manslaughter in relevant part as an unlawful killing "done with or without an
intent to kill due to heat of passion or unreasonable self-defense. . . ."2 Involuntary
manslaughter was defined as an unlawful killing without intent to kill that was committed
in unreasonable self-defense. After the jury began deliberations, defense counsel advised
the court that in their view, Lasko and Blakeley did not apply to appellants' crimes, which
were committed before those decisions became final. With the prosecution's
acquiescence, the court reinstructed the jury with the older version of CALJIC No. 8.40,
which defined voluntary manslaughter as requiring an intent to kill, and admonished the
jurors to disregard the other version of the instruction. This was error with respect to the
provocation/heat of passion variant of voluntary manslaughter.
As explained in People v. Johnson (2002) 98 Cal.App.4th 566, Lasko
clarified existing law when it held that intent to kill was not an element of voluntary
manslaughter based on provocation. Although published decisions had characterized
intent to kill as an element of voluntary manslaughter, no case had directly considered
whether provocation could negate implied as well as express malice. Because it did not
state a new rule of law, Lasko applied to all cases not yet final, even those in which the
2 This instruction did not accurately state the rule of Lasko and Blakeley, because
those decisions require that a defendant act with at least a conscious disregard for life to
be convicted of voluntary manslaughter. The 2001 revision of CALJIC No. 8.40
correctly describes the mental state element of voluntary manslaughter after Lasko and
Blakeley: "The perpetrator of the killing either intended to kill the alleged victim or acted
in conscious disregard for life . . . ." A defendant who acted without intent to kill or
conscious disregard for life could be convicted at most of involuntary manslaughter.

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offense was committed before its June 2, 2000 filing date. (Johnson, at p. 569; accord,
People v. Crowe (2001) 87 Cal.App.4th 86, 95.) On the other hand, Blakeley stated a
new rule of law when it held that a killing committed with conscious disregard but in the
unreasonable belief in the need for self-defense was voluntary manslaughter, because
previous cases had held that such a killing was only involuntary manslaughter. (People v.
Blakeley, supra, 23 Cal.4th at p. 92.) As an "unforeseeable judicial enlargement of the
crime of voluntary manslaughter," Blakeley could not be applied to crimes committed
before the June 2, 2000, filing date of that opinion. (Blakeley, at p. 92; Johnson, at p.
569.) The trial court's instruction that voluntary manslaughter requires an intent to kill
thus was correct with respect to the theory of unreasonable self-defense, but misstated the
applicable law of voluntary manslaughter based on provocation.
We are not persuaded by the Attorney General's argument that the claim is
barred because the error was invited by their counsel. Although defense counsel
requested the older version of CALJIC No. 8.40 requiring specific intent to kill for a
conviction of voluntary manslaughter, the request was based on a misunderstanding of
the law that was shared by the prosecutor and the court. For the doctrine of invited error
to apply, it "'"must be clear that counsel acted for tactical reasons and not out of
ignorance or mistake."'" (People v. Bradford (1997) 14 Cal.4th 1005, 1057.) Counsel
expressed the belief that the instruction would be advantageous with respect to the
unreasonable self-defense theory of manslaughter, because it would require a conviction
of the lesser crime of involuntary manslaughter if the jury found that appellants acted
with conscious disregard rather than intent to kill, but this rationale did not extend to the
instructions on provocation.
Having rejected the claim of invited error, we consider whether appellants
were prejudiced by the instruction that voluntary manslaughter requires an intent to kill.
Prejudice is established only if it is reasonably probable they would have obtained a more
favorable result absent the error, that is, if it is reasonably probable the jurors would have
convicted appellants of the lesser crime of voluntary manslaughter if they had been

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instructed that a killing with conscious disregard of life and upon adequate provocation is
voluntary manslaughter. (People v. Lasko, supra, 23 Cal.4th at pp. 111.)
We conclude there was no prejudice, because it is not plausible the jury
relied on an implied malice/conscious disregard of life theory of murder to convict
appellants. Fernando Lopez shot Navarro five times while he was on the ground, which
was strong evidence that he acted with express malice and a specific intent to kill, and not
simply with conscious disregard for the danger to human life. (See, e.g., People v.
Villegas (2001) 92 Cal.App.4th 1217, 1224.) Francisco Lopez and Francisco Galindo
were convicted as accomplices under the theory that they directly aided and abetted the
shooting; thus, the jury necessarily found that they knew and shared the murderous intent
of Fernando Lopez.3 (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) If the jurors had
been persuaded that the defendants were acting in the heat of passion and upon
reasonable provocation, they would have returned verdicts of voluntary manslaughter
under the instructions given, which advised the jury that appellants were guilty only of
that lesser offense if they acted with intent to kill but upon reasonable provocation. (See
People v. Lasko, supra, 23 Cal.4th at pp. 112-113; People v. Crowe, supra, 87
Cal.App.4th at p. 97.)
Moreover, heat of passion/provocation was neither the strongest nor the
most prominently argued theory of voluntary manslaughter. If the jurors did not believe
the victim Navarro had a gun, they would have rejected the provocation theory of
voluntary manslaughter regardless of the instruction requiring intent to kill because
Navarro did nothing else that would have aroused the passions of the proverbial
"'"'ordinary [person] of average disposition.'"'" (People v. Lasko, supra, 23 Cal.4th at p.
108.) If, on the other hand, the jurors believed appellants' testimony that Navarro had a
3 The jury was not instructed on the "natural and probable consequences" doctrine,
under which an aider and abettor is guilty not only of an intended crime, but of any other
offense that is a natural and probable consequence of the former. (See People v.
Prettyman (1996) 14 Cal.4th 248, 260.)

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gun, they would have been far more likely to view the killing as one committed in self-
defense rather than as the product of provocation. Recognizing this, defense counsel
focused primarily on imperfect self-defense in their closing arguments. (See id. at pp.
112-113; People v. Crowe, supra, 87 Cal.App.4th at p. 97.) As we have already
explained, the instructions on imperfect self-defense correctly stated the applicable law.
Under the circumstances, the use of a pre-Lasko version of CALJIC No.
8.40 was not prejudicial. Reversal of the murder convictions is not required.
II.
Gang Allegation Under section 186.22, subdivision (b)
The jury made a true finding on the allegation that appellants committed the
murder of Pablo Navarro "for the benefit of, at the direction of, or in association with" a
criminal street gang under section 186.22, subdivision (b). The effect of this finding was
to trigger the sentencing provisions of section 186.22, subdivision (b) and to subject
appellants Francisco Lopez and Francisco Galindo to 25-year-to-life enhancements under
section 12022.53, subdivision (d), notwithstanding that they did not personally discharge
a firearm. (§ 12022.53, subd. (e)(1).)4
Appellants argue the evidence was insufficient to support the gang
allegation. We disagree. It was undisputed that appellants were members of the Breed
Street gang and Navarro was a founding member of Tiny Boys, a rival gang. Detective
Eagleson, the prosecution's gang expert, described in some detail the gang culture and its
ethos of respect, territorialism and retaliation. He opined that Breed Street was a criminal
street gang within the meaning of the statute because its primary activities included the
commission of one or more of the offenses enumerated in section 186.22 and members of
4 When appellants committed this offense in 1999, section 12022.53, subdivision
(e)(1) provided, "The enhancements specified in this section shall apply to any person
charged as a principal in the commission of an offense that includes an allegation
pursuant to this section when a violation of both this section and subdivision (b) of
section 186.22 are pled and proved." The subdivision has since been reworded but is
substantively the same. (People v. Garcia (2002) 28 Cal.4th 1166, 1171, fn. 4.)

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Breed Street had committed at least two of the predicate offenses necessary to prove the
allegation. Eagleson testified without objection that the killing of a Tiny Boys founder
under the circumstances of this case would be gang related and would benefit Breed
Street by enhancing Breed Street's reputation and "taking the heart out" of Tiny Boys.
Our review of the sufficiency of the evidence on the gang allegation is
deferential, and we presume the existence of every fact the jury could reasonably deduce
from the evidence presented. (See People v. Augborne (2002) 104 Cal.App.4th 362, 371;
People v. Killebrew (2002) 103 Cal.App.4th 644, 660.) The jury here could reasonably
infer the murder was motivated by a gang rivalry and satisfied the elements of section
186.22, subdivision (b). Substantial evidence—evidence that is reasonable, credible and
of solid value—supports the true finding on the gang allegation. (Ibid.)
Appellants Francisco Lopez and Fernando Lopez complain there was no
substantial evidence that they acted with the intent of benefiting their gang because there
was no proof they recognized Navarro as a member of Tiny Boys. We are not persuaded.
Although there was no direct evidence that either man knew Navarro personally, the
Breed Street and Tiny Boys gangs had relatively few active members on the date of the
shooting: 16-25 in Breed Street and 12-16 in Tiny Boys. Detective Eagleson testified
during cross-examination by the defense that when a person is involved in a gang, "you
know exactly who is getting out [of prison] and who your enemy is, where your rivals
hang out, and what to watch out for." This testimony supported a finding that Fernando
Lopez and Francisco Lopez would have recognized Navarro, notwithstanding their
testimony to the contrary. Additionally, appellant Galindo knew Navarro because he had
fought him during a gang-related altercation in 1997, and the jury could infer that he
communicated the victim's identity or gang affiliation to his codefendants during the
altercation that led to the shooting.
Appellants argue that we should not rely on Detective Eagleson's testimony
to uphold the finding on the gang allegation because it was based on an unfounded
assumption that all three defendants knew Navarro's identity. They observe that on

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cross-examination, Eagleson indicated that if appellants did not know who Navarro was,
he would not be able to say it was a gang related shooting.
It is well settled that an expert cannot rely on speculative or conjectural
data, and that the assumption of facts contrary to the evidence destroys the value of an
expert opinion. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338.) Here,
however, the evidence supported the assumption that appellants knew Navarro: appellant
Galindo admitted as much, the other appellants' membership in the Breed Street gang
placed them in a position where they would logically be expected to know Navarro's
identity, and Galindo's preexisting relationship with the other appellants supported an
inference that he conveyed information about Navarro's identity to them during the
altercation. If the jury had determined that none of the appellants knew Navarro's
identity, they presumably would have disregarded Eagleson's opinion that the crime was
gang related.
Appellants also claim that the admission of Eagleson's testimony requires
reversal because his opinion encompassed ultimate issues of fact and drew inferences that
were the province of the jury. Though an expert opinion is not automatically
inadmissible when it embraces the ultimate issue to be decided by the jury,
"'"[u]ndoubtably there is a kind of statement by the witness which amounts to no more
than an expression of his general belief as to how the case should be decided . . . . There
is no necessity for this kind of evidence; to receive it would tend to suggest that the judge
and jury may shift responsibility for decision to the witnesses; and in any event it is
wholly without value to the trier of fact in reaching a decision."'" (People v. Killebrew,
supra, 103 Cal.App.4th at p. 651.)
One portion of the expert testimony cited by appellants was beyond the
scope of expert testimony: Eagleson's opinion offered during direct examination that the
shooting was part of a plan in which everyone had an assignment. This portion of the
expert testimony was "the type of opinion that did nothing more than inform the jury how
[Eagleson] believed the case should be decided." (People v. Killebrew, supra, 103 at p.

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658.) But appellants did not object to this testimony and the issue has been waived.
(People v. Valdez (1997) 58 Cal.App.4th 494, 505-506.) Although appellant Galindo
filed an in limine motion seeking the exclusion of gang expert testimony on certain
issues, including the specific intent of individual gang members, this motion was not
sufficiently specific to place the court and counsel on notice that testimony regarding the
individual appellants' roles in the killing was encompassed within the objection. (See
ibid.)
Appellants urge us to reverse on the alternative ground that defense counsel
were ineffective in failing to object to the improper expert testimony. To prevail on such
a claim on direct appeal, the record must affirmatively show that counsel had no rational
tactical purpose in allowing the evidence to come in without an objection. (People v.
Musselwhite (1998) 17 Cal.4th 1216, 1259-1260.) Counsel's questions during cross-
examination suggest that they were engaging in a strategy of eliciting overly confident
explanations from Detective Eagleson for the purpose of rebutting that testimony and
discrediting him before the jury. The testimony that everyone had a role in a planned
shooting was contradicted by defense evidence that the victim had a gun and that the
events leading to the homicide were not contemplated by the defendants ahead of time.
Defense counsel could have reasonably concluded it was more effective to rebut
Eagleson's testimony with contrary evidence than to object to its admission in the first
place.
In any event, appellants have not demonstrated that they were prejudiced by
the expert testimony regarding their roles in the shooting. Eagleson testified that
everyone acted according to a plan, but the jury acquitted appellants of first degree
premeditated murder. This shows the jury gave little if any credence to this portion of
Eagleson's opinion.

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III.
Sentencing Issues
The jury returned true findings that each appellant had committed the
murder for the benefit of a criminal street gang under section 186.22, subdivision (b). As
to appellant Fernando Lopez, the shooter, it imposed a consecutive two-year
enhancement under subdivision (b)(1). As to appellants Francisco Lopez and Francisco
Galindo, the non-shooters, the court imposed a similar two-year enhancement, but stayed
the terms under section 654 because the same finding was also being used to make them
eligible for the firearm enhancement under section 12022.53, subdivisions (d) and (e).
Appellants argue that the two-year enhancements under section 186.22,
subdivision (b)(1) should have been stricken because the underlying murder offense
carries an indeterminate term. We agree that the enhancements were improper. As we
explained in People v. Johnson (2003) 109 Cal.App.4th 1230, section 186.22,
subdivision (b) establishes for two forms of punishment when a crime has been
committed for the benefit of a criminal street gang. When the underlying offense carries
a determinate term, subdivision (b)(1) provides the defendant's punishment must be
increased by a particular term of years. But when the underlying offense carries an
indeterminate sentence, such as the 15-year-to-life terms imposed for appellants' murder
convictions, former subdivision (b)(4) [now renumbered (b)(5)] requires the defendant to
serve a minimum of 15 calendar years before being released on parole. (Johnson, at p.
1236-1237, 1239; accord People v. Harper (2003) 109 Cal.App.4th 520; People v. Ortiz
(1997) 57 Cal.App.4th 480, 485-486.) The court should have specified a minimum
parole date of 15 years under this latter provision rather than imposing an enhancement
for a term of years under subdivision (b)(1).
The Attorney General urges us to follow the majority decision in People v.
Herrera (2001) 88 Cal.App.4th 1353, which approved the imposition of an enhancement
under section 186.22, subdivision (b)(1) in a first degree murder case where the
defendant was sentenced to an indeterminate term of 25 years to life. Issues concerning

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the applicability of the subdivision (b)(1) enhancement to indeterminate sentences are
currently pending in the Supreme Court (People v. Lopez, review granted Nov. 12, 2003,
S119294), but in the meantime, we will continue to follow our opinion in People v.
Johnson, supra, 109 Cal.App.4th 1230, which we believe was correctly decided.
DISPOSITION
The judgments are modified in the following respects: (1) the consecutive
two-year term imposed as part of appellant Fernando Lopez's sentence under section
186.22, subdivision (b)(1) is stricken; (2) the two-year terms imposed as part of
appellants Francisco Lopez's and Francisco Galindo's sentences under section 186.22,
subdivision (b), and then stayed under section 654, are stricken; (3) the judgments of all
three appellants shall include a provision that they shall not be paroled before serving a
minimum of 15 calendar years in prison, pursuant to section 186.22, former subdivision
(b)(4) [now renumbered (b)(5)]. The superior court shall prepare an amended abstract of
judgment and shall forward a copy to the Department of Corrections. As so modified, the
judgments are affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.

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Larry P. Fidler, Judge
Superior Court County of Los Angeles
______________________________
John Steinberg, under appointment by the Court of Appeal, for Defendant
and Appellant Fernando Lopez.
Christine Vento, under appointment by the Court of Appeal, for Defendant
and Appellant Francisco Lopez
Mark Allan Hart, under appointment by the Court of Appeal, for Defendant
and Appellant Francisco Galindo
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C.
Johnson, Supervising Deputy Attorney General, James William Bilderback II, Deputy
Attorney General, for Plaintiff and Respondent.

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