Wednesday, December 8, 2010
C.A. Upholds Conviction in 2007 Gang-Related Shootings
Officer’s Expert Testimony Did Not Usurp Jury Function, Justices Rule
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday reversed a murder conviction resulting from a gang-related 2007 shooting, citing instructional error, but left intact a pair of attempted murder convictions that could result in the defendant serving the rest of his life in prison.
Justice Jeffrey Johnson, in an unpublished opinion for Div. One, said Los Angeles Superior Court Judge Norman Shapiro did not abuse his discretion by admitting expert gang testimony at the trial of Ernesto Cisneros. The trial judge did err, however, in giving a felony-murder instruction where the evidence showed the defendant precipitated a fight that resulted in a fatal shooting by a rival gang member, Johnson said.
Jurors convicted Cisneros of the second degree murder of Javier Robles and the attempted murders of Enzo Rodriguez and Justin Aguilar, with special findings that he used a firearm and that the crimes were gang-related. The verdict was returned after the jury heard evidence that Cisneros, a member of the 18th Street Gang, fired about a dozen shots at a party in a Carmona Avenue backyard attended by members of the rival Carmona Locos.
Robles, who attended the party with Cisneros and others, was shot to death by Michael Gudiel, a Carmona Locos member. Gudiel said he shot at Robles, whom he believed to be armed, out of fear after Cisneros began firing indiscriminately.
Rodriguez said he ran behind the disc jockey’s speaker box when the shooting started and did not see the shooter. This followed a confrontation between Robles and Rodriguez’s brother, apparently because the brothers were in 18th Street territory.
Aguilar, a member of the Carmona Locos, said he was near the D.J. stand when the shooting started and was hit in the legs.
Experts examined casings fired at the scene and determined they came from two different guns, one of which was recovered from Gudiel. The police gang expert testified that Cisneros had previously admitted to 18th Street membership, and was probably still active in the gang at the time of his arrest. He said the 18th Street gang was well known for its actions, including witness intimidation, and that the much-smaller Carmona Locos had no enemies other than 18th Street.
He further testified that Robles was an 18th Street member, and that, based on a hypothetical, the shootings at the party were to benefit and/or were directed by a gang.
Cisneros testified that he had no dispute with anyone at the party, that he had ceased to be a gang member years earlier, that he ran from the party when the shooting started, and that he did not call the police because he was scared.
The judge instructed jurors on both the provocative-act and felony-murder theories, and told them they could convict the defendant on either theory.
Shapiro sentenced Cisneros to a total of 120 years to life in prison—15 years to life, plus a 25-year enhancement under the 10-20-Life Law, for second degree murder, plus 25 years to life and a 25-year enhancement on each count of attempted murder.
Johnson said the felony-murder instruction should not have been given.
“Where an accomplice or a third party is killed at the hands of a crime victim rather than the defendant, such a killing does not occur in the course of a felony and malice cannot be ascribed to the defendant under the felony murder rule,” the justice explained. “Thus, the felony-murder rule is inapplicable where the defendant or an accomplice does not commit the killing.”
Gudiel’s shooting of Robles was a response to a provocative act, not part of the commission or attempted commission of a felony, so the felony-murder rule did not apply, Johnson said. The error was prejudicial, he added, because jurors were likely confused as to the distinction between the two theories.
The justice went on, however, to reject the argument that the gang expert usurped the jury’s function of determining guilt. The facts of the hypothetical fit the evidence, and there was additional evidence of the crimes being gang-related, including the use of gang rhetoric by both Robles and the defendant, the party occurring in gang territory, and the rivalry between the two gangs, Johnson said.
Attorneys on appeal were Jennifer A. Mannix, by appointment, for the defendant and Deputy Attorney General Rama R. Maline for the state.
The case is People v. Cisneros, B216165.
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