Supreme Court of California Justia
Citation 46 Cal. 4th 913, 209 P.3d 105, 95 Cal. Rptr. 3d 202

People v. Medina

Filed 6/22/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S155823
v.
Ct.App. 2/4 B189049
JOSE JESUS MEDINA et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. MA028151

In this case, a verbal challenge by defendants (members of a street gang)
resulted in a fistfight between defendants and the victim (a member of another
street gang). After the fistfight ended, one of the defendants shot and killed the
victim as he was driving away from the scene of the fight with his friend. The jury
found the gunman guilty of murder and attempted murder of the friend, as the
actual perpetrator, and two other participants in the fistfight guilty of those
offenses as aiders and abettors. The Court of Appeal affirmed the gunman‟s
convictions, but reversed the participants‟ convictions. It held there was
insufficient evidence that the nontarget offenses of murder and attempted murder
were a natural and probable consequence of the target offense of simple assault
which they had aided and abetted.
Because a rational trier of fact could have concluded that the shooting death
of the victim was a reasonably foreseeable consequence of the assault, on the facts
1


of this case, we reverse the judgment of the Court of Appeal relating to the
nonshooting defendants.
I. FACTS AND PROCEDURAL HISTORY
On the evening of January 2, 2004, Manuel Ordenes and his wife Amelia
Rodriguez continued their New Year‟s celebration with a party at their home in
Lake Los Angeles, California. Their neighbors Kirk and Abraham, a friend, Lisa,
and Jason Falcon were present at their house. Jose Medina (“Tiny”), George
Marron, and Raymond Vallejo, self-described members of the Lil Watts gang,
were also present. Although Falcon was not identified as a gang member, he was
always with Medina, Marron, and Vallejo. Ordenes had formerly been a member
of the Lennox gang, a Lil Watts rival, although the two gangs were not rivals in
the Lake Los Angeles area. Everyone was drinking alcohol and using
methamphetamine.
Around 11:00 p.m., Ernie Barba drove to Ordenes‟s house with his friend,
Krystal Varela, to pick up a CD. Barba went to the house, while Varela stayed at
the car. When Ordenes or Rodriguez answered the door, Barba asked, “What‟s
up?” On direct examination, Ordenes stated he heard aggressive voices inside the
house saying, “Where are you from?” Later on cross-examination, he clarified
that he heard Vallejo say, “Who is that?” and then ask Barba, “Where are you
from?” From his experience as a former gang member, Ordenes knew that when a
gang member asks another gang member “where are you from?” he means “what
gang are you from?” a question which constitutes an “aggression step.” He also
knew that, if the inquiring gang member was an enemy, the question could lead to
a fight or even death. If that gang member had a weapon, he would use it.
Wanting to avoid problems in his house, and concerned that somebody was going
to get killed, Ordenes ordered, “Take that into the streets, go outside, don‟t
disrespect the house.”
2
Medina, Marron, Vallejo, and Falcon left the house and joined Barba on the
front porch. Once outside, Medina, Marron, and Vallejo approached Barba and
continued to ask, “Where are you from?” Barba replied, “Sanfer,” signifying a
San Fernando Valley gang. Vallejo responded, “Lil Watts.” Medina remarked,
“What fool, you think you crazy?” Vallejo then punched Barba. Medina and
Marron joined in the fight. According to Ordenes, Barba, even though
outnumbered, defended himself well and held his own against the three attackers.
All three “couldn‟t get [Barba] down.” Krystal Varela confirmed that Barba was
defending himself well.
Ordenes attempted to break up the fight and pull the attackers off Barba,
but Falcon held him back. Eventually, Ordenes was able to pull Barba away and
escort him to his car which was parked in front of the house. Barba got into the
driver‟s seat, while Krystal Varela got into the passenger seat. At the car, Ordenes
advised Barba to leave.
Varela heard someone in the yard say, “get the heat,” which she understood
to mean a “gun.” Barba closed the driver‟s side door and drove off. As Ordenes
was walking back to his house, he heard Lisa yell from the doorway, “Stop, Tiny.
No, stop.” Amelia Rodriguez then saw Medina walk into the middle of the street
and shoot repeatedly at Barba‟s car as it drove away. Lisa, who was standing next
to Rodriguez, yelled, “Tiny, you know you‟re stupid. Why you doing that?
There‟s kids here. You f‟d up.” Barba died of a gunshot wound to the head.
The prosecution charged Medina, Marron, Vallejo, and Falcon with first
degree murder (Pen. Code, § 187, subd. (a))1 and with attempted willful,
deliberate, premeditated murder (§§ 664, 187, subd. (a)). Under the prosecution‟s

1
All statutory references are to the Penal Code.
3


theory at trial, Medina was guilty as the actual perpetrator, while Marron, Vallejo,
and Falcon were guilty as aiders and abettors.
At trial, Hawthorne Police Officer Christopher Port testified as the
prosecution‟s gang expert. Officer Port was assigned to the gang intelligence unit
and was familiar with the Lil Watts gang, a violent street gang from Hawthorne.
He testified that Lil Watts gang members primarily committed narcotics offenses
involving possession and sales, vandalism, and gun-related crimes, including
assaults with firearms and semiautomatic firearms, drive-by shootings, and
homicides. The police had identified defendants Medina and Vallejo as members
of the Lil Watts gang, based on field contacts and their gang tattoos. The police
considered Marron to be “affiliated” with the Lil Watts gang, having seen him
with Lil Watts gang members, including Medina and Vallejo.
Officer Port testified that the Lake Los Angeles area where Ordenes lived is
considered a “transient area for gangs.” When a new gang member arrives there,
he feels a need to establish himself by demanding respect, which is “the main
pride” of a gang member. Officer Port testified that gang members view behavior
that disrespects their gang as a challenge and a “slap in the face” which must be
avenged. Gang members perceive that, if no retaliatory action is taken in the face
of disrespectful behavior, the challenger and others will view the gang member
and the gang itself as weak. According to Officer Port, violence is used as a
response to disrespectful behavior and disagreements and as a means to gain
respect.
Officer Port stated that, when a gang member asks another person, “where
are you from?” he suspects that person is in a gang and wants to know what gang
he claims as his. In response to hypothetical questions, Officer Port opined that
when Barba responded “Sanfer,” he was claiming membership in that gang, and
that the Lil Watts gang members had viewed Barba‟s response as disrespectful and
4
had started a fight to avenge themselves. Officer Port stated that a gang member
who asks that question could be armed and probably would be prepared to use
violence, ranging from a fistfight to homicide. He explained, “In the gang world
problems or disagreements aren‟t handled like you and I would handle a
disagreement. . . . When gangs have a disagreement, you can almost guarantee it‟s
going to result in some form of violence, whether that be punching and kicking or
ultimately having somebody shot and killed.”
Ordenes testified that it is important for a gang to be respected and, above
all, feared by other gangs. Once a gang is no longer feared, its members lose
respect, are ridiculed, and become vulnerable and subject to attack by other gangs.
He stated that death is sometimes an option exercised by gang members as a way
to maintain respect. Ordenes further stated there are a lot of gang members
occupying their “turfs” with guns.
The jury acquitted codefendant Falcon, but found defendants Medina,
Marron, and Vallejo guilty as charged, and found true various enhancement
allegations, including that the crimes were committed for the benefit of a gang.
(§ 186.22, subd. (b)(1).)
The Court of Appeal affirmed Medina‟s conviction, but reversed the
convictions of Marron and Vallejo on the ground there was insufficient evidence
that the nontarget crimes of murder and attempted murder were a reasonably
foreseeable consequence of simple assault, the target offense they had aided and
abetted.
We granted the Attorney General‟s petition for review regarding the
reversals of Marron‟s and Vallejo‟s judgments.
5
II. DISCUSSION
The Attorney General argues that, when the facts are viewed as a whole,
there is substantial evidence to support the murder and attempted murder
convictions of defendants Marron and Vallejo. We agree.
Substantial evidence is evidence which is “ „reasonable in nature, credible,
and of solid value.‟ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) “In
reviewing the sufficiency of the evidence, we must determine „whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.‟ ” (People v. Davis (1995) 10 Cal.4th 463, 509.) We must
presume in support of the judgment the existence of every fact that the trier of fact
could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) “The focus of the substantial evidence test is on the whole record of
evidence presented to the trier of fact, rather than on „ “isolated bits of evidence.” ‟
[Citation.]” (People v. Cuevas (1995) 12 Cal.4th 252, 261.)
It is undisputed that Marron and Vallejo knowingly and intentionally
participated in the fistfight that preceded the shooting, that Medina alone shot the
victim, and that the jury convicted Marron and Vallejo of murder and attempted
murder as aiders and abettors under the natural and probable consequences
doctrine.
“A person who knowingly aids and abets criminal conduct is guilty of not
only the intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable consequence of
the intended crime. The latter question is not whether the aider and abettor
actually foresaw the additional crime, but whether, judged objectively, it was
reasonably foreseeable. (People v. Prettyman [(1996)] 14 Cal.4th [248,] 260-
262.)” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) Liability under the
6
natural and probable consequences doctrine “is measured by whether a reasonable
person in the defendant‟s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the act aided and
abetted.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)
“[A]lthough variations in phrasing are found in decisions addressing the
doctrine — „probable and natural,‟ „natural and reasonable,‟ and „reasonably
foreseeable‟ — the ultimate factual question is one of foreseeability.” (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 107.) Thus, “ „[a] natural and probable
consequence is a foreseeable consequence‟. . . .” (Ibid.) But “to be reasonably
foreseeable „[t]he consequence need not have been a strong probability; a possible
consequence which might reasonably have been contemplated is enough. . . . ‟ (1
Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 132, p. 150.)” (People v.
Nguyen, supra, 21 Cal.App.4th at p. 535.) A reasonably foreseeable consequence
is to be evaluated under all the factual circumstances of the individual case (ibid.)
and is a factual issue to be resolved by the jury. (People v. Olguin (1994) 31
Cal.App.4th 1355, 1376; People v. Godinez (1992) 2 Cal.App.4th 492, 499.)
Here, the Court of Appeal held there was insufficient evidence to support a
finding that Medina‟s act of firing a gun was a reasonably foreseeable
consequence of the gang attack in which defendants Marron and Vallejo
participated. In so holding, the Court of Appeal reviewed gang violence cases
affirming the defendants‟ liability as aiders and abettors. (People v. Gonzales
(2001) 87 Cal.App.4th 1, 10-11 [fatal shooting during gang-related fistfight was
natural and probable consequence of fistfight]; People v. Montes (1999) 74
Cal.App.4th 1050, 1056 [shooting of rival gang member during retreat from fight
was natural and probable consequence of gang fight in which defendant wielded a
chain]; People v. Olguin, supra, 31 Cal.App.4th at p. 1376 [defendant‟s punching
of victim during gang confrontation foreseeably led to fatal shooting of victim by
7
fellow gang member]; People v. Godinez, supra, 2 Cal.App.4th 492, 499-500
[fatal stabbing of rival gang member either during or after fistfight was natural and
probable consequence of fistfight]; People v. Montano (1979) 96 Cal.App.3d 221,
226 [defendant‟s aiding and encouragement of battery on victim foreseeably led to
shooting of victim by fellow gang members].)
In evaluating those cases, the Court of Appeal distilled six factors it
considered material to their holdings: “(1) the defendant had knowledge of the
weapon that was used before or during his involvement in the target crime; (2) the
committed crime took place while the target crime was being perpetrated; (3)
weapons were introduced to the target crime shortly after it ensued; (4) the fight
which led to the committed crime was planned; (5) the gangs were engaged in an
ongoing rivalry involving past acts of violence; or (6) the defendant agreed to or
aided the commission of the committed crime.” The Court of Appeal observed
that, in each of the cases reviewed, more than one of the above factors was
present.
In evaluating this case, the Court of Appeal found it significant that none of
the above factors were present, focusing on facts that were missing, rather than on
the actual evidence presented. (See People v. Rodriguez (1999) 20 Cal.4th 1, 12
[rather than focus on the evidence that actually existed, the Court of Appeal
“focused on what it found lacking in the prosecution‟s case”].) However, as the
Attorney General points out, prior knowledge that a fellow gang member is armed
is not necessary to support a defendant‟s murder conviction as an aider and
abettor. (People v. Montes, supra, 74 Cal.App.4th at p. 1056 [“[g]iven the great
potential for escalating violence during gang confrontations, it is immaterial
whether [defendant] specifically knew [fellow gang member] had a gun”]; People
v. Godinez, supra, 2 Cal.App.4th at p. 501, fn. 5 [“although evidence indicating
whether the defendant did or did not know a weapon was present provides grist for
8
argument to the jury on the issue of foreseeability of a homicide, it is not a
necessary prerequisite”]; People v. Montano, supra, 96 Cal.App.3d at p. 227
[defendant‟s liability for aiding and abetting attempted murder not dependent on
awareness that fellow gang members possessed deadly weapons].) Likewise, prior
gang rivalry, while reflecting motive, is not necessary for a court to uphold a gang
member‟s murder conviction under an aiding and abetting theory. (See People v.
Olguin, supra, 31 Cal.App.4th at pp. 1382-1383 [gang enhancement upheld even
though no evidence of “prior relationship between the killers and their victim, and
no reason for animosity other than gang-related insults”].) Thus, although
evidence of the existence of the above listed factors may constitute sufficient
evidence to support an aider and abettor‟s murder conviction under the natural and
probable consequence theory, these factors are not necessary to support such a
conviction. (Cf. People v. Perez (1992) 2 Cal.4th 1117, 1125 [guidelines in
People v. Anderson (1968) 70 Cal.2d 15, 26-27 regarding premeditated murder
“are descriptive, not normative”].) We do not view the existence of those factors
as an exhaustive list that would exclude all other types and combinations of
evidence that could support a jury‟s finding of a foreseeable consequence. (Cf.
Perez, supra, 2 Cal.4th at p. 1125.) In other words, the absence of these factors
alone is not dispositive.
In examining the whole record in the light most favorable to the
prosecution, we conclude that a rational trier of fact could have found that the
shooting of the victim was a reasonably foreseeable consequence of the gang
assault in this case. Medina, Marron, and Vallejo, members of the Lil Watts gang,
repeatedly challenged Barba by asking, “Where are you from?” When Barba
responded, “Sanfer,” Vallejo declared he was a member of another gang, “Lil
Watts.” Medina remarked, “What fool, you think you crazy?” Apparently
9
viewing Barba‟s response as disrespectful behavior, Medina, Marron, and Vallejo
then attacked Barba.
The Court of Appeal emphasized there was no evidence that the assailants
used weapons or were armed during the fistfight, or that the two gangs involved
were in the midst of a “war” or had been involved in prior altercations. It further
stressed that the shooting occurred after the fistfight had ended. However, the
Court of Appeal‟s analysis ignores the testimony of the gang expert, Officer Port,
and of Ordenes, and other evidence.
According to Ordenes, a gang member‟s query “where are you from?”
means “what gang are you from?” and is a verbal challenge, which (depending on
the response) could lead to a physical altercation and even death. Officer Port
affirmed that a gang member who asks, “where are you from?” could be armed
and probably would be prepared to respond with violence, ranging from a fistfight
to homicide. As a former gang member, Ordenes foresaw precisely that result.
He feared that somebody might get killed after Vallejo verbally challenged Barba,
and, because of that fear, ordered defendants to “take that into the streets.”
Once the fight ensued, the three men could not get Barba down. Despite
being attacked and outnumbered by three aggressors, Barba defended himself well
and held his own. Ordenes interrupted the fistfight while Barba was performing
well and before the three attackers could vindicate themselves. Given the gang-
related purpose of the initial assault and the fact that, despite being outnumbered,
Barba exhibited strength against three aggressors who could not avenge
themselves in response to what they considered disrespectful behavior by Barba,
the jury could reasonably have found that a person in defendants‟ position (i.e., a
gang member) would have or should have known that retaliation was likely to
occur and that escalation of the confrontation to a deadly level was reasonably
10
foreseeable as Barba was retreating from the scene. (See, e.g., People v. Olguin,
supra, 31 Cal.App.4th at p. 1376.)
The record supports that implicit finding by the jury. First, according to the
testimony, gang members emphasize the need for respect, primarily in the form of
fear. Officer Port testified that gang members view behavior that disrespects their
gang as a challenge and “slap in the face” which must be avenged. Gang members
perceive that, if no retaliatory action is taken in the face of disrespectful behavior,
the challenger and other people will view the gang member and the gang itself as
weak. Ordenes, a former gang member, confirmed that once a gang is no longer
feared, its members lose respect, are ridiculed, and become vulnerable and subject
to attack by other gangs. According to Officer Port, violence is used as a response
to disrespectful behavior and disagreements, and as a means to gain respect.
Ordenes confirmed that gang members consider death as a means to maintain
respect in some circumstances.
Second, the record reveals that Lil Watts was a violent street gang that
regularly committed gun offenses. Officer Port testified that Lil Watts members
were involved “in all sorts of gun charges,” including assaults with firearms,
semiautomatic firearms, drive-by shootings, and homicides. Ordenes affirmed that
many gang members occupied their turfs with guns. Regarding this specific
incident, Ordenes ordered the Lil Watts gang members outside because he was
concerned that somebody would be killed. Thus, because Lil Watts members had
challenged a rival gang member, the jury could reasonably have inferred that, in
backing up that challenge, a Lil Watts member either would have been armed or
would have or should have known a fellow gang member was or might be armed.
Third, although there was no evidence the two gangs involved had an
ongoing rivalry, Officer Port stated that the Lake Los Angeles area is considered a
“transient area for gangs” where newly arrived gang members demand respect to
11
establish themselves in that territory. Ordenes testified that members of Lil Watts,
Sanfer, and Pacoima (another gang) live in the Lake Los Angeles area. Thus,
escalating the violence with a gun was a foreseeable way for a Lil Watts gang
member to exact revenge for Barba‟s initial disrespect and his later show of
strength against the three aggressors, thereby establishing Lil Watts‟s turf
domination in the neighborhood.
Fourth, although Vallejo argues that the fistfight and shooting were not one
uninterrupted event, but rather two separate incidents, the evidence showed that
Medina, Marron, and Vallejo did not consider the fight to be over and that the
shooting resulted directly from that fight. Eyewitnesses testified that the events
happened very quickly, in a matter of seconds, not minutes. After Ordenes had
broken up the fight, someone yelled, “get the heat,” just before the shooting. The
Court of Appeal commented that this was “[t]he only piece of evidence that might
support an inference that someone other than Medina knew the shooting would
take place.” But it reasoned that the evidence was “speculative” since there was
no indication of who said, “get the heat,” and the statement was made after the
fistfight ended.
The Court of Appeal‟s reasoning is flawed for two reasons. First, in the
gang context, it was not necessary for there to have been a prior discussion of or
agreement to a shooting, or for a gang member to have known a fellow gang
member was in fact armed. (People v. Montes, supra, 74 Cal.App.4th at p. 1056.)
Second, the Court of Appeal incorrectly concluded there was no indication of who
said, “get the heat” and ignored the causal relationship between the fistfight and
the order to “get the heat.”
Although there was no direct evidence of who specifically ordered, “get the
heat,” there was circumstantial evidence regarding the identity of the declarant.
That evidence revealed that one of the gang participants actually knew that at least
12
one fellow gang member had a gun. It was unlikely that Medina yelled “get the
heat” to himself. Other evidence established that Rodriguez, like her husband,
ordered the men to take their dispute outside because she was concerned for her
children; Rodriguez yelled for the men to stop fighting; Ordenes successfully
broke up the fistfight; Ordenes‟s neighbors Kirk and Abraham remained in the
house during the fight; and Ordenes‟s friend, Lisa, tried to stop the shooting when
she yelled from the doorway, “Stop, Tiny. No, stop.” That evidence reflects that
the people at the party other than defendants either wanted the fighting to end or
were not present during the fighting, and had no reason to want Barba shot. In
addition, Medina, Marron, Vallejo, and Falcon fled before the police arrived. (See
People v. Haynes (1998) 61 Cal.App.4th 1282, 1294 [factors suggesting aiding
and abetting includes “presence at the scene . . . , companionship, and conduct
before and after the crime, including flight”].) The jury could reasonably have
concluded that one of the Lil Watts members yelled, “get the heat,” and that either
Medina was asking his companions for a gun, or a companion was telling him to
get out a gun.2 The fact that at least two of the gang members knew a gun was
available at the scene is further evidence that gun violence was foreseeable.

2
The dissenting opinion argues that it was equally reasonable for the jury to
have concluded that Medina himself shouted for a gun, his companions did not
know what he was talking about, and when no one responded, he retrieved the gun
himself. (Dis. opn., at p. 4.) Nevertheless, the dissent does not dispute that, in
view of all the evidence presented at trial, the jury could have reasonably
concluded that one of the Lil Watts gang members yelled, “get the heat,” and that
either Medina was asking for and received a gun from a companion, or a
companion was telling Medina to get out a gun.

“[O]ur role on appeal is a limited one.” (People v. Ochoa, supra, 6 Cal.4th
at p. 1206.) Under the substantial evidence rule, we must presume in support of
the judgment the existence of every fact that the trier of fact could reasonably have
deduced from the evidence. (Ibid.) Thus, if the circumstances reasonably justify
the trier of fact‟s findings, the opinion of the reviewing court that the

(footnote continued on next page)
13


Thus, the evidence shows there was a close connection between the failed
assault against Barba (in which Marron, Vallejo, and Medina directly participated)
and the murder of Barba (People v. Prettyman, supra, 14 Cal.4th at p. 269);
Medina shot Barba because he disrespected Lil Watts (People v. Olguin, supra, 31
Cal.App.4th at p. 1383); and the shooting and death were “ „not an unreasonable
result to be expected from the [assault].‟ ” (People v. Martinez (1966) 239
Cal.App.2d 161, 178-179 [conspirators liable for killing by coconspirator that
went outside of express objective of conspiracy to disturb the peace; killing was
reasonable result to be expected from contemplated acts].)
Finally, the Court of Appeal unduly emphasized the differences between
this case and other gang cases while ignoring the similarities. As in this case, in
People v. Olguin, supra, 31 Cal.App.4th 1355, a confrontation between three
members of a gang and the victim — who they felt had shown them disrespect —
escalated from mere shouting and a punch, to the shooting of the victim. Initially,
the three gang members believed that the victim (possibly a member of a defunct
gang) had defaced their gang graffiti, and they interpreted the defacement as a sign
of disrespect and a challenge to their territorial claim. The confrontation began
with the three gang members and the victim shouting at each other. Mora, one of
the three gang members, then punched the victim, who was drunk, and knocked
him down. As other men approached the victim to give him aid, the victim stood
up and began walking towards the three gang members. Olguin, a second member
of the gang, pulled out a gun and fired, killing the victim with a single shot to the

(footnote continued from previous page)

circumstances might also reasonably be reconciled with a contrary finding does
not warrant reversal of the judgment. (People v. Kraft (2000) 23 Cal.4th 978,
1054.)
14


chest. Despite the fact there was no evidence of a prior relationship between the
defendants and their victim and no reason for animosity other than gang-related
insults, the court found the shooting was a foreseeable consequence of the punch
and found Mora liable for the murder of the victim. (Id. at pp. 1375-1376, 1382-
1383.) Noting that the victim did not appear intimidated by being outnumbered,
the court concluded that “escalation of this confrontation to a deadly level was
much closer to inevitable than it was to unforeseeable . . . .” (Id. at p. 1376.)3
In People v. Montes, supra, 74 Cal.App.4th 1050, the victim was shot as he
was retreating from a fight between two rival gangs. Although defendant struck
the victim (a rival gang member) with a chain after the victim produced a knife, no
guns were displayed or used during the fight. As the victim was about to drive off
after the fight ended, defendant‟s confederate retrieved a gun from a nearby
vehicle, ran up to the victim, and shot him several times. Rejecting the
defendant‟s argument that he did not know his confederate had a gun, the Montes
court held that the homicide was a reasonable and natural consequence of the gang
attack in which defendant participated. It reasoned that escalating violence is a
foreseeable consequence to be expected in gang confrontations. (People v.
Montes, supra, 74 Cal.App.4th at p. 1056.)
In People v. Montano, supra, 96 Cal.App.3d 221, the court found the
defendant guilty of attempted murder as an aider and abettor even though he had
not fought with the victim. There, the defendant and a codefendant tricked a
member of another gang into getting in their car by claiming to be members of the

3
Although the Olguin court commented that Mora knew Olguin was armed,
Olguin claimed at trial that he did not tell Mora or the third gang member he was
armed. (People v. Olguin, supra, 31 Cal.App.4th at pp. 1366, 1376.) Despite the
court‟s assertion, there does not appear to have been any evidence refuting
Olguin‟s claim.
15


same gang. They drove the victim to a remote area where another codefendant
met them. The two codefendants ordered the victim out of the car and escorted the
victim to a nearby tree, while the defendant remained inside the car. The first
codefendant produced a handgun and gave it to the second codefendant, who shot
the victim. At the urging of the first codefendant, the second codefendant shot the
victim again. Defendant argued there was insufficient evidence to support his
attempted murder conviction as an aider and abettor; he contended he had only
aided or encouraged a battery by suggesting the beating of the victim and had had
no knowledge of his codefendant‟s intent to shoot the victim.
The Montano court rejected the argument, reasoning that “The evidence
was clear that the attack upon [the victim] was an aspect of gang warfare and that
he was attacked on the basis of his membership in the rival 18th Street gang. The
frequency with which such gang attacks result in homicide fully justified the trial
court in finding that homicide was a „reasonable and natural consequence‟ to be
expected in any such attack. It is, therefore, clear that [the defendant‟s] guilt of
aiding and abetting an attempted murder does not depend upon his awareness that
[either codefendant], or both of them, had deadly weapons in their possession.”
(People v. Montano, supra, 96 Cal.App.3d at p. 227.)
The dissenting opinion examines Ordenes‟s and Officer Port‟s testimony
relating to the consequences of the challenge “Where are you from?” and
concludes that, at most, they believed that a homicide was a possible, not
probable, consequence of that challenge. The dissent emphasizes that Ordenes‟s
actions in ordering the gang members out of his house and breaking up the fight
further reflects that Ordenes did not foresee that the verbal challenge would
probably result in a homicide. (Dis. opn., at pp. 4-7.)
Although the dissent (echoing the Court of Appeal) emphasizes that the
shooting was not a probable consequence of the verbal challenge, the ultimate
16
factual question is one of reasonable foreseeability, to be evaluated under all the
factual circumstances of the case. (People v. Coffman and Marlow, supra, 34
Cal.4th at p. 107; People v. Nguyen, supra, 21 Cal.App.4th at pp. 531, 535.) The
precise consequence need not have been foreseen. (Cf. People Schmies (1996) 44
Cal.App.4th 38, 50 [proximate cause principles].) Even if Ordenes had not
actually pinpointed, from the verbal challenge alone, the precise form of ensuing
violence, he did foresee that the verbal confrontation by the Lil Watts gang
members would likely escalate into some type of physical violence. Officer Port
agreed that the challengers would be prepared to use physical violence.
Nor was it required that Vallejo and Marron “must have known Medina
was armed.” (Dis. opn., at p. 6, fn. 2.) The issue is “whether, under all of the
circumstances presented, a reasonable person in the defendant‟s position would
have or should have known that the [shooting] was a reasonably foreseeable
consequence of the act aided and abetted by the defendant.” (People v. Nguyen,
supra, 21 Cal.App.4th at p. 531, italics added.)
Contrary to the dissent‟s suggestion, there was more here than just verbal
challenges by gang members. (Dis. opn., at p. 7.) There was evidence that Barba
refused to succumb to the gang assault despite being substantially outnumbered
and defendants were unable to avenge themselves because of Barba‟s show of
strength; gang culture (in which defendants were involved) emphasizes respect,
fear, and retaliatory violence in the face of disrespectful behavior; Lil Watts was a
violent street gang that regularly committed gun offenses; and a Lil Watts gang
member had ready access to a gun at the scene. Even if the three aggressors did
not intend to shoot Barba when they verbally challenged him, or at the start of the
fistfight, it was or should have been reasonably foreseeable to these gang members
that the violence would escalate even further depending on Barba‟s response to
their challenge. (See, e.g., People v. Olguin, supra, 31 Cal.App.4th at p. 1376
17
[refusal to show intimidation despite being outnumbered]; People v. Montes,
supra, 74 Cal.App.4th at p. 1053 [victim produced a knife].) Thus, given the fact
that defendants were unable to avenge themselves for the perceived multiple
instances of disrespectful behavior by Barba, the jury could reasonably have found
that defendants would have or should have known that retaliation was likely to
occur and that escalation of the confrontation to a deadly level was reasonably
foreseeable as Barba was retreating from the scene.
Accordingly, viewing the whole record in the light most favorable to the
prosecution, we find there was sufficient evidence to support the murder and
attempted murder convictions of defendants Marron and Vallejo.
III. DISPOSITION
We reverse the judgment of the Court of Appeal relating to defendants
Marron and Vallejo.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
BAXTER, J.
CORRIGAN, J.

18





DISSENTING OPINION BY MORENO, J.

I dissent. In my view, the Court of Appeal reached the correct conclusion
when it reversed the convictions of defendants Marron and Vallejo. I agree with
the Court of Appeal that insufficient evidence supported those convictions based
on the theory that the shooting of Barba by defendant Medina was a natural and
probable consequence of the assault on Barba in which Marron and Vallejo
participated. The Court of Appeal did not reach this conclusion lightly. The court
applied the deferential substantial evidence standard of review to its inquiry. It
also recognized the grim reality that disputes between gang members are in a
different category from disputes between civilians. “As gang violence has become
more prevalent and innocent bystanders have become victims of the violence in
ever increasing numbers, our courts have recognized that a dispute between two
neighbors and one between two gang members can lead to different
consequences.” Nonetheless, the Court of Appeal determined that even in the
context of gang violence there was insufficient evidence to support the jury‟s
verdict as to Vallejo and Marron.
The Court of Appeal carefully compared decisions affirming convictions of
gang members based on the natural and probable consequences theory with the
facts of this case in light of the reasonable forseeability requirement. (People v.
Prettyman (1996) 14 Cal.4th 248, 260 [natural and probable consequences
doctrine “is based on the recognition that „aiders and abettors should be
1


responsible for the criminal harms they have naturally, probably and foreseeably
put in motion‟ ”].) In each case it considered, the Court of Appeal observed that
the evidence supporting the convictions of the nonperpetrator included one or
more crucial facts that were absent from this case. “In evaluating the cited cases,
several facts emerge which support the courts‟ conclusions that each defendant
was liable for the committed crime under the natural and probable consequences
theory: 1) the defendant had knowledge of the weapon that was used before or
during his involvement in the target crime; 2) the committed crime took place
while the target crime was being perpetrated; 3) weapons were introduced to the
target crime shortly after it ensued; 4) the fight which led to the committed crime
was planned; 5) the gangs were engaged in an ongoing rivalry involving past acts
of violence; or 6) the defendant agreed to or aided the commission of the
committed crime. In all of these cases, more than one of these facts were
present.”1
By contrast, the court noted that there was no evidence that either Vallejo
or Marron had knowledge that Medina was in possession of a gun before or during
the fistfight with Barba. “Indeed,” the court observed, “there was no evidence that
anyone had a weapon of any kind prior to the shooting.” The shooting of Barba
did not occur during the assault on him by Medina, Vallejo and Marron. Rather,

1
The majority faults the Court of Appeal for “focusing on the facts that were
missing, rather than on the actual evidence presented.” (Maj. opn., ante, at p. 8.) I
disagree with this characterization. The Court of Appeal did not give short shrift
to the evidence potentially supporting the convictions — indeed, the majority feels
compelled elsewhere in its opinion to contest the Court of Appeal‟s discussion of
some of that evidence. (Maj. opn., ante, at pp. 10-12.) By definition, however, a
finding that evidence is insufficient to support a judgment must be based on
evidentiary deficiencies, and so, necessarily, a reviewing court would emphasize
such deficiencies.
2


the testimony of the three percipient witnesses — Ordenes, Rodriguez, and Varela
— was that the fight had broken up, Ordenes had walked Barba to his car and put
him inside of it, and Barba had begun to drive away when Medina alone walked
into the middle of the street and started firing. There was no evidence that the
assault on Barba was planned by the defendants, much less that it was a retaliatory
act in the course of ongoing gang warfare between the “Lil Watts” and “Sanfer”
gangs. In fact, the gang expert, Officer Port, testified that these gangs were not
even rivals. Finally, there was no evidence that there was any prior agreement
between the defendants to go out looking for a “Sanfer” gang member to assault.
Contrary to the Attorney General‟s contention, by making this comparison,
the Court of Appeal was not establishing a standard of evidence that must be met
before a conviction based on the natural and probable consequences doctrine will
be affirmed in the context of gang violence. Rather, the court was attempting to
determine the contours of that doctrine by reference to extant case law, and
particularly, to cast some practical light on the elusive concept of foreseeability,
given that “no published case to date gives a clear definition of the terms „natural‟
and „probable[]‟. . . .” (Com. to CALCRIM No. 403 (2008 ed.) p. 173.) It was
necessary for the Court of Appeal to examine precedent to determine the nature,
quality and quantum of evidence found to be sufficient to sustain a conviction
under that doctrine in order to determine whether the evidence was sufficient in
this case.
What the Court of Appeal found was that the “only piece of evidence that
might support an inference that someone other than Medina knew the shooting
would take place was Varela‟s testimony that she heard someone say, „Get the
heat,‟ just prior to the sound of gunfire.” To this, I would add the majority
opinion‟s assertion — echoed by the Attorney General at argument — that both
Ordenes and Port, the gang expert, testified, in effect, that a homicide is a
3
reasonably foreseeable consequence of the challenge, “Where are you from?” I
disagree with the majority‟s characterization of this evidence.
The majority opinion places enormous weight on the “Get the heat”
testimony and goes to some lengths to establish, circumstantially, that the person
who uttered this statement must have been either Vallejo or Marron. (Maj. opn.,
ante, at pp. 12-13.) That analysis proceeds, however, from an ipse dixit
assumption: “It was unlikely that Medina yelled „get the heat‟ to himself.” (Maj.
opn., ante, at p. 13.) Medina was the one person in this episode who knew there
was a gun somewhere because he used it to kill the victim. It is not unlikely,
therefore, that Medina yelled out, “Get the heat.” But this does not necessarily
imply that his codefendants must have known Medina had a gun with him. It only
establishes that Medina, who was evidently quite angry that the attack on Barba
had been broken up, shouted for a gun, not that anyone knew what he was talking
about. It is just as reasonable to conclude that he shouted this command and,
when no one responded, he got the gun himself. Indeed, this conclusion is more
consistent with the testimony of Rodriguez that, after everyone scattered, Medina
stepped out into the street with the gun and fired it.
The other bit of evidence on which the majority relies is testimony
regarding the consequences of the challenge, “Where are you from?” The
majority asserts: “According to Ordenes, a gang member‟s query „where are you
from?‟ means „what gang are you from?‟ and is a verbal challenge, which
(depending on the response) could lead to a physical altercation and even death.
Officer Port affirmed that a gang member who asks „where are you from?‟ could
be armed and probably would be prepared to respond with violence, ranging from
a fistfight to homicide. As a former gang member, Ordenes foresaw precisely that
result. He feared that somebody might get killed after Vallejo verbally challenged
4
Barba and, because of that fear, ordered defendants to „take that into the streets.‟ ”
(Maj. opn., ante, at p. 10.)
An examination of the reporter‟s transcript belies the majority‟s
characterization of this evidence. What the transcript discloses is that both
Ordenes and Port — and the former with considerable prodding from the
prosecutor — were, at most, describing possible — not probable —
consequences. For example, what Ordenes actually said, based on his experience
as a gang member, was that the question, “Where are you from?” “would go on to
a fight or whatever. [¶] [Q.] Or what? [¶] [A.] Or whatever else would happen.
[¶] [Q.] What other things could happen from that? [¶] [A.] Well, death. [¶]
[Q.] Death as by how? [¶] [A.] Whatever. Whatever you can use. [¶] [Q.]
Okay. So if you have a weapon — [¶] [A.] You would use it.” (Italics added.)
Thus, in my view, Ordenes‟s testimony describes a possible event, not a
probable one, that might occur if weapons were present (but Ordenes did not
testify that he knew or even suspected any of the defendants in this case were
armed). The gang expert‟s testimony was equally attenuated. The expert testified
that if the question “Where are you from?” was answered unsatisfactorily, “it‟s
some form of misunderstanding that can go into some physical altercation. They
can go from a fistfight to disrespecting each other . . . verbally and all the way as
far [as] homicide.” (Italics added.)
Like Ordenes, then, the expert did no more than describe a range of
possible results from a fistfight to verbal insults and, perhaps somewhere down the
line, a killing, although how far down the line was not elucidated. Moreover,
when the expert was asked, “when a gang member usually asks that question to
someone else, in your experience are they usually armed?” the expert replied,
“They can be. It‟s my opinion that if you‟re going to ask that question, that you‟re
probably prepared to be in some form of altercation following the answer.”
5
(Italics added.) “Some form of altercation,” of course, is exactly what happened in
this case — a fistfight. It does not necessarily encompass a homicide.2
Nor do I agree that Ordenes‟s testimony about his concern when he told
defendants and Barba to take their dispute outside the house was because he
foresaw a probable homicide. It was the prosecutor who raised this specter: “[Q.]
Okay. And when you heard somebody say, „Where are you from,‟ did that start to
concern you a little bit? [¶] [A.] Yes, it did. [¶] [Q.] Okay. And is that for the
reasons you just stated right now, that you knew that somebody was going to get
killed? [¶] [A.] For the reason that I didn’t want no problems to my house and
also that reason too. [¶] [Q.] Okay. So what happened after you heard the words,
„Where are you from?‟ [¶] [A.] I said, „Take that into the streets, go outside,
don’t disrespect the house.‟ ” (Italics added.)
Again, despite the prosecutor‟s prodding, Ordenes‟s testimony is not
evidence that he reasonably foresaw a homicide as a consequence of the challenge.
Instead, his testimony evinced a concern that he did not want a fight — a fistfight
or some other physical altercation— inside his house where there were women and
children. That this domestic concern, rather than fear of a probable homicide, was
behind his command for the men to leave his house is reflected in his wife‟s

2
The majority highlights Port‟s general testimony that the “Lil Watts” gang
participated in crimes involving firearms, and concludes: “[B]ecause Lil Watts
members had challenged a rival gang member, the jury could reasonably infer that,
in backing up that challenge, a Lil Watts member either would have been armed or
would have or should have known a fellow gang member was or might be armed.”
(Maj. opn., ante, at p. 11.) I disagree with the conclusion that it can be reasonably
inferred from Port‟s testimony that, because some gang members participated on
some occasions in gun-related crimes, these particular defendants must have
known Medina was armed in the specific circumstances of this case — where
members from two gangs, who were not rivals, met at a party house in neutral
territory.
6


testimony. Rodriguez also told the men to leave the house because, as she
testified, “they were kind of getting loud, so I told — they had my front door open
and it was cold, so I told them to take that outside because my kids are in back
asleep, and then I closed the door.”
Moreover, Ordenes‟s conduct after ordering the men out is not consistent
with the majority‟s interpretation of his testimony. Had he suspected a killing was
in the offing, one would think he would have done something to protect himself
from getting caught in the crossfire, but he did not. Rather, he followed the men
outside, broke up their fight and walked Barba to his car, telling him, “ „Just get in
the car, just leave, I‟ll take care of it.‟ ” These are not the acts or the words of
someone who is fearful that a killing is imminent. They are the acts and words of
someone who is prepared for a low-level altercation that can be smoothed over
eventually once the participants have been separated. Thus, I disagree with the
majority‟s characterization of Ordenes‟s testimony as reflecting a fear “that
somebody might get killed after Vallejo verbally challenged Barba . . . .” (Maj.
opn., ante, at p. 10.)
Stripped to its essence, what the majority holds is that the challenge
“Where are you from?” is so provocative in the context of gang culture that any
response up to and including murder is a reasonably foreseeable consequence of
that utterance, so as to justify a murder conviction not only of the actual
perpetrator but also of any other gang members involved in the target offense,
whatever the surrounding circumstances. I cannot subscribe to such an expansive
interpretation of the natural and probable consequences doctrine even in the
context of gang violence, which no one doubts is a plague upon some of our
state‟s most vulnerable communities.
I must agree with the Court of Appeal: “Notwithstanding the violence
which most gang confrontations spawn, on our facts, viewed objectively, we
7
cannot conclude that an unplanned fight between unarmed combatants in front of a
residence was reasonably likely to lead to a shooting resulting in death. In
essence, the Attorney General is asking us to create a new theory of liability. An
aider and abettor would be responsible for any crime that was a natural and
possible consequence of the target crime. That, we cannot do.”
Neither can I.
MORENO, J.
WE CONCUR:
KENNARD, J.
WERDEGAR, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Medina
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 153 Cal.App.4th 610
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S155823
Date Filed: June 22, 2009
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: William R. Pounders

__________________________________________________________________________________

Attorneys for Appellant:

Chris R. Redburn, under appointment by the Supreme Court; and Joy A. Maulitz for Defendant and
Appellant Jose Jesus Medina.

John Steinberg, under appointment by Supreme Court, for Defendant and Appellant George J. Marron.

Mark D. Lenenberg, under appointment by Supreme Court, for Defendant and Appellant Raymond Vallejo.
__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Victoria B. Wilson, Kristofer Jorstad, Joseph P. Lee and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

John Steinberg
P.O. Box 8148
Berkeley, Ca 94707-8148
(510) 559-8051

Mark D. Lenenberg
P.O. Box 940327
Simi Valley, CA 93094-0327
(805) 526-5988

Mary Sanchez
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2364


Petition for review after the Court of Appeal affirmed one defendant's judgment of conviction of criminal offenses and reversed two other defendants' judgments of conviction of criminal offenses. This case presents the following issue: Did the Court of Appeal err in holding the evidence insufficient to support defendants' convictions for murder and attempted murder under the natural and probable consequences doctrine based on the target offenses of assault and battery?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 06/22/200946 Cal. 4th 913, 209 P.3d 105, 95 Cal. Rptr. 3d 202S155823Review - Criminal Appealclosed; remittitur issued

PEOPLE v. MARTINEZ (S170016)


Parties
1Medina, Jose Jesus (Defendant and Appellant)
Kern Valley State Prison
P. O. Box 5103
Delano, CA 93216

Represented by Chris R. Redburn
Attorney at Law
P.O. Box 27332
San Francisco, CA

2Marron, George J. (Defendant and Appellant)
Represented by John Steinberg
Attorney at Law
P.O. Box 8148
Berkeley, CA

3Vallejo, Raymond (Defendant and Appellant)
Represented by Mark D. Lenenberg
Attorney at Law
P.O. Box 940327
Simi Valley, CA

4The People (Plaintiff and Respondent)
Represented by Mary E. Sanchez
Office of the Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA


Opinion Authors
OpinionJustice Ming W. Chin
DissentJustice Carlos R. Moreno

Disposition
Jun 22 2009Opinion: Reversed

Dockets
Aug 29 2007Petition for review filed
Appellant, Jose Jesus Medina by counsel, Chris R. Redburn.
Aug 29 2007Record requested
Aug 30 2007Received Court of Appeal record
Aug 31 20072nd petition for review filed
The People, Respondent by Mary Sanchez, counsel
Sep 7 2007Request for depublication (petition for review pending)
Respondent The People Depty A. G. Mary Sanchez
Sep 12 2007Answer to petition for review filed
George Marron, appellant by John Steinberg, CA-appointed counsel
Sep 17 2007Filed:
Jeff Adachi, Public Defender of the City and County of San Francisco's opposition to the Attorney General's request for depublication
Oct 31 2007Petition for review granted (criminal case)
Respondent's petition for review is granted. Appellant Medina's petition for review is deneid. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Nov 13 2007Counsel appointment order filed
Upon request of appellant Jose Jesus Medina for appointment of counsel, Chris Redburn is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Nov 13 2007Counsel appointment order filed
Upon request of appellant George Marron for appointment of counsel, John Steinberg is hereby appointed to represent appellant now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Nov 13 2007Counsel appointment order filed
Upon request of appellant Raymond Vallejo for appointment of counsel, Mark Lenenberg is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Nov 13 2007Received:
Letter from Chris R. Redburn, counsel for appellant, re new address for appellant Jose Medina F-17950, KVSP C8-232, P. O. Box 5102, Delano, CA 93216.
Nov 21 2007Request for extension of time filed
to file opening brief to 12-29-2007 Respondent The People
Nov 28 2007Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including December 31, 2007.
Dec 6 2007Received:
Letter dated 12-5-2007 from Attorney Chris R. Redburn, advising that Mr. Medina does not plan to file a brief in this appeal. His petition for review was denied by the California Supreme Court on October 31, 2007. Counsel is representing his interests in this case.
Dec 17 2007Note: Mail returned (unable to forward)
as to attorney Mark D. Lenenberg.
Dec 20 2007Opening brief on the merits filed
Respondent The People
Jan 15 2008Answer brief on the merits filed
George Marron, appellant by John Steinberg, counsel
Jan 16 2008Request for extension of time filed
Raymond Vallejo, appellant by Mark D. Lenenberg, counsel (requesting 30 days' extension to Feb. 21, 2008, to file answer brief on the merits
Jan 23 2008Extension of time granted
On application of Mark D. Lenenberg, counsel for appellant Raymond Vallejo, and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 21, 2008.
Jan 25 2008Answer brief on the merits filed
Raymond Vallejo, defendant and appellant by Mark D. Lenenberg, Supreme Court appointed counsel
Jan 31 2008Received:
Letter from John Steinberg, Counsel for Appellant George Marron -- on vacation from April 29 through May 15, 2008.
Feb 14 2008Compensation awarded counsel
Atty Lenenberg
Feb 19 2008Request for extension of time filed
to file respondent's reply brief to March 26, 2008.
Feb 21 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's reply brief on the merits is extended to and including March 26, 2008.
Mar 11 2008Reply brief filed (case fully briefed)
Respondent Deputy Attorney General Mary Sanchez
Jul 8 2008Received:
Letter dated July 6, 2008 from John Steinberg advising of vacation from October 13-20, 2008 and a non-refundable airfare purchased. He is requesitng the court to take this into consideration when scheduling oral argument.
Dec 15 2008Received:
Letter dated 12/12/2008 from Mark Lenenberg, counsel for Appellant Vallejo, advising the Court he will be on an extended vacation out of the U.S. from 2-19-2009 through and including 3-22-2009. Costs for the trip is non-refundable and is unable to reschedule for any other time during the year.
Mar 11 2009Case ordered on calendar
to be argued on Tuesday, April 7, 2009, at 9:00 a.m., in Los Angeles
Mar 24 2009Filed:
Letter from John Steinberg, counsel for appellant Marron, requesting to share 10 minutes of argument time with appellant Vallejo.
Mar 24 2009Filed:
Letter from Mark D. Lenenberg, counsel for appellant Vallejo, requesting to share 20 minutes of argument time with appellant Marron. This letter was filed in conjuntion with the letter from John Steingberg of this date; both requesting to share time: 20 minutes for Marron, 10 minutes for Vallejo.
Mar 25 2009Order filed
The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to appellant Marron 20 minutes and appellant Vallejo 10 minutes of appellants' 30-minute allotted time for oral argument is granted.
Apr 7 2009Cause argued and submitted
Jun 19 2009Notice of forthcoming opinion posted
Jun 22 2009Opinion filed: Judgment reversed
relating to defendants Marron and Vallejo. Majority Opinion by Chin, J. ----- Joined by George, C. J., Baxter and Corrigan, JJ. Dissenting Opinion by Moreno, J. ----- Joined by Kennard and Werdegar, JJ.
Jul 9 2009Compensation awarded counsel
Atty Redburn
Jul 23 2009Remittitur issued
Jul 30 2009Returned record
3 doghouses
Jul 31 2009Received:
Acknowledgment of receipt for remittitur from Second Appellate District, Div. Four.
Aug 19 2009Compensation awarded counsel
Atty Lenenberg

Briefs
Dec 20 2007Opening brief on the merits filed
Respondent The People
Jan 15 2008Answer brief on the merits filed
George Marron, appellant by John Steinberg, counsel
Jan 25 2008Answer brief on the merits filed
Raymond Vallejo, defendant and appellant
Mar 11 2008Reply brief filed (case fully briefed)
Respondent Deputy Attorney General Mary Sanchez
Brief Downloads
application/pdf icon
Petition for Review (Medina).pdf (2536983 bytes)
application/pdf icon
Petition for Review (State).pdf (1723586 bytes)
application/pdf icon
Answer to Petition for Review (Marron).pdf (371765 bytes)
application/pdf icon
Answer Brief on the Merits (Marron).pdf (1076555 bytes)
application/pdf icon
Answer Brief on the Merits (Vallejo).pdf (1736658 bytes)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 23, 2011
Annotated by jennifer gibson

OPINION BY: Chin, J.

FACTS / FACTS

On January 2, 2004, Jose Medina ("Tiny"), George Marron, and Raymond Vallejo—all self-described members of the Lil Watts gang— attended a party hosted by Manual Ordenes and his wife Amelia Rodriguez. They were accompanied by Jason Falcon, who, while not identified as a gang member, was always with them. Ordenes, the host of the party, was a former member of the Lennox gang, a Lil Watts rival, but the two gangs were not rivals in the Lake Los Angeles area. Everyone at the party was drinking alcohol and using metamphetamine.

Around 11:00pm, Ernie Barba and Krystal Varela stopped by the house to collect a CD. Varela stayed in the car, while Barba went up to the house. Once there, he was confronted by Vallejo, who asked him "where are you from?" According to testimony at the trial, when a gang member asks "where are you from?", he is really asking "what gang are you from?" Ordenes, fearing trouble, told the men: "Take that into the streets, go outside, don't disrespect the house.”

The men obeyed and once outside, the confrontation escalated. When Barba finally responded “Sanfer”, signifying a San Fernando Valley gang, Vallejo punched him. Medina and Marron then joined the ensuing fight. Although Barba was outnumbered three to one, he defended himself well and held his own against the three attackers. Eventually, Ordenes was able to break up the fight. He escorted Barba to his car and advised him to leave. While Barba was getting in the car, Varela heard someone say “get the heat.” Medina then walked into the middle of the street and started shooting at the vehicle as it drove away. One of the bullets hit Barba in the head, killing him.

Prosecutors charged Medina, Marron, Vallejo and Falcon with first degree murder under Penal Code Section 187(a) and attempted murder under Penal Code Sections 664 and 187(a).

PROCEDURAL POSTURE

The trial court found Medina, Marron, and Vallejo guilty as charged. Marron and Vallejo were held responsible for aiding and abetting Medina, who perpetrated the actual crime. The court also found true various enhancement allegations, including that the crimes were committed for the benefit of a gang. Falcon was acquitted.

The Court of Appeal affirmed Medina’s conviction, but reversed the convictions of Marron and Vallejo on the grounds that the murder was not a reasonably foreseeable consequence of a simple assault, the target offense which they aided and abetted.

ISSUE

If gang members are involved in a simple assault, is it reasonably foreseeable that one will pull out a gun and kill someone?

HOLDING

The Court of Appeal judgement is reversed. In the context of street gangs, it was or should have been reasonably foreseeable to the gang members that the assault might escalate to murder. Prior gang rivalry and/or knowledge that a fellow gang member is armed are not necessary for homicide to be reasonably foreseeable.

RATIONALE

The standard for aiding and abetting is the natural and probable consequences doctrine.
  • Under the natural and probable consequences doctrine, liability “is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.”
  • “[T]o be reasonably foreseeable ‘[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . .’”
Neither prior knowledge a gang member is armed nor prior gang rivalry are necessary to support a defendant’s murder conviction as an aider and abettor.
  • “[T]he absence of these factors alone is not dispositive.”
  • “[I]n the gang context, it was not necessary for there to have been a prior discussion of or agreement to a shooting, or for a gang member to have known a fellow gang member was in fact armed.”
The Lil Watts gang members viewed Barba’s response to the question of “where are you from” as disrespectful. Barba’s ability to withstand the assault further exacerbated the situated. Given gang culture’s focus on respect, it was thus reasonably foreseeable that the violence would escalate.
  • “Gang members emphasizes the need for respect, primarily in the form of fear.”
  • “[G]ang members view behavior that disrespects their gang as a challenge and ‘slap in the face’ which must be avenged.”
  • “[V]iolence is used as a response to disrespectful behavior and disagreements, and as a means to gain respect.”
At least one other gang member knew that Medina had a gun.
  • “It was unlikely that Medina yelled 'get the heat' to himself."
The question of reasonable foreseeability must be evaluated in light of all the factual circumstances.
  • “The precise consequence need not have been foreseen.”
  • “Even if Ordenes had not actually pinpointed…the precise form of ensuing violence, he did foresee that the verbal confrontation by the Lil Watts gang members would likely escalate into some type of physical violence.”

DISSENT

The dissent acknowledges that disputes between gang members “are in a different category from disputes between civilians,” but argues that this shooting was not a reasonably foreseeable consequence of the fistfight. As detailed in the Court of Appeal’s decision, there are several material factors which are missing from this case. First, neither Vallejo nor Marron had knowledge that Medina was in possession of a gun either before or during the fight. While the Majority argued that “get the heat” indicates a second gang member knew of the gun, it is equally plausible that Medina shouted the command and then when no one responded, got the gun himself. Second, the shooting itself did not occur during the assault. It occurred only after the fistfight ended. Barba was already driving away when shots were fired. Third, the gang expert testified that these two gangs were not rivals. Finally, there was no evidence that there was any prior agreement between the defendants to assault a Sanfer gang member.

The testimony of the gang expert and Ordenes indicates that at most, they thought homicide was a possibility. They did not think it was probable. The majority’s opinion creates an expansive theory of liability whereby “an aider and abettor would be responsible for any crime that was a natural and possible consequence of the target crime,” rather than one that was probable.

RELATED/CITED CASES

People v. Olguin, 31 Cal. App. 4th 1355 (1994)
People v. Montes, 74 Cal. App. 4th 1050 (1999)
People v. Montano, 96 Cal. App. 3d 221 (1979)

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SEARCH TAGS: gang, homicide, gun, aiding and abetting, natural and probable causes doctrine, reasonably foreseeable, assault, verbal challenge, rivalry

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ANNOTATION BY: Jennifer M. Gibson