murder between olive street and happy town

FACTS

Prosecution Evidence

Around 2:00 a.m. on July 19, 2004, appellant shot and killed Alfredo Barrera, Jr., outside of a 7-Eleven convenience store in Pomona. One bullet entered behind Barrera's shoulder, fracturing his spine. Two other bullets entered through his back, after he was lying on the ground.

Barrera and two friends, Leonard Luna and Vincent Quinonez, had ridden to the store on bicycles, to buy something to drink. They were unarmed. Luna and Barrera belonged to the Happy Town criminal street gang. Quinonez was an associate of that gang. Appellant belonged to the Olive Street criminal street gang. The shooting occurred on the border of territory claimed by Happy Town.

Carlos Deloera, who knew appellant as "Snipes," drove appellant and two other men to the 7-Eleven store, just before the shooting. Deloera testified at the trial under a grant of immunity. His version was that, when appellant left the car to go into the store, a group of people on bicycles approached him and argued with him. One of the people turned his back to appellant. It "look[ed] like he wanted to grab something from his pocket and -- and that's when Snipes took out a gun, and he shot him." Appellant fired multiple shots. The person fell from his bicycle onto the ground. Appellant returned to the car with the gun, and Deloera drove him away.

Two nights later, appellant was detained by the police, inside of the same car, again driven by Deloera. Appellant had a large gang tattoo on his shaved head. At the station, Deloera told the police essentially what he said in the courtroom. Appellant denied knowledge of the crime, but admitted that he was a current member of Olive Street.

A camera was positioned outside of the store at the time of the shooting. Photos from it show the gunman standing near Deloera's car. His face is not clear, but there is a dark patch on his head, like appellant's tattoo. Luna and Quinonez are standing near Barrera in the photos. They gave descriptions of the incident to the police, which they repudiated at the trial.

Specifically, Luna told the police that the man said something to Barrera, and Barrera responded, "Why? What's up?" The man pulled out a gun, chased Barrera across the parking lot, shot him, and stood over him with the gun. When the police showed Luna a photographic lineup (six- pack), he stared at appellant's picture, but did not identify him. However, at the trial, Luna testified that he was inside the store and did not see the shooting. He was in custody when he testified.

Quinonez was also in jail when he was called as a witness. He had unequivocally picked out appellant as the shooter when the police showed him the six-pack. He testified, however, that he lied to the police and did not see the shooting, as he was inside the store at the time. He admitted that county jail inmates do not implicate other people in crimes out of concern for their own safety.

Gang expert testimony was provided by Sergeant Marcus Perez of the Pomona Police Department. He described the territories of the two gangs, appellant's affiliation with Olive Street, and Barrera's affiliation with Happy Town. Appellant's gang moniker was "Sniper." In Perez's opinion, the crime was "a classic gang shooting," as appellant boldly went into the opposing gang's territory to kill one of its members. The crime benefited Olive Street by expanding its "realm of influence" and making its reputation more menacing to opposing gangs. The violent nature of the crime also benefited the gang by increasing fear in the community, so that people would not report crimes by the gang, because they feared retaliation. Also, drug dealers would be more likely to utilize a gang that demonstrated this type of menacing behavior. Appellant armed himself when he ventured into Happy Town territory due to the possibility of a confrontation.

Perez further testified that Luna's and Quinonez's reluctance to testify against an opposing gang member was typical, as gangs have a mystique that involves retaliation and a desire to take care of their own problems. There also is a code of behavior among people in custody, which means that "you don't rat."

Finally, it was stipulated that the Olive Street gang was a criminal street gang within the meaning of Penal Code section 186.22

Defense Evidence

The only defense evidence was a copy of the six-pack.