murder between 12th street and olive street

BACKGROUND

A. Independent Evidence

Defendant was a member of the Pomona Sur Olive street gang and was known by the gang moniker "Dopey." Pomona Sur Olive's main rivals were the 12th Street Sharkies, whose territory includes Washington Park, located at Grand Avenue between Towne and San Antonio Avenues in Pomona, California. One of defendant's gang associates, Jorge Hernandez (Jorge),*fn2 also known as "Sleepy," previously had been wounded in a drive-by shooting. Another member of Pomona Sur Olive had been killed in the same incident. Members of Pomona Sur Olive believed that 12th Street Sharkies were responsible for the shootings.

Leticia Gomez (Leticia) testified that, on Sunday, March 20, 2005, at approximately 11:00 a.m., her brother Daniel Gomez (Daniel) borrowed his father's black Honda Civic.*fn3 When Daniel left home, defendant was in the front passenger seat and Jorge was in the back seat. Leticia knew defendant as a friend of her brother.

At approximately 12:05 p.m., Carlos Lopez (Carlos) was in Washington Park with his friend Naftali Flores (Naftali). Carlos saw a black car similar to a Honda pull into the parking lot. Carlos then saw defendant, whom Carlos knew from school, holding a rifle. Defendant shot Naftali. Defendant got back into the black car, which backed straight out of the parking lot onto Grand Avenue, then drove away. Naftali died at the scene from a gunshot wound to his right side. A .22-caliber bullet was recovered from Naftali's body. The Pomona Police Department also recovered a single .22-caliber shell casing from the scene. A wall near where Naftali was shot was marked with 12th Street Sharkies gang graffiti and graffiti deprecating Pomona Sur Olive.

At approximately 12:10 p.m., Zara Rodriguez (Zara) was driving on San Antonio Avenue near Lexington Avenue, approximately one mile south of Washington Park. She passed a young man on a bicycle riding in the opposite direction. The young man was later identified as Anthony Lopez (Anthony). A black car that looked like a Honda Civic approached Anthony. When Zara stopped at an intersection, she looked in her rear view mirror. She saw a man with a rifle get out of the black car's front passenger seat. She heard the man ask Anthony, "What's up?" Anthony answered, "I don't know." Zara heard the man with the rifle fire one or more shots, and saw Anthony fall down. Anthony died at the scene from a gunshot wound to the head. A .22-caliber bullet was recovered from Anthony's body. The police recovered three .22-caliber shell casings from the scene.

Leticia saw Daniel return home in his father's Honda between 1:00 p.m. and 2:00 p.m. Defendant and Jorge were still with him. Shortly thereafter, a police car drove by Daniel's house. Leticia saw defendant and Jorge run away when they saw the police car.

The Pomona police department showed Carlos six-pack photographic lineups on March 20, 25 and 30, 2005. Defendant's photograph was included in the March 25 lineup, but Carlos did not identify defendant or anyone else as the perpetrator. On April 1, police showed Carlos a fourth photographic lineup; Carlos identified defendant as the man who had killed Naftali. Carlos testified that he had not identified defendant earlier because he was afraid. Carlos also identified defendant as the shooter in open court. When shown a photograph of the black Honda Daniel was driving on the day of the shootings, Carlos testified that the car looked similar to the car in which the killer rode.

On March 22, police showed Zara a six-pack photographic lineup. She identified two people, one of whom was defendant, as possibly being the man who killed Anthony. A police report indicated that Zara said that she was leaning more toward the person who was not defendant. Zara testified in court that defendant looked "a little bit like" the killer, and that she was reluctant to make an identification because she was afraid.

Forensic examination determined that the same semi-automatic rifle had been used to fire the bullets that killed Naftali and Anthony. The police searched defendant's residence, but they found neither a .22- caliber weapon nor any .22-caliber ammunition. The murder weapon was never recovered. No fingerprints were recovered from the shell casings, and no other physical evidence was recovered to connect defendant to either shooting.

B. Accomplice Evidence

Daniel testified that he drove defendant and Jorge to Washington Park, where defendant and Jorge told him to stop. Daniel knew that Washington Park was the territory of the 12th Street Sharkies. Defendant got out of the car, took out a short rifle, and walked over to a "guy" in the park. Jorge told defendant to shoot him. Defendant shot the victim once. Defendant got back in the car. Daniel drove away. As they fled, defendant said he had seen a person he knew from school in the vicinity of the shooting. Defendant was referring to Carlos.

Daniel drove away from the park for a minute or so. They passed a boy on a bicycle. Defendant and Jorge again told Daniel to stop the car. Defendant got out of the car and began shooting. Daniel later dropped off defendant and Jorge back in Pomona Sur Olive territory.

Approximately nine days after the shootings, Daniel was interrogated by the police while in custody on an unrelated charge. At first, he told the detective that he had been out of town the day of the shootings; that he did not know defendant; and that he knew nothing about either the shootings or a black Honda. After further interrogation, however, Daniel told the police what had happened. Daniel admitted that, approximately two weeks before the trial, Daniel was offered a 21-year state prison term in return for his truthful testimony.

Tapes of two police officers interrogating Daniel were played for the jury. The transcripts were admitted into evidence without objection. Daniel told police that he was giving defendant and Jorge a ride when defendant told him to go to Washington Park. Daniel saw two men in the park near a fence. The two men "threw up a gang sign," although Daniel did not know from what gang. Defendant walked up to the men; they began to run. Defendant fired four shots.

They fled the park onto Grand Avenue and immediately turned south on San Antonio Avenue. As they approached Lexington Avenue, they passed a "guy" on a bicycle. Defendant and Jorge, who were scared, told Daniel to drop them off and leave. Daniel stopped the car. Defendant got out. The guy on the bike "threw up gang signs." Defendant fired the rifle. Daniel saw the guy go down. Defendant got back in the car. They fled back to Daniel's house.*fn4

Yea I was livin right on San Antonio and Phillips, a lil bit away from Washington Park. I remember they had a candle light vigil 4 the dude who got shot at the park. There was a bunch of people there 2 support, so I take it dude was really well liked n his varrio. And this beef wasn't no joke I remember more a lot more incedints between them besides this one. Olives a small hood but they got sum ryders.