Filed 9/14/20 P. v. Molina CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072457
v. (Super.Ct.No. RIF1603166)
ANDREW STEVE MOLINA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S.
White, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Andrew Steve Molina appeals following his convictions
for the first degree murder of Anthony Razo (the victim) (Pen. Code,1 § 187, subd. (a),
count 1), who was shot to death in the driveway of his home in the early morning hours
of June 26, 2016, and being a felon in possession of a firearm (§ 29800, subd. (a)(1),
count 2). Defendant contends: (1) the trial court abused its discretion in excluding third
party exculpatory evidence; and (2) his sentence for being a felon in possession of a
firearm must be stayed under section 654. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
A. The Prosecution’s Case.
In June 2016, the victim lived on Stover Street in Riverside. He used the backyard
shack to drink beer and smoke methamphetamine with his friends. His friends included
Alex Arzate and defendant. Defendant’s cousin,2 Jacob Gamboa, lived with Jessica
Valdivia in a house nearby. Gamboa and the victim did not get along; however, they
were “keeping the peace” for defendant’s sake. The victim and Arzate were associated
with the La Sierra Brown Knights gang; defendant was a member of the Hillside gang;
and Gamboa was a former member of the 5150 gang, a rival of the La Sierra Brown
Knights.
During the afternoon of June 25, 2016, Arzate encountered Valdivia, a former
schoolmate, while waiting for the victim to purchase beer and return to the car. Arzate
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant represented that he and Gamboa were cousins; however, they are not actually related.
2 did not know Valdivia was dating Gamboa. When he talked to her, she “wasn’t really
talking.” The victim returned, saw Valdivia, and told Arzate, “Forget this girl, fool.
Let’s go.” Arzate threw his “hands up” and said, “La Sierra up in this motherfucker.”
Although Arzate meant the comment to be a joke, Valdivia interpreted it as an act of
disrespect.
Later in the day, Gamboa went to the victim’s home and yelled, “You guys
banging on my lady?” and “That’s disrespect. If you want to bang, bang on me.” Arzate
said, “[I]t wasn’t like that,” apologized, and offered to fight Gamboa one-on-one and
apologize to Valdivia. The victim supported Arzate, saying, “My homie didn’t bang on
your lady like that.” In response, Gamboa pulled out a handgun and began “talking shit.”
While the victim yelled back, Arzate pushed him toward the backyard. Gamboa left, but
returned, driving by the victim’s house “real slow.” The victim returned to the front yard
holding a shotgun.
The victim, Arzate, and others continued to party at the victim’s home into the
evening. In the early morning hours of June 26, 2016, defendant arrived and spoke with
the victim and Arzate. Defendant said he was there to help resolve their conflict with
Gamboa and not to take sides. Arzate conveyed what happened, explaining he meant no
disrespect to Valdivia, and he proposed a one-on-one fight with Gamboa, followed by an
apology to Valdivia. Defendant left.
When defendant was leaving, Arzate saw him walking away with another person,
who Arzate assumed was Gamboa. A short while later, while Arzate was inside the
house, he saw defendant and Gamboa approach. Gamboa was holding a handgun, and
3 defendant was carrying a shotgun. Arzate testified he saw both of their faces clearly and
recognized both people. He also recognized defendant based on his clothing. Arzate ran
outside and warned the victim, who was standing by the side gate holding a shotgun.
Arzate told the victim, “Fucking Sonic and Maniac are in the front yard, fool.”3 At the
victim’s request, Arzate ran toward the backyard to get help and, on his way, he heard
gunshots.
B. The Defense Case.
Defendant’s younger brother and a family friend both testified that on June 25,
2016, defendant was home attending a “going-away party” the entire night, except from
10:00 p.m. to midnight. The party ended around 2:00 a.m., and defendant’s car was
parked in front of the house at the time.
Defendant testified that he was very good friends with both the victim and
Gamboa. During the afternoon of June 25, 2016, the victim told defendant that Gamboa
had disrespected the victim at his home. Defendant called Gamboa who was also
agitated. That evening, defendant left the “going-away party” at his home to talk to
Gamboa, who was at a mutual friend’s house. When Gamboa and Valdivia left the
friend’s house, defendant followed in his car. At Valdivia’s house, defendant saw
Gamboa’s cousin, Victor Gastelum, in the driveway. Defendant did not particularly like
Gastelum, so he did not go inside Valdivia’s house. As he was leaving, defendant had a
“bad feeling” and decided to stop at the victim’s house and talk to the victim.
3 Gamboa’s gang moniker is “Maniac,” and defendant’s is “Sonic.”
4 Defendant parked his car away from the victim’s house because he did not want
his car, which appeared stolen, to draw attention to the house given the illegal activities
happening in the backyard. As he approached the house, defendant saw a group of
people across the street. He went to the backyard and talked to the victim and Arzate.
The victim was still upset and showed defendant a shotgun. Defendant attempted to
diffuse the situation; however, the victim remained angry and was convinced the conflict
could not be resolved. Defendant left, thinking he was walking alone, but he was not
paying close attention, and the unfamiliar group of people was still across the street. He
returned home around midnight and went to bed.
On June 26, 2016, defendant woke up around 9:00 a.m., went to a friend’s house,
and drank heavily. As he attempted to drive home, he passed out and was arrested for
driving under the influence (DUI) and booked into county jail. Upon his release,
defendant went home and slept until June 27. When he woke up, he immediately left for
Mexico because he had multiple DUI convictions and did not want to go back to prison.
He was ignorant of the victim’s death until a friend informed him that he and Gamboa
had been charged with murder. Defendant did not return to the United States because he
was worried that his hasty relocation “made [him] look really bad.” Since he knew he
was innocent, he assumed the police would eventually find and charge the actual killer
and then drop the charges against him. In October 2016, defendant was extradited to the
United States and taken into custody.
5 C. The Verdict and Sentencing.
On March 21, 2019, a jury convicted defendant of first degree murder and of being
a felon in possession of a firearm. The jury also found true the allegation that he
personally and intentionally discharged a firearm during the commission of the murder,
causing great bodily injury or death. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).) In a
bifurcated proceeding, the trial court found that defendant’s 2013 conviction for spousal
abuse (§ 273.5, subd. (a)) qualified as a prison prior (§ 667.5, subd. (b)). Defendant was
sentenced to state prison for two years, plus 50 years to life.
II. DISCUSSION
A. Exclusion of Third Party Culpability Evidence.
Defendant contends the trial court abused its discretion in excluding evidence
regarding the culpability of another party: Victor Gastelum. We disagree.
1. Further background information.
a. The first request to introduce evidence regarding Gastelum.
Everyone agreed Gamboa was one of the two perpetrators; however, his case was
bifurcated from defendant’s. Prior to trial, defense counsel sought to admit evidence that
Gastelum was the other perpetrator in the victim’s murder. According to defense
counsel, on June 25, 2016, “roughly 24 hours” before the victim’s murder, Gamboa and
Gastelum committed another murder at a USA gas station. Thus, Gamboa was charged
with two murders: (1) the gas station murder (with Gastelum as his codefendant), and
(2) the victim’s murder (with defendant as his codefendant). At the time of defendant’s
trial, Gastelum had been convicted in the gas station murder, but Gamboa had yet to be
6 tried in both the gas station murder and the victim’s murder cases; Gamboa faced the
death penalty. Defense counsel wanted to introduce evidence of the gas station murder to
argue Gastelum, not defendant, was with Gamboa when the victim was murdered.
The prosecution sought to exclude the evidence pursuant to Evidence Code
section 352. The prosecutor maintained: (1) there was no direct or circumstantial
evidence linking Gastelum to the victim’s murder, i.e., Gastelum had no motive to kill the
victim, and none of the witnesses identified him as one of the perpetrators; and
(2) evidence of the gas station murder would confuse the jury. Without identifying the
evidence, defense counsel argued that “evidence will be produced . . . during the course
of this trial that will show that there is a connection between Mr. Gastelum and the
[victim’s] murder.” The trial court tentatively excluded the evidence, but agreed to
revisit the issue.
b. The second request to introduce evidence regarding Gastelum.
The prosecution’s star witness was Arzate. Prior to trial, law enforcement officers
interviewed him at least three times. At the scene of the crime, Arzate told a detective he
had seen two men running away from the house after the shooting, but he did not identify
either person or disclose the incidents earlier in the day. Three days later, Detectives
Wheeler and Tillett conducted a surprise interview of Arzate at the probation office.
Arzate told the detectives essentially the same story he later testified to at trial; however,
his identification of defendant was weaker and equivocal. Expressing concern for his
safety and that of his family, Arzate indicated he did not want to “do the rat thing.”
Around this same time, Arzate told the victim’s family that defendant and Gamboa were
7 the shooters, but he did not want to identify them to the police.4 About one week after
the murder, during another interview, Arzate told Detective Wheeler he did not want to
be a “snitch” and would not agree to testify in court. Arzate denied seeing Gastelum on
the night of the murder or for a long time. Although he added that he could be mistaken
about seeing defendant, Arzate stated: “I know [defendant] was in the backyard when he
left ‘cause I talked to him. Everybody else there saw him. So he left, no one really saw
him come back though. [¶] . . . [¶] But I seen someone come back that fucking dressed
. . . [¶] . . . [the same] way that [defendant] was.”
After the direct examination of Arzate, defense counsel raised the third party
culpability issue again because counsel wanted to cross-examine Arzate about his
possible mistaken identification of defendant. The prosecutor asserted Arzate’s
statements were not true ambiguities or uncertainties, but equivocations on his
identification of defendant—because Arzate did not want to be a “rat”—and, thus, subject
to cross-examination only. The trial court reviewed the relevant portion of Arzate’s
interview and ruled the evidence about Gastelum was inadmissible. Defense counsel
added that if defendant testified, he would say he saw Gastelum with a shotgun
“sometime either before or after . . . the USA [gas station] shooting.” The court
maintained its ruling. On cross-examination, Arzate stated, “I’m sure it was
[defendant].”
4 At Detective Wheeler’s request, the victim’s mother recorded Arzate telling her that defendant and Gamboa were the shooters; the recording was not admitted into evidence.
8 c. The third request to introduce evidence regarding Gastelum.
Immediately before defendant was scheduled to testify, defense counsel again
sought to introduce evidence that Gastelum was culpable for the victim’s murder. After
reviewing the standard governing admissibility, the trial court noted there was no
evidence Gastelum had a motive to kill the victim, and there was no direct or
circumstantial evidence linking Gastelum to the victim’s murder.
In response, defense counsel stated: (1) Gastelum was living with Gamboa;
(2) Gastelum and Gamboa were members of the 5150 gang, which hated the La Sierra
Brown Knights gang (the victim’s gang); (3) Gastelum had committed the gas station
murder with Gamboa, which involved “disrespect”; and (4) the victim’s murder also
involved “disrespect.”5 He added: “I don’t think it’s a reach to say that Mr. Gastelum
backed up Mr. Gamboa in the shooting of [the victim].”
The court reaffirmed its prior ruling prohibiting evidence of the gas station
murder, finding insufficient evidence to link Gastelum to the victim’s murder, but it
reiterated defense counsel’s right to argue the ambiguities in Arzate’s testimony.
2. Applicable legal principles
“[C]ourts should . . . treat third-party culpability evidence like any other evidence:
if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially
outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352).”
5 At this point in the trial, the testimony had not established that Gamboa was living at Valdivia’s house; defendant later testified that they were living together, and he had seen Gastelum at their house when defendant followed Gamboa and Valdivia home.
9 (People v. Hall (1986) 41 Cal.3d 826, 834 (Hall).) To be relevant and admissible,
however, “evidence of the culpability of a third party offered by a defendant to
demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third
person either directly or circumstantially to the actual perpetration of the crime. In
assessing an offer of proof relating to such evidence, the court must decide whether the
evidence could raise a reasonable doubt as to defendant’s guilt and whether it is
substantially more prejudicial than probative under Evidence Code section 352.” (People
v. Bradford (1997) 15 Cal.4th 1229, 1325.) “At the same time, we do not require that any
evidence, however remote, must be admitted to show a third party’s possible culpability.”
(Hall, at p. 833.) Rather, “[u]nder Hall and its progeny, third party culpability evidence
is relevant and admissible only if it succeeds in ‘linking the third person to the actual
perpetration of the crime.’” (People v. DePriest (2007) 42 Cal.4th 1, 43.) “Without this
link, such evidence is irrelevant and cannot be admitted.” (People v. Ghobrial (2018)
5 Cal.5th 250, 283.) Thus, “[e]vidence that another person had ‘motive or opportunity’ to
commit the charged crime, or had some ‘remote’ connection to the victim or crime scene,
is not sufficient to” establish the required link. (DePriest, at p. 43.)
“We review a trial court’s ruling on the admissibility of third party culpability
evidence for abuse of discretion.” (People v. Kerley (2018) 23 Cal.App.5th 513, 572.)
3. Analysis.
Since Arzate’s identification of the second shooter was equivocal, defendant
contends the trial court erred in excluding evidence that would show Gastelum committed
the victim’s murder with Gamboa. Defendant contends the evidence was relevant
10 because: (1) Gastelum committed the gas station murder with Gamboa roughly 24 hours
prior to the victim’s murder; (2) the motive for both murders was to avenge an act of
disrespect; and (3) defendant saw Gastelum with a shotgun prior to the gas station
murder. However, there was no direct evidence linking Gastelum to the victim’s murder.
Arzate’s equivocal identification of the second shooter suggested he was
intentionally creating ambiguity because he was trying to avoid being labeled a “snitch.”
Arzate knew Gastelum and confirmed that he did not see Gastelum at the victim’s house
on June 26, 2016. Although Arzate speculated the second shooter could have been
Gastelum, Arzate stated in his interviews and at trial that he spoke to defendant in the
victim’s backyard prior to the shooting, and the second shooter was wearing the same
clothing that defendant had been wearing during that earlier conversation in the backyard
the same day. Thus, while Arzate was “pretty fucking sure” but not “1000%” sure of the
identity of the second shooter, the trial court did not abuse its discretion in finding it was
insufficient to link Gastelum to the victim’s murder.
The additional facts that Gastelum and Gamboa were in the same gang and had
committed the gas station murder to avenge an act of “disrespect” do not change our
analysis. As the People point out, in a gang-related context, the fact a crime is committed
in response to a perceived act of disrespect is “hardly uncommon.” To treat Gastelum’s
gang membership as a motive to murder the victim is highly speculative in the absence of
other evidence. Here, defendant offered no evidence of any connection, let alone
hostility, between the victim and Gastelum, other than the conjecture that Gastelum must
have been involved with Gamboa in the victim’s murder because the two fellow gang
11 members were involved in the gas station murder. However, Gastelum’s involvement
with Gamboa in the gas station murder had little, if any, probative value, since the
evidence shows the victim’s murder was a result of the personal animosity between the
victim and Gamboa, coupled with the victim’s defense of Arzate’s actions involving
Valdivia.
Moreover, we reject defendant’s assertion that the trial court’s isolation of
Arzate’s testimony (“I’m sure it was [defendant]”) amounted to a credibility
determination that invaded the province of the jury. The trial court relied on defendant’s
testimony to assess the direct evidence presented to the jury, not the third party
culpability evidence. (People v. Lewis (2001) 26 Cal.4th 334, 373 [“[T]he trial court’s
determination that the evidence presented only speculative issues did not invade the
jury’s province.”].) Defense counsel cross-examined Arzate on his prior statements, and
any equivocality was brought to the jury’s attention, along with Arzate’s motive (safety
concerns and not wanting to be a snitch) for being equivocal in his identification of the
second shooter. However, given Arzate’s unequivocal trial testimony (“I’m sure it was
[defendant]”), introducing Gastelum and his involvement in the gas station murder was
too attenuated and speculative to be admissible under the third party culpability theory.
(Hall, supra, 41 Cal.3d at p. 834; see People v. Babbitt (1988) 45 Cal.3d 660, 682
[Evidence is irrelevant if it produces only speculative inferences.].) We, therefore, find
no abuse of discretion in the exclusion of this evidence.
12 “Having concluded this speculative third party culpability evidence was properly
excluded, we also reject defendant’s claim that his constitutional rights were violated by
the exclusion.” (People v. Young (2019) 7 Cal.5th 905, 938.)
B. Application of Section 654.
Defendant contends his sentence for being a felon in possession of a firearm must
be stayed under section 654 because there is no substantial evidence he possessed the
firearm “distinctly antecedent and separate from the murder.” We disagree.
Section 654 precludes multiple punishments not only for a single act but also for
an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “The
purpose of this statute is to prevent multiple punishment for a single act or omission, even
though that act or omission violates more than one statute and thus constitutes more than
one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) “‘Whether
section 654 applies in a given case is a question of fact for the trial court, which is vested
with broad latitude in making its determination.’ [Citation.] The court’s express or
implied findings in support of its determination that section 654 does not apply will be
upheld on appeal if substantial evidence supports them.” (People v. Cruz (2020)
46 Cal.App.5th 715, 737.)
Section 29800, subdivision (a)(1), forbids convicted felons from possessing any
firearm. Additional punishment for possessing a firearm is warranted if defendant
purposefully possessed the shotgun before the murder took place. (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143-1145 [Where a defendant “arrive[s] at the scene of
his . . . primary crime already in possession of [a] firearm,” that possession is “distinctly
13 antecedent and separate from the [ensuing] . . . crimes,” and section 654 does not bar
multiple punishments.].) Here, substantial evidence supports the trial court’s
determination that defendant was in possession of the shotgun before he arrived at the
crime scene. The record shows defendant was unarmed when he was at the victim’s
home before the murder. Arzate saw him leave with another person, who Arzate
assumed was Gamboa. Shortly thereafter, Arzate saw them return carrying firearms;
Gamboa was carrying a handgun, and defendant was carrying a shotgun. Since there is
no evidence to suggest someone handed defendant the shotgun at the scene, or that he
happened upon a loaded shotgun on the street, the reasonable inference is he purposefully
possessed the gun before he arrived at the victim’s house. Accordingly, at this point,
defendant’s violation of section 29800, subdivision (a)(1), was complete; his possession
of the firearm was “not merely simultaneous with the [murder], but continued before,
during and after” the crime. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413.)
Because there is substantial evidence that defendant possessed the shotgun prior to
the victim’s murder, the trial court’s imposition of a separate punishment on the felon in
possession of a firearm offense does not violate section 654.
14 III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
RAMIREZ P. J.
FIELDS J.