People v. Zaragoza CA4/2

• Court: California Court of Appeal
• Decided: May 24, 2023
• Docket: E079723
• Status: Unpublished

Opinion

Filed 5/24/23 P. v. Zaragoza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079723

v. (Super.Ct.No. INF1701367)

TOMAS LUCIO ZARAGOZA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge.

Affirmed.

Tomas Lucio Zaragoza in pro. per.; Mark D. Johnson, under appointment by the

Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 STATEMENT OF THE CASE

On April 22, 2021, a third amended information charged defendant and appellant

Thomas Lucio Zaragoza with deliberate and premeditated attempted murder (Pen. Code,1

§§ 664 and 187, subd. (a); count 1); participating in a criminal street gang (§ 186.22,

subd. (a); count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). The

information also alleged that defendant discharged a firearm causing great bodily injury

or death under sections 12022.53, subdivision (d), and 1192.7, subdivision (c)(8), as to

count 1; and that defendant used a firearm under sections 12022.5, subdivision (a), and

1192.7, subdivision (c)(8), as to count 3. Moreover, the information alleged that in the

commission of counts 1 and 3, defendant caused great bodily injury under sections

12022.7, subdivision (a), and 1192.7, subdivision (c)(8), and committed the offense for

the benefit of a criminal street gang under section 186.22, subdivision (b)(5).

Additionally, the information alleged that defendant committed counts 1 and 3 for the

benefit of, at the direction of, and in association with a criminal street gang with the

specific intent to promote, further, and assist in any criminal conduct by gang members

under section 186.22, subdivision (b)(5), as to count 1, and section 186.22, subdivision

(b)(1)(B), as to count 3. The information further alleged that defendant had one prior

strike conviction under sections 667, subdivisions (c) and (e)(1), and 1170.12,

subdivision (c)(1), and a serious prior offense under section 667, subdivision (a).

1 All statutory references are to the Penal Code unless otherwise specified.

2 On April 28, 2021, a jury found defendant guilty of participating in a criminal

street gang (count 2). The jury deadlocked on counts 1 and 3 and the trial court declared

a mistrial as to those counts.

On April 27, 2022, a fourth amended information was filed that alleged the same

charges as the third amended information, without the gang allegations as to counts 1 and

3.2 On May 23, 2022, a jury found defendant guilty of counts 1 and 3, and that all

allegations, other than deliberation and premeditation, were true. Defendant then waived

a jury trial on the priors. On May 24, 2022, the trial court found that defendant had

suffered the priors as alleged.

At a sentencing hearing on June 9, 2022, defendant moved for a new trial on count

2 in response to amendments made to section 186.22. The prosecutor stated that the

People would no longer be able to convict defendant of count 2, and moved to dismiss

the charge and the gang enhancements. The trial court granted both motions. The

sentencing hearing for this case was continued.

At the continued sentencing hearing on August 31, 2022, the trial court denied

defendant’s motion to dismiss the prior and enhancement findings. The court then

proceeded to sentence defendant to a total term of 27 years and four months, followed by

25 years to life.

On September 2, 2022, defendant filed a timely notice of appeal.

2 The fourth amended information still included count 2 for clerical reasons.

3 STATEMENT OF FACTS

On July 26, 2017, defendant and his girlfriend (girlfriend) went to The Block Bar

(the Block) with three of defendant’s friends. Girlfriend testified that she picked up

defendant and his friends and took them to the Block. They arrived at 7 or 7:30 p.m.

After girlfriend had a sip of her drink, defendant started to argue with her. Girlfriend

chose to leave; she left the Block around 8 p.m. Defendant later called girlfriend and

asked her to pick him up. She went back to the Block around 9:30 p.m. When girlfriend

returned to the Block, she saw defendant with the same three friends, “seated in a

booth/table area that [they] had sat in previously.” She joined them.

When asked about the demeanor of defendant and his friends that night, girlfriend

responded, “They had been drinking all day, so they were pretty messed up already,” and

they were acting aggressively and cocky.

That same night, the victim and his wife went to the Block; they sat at the bar.

The victim got a “bad vibe” from defendant’s friends, who were sitting at a table;

defendant was outside smoking. When the victim walked by the table on his way to the

bathroom, they all stared at him. The victim planned to leave after he was done going to

the bathroom.

Girlfriend saw the victim and his wife enter the Block. One of defendant’s friends

made a “cat call.” Girlfriend stated that the noise by defendant’s friend “would be

disrespectful to the woman, especially when she’s in the presence of her significant

other,” and derogatory. Girlfriend went outside with defendant about five minutes after

the victim and his wife entered the Block.

4 After the victim came out of the bathroom, one of defendant’s friends was

standing outside the door. The victim said “what’s up,” and walked around him; he went

back to the bar and told his wife he wanted to leave. As they headed toward the door,

defendant’s friends tried to cut them off. After a brief verbal exchange, one of

defendant’s friends swung at the victim. The victim dodged the first punch. The other

friends started punching the victim, who “covered up” and backed out of the Block. He

then saw one of the men reach for a pool stick. The victim grabbed the stick out of the

friend’s hand and took a batter’s stance with the stick; the victim did not hit anyone.

Girlfriend, who was outside with defendant, heard a noise from inside the Block

and saw the altercation between the victim and defendant’s friends. Girlfriend told

defendant and he went inside.

The victim saw defendant come through the door, pull a gun from his waist, and

then take a shooting stance. The victim instinctively put his hand up to grab defendant’s

gun. Defendant shot the victim through his hand. The victim turned and ran, but was

shot again in the abdomen. The victim had five intestinal surgeries as a result of the

shooting.

A witness at the Block was waiting to pay his tab when he saw the victim trying to

leave and defendant’s three friends going after the victim. After the first shot, the witness

saw the victim running and trying to get behind the bar. Defendant was shooting at the

victim as he ran. The witness saw the victim get shot again and crawl behind the bar.

The witness stopped looking at the shooter when the witness was hit in his left foot by

bullet fragments from one of the bullets fired by defendant. A few days later he went to

5 the hospital to have the bullet fragments removed. The injury was painful and kept him

from being able to fully perform his duties at work for some time. The injury still hurt on

occasion.

According to defendant, after he was done smoking his cigarette outside the

Block, he opened the door and saw the victim hitting one of his friends with a pool stick.

When defendant walked up to the victim, the victim was holding the pool stick in a

“batter’s position.” Defendant said “kick back,” and pulled up his shirt to show the

victim that he had a gun.

The victim tried to grab the gun from defendant and the two of them fought over

it. During the struggle, the gun went off and the victim ran. Defendant thought the

victim broke defendant’s gun and that it was jammed. Defendant believed that other

patrons at the Block were going to jump him to stop him from using the gun. In an effort

to protect himself, he fired another five or six times toward the floor and back wall.

Defendant shot because he believed one of his friends would be killed or seriously

injured if he did not.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of

the case, a summary of the facts, and potential arguable issues, and has requested this

court to undertake a review of the entire record. Pursuant to Anders, counsel identified

the following issues to assist the court in its search of the record for error:

6 1. “Was it error for the trial court to instruct the jurors they could consider gang

evidence on the issue of appellant’s intent to kill, and if so, was appellant prejudiced by

that error?”

2. “Did the trial court err when it denied appellant’s motion to dismiss

enhancements?”

We offered defendant an opportunity to file a personal supplemental brief. On

May 12, 2023, defendant filed a three-page handwritten brief.

In the brief, defendant contends that his trial counsel rendered ineffective

assistance of counsel because “he refused to hire private investigator, gang expert,

medical examiner[.] He refused to call witnesses to the stand. He did not object to D/A

witnesses taking the stand after they admitted to being under the influence, having

criminal record, lying to police and lieing [sic] on the stand during trial.” Defendant also

appears to argue that he was prejudiced because the trial court allowed “the people [to]

lie on the stand[d],” and he was in “waist chains when the jury walked in.” Moreover,

defendant argues that he should have been granted his motion for new trial.

Notwithstanding these allegations, defendant failed to provide any argument or

authority for his arguments. Where a point is merely asserted, “without any [substantive]

argument of or authority for its proposition, it is deemed to be without foundation and

requires no discussion.” (People v. Ham (1970) 7 Cal.App.3rd 768, 783, overruled on

another ground in People v. Compton (1971) 6 Cal.3rd 55, 60, fn. 3.) “Issues do not have

a life of their own: if they are not raised or supported by [substantive] argument or

citation to authority, we consider the issues waived.” (Jones v. Superior Court (1994) 26

7 Cal.App.4th 92, 99.) Accordingly, we deem defendant’s argument to be waived by his

failure to provide any coherent, substantive argument supported by law or the record.

(Ibid.; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700

[“When an issue is unsupported by pertinent or cognizable legal argument it may be

deemed abandoned and discussion by the reviewing court is unnecessary”]; Ochoa v.

Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [contention was

deemed waived because “[a]ppellant did not formulate a coherent legal argument nor did

she cite any supporting authority”]; Colores v. Board of Trustees (2003) 105 Cal.App.4th

1293, 1301, fn. 2 [“The dearth of true legal analysis in [appellant’s] appellate briefs

amounts to a waiver of the [contention] and we treat it as such”].)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error. We find no error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

We concur:

CODRINGTON J.

MENETREZ J.