People v. Luna

California Court of Appeal Apr 10, 1956 No. Crim. 5534Published

Before: Shinn

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Holding. The court held that the evidence was sufficient to support the jury's finding that the defendant aided and abetted the assault on Barajas, as his conduct demonstrated a concert of action and purpose rather than that of a mere bystander. Furthermore, the court held that the defendant's acquittal on a separate assault charge did not preclude his conviction for aiding and abetting the assault on Barajas.

Issues

Whether the evidence was legally sufficient to prove that the defendant aided and abetted the assault on Barajas.
Whether the acquittal on the charge of assaulting Vigil operated as an acquittal of the charge of assaulting Barajas.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The two stood together and fought together. There was concert of action and purpose which clearly proved Lopez to have been a participant in the entire fight and not a mere inactive and disinterested spectator.”

“The acquittal of the charge of assault upon Vigil did not establish that Lopez was not an active participant in the entire fight; it did not alter the facts which satisfied the jury that Lopez participated in the assault upon Barajas.”

SHINN, P. J.

Joe Vargas Luna and Luis Nestor Lopez were jointly charged with two offenses of assault by means of force likely to produce great bodily injury, in Count I of an assault upon Joe E. Vigil, in Count II of an assault upon Johnny Barajas. In a jury trial they were acquitted of assault upon Vigil and convicted under Count II of the lesser offense of assault upon Barajas. Lopez made a motion for new trial which was denied; proceedings were suspended and he was granted probation, one of the conditions being that he spend two months in the county jail. He appeals from the judgment and the order denying his motion for new trial.

[663]

The grounds of appeal are that the evidence was legally insufficient to prove that Lopez either assaulted Barajas or aided and abetted Luna in assaulting him, and that having been acquitted of an assault upon Vigil, this amounted to an acquittal of the accusation of assault upon Barajas.

Defendant contends there was no evidence that he struck Barajas and this contention is not seriously challenged by the People. But it is nevertheless contended in urging affirmance of the judgment that there was sufficient evidence to prove that Lopez aided and abetted Luna in the assault upon Barajas, which, admittedly, Luna committed. We have concluded that the evidence was not legally insufficient to justify the verdict against Lopez.

The altercation from which the charges arose took place on a parking lot not far from a dance hall on the Pike in Long Beach. At 1 a. m., when the dance was over, three Mexican girls, Ophelia, Rosemary and Lucy, found themselves in the company of five sailors, Quirarte, Crabtree, Keller, Vigil and Barajas. The boys offered to drive the girls to the lot where their car was parked and they walked together to a nearby lot where the car of Barajas was parked. Three of the boys and two of the girls got into the rear of the car. Barajas took the wheel, Vigil sat next to him and Ophelia sat next to the right-hand door. Luna and Lopez came up, evidently some words were passed; Luna and Lopez came to the car and Luna held open the right-hand door with his shoulder so Ophelia could not close it. He then went around to the opposite door and invited Barajas to fight and opened the door. Luna was seen to have a metal object in his hand; Barajas refused to fight unless Luna would empty his pockets. The latter jumped over a low fence at the front of the car and did not empty his pockets, jumped back, struck at Barajas through the open window, put his foot through and kicked Barajas in the face, who kicked back at him; Luna was seen to take something from his pocket.

People v. Luna

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SHINN, P. J.

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