People v. Antonio R.

Opinion

ORTEGA, J.

Found to have committed murder and assault with a firearm, appellant asks us to reverse the judgment. We reject his claim of error and affirm the trial court’s resolution of the matter.

Facts

Appellant belongs to a street gang known as the “Alley Boys.” The “Crazy Riders” are a rival gang. On the night Susan Maldonado died, she was with appellant (her boyfriend) and several other companions when they decided to get something to eat. They got into a pickup truck shortly before midnight and headed for a restaurant in Crazy Riders’ territory. Appellant and Maldonado rode in the bed of the truck. Their four companions were

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all in the cab. As they reached a corner where Crazy Riders tended to congregate, appellant yelled an anti-Crazy Riders epithet and fired a handgun into the crowd there gathered. Someone in the crowd fired back and Maldonado was slain. It is undisputed that the fatal bullet did not come from appellant’s weapon.

The crucial issue at trial was who fired first. The case was tried on the theory that if the first shot came from the crowd, appellant was defending himself. But if appellant fired the first shot, he precipitated the incident and was thus vicariously liable for Maldonado’s death.

Appellant told the police he had shouted the epithet but fired only after being fired upon by someone in the crowd. One of appellant’s companions in the cab of the pickup, Zully Maranon, was twice interviewed by the police. In the first interview, she said the first shot came from the crowd. In the second interview, taped two days later, she said she heard the first shot emanate from the bed of the pickup right behind her. She said appellant fired the first shot. At trial, Maranon admitted making the statements in the second interview, but disavowed them claiming she made them under pressure from the police.

Jesus Alvarenga is a member of the Crazy Riders. He testified he was in the crowd and the first shot was fired by a male in the bed of the pickup. Alvarenga had drunk 10 to 12 beers.

.Appellant’s Claims of Error