A Principal in Disturbing the Peace May Be Sentenced to 25 Year-To-Life for Attempted Murder that Follows
March 5, 2013 By Greg Hill & Associates
A reasonably foreseeable consequence of two rival gangs disturbing the peace, in confronting each other is a weapons discharge, as did occur. Consequently, as a principal in disturbing the peace, the attempted murder conviction was proper. Therefore, the 25 years-to-life sentenced was proper.
In 2008, inside a Stockton grocery store, E.L., a member of the S. street gang, allegedly made rude comments and threw gang signs to two N. gang members. The two gangs were rival gangs.
The confrontation continued into the grocery store parking lot. One of the N. gang members then pushed a shopping cart into E.L. Then one of the N. showed a “Norte” tattoo and a bystander, referring to E.L., yelled “he has a gun!” There was about eight witnesses to the yell and the escalating confrontation.
One of the witnesses was C.S.. When the issue of E.L. was shouted, one of the N. ran to his car and got his gun. Three rapid gunshots rang out.
C.S. was shot in the eye. No one else was shot. Witnesses claimed they did not know who shot C.S.
About a month before the shooting, police officers found two bullet casings in E.L.’s pickup truck. Such casings were from a .32 caliber and a 9 mm gun. The bullet removed from C.S.’s head was from a .32 caliber gun, as was a mushroomed bullet found near a wall in the parking lot.
At trial, E.L. was convicted of attempted murder, assault with a firearm and criminal street gang participation as an aider and abettor. E.L. was sentenced to state prison for 32 years to life. The sentenced included a 25- year-to- life gang firearm enhancement.
At trial, the judge instructed the jury that if it found Liesa guilty of disturbing the peace and/or simple assault, and if during the commission of either or both offenses, a co participant in the crime committed attempted murder or assault with a firearm, the jury had to find Liesa was an aider and abettor as long as it found the attempted murder or assault with a firearm was a natural and probable consequence of disturbing the peace or simple assault.
E.L. appealed his conviction, contending that the above jury instruction was an incorrect statement of the law because the jury could have interpreted “co-participant” to include the rival gang members who may have shot Smith. E.L. argued that “confederate,” rather than “co-participant” should have been used because E.L. certainly was not an aider and abettor to a rival gang.
In support of his appeal, E.L. pointed out that the evidence at trial was that a rival gang member was the shooter, making his “co-participant” argument even stronger.
The Third Appellate District, in People v. E.L. (2013 DJDAR 1394), rejected E.L.’s argument that he cannot be considered a principal and thus, the 25-years-to-life enhancement does not apply. The court explained that aiding and abetting in disturbing the peace made E.L. a principal in disturbing the peace.
Moreover, a reasonably foreseeable consequence of two rival gangs disturbing the peace, in confronting each other is a weapons discharge, as did occur. Consequently, as a principal in disturbing the peace, the attempted murder conviction was proper. Therefore, the 25 years-to-life sentenced was proper.
The Appellate Court added that Penal Code § 12022.53(e)(1) “is expressly drafted to extend the enhancement for gun use in any enumerated serious felony to gang members who did aid and abet that offense in furtherance of the objectives of a criminal street gang.” People v. G.(2001) 87 Cal. App. 4th 1, 15.
ABOUT THE AUTHOR: Greg Hill, Greg Hill and Associates, Criminal Defense Attorney
Greg Hill is an attorney in Torrance, California and a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Greg Hill & Associates also represents clients in Torrance, Long Beach and the surrounding areas in DUI, domestic violence, drug offenses, theft offense, sex crimes and restraining orders, among other crimes.
Copyright Greg Hill & Associates
More information about Greg Hill & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
The confrontation continued into the grocery store parking lot. One of the N. gang members then pushed a shopping cart into E.L. Then one of the N. showed a “Norte” tattoo and a bystander, referring to E.L., yelled “he has a gun!” There was about eight witnesses to the yell and the escalating confrontation.
One of the witnesses was C.S.. When the issue of E.L. was shouted, one of the N. ran to his car and got his gun. Three rapid gunshots rang out.
C.S. was shot in the eye. No one else was shot. Witnesses claimed they did not know who shot C.S.
About a month before the shooting, police officers found two bullet casings in E.L.’s pickup truck. Such casings were from a .32 caliber and a 9 mm gun. The bullet removed from C.S.’s head was from a .32 caliber gun, as was a mushroomed bullet found near a wall in the parking lot.
At trial, E.L. was convicted of attempted murder, assault with a firearm and criminal street gang participation as an aider and abettor. E.L. was sentenced to state prison for 32 years to life. The sentenced included a 25- year-to- life gang firearm enhancement.
At trial, the judge instructed the jury that if it found Liesa guilty of disturbing the peace and/or simple assault, and if during the commission of either or both offenses, a co participant in the crime committed attempted murder or assault with a firearm, the jury had to find Liesa was an aider and abettor as long as it found the attempted murder or assault with a firearm was a natural and probable consequence of disturbing the peace or simple assault.
E.L. appealed his conviction, contending that the above jury instruction was an incorrect statement of the law because the jury could have interpreted “co-participant” to include the rival gang members who may have shot Smith. E.L. argued that “confederate,” rather than “co-participant” should have been used because E.L. certainly was not an aider and abettor to a rival gang.
In support of his appeal, E.L. pointed out that the evidence at trial was that a rival gang member was the shooter, making his “co-participant” argument even stronger.
The Third Appellate District, in People v. E.L. (2013 DJDAR 1394), rejected E.L.’s argument that he cannot be considered a principal and thus, the 25-years-to-life enhancement does not apply. The court explained that aiding and abetting in disturbing the peace made E.L. a principal in disturbing the peace.
Moreover, a reasonably foreseeable consequence of two rival gangs disturbing the peace, in confronting each other is a weapons discharge, as did occur. Consequently, as a principal in disturbing the peace, the attempted murder conviction was proper. Therefore, the 25 years-to-life sentenced was proper.
The Appellate Court added that Penal Code § 12022.53(e)(1) “is expressly drafted to extend the enhancement for gun use in any enumerated serious felony to gang members who did aid and abet that offense in furtherance of the objectives of a criminal street gang.” People v. G.(2001) 87 Cal. App. 4th 1, 15.
ABOUT THE AUTHOR: Greg Hill, Greg Hill and Associates, Criminal Defense Attorney
Greg Hill is an attorney in Torrance, California and a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Greg Hill & Associates also represents clients in Torrance, Long Beach and the surrounding areas in DUI, domestic violence, drug offenses, theft offense, sex crimes and restraining orders, among other crimes.
Copyright Greg Hill & Associates
More information about Greg Hill & Associates
View all articles published by Greg Hill & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
