Filed 6/27/13 P. v. Fonseca CA2/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B233619

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA086437)
         v.

GERARDO FONSECA et al.,

         Defendants and Appellants.


         APPEAL from judgments and orders of the Superior Court of Los Angeles
County. Robert M. Martinez, Judge. Reversed in part and affirmed in part as to Fonseca.
Affirmed as to Anda.
         Leslie Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant Gerardo Fonseca.
         Kim Malcheski, under appointment by the Court of Appeal, for Defendant and
Appellant Juan Anda.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and
Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                             ______________________________________
          Juan Anda, Gerardo Fonseca, and Melissa Goree were each charged with the
first degree murders of Jason Guijarro and Isaac Parra, the attempted murders of
Daniel Carrasco and Clarisse Garcia, and conspiracy to commit murder. Fonseca was
also charged with making criminal threats against Carrasco. Fonseca and Anda were
convicted on the murder and conspiracy charges, and the court denied their motions for a
new trial. Fonseca was acquitted on the charge of making criminal threats. Goree was
acquitted on all charges.
          After reviewing the briefs and the record, we requested supplemental briefing on
an issue of instructional error relating to both defendants and on the sufficiency of the
evidence against Fonseca on all charges. We conclude that the court did commit
instructional error, which was prejudicial as to Fonseca on the murder charges but
harmless as to Anda. We also conclude that the evidence against Fonseca was sufficient
to sustain the convictions. We accordingly affirm as to Anda but reverse in part and
affirm in part as to Fonseca.
                          FACTS AND PROCEEDINGS BELOW
          A. The Love Quadrangle
          Daniel Carrasco was defendant Goree’s boyfriend until she started dating
defendant Fonseca and Carrasco started dating Clarisse Garcia. Carrasco testified that
although he was dating Garcia, he and Goree were “try[ing] to get back together.”
Carrasco, Garcia, and Goree lived in the same apartment building.
          Carrasco (Goree’s old boyfriend) and Fonseca (Goree’s new boyfriend) did not get
along. Three days before the shooting Carrasco challenged Fonseca to a fight. Fonseca
did not accept Carrasco’s challenge, but he did make a series of threatening telephone
calls to Carrasco. In one of those calls on the day of the shooting, Fonseca told Carrasco
to leave Goree alone or “‘I’m going to put you in the grave.’” He also told Carrasco he
would do the same thing to Carrasco’s mother. Carrasco testified that Fonseca’s threat
made him “a little scared,” because he believed Fonseca was capable of carrying out that
threat.

                                               2
       In the afternoon on the day of the shooting, Fonseca got into an argument with
Carrasco’s friend Guijarro on the sidewalk in front of Goree’s apartment building.
Guijarro accused Fonseca of harassing Carrasco. Guijarro made a cell phone call to
Corey Gardner, who also lived in the building, and asked Gardner to come to where he
and Fonseca were arguing. Gardner came and briefly joined in the argument.
He testified that the argument broke up shortly after he arrived, and Goree and Fonseca
drove off in Goree’s Honda. Gardner denied bringing a gun with him to the altercation,
denied that Guijarro had a gun, and denied that anyone pointed a gun at anyone.
A West Covina police officer witnessed the argument from across the street. He saw
Guijarro, Gardner, and Fonseca arguing and making hand gestures but did not see any
weapons.
       When Fonseca and Goree left Goree’s apartment building, they drove to the home
of Fonseca’s cousin, defendant Anda. In a statement to the police read to the jury Anda
said that Fonseca told him Guijarro and Gardner “pulled a gun out on his head, and they
told him to get the fuck outa here, or else they were gonna kill him.” Fonseca wanted
Anda to lend him his gun or go with him to fight Guijarro and Gardner. Anda refused to
do either. “I told him, ‘Are you stupid?’ They got a gun, and you got a baby in the
fucking car, and you want to go get in a fistfight? I been shot, fool. I ain’t going out
there.”1 Anda told Fonseca to go home.
       Garcia testified that on the same evening Goree telephoned Carrasco while he was
with Garcia. Garcia got on the line and told Goree to stop calling Carrasco. Goree told
Garcia, “I’m going to go beat your ass.” Garcia responded, “Fine. Come beat my ass.”
To which Goree countered, “You’re dead.” Goree called Garcia a “bitch” and repeated
“you’re dead” several times. Just before the call ended, Garcia heard Goree say, “Huero,
let’s go” or “Come on, Huero.” The parties stipulated that Anda was known as “Johnny
Huero.”



1
       The baby was apparently Goree’s two-year-old nephew.
                                          3
       After the call ended, Garcia and Carrasco joined Guijarro and Isaac Parra in
Guijarro’s van to smoke pot. The van was parked in front of the apartment building
where Carrasco, Garcia, and Goree lived. Guijarro sat in the driver’s seat; Parra sat in
the passenger seat next to him; Carrasco and Garcia sat in the back seats. They had been
sitting in the van for 10 or 15 minutes when Fonseca drove by in Goree’s Honda.
Goree was in the front passenger seat, and her two-year-old nephew was in the back seat.
(The identification of the child as her two-year-old nephew comes from Goree’s police
interview, which was attached to a post-trial motion but was not presented at trial; Anda
referred in his police interview to a “baby” in the back seat of the car.)
       B.     The Chase
       There is a conflict in the testimony as to what happened next.
       Carrasco testified that when he saw Fonseca and Goree coming down the street in
Goree’s Honda he told Guijarro to drive away because he thought “something was going
to happen.” Fonseca and Goree followed them. Garcia, however, testified that when the
Honda came down the street where the van was parked, Guijarro started the van and
began following the Honda. After a short time, Guijarro pulled up next to the Honda and
started shouting and cursing at Fonseca and Goree. Fonseca and Goree yelled and cursed
back. According to Garcia, “That’s when the chase started. . . . [The Honda] took off
and then [the van] took off right after them.” The brakes on Guijarro’s van started to
smoke, and he pulled into a gas station. The Honda stopped briefly in the left lane by the
gas station, waiting to make a left turn. Some of the van’s occupants got out and
screamed at Goree and Fonseca in the Honda. Neither Fonseca nor Goree responded, but
Fonseca may have gestured at them. (When asked at trial to demonstrate the gesture
Fonseca made, Carrasco raised his right arm above his head and waved his hand to the
left, toward his head. But Carrasco also testified that Fonseca made the gesture with his
left hand, outside the window of the Honda. It is consequently unclear what gesture, if
any, Fonseca made.) The Honda drove away, and the van followed.



                                              4
       A surveillance video played for the jury shows what appears to be the Honda
driving on Merced Avenue trailed by the van, with a third vehicle on the van’s right.
The vehicles go out of view after passing some bushes, a wall, and an apartment building;
Leland Avenue, the dead-end street on which Anda lived, is on the far side of the
apartment building, also out of view. The Honda apparently turned right onto Leland,
followed by the van. (Both Garcia and Carrasco testified, however, that the van
somehow got ahead of the Honda and turned onto Leland before the Honda, which
followed the van onto Leland, passed it, made a u-turn, and then cut off the van, with
both vehicles’ headlights facing each other.) The video shows that, assuming the van
turned right onto Leland, it did so from the left lane on Merced, apparently cutting off the
third vehicle (not the Honda) in the process.
       In his statement to the police Anda said that shortly before the shooting Fonseca
called him and declared: “Primo, they’re chasing me. They’re chasing me. I don’t know
how many guys there are. . . . I’m driving. I’m driving.” Anda gave the police two
different versions of his response to Fonseca. In the first version he told Fonseca: “Well,
drive into my driveway.” In the second version he told Fonseca “go [to] grandma’s,” and
Fonseca responded “I’m—we’re right here by your house.” Anda replied, “Fuck, man,
why you gotta come to my house for? . . . Why you gotta come to me?” Anda also stated
that he feared for the safety of the baby in the back seat of the Honda.
       Officer Nicholas Franco of the West Covina Police Department testified that he
received a call about a shooting on Leland Avenue at approximately 10:20 p.m. on
March 31. The prosecution introduced telephone records showing calls from Goree’s cell
phone to Anda’s phone that evening at 9:55, 10:06, 10:15, and 10:19, and from Anda’s
phone to Goree’s cell phone at 10:18. Each call lasted a minute or less. The phone
company’s representative testified that the records only show that a call was placed from
the customer’s phone to another phone. The records do not show whether the call was
answered or unanswered or went to voicemail.



                                                5
       C.     The Murders
       In questioning by the police, Anda stated that after receiving the telephone call
from Fonseca he went outside his apartment building and saw Fonseca in the Honda on
Merced Avenue being chased by a van and a black car. As he drew near the corner of
Leland and Merced, he could tell that the people in the black car saw him, so he turned
around and started running back down Leland, fearing that the men in the black car
were going to shoot him. The black car did not turn down Leland but stayed on Merced.
The van turned onto Leland and stopped. (Though it is not entirely clear, Anda’s
statement appears to echo Garcia’s and Carrasco’s testimony that the van turned onto
Leland before the Honda.) As Anda approached the van, someone jumped out. Anda
thought the person who jumped out and the people in the van were going to shoot him,
so he fired two shots in the air and told the people in the van to put their hands up.
       Stephanie Del Brias testified that on the night of the shooting she was on the
sidewalk outside her apartment building on Leland Avenue picking up cigarette butts.
A man walked down a pathway from one of the apartment entrances and stood near her
for a few seconds. The man was wearing sweatpants and a sweatshirt with a hood that
hid his face. Three to five seconds later, the man started running up Leland toward
Merced. Del Brias saw a white van turn onto Leland and stop in the middle of the street.
The man in the sweat clothes started shooting at the van. When the shooting started,
Del Brias noticed for the first time that a Honda in front of the van prevented it from
moving forward. The man stopped shooting and ran toward the freeway. After the
shooting stopped, Del Brias saw the Honda make a U-turn on Leland. A man got out of
the Honda, approached the van, and then ran back to the Honda and quickly drove away.
       Guadalupe Mendoza, who also lived on Leland, testified that she heard gunshots
and looked through the sliding glass door on her patio. She saw a van and someone
shooting at the van. The first time she saw the Honda the shooter was already shooting at
the van. The Honda came down Leland, made a U-turn at the end of the street and went



                                              6
back out toward Merced. As the Honda sped down Leland, someone in the Honda yelled
at the van.
        Guijarro died from two gunshot wounds to the head. Parra died from three
gunshot wounds to the back. The police found no guns in the van.
        Fonseca made three telephone calls from jail. In the portions of the calls played to
the jury, Fonseca stated that he was concerned that Goree was going to “break” on him.
He told his sister that “if she breaks I’m through” and told his mother to encourage Goree
to “be strong” and not to “break” or “say[] anything.”
        In a recorded jail conversation between Anda and Fonseca, Anda mentioned that
the police had a witness named Juan who saw Anda running after the shooting. Fonseca
replied: “It’s too bad we can’t contact that mother fucker[.] . . . Someone needs to get at
him.”
        D.     The Defense Case
        None of the defendants testified or presented substantive evidence in their defense.
Goree and Anda presented character witnesses.
        In his closing argument Anda maintained that he shot into the van in self-defense
and in defense of his cousin Fonseca, the child in the car, and Fonseca’s girlfriend,
Goree. Fonseca maintained that he and Goree were the hunted, not the hunters, and had
nothing to do with the deaths of Guijarro and Parra.
        E.     The Verdicts and Sentences
        The jury found defendants Anda and Fonseca guilty of the first degree murders of
Guijarro and Parra and guilty of conspiracy to commit murder. Multiple murder special
circumstance allegations and various gun use allegations were found true as to both
defendants. The jury found Anda and Fonseca not guilty of the attempted murders of
Carrasco and Garcia and of making criminal threats. Goree was found not guilty of all
charges.
        The court sentenced Anda to two consecutive terms of life without the possibility
of parole on the murder convictions plus two consecutive terms of 25 years to life on the

                                              7
personal gun use allegations under Penal Code section 12022.53, subdivision (d).
The court imposed and stayed a term of 25 years to life on the conspiracy conviction
and struck the remaining firearm use allegations.
       The court sentenced Fonseca to two consecutive terms of life without the
possibility of parole on the murder convictions plus two consecutive terms of one year
on the principal armed gun use allegations under Penal Code section 12022,
subdivision (a)(1). The court imposed and stayed a term of 25 years to life on the
conspiracy conviction.
       F.     The Motion For A New Trial
       After the jury acquitted Goree of all charges against her, Anda and Fonseca
moved for a new trial on the ground of new evidence. They argued that in a new trial
Goree could provide exculpatory evidence that could not have been compelled so long as
she remained a defendant. They submitted Goree’s statement to the police as an offer of
proof in support of their motion. They did not submit a declaration from Goree.
       In her statement to the police, Goree said that on the evening of the shooting
Garcia called her and told her to stop “the drama” with Carrasco. Garcia and Goree
called each other “bitch” and traded other insults. Garcia told Goree that the next time
she saw her, “I’ll kick your ass.” After Garcia’s call, Goree and Fonseca drove to the
apartment building where Goree, Carrasco, and Garcia lived. Goree did not see Garcia,
and she and Fonseca kept driving. That was when the van started following them.
       Goree confirmed that it was her Honda shown in a 7-11 Store surveillance video,
speeding from the area of Baldwin Park High School, running a red light and being
chased by the van. The van’s headlights were flashing on and off as it followed the
Honda.
       The investigating officer asked Goree whether Fonseca called anyone while they
were being chased by the van. Goree answered that Fonseca made one call in which
“he actually, like, talked.” She heard Fonseca tell the person on the other end, “I’m in



                                             8
trouble. This car’s following me,” and then, “All right.” Fonseca told her that the person
he spoke to “told him to just go home.”
       Goree told the police that when she and Fonseca turned onto Leland Avenue,
the van followed them. They stopped, and the van stopped behind them. The doors of
the van opened, and she heard gunshots. At first she thought the people in the van were
shooting at her and Fonseca. Later she saw the person who was shooting at the van, but
she did not know who it was. The shooter told her and Fonseca to “get the fuck out of
here,” and they did.
       After reading Goree’s statement, the court ruled that assuming Goree’s testimony
qualified as newly discovered evidence, it was “redundant and cumulative” and a “rehash
of what was actually presented to this jury.”

                                       DISCUSSION
       I.     THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
              DENYING THE MOTION FOR A NEW TRIAL
       Fonseca and Anda argue that the trial court abused its discretion by denying their
motion for a new trial based on newly discovered evidence, namely, Goree’s interview
with the police. We disagree.
       “In ruling on a motion for new trial based on newly discovered evidence, the
trial court considers the following factors: ‘“1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative merely;
3. That it be such as to render a different result probable on a retrial of the cause;
4. That the party could not with reasonable diligence have discovered and produced
it at the trial; and 5. That these facts be shown by the best evidence of which the
case admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)
“‘“The determination of a motion for a new trial rests so completely within the court’s
discretion that its action will not be disturbed unless a manifest and unmistakable abuse
of discretion clearly appears.”’” (Ibid.)



                                                9
       Our analysis of appellants’ challenge to the denial of their new trial motion
necessarily begins with identification of the newly discovered evidence on which the
motion is based. The only evidence attached to the motion was the transcript of Goree’s
police interview. Anda and Fonseca do not contend, however, that they did not have that
transcript before trial, and they thus do not argue that the transcript itself is newly
discovered. Rather, they claim that (1) they could not have compelled Goree to testify at
trial because she could have invoked her Fifth Amendment rights, (2) now that she has
been acquitted, they could compel her to testify at a new trial, and (3) if called to testify
at a new trial, she would provide exculpatory testimony in line with her statements to the
police. Consequently, the newly discovered evidence on which the motion is based is the
as-yet unheard testimony that Goree would give at a future retrial.
       In order to prevail on a new trial motion based on newly discovered evidence, the
defendant must show that the evidence would render a different result probable upon
retrial, and the defendant must make that showing with the best evidence of which the
case admits. (Delgado, supra, 5 Cal.4th at p. 328.) On the basis of those two factors,
we conclude that the trial court did not abuse its discretion by denying the motion.
The best evidence of how Goree would testify upon retrial would be a declaration from
Goree, presenting her version of the facts and stating under penalty of perjury that she
would so testify if called as a witness at a retrial. The record before us contains no
evidence that Goree’s future testimony would match the statements in her police
interview. Witnesses do not always say the same things in court that they said to the
police. The trial testimony of Garcia and Carrasco, for example, was admittedly
inconsistent with information they had given to the police at various times. Moreover,
because we do not really know what Goree’s testimony upon retrial would be (because
we have no declaration stating that she would testify consistently with her police
interview if called as a witness at retrial), we cannot conclude that such testimony would
render a different result probable. Without better evidence of the content of Goree’s
future testimony, the trial court could not determine how that testimony might affect the

                                              10
outcome of a new trial, and neither can we. Accordingly, we must conclude that Anda
and Fonseca have failed to show that the trial court abused its discretion by denying their
motion.2
       II.    THE TRIAL COURT COMMITTED INSTRUCTIONAL ERROR
              THAT WAS PREJUDICIAL AS TO FONSECA’S MURDER
              CONVICTIONS BUT HARMLESS AS TO ANDA
       After reviewing the briefs and the record, we requested supplemental briefing
on the following issues: (1) As to both Anda and Fonseca, whether the trial court
committed prejudicial error in its instructions concerning liability for crimes committed
by co-conspirators, and (2) as to Fonseca, whether the record contains substantial
evidence to support his convictions for murder and conspiracy to commit murder.
We now conclude that the jury instruction at issue was erroneous, but the error was
prejudicial only as to Fonseca.3
       The trial court used CALCRIM No. 417 to instruct the jury on liability for crimes
committed by co-conspirators, stating in relevant part: “To prove that the defendant is
guilty of the crimes charged in Counts 1 and 2 [i.e., the murder counts], the People
must prove that: [¶] 1. The defendant conspired to commit one of the following crimes:
attempted murder as charged in Count[s] 3 and 4; [¶] 2. A member of the conspiracy
committed murder as charged in 1 and/or 2 to further the conspiracy; [¶] AND [¶] 3. The
murder charged in Count 1 and/or 2 was a natural and probable consequence[] of the


2
        Because it may be of significance in postconviction proceedings (if any), we wish
to make clear that we do not determine that if Goree’s future testimony were to match her
police interview, then it would not make a different result probable. We do not reach that
issue at all. Rather, we determine that because the only evidence Anda and Fonseca
presented concerning the content of Goree’s future testimony was the transcript of her
police interview, and because the police interview is relatively weak evidence of what
Goree would say if called as a witness at retrial, Anda and Fonseca have failed to show
that the trial court abused its discretion by denying their motion.
3
       Fonseca did not object to the instruction at trial, but he still can challenge the
instruction on appeal because the error affected his substantial rights. (Penal Code,
§ 1259.) Respondent does not argue to the contrary.
                                             11
common plan or design of the crime that the defendant conspired to commit.” Thus, the
court instructed the jury that it could find Anda and Fonseca guilty on the murder counts
if the jury determined that Anda and Fonseca conspired to attempt to murder Garcia and
Carrasco and a member of the conspiracy murdered Guijarro and Parra as a natural and
probable consequence of that conspiracy.
       The instruction was erroneous because, as a matter of law, there is no such crime
as conspiracy to commit attempted murder. (People v. Iniguez (2002) 96 Cal.App.4th
75, 77.) Respondent does not argue that the instruction was not erroneous.
       “‘[W]hen the prosecution presents its case to the jury on alternate theories, some
of which are legally correct and others legally incorrect, and the reviewing court cannot
determine from the record on which theory the ensuing general verdict of guilt rested,
the conviction cannot stand.’” (People v. Perez (2005) 35 Cal.4th 1219, 1233, quoting
People v. Green (1980) 27 Cal.3d 1, 69.) The prosecution presented its case against
Fonseca on the murder counts on two theories: conspiracy and aiding and abetting.
We cannot determine on which theory his guilty verdicts rested, so we must reverse his
murder convictions. We can, however, determine that the jury found that Anda
personally committed the murders, so the instructional error was harmless as to him.
       As to Fonseca, respondent argues that because the remaining instructions, the
information, the verdict forms, and the prosecution’s closing argument referred to
conspiracy to commit murder rather than conspiracy to commit attempted murder, we
should conclude that the error was harmless beyond a reasonable doubt. We disagree.
Although the remaining instructions, the information, the verdict forms, and the
prosecution’s closing argument did refer to conspiracy to commit murder rather than
conspiracy to commit attempted murder, the fact remains that the instructions allowed
the jury to convict Fonseca of murder on a legally invalid theory. Under binding
Supreme Court precedent, that error requires reversal unless we can determine that the
jury did not rely on the invalid theory. (People v. Perez, supra, 35 Cal.4th at p. 1233.)
The references, in the instructions and elsewhere, to other theories do not allow us to

                                            12
make that determination. Rather, they still leave open the possibility that the jury relied
upon the legally invalid theory on which it was instructed.
       Respondent further argues that we can determine the theory on which the jury
relied, because the jury acquitted both Anda and Fonseca of the attempted murders of
Garcia and Carrasco. According to respondent, “if the jury found that appellants did not
attempt to murder Garcia and Carrasco, then the jury necessarily found that appellants
did not conspire to commit attempted murder,” and any argument to the contrary “simply
defies logic and reason.” Again, we disagree. Although the jury found that Anda and
Fonseca did not in fact attempt to murder Garcia and Carrasco, the jury (not knowing that
it had been instructed on a legally invalid theory) could have consistently found that
Anda and Fonseca conspired to attempt to murder Garcia and Carrasco—that is, the jury
could have found that defendants conspired to attempt those murders but did not end up
attempting those murders. Indeed, it is easy to imagine how the jury could have reached
that result on the record in this case. A reasonable inference from the evidence was that
the shooter approached the passenger door of the van and fired into the front seats, killing
Guijarro and Parra, but that no shots were fired into the rear seats, where Garcia and
Carrasco were located. On that basis, the jury could have reasonably determined that the
shooter did not commit a direct but ineffectual act toward killing Garcia and Carrasco, so
the shooter did not commit the attempted murders that he had conspired to commit.
       For all of the foregoing reasons, we conclude that the instructional error was
prejudicial as to Fonseca, so his murder convictions must be reversed and his sentences
on those convictions vacated.4


4
        Fonseca also argues that the sentences on his murder convictions were erroneous.
Our reversal of his murder convictions renders the argument moot, so we do not address
it.
        Fonseca further argues that the sentencing minute order and the abstract of
judgment do not match the judgment (i.e., the trial court’s oral imposition of sentence),
because the minute order and abstract impose but stay a $200 parole revocation
restitution fine, but the judgment does not impose such a fine at all. Fonseca argues that
the discrepancy is a clerical error, that the fine is improper because he was sentenced to
                                                13
       As to Anda, however, we can determine that the jury relied on a valid theory.
The jury found true the personal use of a firearm allegation as to Anda, so it must have
determined that he was the shooter (and, in his police interview, he admitted being the
shooter). The jury also convicted Anda (and Fonseca) of the murders of Guijarro and
Parra, so it determined that the killings were murders rather than some other form
of homicide. Accordingly, the jury must have found that Anda himself murdered
Guijarro and Parra, so those convictions were not based on the conspiracy instruction.
The erroneous conspiracy instruction was therefore harmless as to Anda.
       III.   THE RECORD CONTAINS SUBSTANTIAL EVIDENCE TO
              SUPPORT FONSECA’S CONVICTIONS
       In response to our request for supplemental briefing, Fonseca argues that the
evidence is insufficient to support his convictions.5 Although we believe it is a close
case, we conclude that the record contains sufficient evidence to sustain the convictions.
       “The standard of review [for challenges to the sufficiency of the evidence] is well
settled: On appeal, we review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence



life without parole, and that the minute order and abstract should be corrected to match
the judgment. Respondent argues that the fine was proper, so the judgment should be
corrected to match the minute order and abstract. Respondent is correct that a parole
revocation restitution fine should have been imposed but stayed, notwithstanding the
sentences of life without the possibility of parole. (See People v. Brasure (2008)
42 Cal.4th 1037, 1075.) Because we reverse Fonseca’s murder convictions and vacate
his sentences on those convictions, however, we do not know what the ultimate outcome
on those counts will be—we do not know whether they will be retried and, if so, whether
he will be convicted and what sentences will be imposed. When those issues are resolved
on remand, the trial court shall include any mandatory fines in the new judgment, minute
order, and abstract of judgment.
5
         Although we reverse Fonseca’s murder convictions on the basis of instructional
error, the substantial evidence argument is not moot as to those convictions, because the
murder charges cannot be retried if they were not supported by substantial evidence at the
first trial. We therefore must address the substantial evidence issue as to all of Fonseca’s
convictions.
                                             14
that is reasonable, credible and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘“[I]f the verdict
is supported by substantial evidence, we must accord due deference to the trier of fact and
not substitute our evaluation of a witness’s credibility for that of the fact finder.”’
[Citation.] ‘The standard of review is the same in cases in which the People rely mainly
on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury, not the appellate
court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’
[Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
       Anda knew about the conflict among Fonseca, Goree, Carrasco, and Garcia.
On the day of the murders, Fonseca threatened to put Carrasco in his grave and also had
a heated encounter with Carrasco’s friends Guijarro and Gardner. Anda stated in his
police interview that Fonseca told him about the encounter and asked Anda to come
with him to “fuck these guys up.” Anda also admitted in his police interview that
Fonseca called and spoke to him during the car chase when Fonseca was near Anda’s
home. The cell phone records confirm that calls were placed that night from Goree’s
cell phone to Anda at 9:55, 10:06, 10:15, and 10:19, and that Anda called Goree’s
cell phone at 10:18. The murders took place at approximately 10:20 p.m., when Fonseca
led the van onto Leland where Anda was waiting, armed with a handgun. Anda fired
multiple rounds into the van, killing Guijarro and Parra.
       Although other reasonable inferences are possible, the jury could have reasonably
inferred from this circumstantial evidence that Anda and Fonseca conspired to kill
Carrasco and Garcia by leading them into an ambush on Leland. And the jury also could
have reasonably inferred that the killings of Guijarro and Parra were natural and probable
consequences of that conspiracy, or that Fonseca had aided and abetted the murders by
luring the victims into the trap. We accordingly reject Fonseca’s challenge to the
sufficiency of the evidence to support his convictions.

                                              15
                                    DISPOSITION
      As to defendant Gerardo Fonseca, the murder convictions are reversed and the
sentences on those convictions are vacated, but the conspiracy conviction and the
sentence on that conviction are affirmed. As to defendant Juan Anda, the judgment is
affirmed.
      NOT TO BE PUBLISHED.



                                                ROTHSCHILD, J.
We concur:



             MALLANO, P. J.



             JOHNSON, J.




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