Filed 3/18/13 P. v. Nevarez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B234857
                                                                           (Super. Ct. No. TA063973)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

EDWARD G. NEVAREZ,

     Defendant and Appellant.




                   Edward G. Nevarez appeals the judgment entered after a jury convicted him
on two counts of first degree murder (Pen. Code,1 §§ 187, subd. (a), 189) and one count
of robbery (§ 211). The jury also found true allegations that the crimes were committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that the murders
were committed while appellant was engaged in the commission of a robbery (§ 190.2,
subd. (a)(17)). The trial court sentenced him on the murder counts to two consecutive
terms of life without the possibility of parole. Sentencing on the robbery was stayed
under section 654. Appellant contends the evidence is insufficient to support his murder
convictions and the robbery special-circumstance allegations. We affirm.



1 All further statutory references are to the Penal Code.
                     FACTUAL AND PROCEDURAL SUMMARY
              Late at night on February 17, 2001, Enrique Hernandez and victims
Anthony Esquer and Reynaldo Aguilar were drinking beer in Aguilar's parked SUV when
appellant walked by with Andres Santana. Hernandez knew appellant and Santana as
"Eric" and "Blanco," the monikers they used as members of the Lynwood Dukes gang.
Hernandez had no trouble recognizing appellant because he had known him for 10 years.
              When Hernandez left the SUV to buy more beer, appellant and Santana
approached him and asked if he had any money. Hernandez replied that he had $10, and
appellant took the money from him.
              Hernandez followed appellant and Santana as they walked back toward the
SUV. When Hernandez reached the SUV, the driver's side door was open and appellant
and Santana were demanding money from Aguilar. The men started beating Aguilar, and
Hernandez told them to leave him alone. As Aguilar was being beaten, Hernandez heard
continued demands for money. Hernandez ran away after he saw a third man hiding
behind the SUV holding an object in his hand. Hernandez looked back and saw that the
third man had moved from the rear of the SUV to join appellant and Santana. Hernandez
ran to a telephone booth and called 911.
              When the police arrived, Aguilar and Esquer were both found lying on the
ground covered in blood. Aguilar's wallet, ATM card, and wedding ring were missing.
Lynwood Dukes gang graffiti was spray-painted on the ground near Esquer's body and on
a vehicle parked near the SUV. Aguilar was pronounced dead at the scene. Esquer was
transported to the hospital and was pronounced dead shortly thereafter. Autopsies later
determined that both men had died from multiple blunt force head injuries inflicted with a
hammer or a similar weapon. Aguilar suffered a total of 12 separate injuries to his head.
Five of the injuries were skull fractures, each of which was independently life
threatening. Esquer also had injuries to his clavicle area and lower legs that were
consistent with having been repeatedly kicked or punched with a closed fist.
              After making the 911 call, Hernandez returned to the scene and
immediately identified appellant and Santana as the perpetrators. When Hernandez was

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interviewed again the following morning, he reiterated his identifications of appellant and
Santana and selected each of their photographs from "six-pack" lineups.
              In the days following the murders, someone sprayed Lynwood Dukes gang
graffiti on the sidewalk near flowers that had been placed at the crime scene. Someone
also attempted to use Aguilar’s ATM card at 14 different locations without surveillance
cameras.
              Appellant fled to Mexico following the murders.2 In June 2010, he was
arrested in Mexico and brought to the United States pursuant to a federal warrant.
              At trial, the prosecution's gang expert opined that the Lynwood Dukes are a
criminal street gang and that the crimes were committed for the gang's benefit. In his
defense, appellant presented expert testimony criticizing the fact that certain forensic
evidence was not collected.
                                       DISCUSSION
              On the murder counts, the jury was instructed on alternative theories of
malice aforethought and felony murder. To find appellant guilty of first degree murder
with malice aforethought, the jury had to find that the killings of Aguilar and Esquer were
willful, deliberate and premeditated. (CALJIC Nos. 8.11, 8.20.) To find him guilty of
felony murder, it had to find that (1) the killings occurred while appellant was engaged in
the commission of a robbery; and (2) the robbery and the acts causing the deaths of
Aguilar and Esquer were part of one continuous transaction. (CALCRIM Nos. 540A,
540B.) Appellant contends the evidence is insufficient to support his murder convictions



2 Santana was arrested shortly after the crimes were committed. He was subsequently
tried and convicted on two counts of first degree murder and robbery, with true findings
on robbery special-circumstance and gang enhancement allegations. He was sentenced to
two consecutive terms of life without the possibility of parole. On appeal, we struck 10-
year enhancements that were erroneously imposed as to each indeterminate term under
section 186.22 and otherwise affirmed. (People v. Santana (April 11, 2005, B167415)
[nonpub. opn.].) The third assailant was never identified.




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on either theory, as well as the jury's true findings on the robbery special-circumstance
allegations.
               In addressing challenges to the sufficiency of evidence, "the reviewing
court must examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is reasonable, credible
and of solid value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citations.] The same standard applies when the conviction rests primarily on
circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if
it finds the circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate court that
must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"If the
circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment. [Citation.]"' [Citation.]" (People v. Kraft
(2000) 23 Cal.4th 978, 1053–1054.)
               In finding true the allegations that the murders of Aguilar and Esquer were
committed while appellant was engaged in the commission of a robbery, the jury
necessarily found him guilty of felony murder. (People v. Kelly (2007) 42 Cal.4th 763,
789.) Because the verdicts expressly reflect that appellant was found guilty of felony
murder, we need only determine whether the evidence is sufficient to support that
finding. In other words, we need not decide whether the evidence is sufficient to support
a finding that the killings were premeditated and deliberated. (Ibid.)
               "Under the felony-murder rule, a murder 'committed in the perpetration of,
or attempt to perpetrate' one of several enumerated felonies, including robbery, is first
degree murder. (§ 189.) The robbery-murder special circumstance applies to a murder
'committed while the defendant was engaged in . . . the commission of, [or] attempted
commission of' robbery. (§ 190.2, subd. (a)(17)(A).) '[T]o prove a felony-murder

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special-circumstance allegation, the prosecution must show that the defendant had an
independent purpose for the commission of the felony, that is, the commission of the
felony was not merely incidental to an intended murder.' [Citations.]" (People v.
Lindberg (2008) 45 Cal.4th 1, 27-28.) The prosecution must also prove the defendant
formed the intent to steal prior to or in the process of killing the victim. (Id. at p. 28.)
               To convict appellant of felony murder, the jury did not have to find that he
actually perpetrated the killing. Rather, a defendant "'. . . may be vicariously responsible
under the rules defining principals and criminal conspiracies. All persons aiding and
abetting the commission of a robbery are guilty of first degree murder when one of them
kills while acting in furtherance of the common design.' [Citation.]" (People v. Pulido
(1997) 15 Cal.4th 713, 721.) "[I]n such circumstances, the felony-murder rule requires
both a causal relationship and a temporal relationship between the underlying felony and
the act resulting in death. The causal relationship is established by proof of a logical
nexus, beyond mere coincidence of time and place, between the homicidal act and the
underlying felony the nonkiller committed or attempted to commit. The temporal
relationship is established by proof the felony and the homicidal act were part of one
continuous transaction." (People v. Cavitt (2004) 33 Cal.4th 187, 193.)
               Where a defendant is convicted of felony murder as an aider and abettor of
robbery, the jury must also find that he or she acted either with an intent to kill or with
reckless indifference to human life as a major participant in the robbery. (§ 190.2, subds.
(c), (d); People v. Smith (2005) 135 Cal.App.4th 914, 927, overruled on another point as
stated in People v. Garcia (2008) 168 Cal.App.4th 261, 291.) "'The term "reckless
indifference to human life" means "subjective awareness of the grave risk to human life
created by his or her participation in the underlying felony."' [Citation.]" (Smith, at p.
927.) "As used in the term '"major participant,"' the word '"major"' means '"notable or
conspicuous in effect or scope"' or '"one of the larger or more important members . . . of a
. . . group."' [Citation.]" (Id. at p. 928.)
               Appellant argues that the convictions of felony murder must be reversed
because there is insufficient evidence of a logical nexus between the robbery and the

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murders. As our Supreme Court has recognized, however, "cases that raise a genuine
issue as to the existence of a logical nexus between the felony and the homicide 'are few
indeed.' It is difficult to imagine how such an issue could ever arise when the target of
the felony was intentionally murdered by one of the perpetrators of the felony. Nor . . .
does it seem likely that a genuine dispute could arise when the victim was killed . . .
negligently or accidentally during the perpetration of the felony." (People v. Cavitt,
supra, 33 Cal.4th at p. 204, fn. 5.) Here, Hernandez testified that he saw appellant and
his fellow gang member Santana begin beating Aguilar after demanding money from
him. Shortly thereafter, they were met by an accomplice who had been hiding behind
Aguilar's SUV. Although Hernandez could not identify this individual, he was able to
see that the man was carrying an object in this hand. When the police arrived at the scene
only minutes later, Aguilar and Esquer were found beaten to death with a hammer-like
object and Aguilar's wedding ring and wallet were missing. From this evidence, the jury
could infer that appellant participated in the robbery and that the requisite causal and
temporal relationship existed between the robbery and the killings. Contrary to
appellant's claim, it is irrelevant whether he was armed with anything other than his fists.
It is also of no moment whether the evidence establishes that appellant initiated the
robbery with a subjective awareness that his participation involved a grave risk of death
to his victims. The jury could have inferred that he gained such an awareness during the
time it took to beat both victims to death in light of the fact he "chose to flee rather than
going to [the victims'] aid or summoning help." (People v. Smith, supra, 135 Cal.App.4th
at p. 927.)
              Appellant's remaining contentions—which include the assertion that "there
is no evidence that appellant knew the third person would intervene in the Aguilar
robbery carrying an object"—fail to take into account the controlling standard of review.
Viewing the record in the light most favorable to the judgment, the jury could infer from
circumstantial evidence that appellant either had actual notice that his accomplice was
armed with a deadly weapon or voluntarily continued to participate in the crime after
discovering that fact. The evidence is thus sufficient to support appellant's conviction on

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two counts of felony murder and the attendant true findings on the robbery special-
circumstance allegations. (People v. Kraft, supra, 23 Cal.4th at pp. 1053–1054.)
                                     DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.




                                         PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




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                                 Michael Shultz, Judge

                         Superior Court County of Los Angeles

                          ______________________________


             Thomas T. Ono, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.




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