Tuesday, January 12, 2010

People v. Gonzalez (Cal. Ct. App. - Jan. 12, 2010)

Armando Gonzalez and Jose Ortiz are driving in Pomona with a couple of fellow gang-bangers. They see Hector sitting on the sidewalk watching fireworks and tell the driver to stop. They then get out of the car and, for totally inexplicable reasons, Ortiz walks up to Hector (with a gun at his side) and ask him "Where he's from." To which Hector replies, seemingly truthfully, "Nowhere. I don't gang bang." At which point Ortiz and Gonzalez say they're from Cherryville (their gang), turn around, and walk back to their car.

Mistaken identity, I guess.

But then, for some totally unknown reason, when they're nearly back to the car, Ortiz wheels around and fires the gun at Hector, hitting him twice (but not killing him). No one spoke either on the way back to the car or after the shooting. Why Ortiz chose to shoot Hector is totally unclear.

Ortiz gets convicted of premeditated attempted murder, and appeals, claiming that whatever he did, it wasn't premeditated. I understand the point, and I might well have agreed with him had I been on the jury -- depending, of course, on the state of the evidence.

But the Court of Appeal holds that even though, to me, Ortiz's decision to shoot seemed pretty spontaneous (indeed, totally inexplicable), it's still sufficient evidence to convict. Yeah, maybe he just decided to shoot on a whim. But maybe he held that intent when he approached Hector in the first place. A reasonable jury might have so concluded, so there you have it.

Gonzalez's argument on appeal seems even stronger. Gonzalez was convicted of aiding and abetting, and says: "Dude, I totally had no idea he was going to shoot the guy." Nor was the shooting during the commission of a felony as is usually the case. So Gonzalez says that he was simply in the wrong place with a wrong guy at the wrong time, and surely shouldn't be guilty of attempted murder as a result.

Even if one might view the evidence, at the extreme, as showing some degree of Ortiz's intent, I think it's a lot -- lot -- weaker as to Gonzalez's attempt. You basically have no evidence at all of any desire by Gonzalez to shoot or to help shoot. I'm sure Gonzalez was willing to help confront Hector and see if he was with a rival gang, and maybe -- maybe -- go along with an assault if he was. But was there any intent to help shoot the guy if he was (as he appears to be) a completely innocent bystander? I strongly, strongly doubt it. That seems all on Ortiz.

Nonetheless, the Court of Appeal affirms Gonzalez's conviction as well. This seems troubling to me. A very stiff sentence for potentially just being with a guy who does something very wrong.

(The Court of Appeal dropped a one-sentence footnote that says that maybe Gonzalez was the shooter, but this seems an implausible reading of the facts, and in any event centrally holds that he was properly convicted of aiding and abetting even without being the shooter, and this is the part I have the most problems with.)

I'm not saying this one's clear cut. But we're talking about a very long sentence, for aiding and abetting an attempted murder, with virtually no evidence whatsoever. At a minimum, it's a very extreme example of accomplice liability, and may well end up being legally over the line as well.