People v. Zaragoza CA4/2 ( 2023 )

Filed 5/24/23 P. v. Zaragoza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079723
v. (Super.Ct.No. INF1701367)
TOMAS LUCIO ZARAGOZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge.
Affirmed.
Tomas Lucio Zaragoza in pro. per.; Mark D. Johnson, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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STATEMENT OF THE CASE
On April 22, 2021, a third amended information charged defendant and appellant
Thomas Lucio Zaragoza with deliberate and premeditated attempted murder (Pen. Code,1
§§ 664 and 187, subd. (a); count 1); participating in a criminal street gang (§ 186.22,
subd. (a); count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). The
information also alleged that defendant discharged a firearm causing great bodily injury
or death under sections 12022.53, subdivision (d), and 1192.7, subdivision (c)(8), as to
count 1; and that defendant used a firearm under sections 12022.5, subdivision (a), and
1192.7, subdivision (c)(8), as to count 3. Moreover, the information alleged that in the
commission of counts 1 and 3, defendant caused great bodily injury under sections
12022.7, subdivision (a), and 1192.7, subdivision (c)(8), and committed the offense for
the benefit of a criminal street gang under section 186.22, subdivision (b)(5).
Additionally, the information alleged that defendant committed counts 1 and 3 for the
benefit of, at the direction of, and in association with a criminal street gang with the
specific intent to promote, further, and assist in any criminal conduct by gang members
under section 186.22, subdivision (b)(5), as to count 1, and section 186.22, subdivision
(b)(1)(B), as to count 3. The information further alleged that defendant had one prior
strike conviction under sections 667, subdivisions (c) and (e)(1), and 1170.12,
subdivision (c)(1), and a serious prior offense under section 667, subdivision (a).
1 All statutory references are to the Penal Code unless otherwise specified.
2
On April 28, 2021, a jury found defendant guilty of participating in a criminal
street gang (count 2). The jury deadlocked on counts 1 and 3 and the trial court declared
a mistrial as to those counts.
On April 27, 2022, a fourth amended information was filed that alleged the same
charges as the third amended information, without the gang allegations as to counts 1 and
3.2 On May 23, 2022, a jury found defendant guilty of counts 1 and 3, and that all
allegations, other than deliberation and premeditation, were true. Defendant then waived
a jury trial on the priors. On May 24, 2022, the trial court found that defendant had
suffered the priors as alleged.
At a sentencing hearing on June 9, 2022, defendant moved for a new trial on count
2 in response to amendments made to section 186.22. The prosecutor stated that the
People would no longer be able to convict defendant of count 2, and moved to dismiss
the charge and the gang enhancements. The trial court granted both motions. The
sentencing hearing for this case was continued.
At the continued sentencing hearing on August 31, 2022, the trial court denied
defendant’s motion to dismiss the prior and enhancement findings. The court then
proceeded to sentence defendant to a total term of 27 years and four months, followed by
25 years to life.
On September 2, 2022, defendant filed a timely notice of appeal.
2 The fourth amended information still included count 2 for clerical reasons.
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STATEMENT OF FACTS
On July 26, 2017, defendant and his girlfriend (girlfriend) went to The Block Bar
(the Block) with three of defendant’s friends. Girlfriend testified that she picked up
defendant and his friends and took them to the Block. They arrived at 7 or 7:30 p.m.
After girlfriend had a sip of her drink, defendant started to argue with her. Girlfriend
chose to leave; she left the Block around 8 p.m. Defendant later called girlfriend and
asked her to pick him up. She went back to the Block around 9:30 p.m. When girlfriend
returned to the Block, she saw defendant with the same three friends, “seated in a
booth/table area that [they] had sat in previously.” She joined them.
When asked about the demeanor of defendant and his friends that night, girlfriend
responded, “They had been drinking all day, so they were pretty messed up already,” and
they were acting aggressively and cocky.
That same night, the victim and his wife went to the Block; they sat at the bar.
The victim got a “bad vibe” from defendant’s friends, who were sitting at a table;
defendant was outside smoking. When the victim walked by the table on his way to the
bathroom, they all stared at him. The victim planned to leave after he was done going to
the bathroom.
Girlfriend saw the victim and his wife enter the Block. One of defendant’s friends
made a “cat call.” Girlfriend stated that the noise by defendant’s friend “would be
disrespectful to the woman, especially when she’s in the presence of her significant
other,” and derogatory. Girlfriend went outside with defendant about five minutes after
the victim and his wife entered the Block.
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After the victim came out of the bathroom, one of defendant’s friends was
standing outside the door. The victim said “what’s up,” and walked around him; he went
back to the bar and told his wife he wanted to leave. As they headed toward the door,
defendant’s friends tried to cut them off. After a brief verbal exchange, one of
defendant’s friends swung at the victim. The victim dodged the first punch. The other
friends started punching the victim, who “covered up” and backed out of the Block. He
then saw one of the men reach for a pool stick. The victim grabbed the stick out of the
friend’s hand and took a batter’s stance with the stick; the victim did not hit anyone.
Girlfriend, who was outside with defendant, heard a noise from inside the Block
and saw the altercation between the victim and defendant’s friends. Girlfriend told
defendant and he went inside.
The victim saw defendant come through the door, pull a gun from his waist, and
then take a shooting stance. The victim instinctively put his hand up to grab defendant’s
gun. Defendant shot the victim through his hand. The victim turned and ran, but was
shot again in the abdomen. The victim had five intestinal surgeries as a result of the
shooting.
A witness at the Block was waiting to pay his tab when he saw the victim trying to
leave and defendant’s three friends going after the victim. After the first shot, the witness
saw the victim running and trying to get behind the bar. Defendant was shooting at the
victim as he ran. The witness saw the victim get shot again and crawl behind the bar.
The witness stopped looking at the shooter when the witness was hit in his left foot by
bullet fragments from one of the bullets fired by defendant. A few days later he went to
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the hospital to have the bullet fragments removed. The injury was painful and kept him
from being able to fully perform his duties at work for some time. The injury still hurt on
occasion.
According to defendant, after he was done smoking his cigarette outside the
Block, he opened the door and saw the victim hitting one of his friends with a pool stick.
When defendant walked up to the victim, the victim was holding the pool stick in a
“batter’s position.” Defendant said “kick back,” and pulled up his shirt to show the
victim that he had a gun.
The victim tried to grab the gun from defendant and the two of them fought over
it. During the struggle, the gun went off and the victim ran. Defendant thought the
victim broke defendant’s gun and that it was jammed. Defendant believed that other
patrons at the Block were going to jump him to stop him from using the gun. In an effort
to protect himself, he fired another five or six times toward the floor and back wall.
Defendant shot because he believed one of his friends would be killed or seriously
injured if he did not.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and potential arguable issues, and has requested this
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issues to assist the court in its search of the record for error:
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1. “Was it error for the trial court to instruct the jurors they could consider gang
evidence on the issue of appellant’s intent to kill, and if so, was appellant prejudiced by
that error?”
2. “Did the trial court err when it denied appellant’s motion to dismiss
enhancements?”
We offered defendant an opportunity to file a personal supplemental brief. On
May 12, 2023, defendant filed a three-page handwritten brief.
In the brief, defendant contends that his trial counsel rendered ineffective
assistance of counsel because “he refused to hire private investigator, gang expert,
medical examiner[.] He refused to call witnesses to the stand. He did not object to D/A
witnesses taking the stand after they admitted to being under the influence, having
criminal record, lying to police and lieing [sic] on the stand during trial.” Defendant also
appears to argue that he was prejudiced because the trial court allowed “the people [to]
lie on the stand[d],” and he was in “waist chains when the jury walked in.” Moreover,
defendant argues that he should have been granted his motion for new trial.
Notwithstanding these allegations, defendant failed to provide any argument or
authority for his arguments. Where a point is merely asserted, “without any [substantive]
argument of or authority for its proposition, it is deemed to be without foundation and
requires no discussion.” (People v. Ham (1970) 7 Cal.App.3rd 768, 783, overruled on
another ground in People v. Compton (1971) 6 Cal.3rd 55, 60, fn. 3.) “Issues do not have
a life of their own: if they are not raised or supported by [substantive] argument or
citation to authority, we consider the issues waived.” (Jones v. Superior Court (1994) 26
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Cal.App.4th 92, 99.) Accordingly, we deem defendant’s argument to be waived by his
failure to provide any coherent, substantive argument supported by law or the record.
(Ibid.; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700
[“When an issue is unsupported by pertinent or cognizable legal argument it may be
deemed abandoned and discussion by the reviewing court is unnecessary”]; Ochoa v.
Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [contention was
deemed waived because “[a]ppellant did not formulate a coherent legal argument nor did
she cite any supporting authority”]; Colores v. Board of Trustees (2003) 105 Cal.App.4th
1293, 1301, fn. 2 [“The dearth of true legal analysis in [appellant’s] appellate briefs
amounts to a waiver of the [contention] and we treat it as such”].)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error. We find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
MENETREZ
J.
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