Filed 5/14/13 P. v. Propker CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN PROPKER,

Defendant and Appellant.

 B240210

 (Los Angeles County

 Super. Ct. No. MA047962)

APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden 

Zacky, Judge. Affirmed as modified.

Richard D. Miggins, 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, Assistant Attorney General, Mary Sanchez and Rene 

Judkiewick, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

FACTS AND PROCEDURE

On December 30, 2009, when he was 15 years old, defendant Jonathan Propker, a 

member of the Crooks gang, shot and killed E.H. E.H. was a member of the BOP gang, 

which is a rival gang of defendant‘s gang. 

The shooting occurred following a botched drug sale. E.H.‘s brother, D.H., 

arranged to sell defendant an ounce of marijuana at a designated location where D.H. 

drove himself and E.H. D.H. previously had sold marijuana to defendant, who he knew 

as ―Slick.‖ According to D.H., defendant entered the vehicle, looked around, pulled out a 

shotgun, and pointed the gun directly at him. Defendant ordered D.H. to ―give me what 

the fuck you got.‖ Defendant then pointed the gun at E.H. and shot him. After defendant 

shot E.H., he pointed the gun back at D.H. and repeated: ―I said, give me what you got.‖ 

Neither D.H. nor E.H. had a weapon, and E.H. had not reached for a weapon prior to 

being shot. D.H. did not know defendant to be a member of any gang. After E.H. died, 

D.H. noticed Crooks graffiti near their home. 

Defendant shot D.H. using a shotgun that required cocking back the hammer and 

pulling the trigger in order to fire. Defendant obtained the gun on December 29, the day 

before the marijuana purchase. According to defendant, he intended to purchase 

marijuana from D.H. but was unaware E.H. would be present at the sale. Defendant 

claimed he became frightened when he saw E.H., who he knew to be a BOP gang 

member. Defendant saw E.H. reach for something, ―freaked out,‖ and shot E.H. 

Defendant testified he thought E.H. was reaching for a weapon. Defendant denied being 

a member of a gang and denied committing any crimes to show loyalty to a gang. 

Defendant‘s friend Neil Flores – a member or former member of the Crooks gang –

accompanied defendant to the sale, but defendant denied asking Flores to act as a 

lookout. 

According to Flores, he and defendant went to purchase the marijuana. On the 

way, defendant showed Flores his shotgun. Flores had a ―hunch‖ defendant would use 

the gun. When D.H.‘s car approached, defendant walked towards it. Flores heard a 

gunshot and asked defendant what happened. Both fled the scene. After the incident, 

Flores told officers he went with defendant in case anything happened. Flores was able 
3

to retrieve defendant‘s shotgun from other Crooks members. Flores denied acting as a 

lookout and denied asking defendant to commit the crime to show his allegiance to 

Crooks. Other evidence showed defendant frequently spent time with Flores. Flores 

testified he was ―not really‖ a member of Crooks on December 30 but admitted he 

previously had been in the gang. 

According to defendant‘s cousin, Christopher N., defendant told Christopher about 

the killing. Defendant said he was involved in a murder with Chuko, who Christopher 

knew to be Flores. Defendant said he killed a BOP. On cross-examination, Christopher 

testified defendant did not mean to shoot E.H. 

Detective David Welle opined that both defendant and Flores were members of the 

Crooks gang. He concluded Flores was a member of the Crooks gang based on his 

tattoos and Flores‘s girlfriend‘s and mother‘s statements confirming Flores was a 

member of Crooks. Welle acknowledged that defendant had not been a gang member 

long, and indeed Welle confirmed E.H.‘s killing may have been defendant‘s initiation 

into the gang. Welle testified one method of joining a gang is ―putting in work,‖ for the 

gang, which means commit crimes. Welle further testified that committing crimes was a 

way to enhance an individual‘s reputation within the gang and the gang‘s reputation 

within the community. 

Defendant did not have gang tattoos and had not been identified as a gang member 

in field identification cards, used by law enforcement to record stops with gang members. 

Approximately half of the Crooks gang members were documented in field identification 

cards. Detective Welle‘s opinion that defendant was a member of Crooks was supported 

by information he received from Christopher (which Christopher denied) that defendant 

was a member of a gang that started with a ―C.‖ Welle also based his opinion on a book 

found at defendant‘s house with gang graffiti.1 The book had defendant‘s nickname 

Slick and the name Crooks, as well as the abbreviation CKS. 

 

1 Defendant testified other persons wrote in the book. 
4

After both sides rested, the prosecutor informed the court he intended to pursue 

only a felony-murder theory. Based on that election, the court refused defendant‘s 

counsel‘s request to instruct jurors on voluntary manslaughter, self-defense, and 

unreasonable self-defense. 

Defendant was convicted of murder, and jurors found that he committed the 

murder during the commission of an attempted robbery. Defendant also was convicted of 

two counts of attempted robbery, with E.H. and D.H. as the victims. As to all crimes, 

jurors found the gang enhancement to be true (Pen. Code, § 186.22, subd. (b)(1)(C))2 and 

defendant personally discharged a firearm causing death to E.H. within the meaning of 

section 12022.53, subdivision (d) and also found subdivisions (b) and (c) of that statute 

applicable. The court imposed and stayed the section 12022.53, subdivisions (b) and (c) 

enhancements. The court sentenced defendant to life imprisonment without the 

possibility of parole for the murder. For each attempted robbery, the court sentenced 

defendant to a total term of 38 years to life, which included the high term of 3 years on 

the substantive offense, 10 years for the gang enhancement, and 25 years to life for the 

personal use and discharge of a firearm causing death. One attempted robbery sentence 

was ordered concurrent and the other consecutive. 

DISCUSSION

1. Sufficiency of the Evidence of the Gang Allegation

Section 186.22, subdivision (b)(1) requires the prosecution prove the crimes were 

―committed for the benefit of, at the direction of, or in association with any criminal 

street gang, with the specific intent to promote, further, or assist in any criminal conduct 

by gang members . . . .‖ Defendant argues the evidence was insufficient to support the 

gang allegation. ―In considering a challenge to the sufficiency of the evidence to support 

an enhancement, we review the entire record in the light most favorable to the judgment 

to determine whether it contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable trier of fact could find 

 

2 All undesignated statutory references are to the Penal Code unless otherwise 

stated.
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the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in 

support of the judgment the trier of fact could have reasonably deduced from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact‘s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.]  ̳A reviewing court neither 

reweighs evidence nor reevaluates a witness‘s credibility.‘ [Citation.]‖ (People v. 

Albillar (2010) 51 Cal.4th 47, 59-60.) 

Here, the evidence supported the finding that defendant acted for the benefit of, at 

the direction of, or in association with the Crooks gang. Detective Welle opined the 

crimes were committed for the benefit of the gang and circumstantial evidence supported 

that conclusion. Defendant committed the crime with Flores, who jurors could have 

concluded was an active member of Crooks, notwithstanding Flores‘s denial of continued 

membership. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [fact defendant 

committed crime in association with other gang members supports gang enhancement].) 

The victim was a member of a rival gang, BOP. (People v. Jasso (2012) 211 Cal.App.4th 

1354, 1376-1377 [shooting at rival gang member supports finding that crime committed 

for benefit of gang].) Defendant‘s cousin Christopher told police defendant killed a BOP 

after defendant told Christopher about the killing. After the incident, Flores was able to 

retrieve the gun from other members of the Crooks gang, suggesting it was a gang gun. 

After the crime, Crooks graffiti was painted near E.H.‘s home. Although defendant 

denied Slick was a gang moniker and denied being a member of a gang, the jury was not 

required to credit defendant‘s denials. The evidence that he shot a rival gang member 

while another gang member was present supported the inference defendant acted for the 

benefit of the gang or in association with the gang. 

There also was sufficient evidence to support the jury finding that defendant acted 

with the specific intent to benefit the Crooks gang. Detective Welle opined that 

committing crimes benefits an individual‘s reputation in the gang and the gang‘s 

reputation in the community, which supports the finding that defendant acted with the 

requisite specific intent. (People v. Albillar, supra, 51 Cal.4th at p. 63.) Additionally, 

defendant obtained the gun the day before he was scheduled to purchase marijuana from 
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D.H. Prior to the meeting, he showed Flores the shotgun, causing Flores to have a 

―hunch‖ defendant would use it. Defendant assaulted and killed a rival gang member and 

later reported to his cousin that he killed a BOP. Defendant ensured that a more 

experienced gang member would be present at the scene of the shooting, and both fled 

together. From this evidence, a reasonable jury could conclude defendant planned to use 

the gun prior to the shooting, and he obtained the approval of a more experienced gang 

member, Flores, prior to the incident and that he intended to benefit the Crooks gang. 

The fact Flores and defendant denied the crime was gang related did not require the jury 

to credit their denials. 

2. Instructions on Lesser Included Offenses

Defendant was charged with murder in violation of Penal Code section 187. 

Defendant argues the court was required to instruct on voluntary manslaughter, selfdefense, unreasonable self-defense, and accident. We conclude even if the court erred in 

failing to give these instructions, any error was harmless beyond a reasonable doubt. 

Any error in failing to give the requested instructions was harmless beyond a 

reasonable doubt because the verdict demonstrates jurors necessarily found defendant 

committed a felony murder. The true findings on the special circumstance shows jurors 

necessarily concluded that the murder ―was committed during the commission of an 

attempted robbery . . . .‖ Even if the court should have instructed the jury on voluntary 

manslaughter, self-defense, unreasonable self-defense, and accident, jurors could not 

have reached a verdict more favorable to defendant because they found him guilty of 

felony murder. Upon finding him guilty of felony murder based on the robbery, jurors 

were required to convict defendant of first degree murder. (§ 189.) Therefore, any error 

was harmless beyond a reasonable doubt. 

Our high court applied the same reasoning in People v. Castaneda (2011) 51 

Cal.4th 1292, 1328-1329. In Castaneda, jurors convicted the defendant of first degree 

murder either on a felony-murder theory or on a theory that the murder was willful, 

deliberate and premeditated. (Id. at p. 1328.) Jurors also found true the special 

circumstance that defendant was engaged in the commission or attempted commission of 

the crimes of burglary, sodomy, and robbery. (Ibid.) Because jurors found the special 
7

circumstance true, jurors necessarily would have found the defendant guilty of ― ̳first 

degree murder under a felony-murder theory, at a minimum, regardless of whether more 

extensive instructions were given on second degree murder. [Citations.]‘ [Citation.]‖ 

(Ibid.) Therefore, ―any error in not instructing the jury concerning second degree murder 

was harmless beyond a reasonable doubt.‖ (Ibid.) 

3. Evidence of Defendant’s Age

The trial court excluded evidence of defendant‘s age. The court found the 

evidence was likely to evoke sympathy and its probative value was outweighed by its 

prejudicial impact. Defendant argues the court abused its discretion in excluding the 

evidence because the evidence was relevant to whether he formed the intent to kill and 

his intent with respect to the gang allegation. We disagree.

Defendant‘s age is not probative of his ability to form the intent to kill or the 

specific intent to promote the gang. There was no suggestion defendant – at age 15 – was 

unable to form these intents. Defendant did not testify he was unable to form the intent to 

kill or to act in a manner to promote a gang. No expert testified a 15-year-old could not 

form the specific intent to kill or to act to promote a gang. Therefore, defendant fails to 

show the evidence was probative. 

Finally, even if the court should have allowed defendant to testify he was 15 years 

old, the error in excluding the evidence was harmless under any standard. Defendant 

testified to information suggesting his age without specifically mentioning it. Defendant 

testified he had smoked marijuana since junior high, which was about two years. 

Defendant testified he was too young to have a job. Jurors could see defendant 

throughout the trial, and during his testimony and could estimate his age from their view 

of him. The record does not support defendant‘s theory that information about his age 

would have affected the outcome of trial. 

4. Sentencing Issues

A. Life Without the Possibility of Parole Sentence Must Be Modified

Defendant argues the trial court erred in concluding it was required to impose a 

sentence of life without the possibility of parole on him. Defendant also argues this 

sentence violates the Eighth Amendment to the federal Constitution, which prohibits the 
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imposition of cruel and unusual punishment.3 We agree with the former contention and 

therefore need not consider the latter.4 

The law differentiates between a special murder circumstance committed by an 

adult and one committed by a juvenile. It further differentiates punishment based on the 

age of the juvenile at the time of the commission of the murder. ―While generally a 

special circumstance murder must be punished by death or life imprisonment without 

possibility of parole, there are two levels of exception for juvenile offenders. First, they 

may not be punished by death. Second, if the offender was 16 years of age or over, 

punishment may be a life term without possibility of parole, or a term of 25 years to life, 

at the discretion of the court. For juveniles under 16 who were 14 or 15 when the crime 

was committed, a life term without the possibility of parole is not permitted, leaving a 

term of 25 years to life with possibility of parole.‖ (People v. Demirdjian (2006) 144 

Cal.App.4th 10, 17.) The court therefore should have imposed a term of 25 years to life

with the possibility of parole instead of a sentence of life without the possibility of parole. 

B. Attempted Robbery of E.H. Must Be Stayed

Defendant argues the attempted robbery counts must be stayed because sentencing 

him to both attempted robbery and to felony murder violated section 654, which 

 

3 Respondent argues this court need not consider these arguments because after 

defendant was sentenced, the Legislature passed section 1170, subdivision (d)(2)(A)(i), 

which provides: ―When a defendant who was under 18 years of age at the time of the 

commission of the offense for which the defendant was sentenced to imprisonment for 

life without the possibility of parole has served at least 15 years of that sentence, the 

defendant may submit to the sentencing court a petition for recall and resentencing.‖

Section 1170 does not operate to correct an unlawful sentence and therefore does 

not effectively answer defendant‘s contention that his sentence was unconstitutional 

because he was 15 when he committed the crime. 

4

In Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455, 2469], the United States 

Supreme Court held the Eighth Amendment prohibits a sentencing scheme mandating life 

in prison without the possibility of parole for juveniles convicted of homicide. Miller

does not apply here because under California‘s sentencing scheme a person under 16 

cannot be committed for life without the possibility of parole. 
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provides: ―An act or omission that is punishable in different ways by different provisions 

of law shall be punished under the provision that provides for the longest potential term 

of imprisonment, but in no case shall the act or omission be punished under more than 

one provision.‖ (Id., subd. (a).) 

Defendant‘s argument is correct insofar as it concerns the sentence for E.H., the 

murder victim. (People v. Meredith (1981) 29 Cal.3d 682, 695-696 [robbery sentence 

must be stayed when defendant convicted of felony murder based on robbery].) Thus, the 

sentence must be modified to stay punishment for the attempted robbery of E.H. 

However, section 654 does not prohibit separate punishment for the attempted robbery of 

D.H. (People v. Young (1992) 11 Cal.App.4th 1299, 1312 [when one person is robbed 

and a different person is killed, a defendant may be punished for both crimes].) 

C. Gang Enhancement and Firearm Use Enhancement Were Properly Imposed

Defendant argues the court erred in imposing sentence under section 12022.53, 

subdivision (d) and section 186.22, subdivision (b)(1)(C). Defendant‘s argument is based 

on an ambiguity in section 12022.53. Subdivision (e)(2) of section 12022.53 expressly 

allows both a firearm use enhancement and a gang enhancement when a defendant 

personally discharges a firearm.5 In contrast, subdivision (j) provides only the longest 

enhancement is applicable.6 Recognizing this statutory inconsistency, we conclude the 

 

5 Section 12022.53, subdivision (e) states as follows: ―(1) The enhancements 

provided in this section shall apply to any person who is a principal in the commission of 

an offense if both of the following are pled and proved: [¶] (A) The person violated 

subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any 

act specified in subdivision (b), (c), or (d). [¶] (2) An enhancement for participation in a 

criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 

of Part 1 shall not be imposed on a person in addition to an enhancement imposed 

pursuant to this subdivision, unless the person personally used or personally discharged a 

firearm in the commission of the offense.‖

6

 Section 12022.53, subdivision (j) provides: ―For the penalties in this section to 

apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged 

in the accusatory pleading and either admitted by the defendant in open court or found to 

be true by the trier of fact. When an enhancement specified in this section has been 
10

trial court properly applied both enhancements. Because subdivision (e) carves out a 

narrow exception specifically applicable to this case, it trumps the more general 

provision. (Cf. People v. Ahmed (2011) 53 Cal.4th 156, 159 [―specific statutes prevail 

over general statutes‖].) People v. Robinson (2012) 208 Cal.App.4th 232, 261, similarly 

held under similar circumstances that both the firearm use under section 12022.53 and the 

gang enhancement under section 186.22 could be applied. 

DISPOSITION

The judgment is modified to (1) stay the sentence on the attempted robbery of 

E.H. and (2) reduce the sentence of life without the possibility of parole to 25 years to 

life. As modified, the judgment is affirmed. 

FLIER, J. 

We concur:

BIGELOW, P. J. 

GRIMES, J. 

 

admitted or found to be true, the court shall impose punishment for that enhancement 

pursuant to this section rather than imposing punishment authorized under any other 

provision of law, unless another enhancement provides for a greater penalty or a longer 

term of imprisonment.‖