People v. Saucedo CA2/3 ( 2021 )

Filed 8/25/21 P. v. Saucedo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE, B302706
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA430049)
v.
ORDER MODIFYING OPINION
CHRISTIAN DAGOBERTO AND DENYING PETITION FOR
SAUCEDO, REHEARING [NO CHANGE IN
JUDGMENT]
Defendant and Appellant.
It is ordered that the opinion in this matter filed on July
30, 2021, is modified as follows:
1. On page 46, insert the word “perhaps” between “could”
and “have,” so that the sentence reads:
This circumstance could perhaps have established that
Tovar was carrying a concealed firearm in violation of section
25400, an offense which is one of the enumerated crimes in
section 186.22, subdivision (e).
2. On page 46, at the end of the first full paragraph that
begins with the sentence “Nor can the People rely on the fact
Saucedo admittedly knew Tovar was an MS-13 gang member,
and had a firearm concealed in the truck, under the seat”, add
the following text to the existing paragraph:
More significantly, it is unclear how the jury would have
known that firearm possession under these circumstances
amounted to a crime. No evidence or instruction was offered on
this issue. The prosecutor briefly argued that the firearm was
possessed illegally, but—as the jury was instructed—an
attorney’s argument is not evidence. (CALCRIM Nos. 222
[“Nothing that the attorneys say is evidence”]; 200 [jury must
decide what the facts are based only on the evidence presented at
trial].) While it may be unlikely that a group of MS-13 gang
members would be in lawful possession of a firearm under these
circumstances, this mere assumption is not evidence.
3. On page 47, before the paragraph that begins with the
sentence “Because the evidence was insufficient, the conviction
must be reversed and the matter remanded for a full
resentencing,” insert the following new paragraphs:
In a petition for rehearing, the People argue that this
analysis is contrary to People v. Castenada (2000) 23 Cal.4th 743and People v. Carr, supra, 190 Cal.App.4th 475. Those cases, the
People assert, “hold that section 182.5 does not require
knowledge of specific types of predicate offenses to satisfy the
element that appellant knew of the gang’s pattern of criminal
activity.”
2
Apart from the fact that the People neglected to mention
either case in their original brief, these authorities do not stand
for the proposition the People assert. Neither case addressed
section 182.5. At issue in Castenada was the substantive crime
of active gang participation pursuant to section 186.22,
subdivision (a). Like section 182.5, section 186.22, subdivision (a)
requires as an element that the perpetrator know of the gang’s
pattern of criminal gang activity. (§ 186.22, subd. (a).) But
Castenada did not address the knowledge element; instead, it
considered the requirements of the “active participation” element
of the crime. (See Castenada, at p. 746 [“At issue here is the
meaning of . . . ‘actively participates.’ ”].) The court concluded
that the evidence was sufficient to show the defendant’s gang
involvement was “more than nominal or passive.” (Id. at
pp. 752–753.) It did not consider whether the evidence was
sufficient to prove the knowledge requirement. Cases are not
authority for propositions not considered (People v. Baker (2021)
10 Cal.5th 1044, 1109), and Castenada does not assist the People.
People v. Carr considered the sufficiency of the evidence to
prove a section 190.2, subdivision (a)(22) special circumstance.
Section 190.2, subdivision (a)(22) provides for death or life
imprisonment without the possibility of parole if the “defendant
intentionally killed the victim while the defendant was an active
participant in a criminal street gang, as defined in subdivision (f)
of section 186.22, and the murder was carried out to further the
activities of the criminal street gang.” The trial court gave
CALCRIM No. 736, which included a requirement that the
defendant knew the members of the gang engaged in a pattern of
criminal gang activity. (People v. Carr, supra, 190 Cal.App.4th at
p. 486.) Carr held that, despite the instruction’s language, “on its
3
face section 190.2, subdivision (a)(22), does not expressly impose
a knowledge requirement. Instead, the wording of this provision
requires only that the People prove Carr was an active
participant in a criminal street gang when he murdered [the
victims] and that the murders were carried out to further the
activities of the gang.” (Ibid.) “Based purely on the statutory
language . . . the People need not separately prove a defendant’s
subjective knowledge of the criminal activities of his or her fellow
gang members to establish the section 190.2, subdivision (a)(22),
special circumstance.” (Id. at p. 487.)
Nonetheless, the court reasoned, as a matter of due process,
before a defendant can be penalized for being an active
participant in a criminal organization, it must be shown he knew
of the “gang’s criminal purposes.” (People v. Carr, supra, 190
Cal.App.4th at p. 487.) In that context, the evidence was
sufficient to prove he knew of the gang’s “criminal activities.”
(Id. at p. 488.) He had admitted his membership in the Rollin’
20’s Bloods gang, and been contacted by police in the company of
another gang member. There was an ongoing feud between his
gang and the Eastside 20’s that was reflected in local graffiti and
had resulted in several shootings in the previous two years; he
had a tattoo “proclaiming the Bloods over the Eastside 20’s”; and
he had been convicted of possessing cocaine base for sale. (Id. at
p. 489.) This evidence “was more than sufficient for the jury to
infer Carr knew about the criminal activities” of the gang. (Id. at
pp. 489–490.) In a footnote, upon which the People here place
much emphasis, the court construed the language used in
CALCRIM No. 736—that the defendant knew that members of a
gang engaged in or have engaged in a pattern of criminal gang
activity—to “correlate to the active membership test described” in
4
Scales v. United States (1961) 367 U.S. 203, i.e., “ ‘ “guilty
knowledge and intent” of the organization’s criminal purposes,’ ”
and did “not require a defendant’s subjective knowledge of
particular crimes committed by gang members . . . .” (Carr, at
p. 488, fn. 13.)
As is readily apparent, Carr was not concerned with the
language of section 182.5, which—unlike section 190.2,
subdivision (a)(22)—expressly requires that the defendant have
“knowledge that [the gang’s] members engage in or have
engaged in a pattern of criminal gang activity, as defined in
subdivision (e) of Section 186.22.” (Italics added.) Instead, Carr
considered the type of knowledge necessary to satisfy due
process, rather than a specific statutory requirement. Its
holding, therefore, cannot be grafted onto interpretation of
section 182.5.
Indeed, if reference to statutes other than section 182.5 is
useful, People v. Robles (2000) 23 Cal.4th 1106, provides a
superior analogy. There, the court considered former section
12031, subdivision (a)(2)(C), which elevated the misdemeanor
offense of carrying a loaded firearm in public to a felony when
committed by an “ ‘active participant in a criminal street gang, as
defined in subdivision (a) of Section 186.22[.]” (Id. at p. 1109.)
Because section 186.22, subdivision (a) did not actually define
“active participant in a criminal street gang,” the question in
Robles was whether former section 12031 simply required a
showing of the “active participation” element of the section
186.22, subdivision (a) offense, or whether it required proof of all
elements of that crime. (Robles, at pp. 1111–1112, 1114.) Robles
concluded the latter. (Id. at p. 1115.)
5
At Robles’s preliminary hearing, the People presented
evidence that he had been observed standing with a group of
persons wearing gang attire and threw a gun into a planter. He
thereafter admitted to his gang membership in the La Mirada
Locos. A detective testified that members of that gang had
committed a series of armed robberies a month before defendant’s
arrest, and the previous year two members of the gang had
stabbed a high school student on a bus. The detective had no
reason to believe defendant knew of these incidents. (People v.
Robles, supra, 23 Cal.4th at pp. 1109–1110.) Robles found this
evidence insufficient. The court reasoned: “At defendant’s
preliminary hearing on the felony charge of carrying a loaded
firearm in public, the prosecution presented evidence that
defendant was a member of a criminal street gang, La Mirada
Locos. But the prosecution presented no evidence of the other
requirements of section 186.22(a): ‘knowledge that its members
engage in or have engaged in a pattern of criminal gang activity’
and ‘willfully promot[ing], further[ing], or assist[ing] in any
felonious criminal conduct by members of that gang.’
(§ 186.22(a).) Accordingly, as the magistrate at the preliminary
hearing ruled, the prosecution failed to establish the requirement
in section 12031(a)(2)(C), under which defendant was charged,
that defendant was ‘an active participant in a criminal street
gang, as defined in subdivision (a) of Section 186.22.’ ” (Robles, at
p. 1115.)
Thus, under Robles, the facts that a defendant is a gang
member and the gang recently committed crimes are not
sufficient to establish the section 186.22, subdivision (a)
knowledge requirement—the same requirement at issue in
section 182.5—absent evidence he knew of those crimes.
6
Respondent’s petition for rehearing filed on August 13,
2021, is denied. There is no change in the judgment.
__________________________________________________________
EDMON, P.J. EGERTON, J. THOMAS, J.*
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
7
Filed 7/30/21 P. v. Saucedo CA2/3 (unmodified opinion)
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 THREE
THE PEOPLE, B302706
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA430049)
v.
CHRISTIAN DAGOBERTO
SAUCEDO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed in part and
reversed in part; remanded for further proceedings.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda V. Lopez and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Christian
Dagoberto Saucedo of second degree murder and criminal street
gang conspiracy, with gang and firearm enhancements. After
passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill 1437), the trial court reduced the murder conviction to
assault with a firearm. Saucedo argues: (1) the trial court’s
admission of his confession violated Miranda v. Arizona (1966)
384 U.S. 436 (Miranda), and his trial counsel provided ineffective
assistance by failing to adequately move to exclude it; (2) the
evidence was insufficient to prove the criminal street gang
conspiracy charge and the gang enhancement; (3) the prosecutor
committed prejudicial misconduct in closing argument; (4) the
trial court impermissibly interfered with the jury’s deliberations;
(5) the cumulative effect of the purported errors requires
reversal; (6) a Penal Code section 12022, subdivision (a)(1)1
firearm enhancement must be stricken because it was not
properly pled; (7) the trial court committed sentencing error;
(8) the record must be amended to correct various clerical errors;
and (9) the trial court’s calculation of custody credits was
incorrect.
We reverse Saucedo’s conviction for criminal street gang
conspiracy and the related firearm enhancement and remand for
resentencing, correction of the abstract of judgment, and
recalculation of custody credits. In all other respects, we affirm
the judgment.
1
All further undesignated statutory references are to the
Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
Saucedo, Otoniel Tobar, Kevin Alvarado, and Carlos Ruiz
were members of the Mara Salvatrucha criminal street gang
(MS-13). They went by the monikers Suspect, Garrobo, Demo,
and Fugitivo, respectively. The intersection of Wilshire
Boulevard and Western Avenue borders territories claimed by
both MS-13 and the rival 18th Street gang. The victim, Bryan
Rubio, belonged to the Moteros gang.
a. People’s evidence
(i) The murder
On September 21, 2014, at approximately 1:00 a.m., Rubio,
along with other persons, was waiting at a bus stop at Wilshire
and Western. According to the testimony of six eyewitnesses,
considered together,2 a dark-colored Silverado pickup truck
stopped at a red light by the bus stop. Rubio and “some young
guys” in the truck exchanged hand gestures. Rubio raised his
middle finger in a disrespectful gesture. The truck turned
around the corner. Rubio said to the person seated next to him,
“Something is about to pop off.”
Two men, identified by other evidence as Alvarado and
Saucedo, walked to the bus stop from the direction of the truck.
Someone, presumably Rubio, said either “Everything’s good,
man” or “Is everything good crazy?” Rubio held both hands up at
chest height, with his palms out. Alvarado produced a gun,
racked it, and fired numerous shots at Rubio, who was backing
up, from approximately eight feet away. Saucedo stood
2
We harmonize the eyewitnesses’ testimony in the light
most favorable to the judgment. (People v. Johnston (2003) 113
Cal.App.4th 1299, 1303–1304.)
3
approximately four feet away from Alvarado and watched. Rubio
fell on top of a woman who was selling tamales, and they both
landed on the ground. Alvarado shot Rubio in the head. Saucedo
and Alvarado then ran northbound on Western, to where the
Silverado was stopped just before Sixth Street. They jumped in
the truck, which drove southbound on Western again.
Rubio suffered gunshot wounds to his head and back, and
died at the scene.
(ii) The investigation
No weapons were found at the bus stop. An open knife was
discovered inside Rubio’s pocket, but there was no evidence Rubio
had it or another weapon in his hands when he was shot. The
revolver used in the shooting was not recovered. None of the
eyewitnesses was able to identify the assailants.
Surveillance videos taken from cameras located on Western
Avenue showed a dark-colored truck drive southbound on
Western at approximately 1:00 a.m. on the night of the shooting,
and again at approximately 1:04. a.m. At 1:06 a.m., the video
showed Saucedo and Alvarado running northbound on Western.
At 1:07 a.m. the truck drove southbound again.
A police car that was in the area of the shooting at
approximately 1:00 a.m. was equipped with a license plate
recognition (LRS) camera. It recorded a dark-colored Silverado
truck travelling on Western at 1:02 a.m. The vehicle’s license
plate number was traced to Tobar’s estranged wife, at Tobar’s
address in Inglewood. Tobar was identified as a suspect and his
cellular telephone was examined pursuant to a warrant.
Through examination of his phone records, police identified other
suspects, including Saucedo. Both Tobar’s and Saucedo’s cellular
4
telephones contained numerous photos depicting them with MS-
13 graffiti or throwing MS-13 gang signs.
(iii) Saucedo’s statements to police
Detectives interviewed Saucedo in November 2014.
Saucedo stated that Tobar drove him, Ruiz, Alvarado, and
Alvarado’s female friend, a woman known as “Blackie,” to
Koreatown in Los Angeles. When stopped at a red light, they
observed a man at a bus stop at Wilshire and Western. Ruiz
exchanged words with the man and threw an MS-13 gang sign.
Blackie, Alvarado, and Ruiz suggested they turn around and beat
the man up. The truck circled around and passed the bus stop a
second time. Tobar stopped the truck nearby the bus stop.
Blackie gave Saucedo her white sweater and told him to
put it on. He did. He also wore a cap to cover his face. Saucedo
and Alvarado exited and approached the victim at the bus stop.
Alvarado was carrying a revolver. Alvarado asked if Rubio was
from the 18th Street gang. Rubio said “Eighteen,” Alvarado said
“MS,” and Alvarado fired multiple shots at Rubio. Saucedo
claimed that as soon as he saw the gun or heard the first shot he
ran back to the waiting truck. Saucedo knew that Tobar had a
gun in the truck under the front passenger seat. He did not know
that Alvarado had it on his person when they approached the bus
stop. Saucedo believed they were just going to fight the victim,
not kill him; there were too many people at the bus stop.
After Alvarado returned to the truck, Tobar drove the
group around the block again and Saucedo saw the victim on the
ground. Alvarado said he shot Rubio because he thought Rubio
was about to pull out a weapon. Saucedo did not see the victim
holding a knife or other weapon.
5
The group then went to the beach and, either that night or
the next day, took photographs of persons in the group throwing
gang signs.
(iv) Gang evidence
Los Angeles Police Department Officer Daniel Jara
testified as the People’s gang expert, as follows. MS-13 is one of
the largest gangs in the world, and one of the biggest gangs in the
United States. MS-13 started in Los Angeles in the 1980’s, and
then spread throughout the country and into Central America.
In Los Angeles, the gang has approximately 700 members or
affiliates. Throughout the world, the gang has numerous subsets
or cliques. In Los Angeles, over 10 such cliques exist,
differentiated by area. A clique usually takes the name of a
major street in the neighborhood, often followed by “Locos.” One
of MS-13’s main gang rivals in Los Angeles is the 18th Street
gang. Western and Wilshire, where the shooting occurred, sits at
the border shared by the two gangs, and is a “hot spot.”
MS-13 identifies itself to the community through hand
signs, tattoos, and graffiti. It uses a hand sign known as “the
horns,” as well as hand signs resembling “M” and “S.” Tattoos
displayed by MS-13 gang members may include these symbols.
An MS-13 gang member is not allowed to obtain gang tattoos
until he has done “something for the gang.”
The MS-13 gang’s primary activity is extortion, as well as
firearm possession, robbery, narcotics sales, and vandalism.
Gang members are required to “put[ ] in work,” i.e. commit
crimes, for the benefit of the gang. Jara testified regarding two
6
“predicate” crimes committed by MS-13 members.3 In the gang
culture, one’s reputation is of paramount importance.
When given a hypothetical based on the evidence in the
case, Jara opined that such a shooting would be committed for
the benefit of and in association with the gang.
Before the shooting, Saucedo had an “M” and an “S” on his
fingers and “Dementes FLS Locos” on his hand. After the
shooting, Saucedo obtained additional MS-13 tattoos, including
an “M” and an “S” on his chin, and an “M” on one leg and an “S”
on the other. On his head he had devil horns, “Fulton,” and
“MS”; because they were covered by his hair, it was unclear
whether he got those tattoos before or after the shooting. A gang
member who gets additional gang tattoos after committing a
crime indicates he is “proud about it” and is loyal to the gang.
b. Defense evidence
Saucedo presented the testimony of a gang expert, who
testified as follows. MS-13, like the Crips, Bloods, and Sureños,
is an umbrella group with numerous distinct subsets that have
their own leadership, territory, and rivalries. Different MS-13
subgroups may have rivalries between themselves. However,
MS-13 qualifies as a gang within the meaning of section 186.22.
Western and Wilshire is not a “battlefront” territory of
either MS-13 or the 18th Street gang; it is a business district.
The surrounding neighborhoods are gang territory.
It is frowned upon in gang culture to be “disrespected” and
not take action, but in reality such instances often occur without
incident. However, such confrontations can result in violence,
including a killing.
3
We discuss Officer Jara’s testimony in more detail where
relevant post.
7
Tattoos signify that a person was or is a gang member, but
do not indicate a person’s status within a gang, i.e. how “hard-
core” they are or how many crimes they have committed.
Gang members talk to each other about their activities, but
they do not necessarily know everything about the gang’s
activities, nor will they necessarily know what other cliques are
doing. All members are not privy to every murder or crime
committed by other gang members. Over the last five years in
Los Angeles, MS-13 gang members have killed 18th Street gang
members, and vice versa.
When given a hypothetical, the expert opined that the
shooter could have acted either from a gang motive or because of
a perceived threat. The person who accompanied him, however,
did not participate in the shooting, had no chance to play a role,
and did nothing to “fully back the [shooter] up.”
2. Procedure
Trial was by jury. Saucedo was convicted of second degree
murder (§ 187, subd. (a)) and criminal street gang conspiracy
(§ 182.5). The jury found a principal armed enhancement true as
to both offenses (§ 12022, subd. (a)(1)), and found a gang
enhancement and a section 12022.53 firearm enhancement true
as to the murder charge (§§ 186.22, subd. (b), 12022.53,
subds. (d), (e)(1)). It acquitted Saucedo of first degree murder.
Saucedo was not sentenced until 2019. In September 2019,
the trial court granted Saucedo’s motion, pursuant to section
1170.95 and Senate Bill 1437, for vacation of his murder
conviction. On the criminal gang conspiracy charge, it sentenced
Saucedo to 15 years to life, plus one year. On count 1, it
sentenced Saucedo on the redesignated target offense of assault
with a firearm to the high term of four years, plus five years for
8
the section 186.22 gang allegation, to run concurrently with the
sentence on count 2.
Saucedo filed a timely notice of appeal.
DISCUSSION
1. Alleged Miranda violations
a. Additional facts
(i) Saucedo’s police interview
As noted, after Saucedo’s arrest Detectives Rodriguez,
Bowen, and Vinton conducted a videotaped interview of Saucedo
at a police station. At the outset, Saucedo’s handcuffs were
removed and he was offered water. After ascertaining that
Saucedo preferred to converse in Spanish, Detective Rodriguez—
who was fluent in that language—asked questions. Rodriguez
explained, “I’m going to take your information and then I’m going
to also ask you some questions, okay?” Rodriguez then asked for
Saucedo’s name, birthdate, and address.
Rodriguez also asked to see Saucedo’s tattoos, and Saucedo
displayed them as requested. Most were non-gang-related. Some
were the names of Saucedo’s family members, including his
brother, Alan. Saucedo explained that five years previously, in
Guatemala, unnamed assailants had shot at him and his brother,
killing Alan. Detective Vinton observed that Saucedo had an “M”
and an “S” on his hands, and Rodriguez asked what they were.
Saucedo replied that they stood for his parents’ initials, and had
been inked while he was still in Guatemala. Vinton replied,
“Mara,” and Rodriguez said Saucedo was lying.
Rodriguez then said he already knew what had happened,
“So I will be checking if you’re lying to me. Since you’re telling
me it’s an “M” and an “S,” I already know what they are, okay?
You’re from Mara, correct?” Saucedo answered affirmatively.
9
Saucedo also admitted, in response to the detective’s questions,
that he had been a member of the gang for three months and was
part of the FLS, or Fulton, clique. His moniker was “Sospechoso”
(“Suspect”). Rodriguez asked how he had come to join the gang,
and why. Saucedo responded, “through friends,” and because
“every young person wants to experiment with [life.]”
Saucedo also answered further questions regarding his
education, age, phone number, birthplace, employment, family,
and arrival date in the United States.
Rodriguez then stated, “We’re going to ask you some
questions. Before I ask you these questions, I’m going to read you
some rights that you have” and “when I read this to you, please, if
you don’t understand what I’m telling you: ‘Detective, wait,
explain this part to me.’ And I will explain it to you.” Saucedo
responded, “Okay.” Rodriguez then informed Saucedo of his
Miranda rights, that is, his right to remain silent, that anything
he said could be used against him in court, and that he had the
right to an attorney free of charge. As to each right, Saucedo
indicated he understood.4
4
The colloquy was as follows:
“[Rodriguez]: You have the right to remain silent; do you
understand?
“[Saucedo]: Okay.
“[Rodriguez]: Is that a yes?
“[Saucedo]: Yes. Yes, I understand.
“[Rodriguez]: Anything you say can be used against you in a court
of law, do you understand?
“[Saucedo]: Yes.
“[Rodriguez]: You have the right to have an attorney present
before and during this questioning, do you understand?
“[Saucedo]: Yes.
10
Rodriguez confirmed Saucedo’s gang membership and
moniker. He reiterated, “Like I’m telling you, many of the
questions I will be asking you, I already know the answers,” and
stated that if Saucedo started lying to him, “you’re going to dig a
deeper hole for yourself. So I need the entire truth from you.”
(Italics added.)
At that point, the detectives began questioning Saucedo
about the murder. Saucedo admitted knowing and spending time
with MS-13 member Tobar, whom he knew to be in custody.
Rodriguez said, “That’s why we are here” and asked about the
visit to the beach. Saucedo initially said he went dancing and
then went to the beach with Tobar, Ruiz, someone named
“Espanto,” and some girls, in Tobar’s white truck.
Rodriguez then asked directly about the murder.
Rodriguez told Saucedo that Tobar and “other people” were
already in custody, and Saucedo’s name did not “fall from the
sky.” Saucedo’s phone records showed he was “right there” and
“with these other guys.” The following exchange transpired:
“[Rodriguez]: What happened?
“[Saucedo]: But let me tell you something.
“[Rodriguez]: Yeah.
“[Saucedo]: I’m going to tell you the truth—the entire truth.
“[Rodriguez]: Tell me the truth.
“[Saucedo]: But it stays here.
“[Rodriguez]: Yeah, this is between us. Tell me what
happened.
“[Rodriguez]: If you don’t have the money to pay for an attorney,
one will be named for you, free of charge, before any questioning,
do you understand?
“[Saucedo]: Yes.”
11
“[Saucedo]: Okay.
“[Rodriguez]: Me, this guy, and you.
“[Saucedo]: Okay.
“[Rodriguez]: But if you’re going to lie to me, keep in mind
I’ve already spoken with . . . three or four people. I already know
what happened. Now I want to hear what you—. I already know
you were there and that all this stuff happened. So, what I want
from you is the truth. If you’re going to lie to me, you will remain
in here forever, okay?
“[Saucedo]: Yes.” (Italics added.)
Saucedo began to describe the group’s excursion into
Koreatown. Saucedo asked, “They’ve already told you, right?”
Rodriguez replied, “No. But that’s why I’m telling you: I want to
hear from you about what happened. I want to hear about—. In
order to help you, you have to tell me what happened.” (Italics
added.) Saucedo replied, “Yeah.” Rodriguez continued, “I can’t
tell you what I know. I want to know what you . . . The truth.
Because if you’re lying to me, I will know that you will be lying to
me.” (Italics added.)
Saucedo subsequently described the circumstances of the
murder, as recounted above. Rodriguez asked why Saucedo did
not go to the police, since he was not the shooter. The following
colloquy followed:
“[Saucedo]: I couldn’t [unintelligible] from the gang.
“[Rodriguez]: Is that because the gang says not to?
“[Saucedo]: Yeah. So I told you right now, please don’t say
anything.
“[Rodriguez]: I know. I understand.
“[Saucedo]: Okay.
“[Rodriguez]: I understand.
12
“[Saucedo]: I don’t want my family to have any problems
because of all of that.” Slightly later in the interview Saucedo
confirmed that he could not call the police and did not want to
talk because he was scared of the gang, and “that’s the law of the
gang.”
(ii) Motion to exclude post-Miranda statements
Prior to trial, defense counsel moved to exclude the post-
advisement portion of the interview on the ground Saucedo’s
statements were involuntary. Pointing to those statements
italicized above, counsel argued Saucedo’s admissions had been
impermissibly elicited due to “threats” and a promise of leniency.
The trial court denied the motion. After watching the video
of the interview, it concluded that the detectives’ demeanor was
nonthreatening and nonintimidating. In context, there was no
implied promise and the comments in question did not render
Saucedo’s statements involuntary.
The court then asked whether the defense wished to
challenge the pre-advisement portion of the interview insofar as
it constituted interrogation and Saucedo had made statements
about his gang membership and tattoos. Defense counsel replied
that he recognized the pre-advisement statements could be
challenged, but “after evaluating all the evidence in this case and
the facts of this case, I am making a tactical decision not to seek
to exclude the pre-Miranda statements.”
13
b. Discussion
(i) Applicable legal principles
To “safeguard a suspect’s Fifth Amendment privilege
against self-incrimination,” a custodial interrogation5 must be
preceded by Miranda warnings6 and by the suspect’s knowing
and intelligent waiver of them. (People v. Leon (2020) 8 Cal.5th
831, 842–843; People v. Elizalde (2015) 61 Cal.4th 523, 530–531
(Elizalde).) The prosecution must show, by a preponderance of
the evidence, that the defendant’s waiver was valid and the
statements were voluntary. (People v. Krebs (2019) 8 Cal.5th
265, 299 (Krebs); People v. Dykes (2009) 46 Cal.4th 731, 751.)
When reviewing a trial court’s ruling on a claimed Miranda
violation, if an interview is recorded and the facts surrounding
the admission are undisputed, we apply independent review.
(People v. Leon, supra, 8 Cal.5th at p. 843; People v. Peoples
(2016) 62 Cal.4th 718, 740; Elizalde, supra, 61 Cal.4th at p. 530.)
A statement obtained in violation of a suspect’s Miranda rights
may not be admitted to establish guilt in the prosecution’s case-
in-chief. (Elizalde, at p. 527; Krebs, supra, 8 Cal.5th at p. 299.)
Issues relating to the suppression of statements made during a
5
The parties do not dispute that the November 13, 2014
interview at the police station constituted a custodial
interrogation.
6
“ ‘Miranda prescribed the following four now-familiar
warnings: [¶] ‘[A suspect] must be warned prior to any
questioning [1] that he has the right to remain silent, [2] that
anything he says can be used against him in a court of law,
[3] that he has the right to the presence of an attorney, and
[4] that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.’ ” (Florida v. Powell
(2010) 559 U.S. 50, 59–60.)
14
custodial interrogation are evaluated under federal constitutional
standards. (People v. Flores (2020) 9 Cal.5th 371, 416.)
(ii) Admission of Saucedo’s pre-advisement
statements
Saucedo contends the trial court should have excluded the
pre-advisement portion of the interview because the questions
about his tattoos and gang membership, asked before he was
advised of his rights, violated Miranda. (See Elizalde, supra, 61
Cal.4th at p. 538 [unwarned answers to questions about gang
affiliation were likely to elicit incriminating information, and
therefore were inadmissible].)
But defense counsel expressly declined to seek exclusion of
Saucedo’s pre-advisement statements. Accordingly, his challenge
to this portion of the interview has been forfeited and any error
was invited. (Evid. Code, § 353, subd. (a); People v. Polk (2010)
190 Cal.App.4th 1183, 1194 [“unless a defendant asserts in the
trial court a specific ground for suppression of his or her
statements to police under Miranda, that ground is forfeited on
appeal, even if the defendant asserted other arguments under the
same decision”]; People v. Holt (1997) 15 Cal.4th 619, 666 [“The
rule requiring specificity applies to Miranda-based objections and
motions to exclude.”]; People v. Rundle (2008) 43 Cal.4th 76, 121,
disapproved on another ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22; see People v. Bailey (2012) 54 Cal.4th
740, 753 [“ ‘If defense counsel intentionally caused the trial court
to err, the appellant cannot be heard to complain on appeal.’ ”];
People v. Cooper (1991) 53 Cal.3d 771, 831 [“Error is invited if
counsel made a conscious tactical choice.”].)
Saucedo attempts to overcome this hurdle by asserting that
his counsel provided ineffective assistance. To establish that
15
claim, a defendant must show both that counsel’s representation
fell below an objective standard of reasonableness under
prevailing professional norms, and that counsel’s deficient
performance resulted in prejudice; that is, there is a reasonable
probability that, but for counsel’s failings, defendant would have
achieved a more favorable result. (People v. Bell (2019) 7 Cal.5th
70, 125; People v. Sepulveda (2020) 47 Cal.App.5th 291, 301.) We
accord great deference to counsel’s tactical decisions and presume
that counsel’s actions were reasonable and can be explained as a
matter of sound trial strategy. (People v. Mickel (2016) 2 Cal.5th
181, 198; In re Gay (2020) 8 Cal.5th 1059, 1073.) We will reverse
a conviction based on ineffective assistance grounds only if there
is affirmative evidence that counsel had no rational tactical
purpose, was asked for a reason and failed to provide one, or
there could be no satisfactory explanation. (Mickel, at
p. 198; People v. Hoyt (2020) 8 Cal.5th 892, 958.)
Here, counsel’s tactical purpose is readily apparent.
During closing argument, he urged the jury to consider many of
the facts disclosed in the pre-advisement portion of the interview.
He argued that while in Guatemala, Saucedo and his brother had
been shot at and his brother killed; thereafter his parents sent
Saucedo to the United States for a better life; he managed to get
a job and pay for his own housing, “quite an accomplishment for
an 18-year-old kid to come to a different country”; his family was
still in Guatemala and he was in the United States “all alone”;
and he likely was seeking out companionship. Counsel urged
that the jury should not “demonize” Saucedo as a gang member,
and should keep the foregoing in mind when determining “what
Mr. Saucedo was thinking at different times, why he acted the
way he did.” As Saucedo did not testify, admission of the pre-
16
advisement portion of the interview was the only route by which
counsel could introduce this biographical information.
And, counsel could reasonably have concluded that
compelling evidence of Saucedo’s gang membership and tattoos
would be elicited even if the pre-advisement portion of the
interview was excluded. Saucedo’s MS-13 related tattoos (many
of which were inked after the murder) would have been
admissible even had the interview been excluded. (See Elizalde,
supra, 61 Cal.4th at p. 532 [Fifth Amendment privilege against
self-incrimination “ ‘does not protect a suspect from being
compelled by the State to produce “real or physical evidence.” ’ ”].)
Numerous photographs extracted from Saucedo’s phone showed
gang-related graffiti, as well as Saucedo “throwing” MS-13 gang
signs. One such photo was captioned “Christian Suspect Fulton
Locos MSX3.”
For the same reasons, even assuming arguendo that
counsel’s failure to challenge the pre-advisement portion of the
interview was error, Saucedo has not demonstrated prejudice.
The erroneous admission of statements obtained in violation of
the Fifth Amendment is reviewed for prejudice under the
standard articulated in Chapman v. California (1967) 386 U.S.
18. (People v. Henderson (2020) 9 Cal.5th 1013, 1029.) That test
requires the People to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict. (Ibid.)
Because compelling evidence that Saucedo was an MS-13 gang
member would have been before the jury even had the pre-
advisement portion of the interview been excluded, Saucedo
cannot demonstrate prejudice. (See Elizalde, supra, 61 Cal.4th at
p. 542 [admission of defendant’s pre-advisement statement that
17
he was a gang member was harmless where gang membership
was convincingly established by other evidence].)
(iii) Validity of waiver and adequacy of Miranda
advisements
Saucedo further argues that he did not expressly or
adequately waive his Miranda rights, and the advisements he
received were inadequate because they were given in a manner
that minimized their importance and were undercut by the
detective’s statement that their discussion was “between us.”
The defense did not seek to exclude the interview on these
grounds. They have therefore been forfeited. (See People v.
Gurule (2002) 28 Cal.4th 557, 603 [claim that detective’s
statement that they would keep defendant’s revelations
“ ‘between us’ ” forfeited by failure to raise it in the trial court];
People v. Linton (2013) 56 Cal.4th 1146, 1170 [claim that
Miranda waiver was not knowing or voluntary because detective
promised his statements would not be used against him forfeited
by failure to raise it in the trial court]; People v. Polk, supra, 190
Cal.App.4th at p. 1194; People v. Holt, supra, 15 Cal.4th at
p. 666.) In any event, they lack merit.
A. Waiver
“The prosecution . . . does not need to show that a waiver of
Miranda rights was express.” (Berghuis v. Thompkins (2010) 560
U.S. 370, 384.) “It is well settled that law enforcement officers
are not required to obtain an express waiver of a suspect’s
Miranda rights prior to a custodial interview and that a valid
waiver of such rights may be implied from the defendant’s words
and actions.” (People v. Parker (2017) 2 Cal.5th 1184, 1216;
People v. Gonzales (2012) 54 Cal.4th 1234, 1269 [“a defendant’s
decision to answer questions after indicating that he or she
18
understands the Miranda rights may support a finding of implied
waiver, under the totality of the circumstances.”].) “ ‘In general,
if a custodial suspect, having heard and understood a full
explanation of his or her Miranda rights, then makes an
uncompelled and uncoerced decision to talk, he or she has
thereby knowingly, voluntarily, and intelligently waived them.’ ”
(Parker, at p. 1216; Krebs, supra, 8 Cal.5th at p. 302; People v.
Flores, supra, 9 Cal.5th at p. 417; People v. Lessie (2010) 47
Cal.4th 1152, 1169.)
Such is the case here. Detective Rodriguez advised
Saucedo of each of his Miranda rights, and Saucedo confirmed he
understood each. Immediately thereafter, he began answering
the detective’s questions and gave no hint that he felt
intimidated, wanted a lawyer, wished to terminate the interview,
or wished to invoke his right to silence. “Such conduct suggests
that defendant ‘has made a deliberate choice to relinquish the
protection those rights afford.’ ” (Krebs, supra, 8 Cal.5th at
p. 303.) The advisements were given in Saucedo’s native
language, by a Spanish-speaking officer. Nothing in the record
suggests Saucedo had a diminished mental capacity or any
impairment that would have prevented him from understanding
the advisements. (See People v. Salcido (2008) 44 Cal.4th 93,
128; People v. Leon, supra, 8 Cal.5th at p. 844 [California
Supreme Court has “not decided that any particular intelligence
or experience level is required to understand the Miranda
warnings or to waive them”]; People v. Lessie, supra, 47 Cal.4th
at p. 1169.) Saucedo initially attempted to deceive the officers,
telling them that Tobar had been driving a white truck, not a
dark one, and that the group had gone dancing and then to the
beach, omitting their foray into Koreatown. His “attempt to
19
deceive the officers . . . indicates attentiveness and an awareness
of his circumstances,” tending to support a finding of a knowing
and intelligent waiver. (Leon, at p. 844.)
B. Adequacy of advisements
Saucedo concedes that the advisements were “technically
delivered correctly” and their form satisfied Miranda.
Nonetheless, he argues that the warnings were “downplayed,”
“snuck in” among other questions, and given in a “casual . . .
manner” that “trivialized” their significance and “ensured he
would not take them seriously.” He also complains that the
detectives did not make sure he actually understood “the
concepts,” as opposed to “the words.”
We have reviewed the transcript and the video of the
interview, and see nothing that would have undercut the
significance of the advisements given. The detective stated each
right separately and asked, after each, whether Saucedo
understood. The fact the detective asked questions both before
and after giving the Miranda advisements does not establish that
they were delivered without sufficient gravity. (Cf. People v.
Gurule, supra, 28 Cal.4th at p. 602 [pre-interview banter did not
suggest the Miranda warning “was jokingly delivered or was
otherwise conveyed in a manner lacking the solemnity defendant
argues such warnings require”].) The advisements followed a
standard format, and were not complex. Immediately preceding
the Miranda advisements, Detective Rodriguez told Saucedo,
“And when I read this to you, please, if you don’t understand
what I’m telling you: ‘Detective, wait, explain this part to me.’
And I will explain it to you.” Saucedo never asked for a further
explanation. Nothing in the record suggests he failed to
20
comprehend the meaning or significance of the advisements.7
(See People v. Suarez (2020) 10 Cal.5th 116, 158 [Miranda
advisement adequate when defendant was advised of rights
orally and in writing, said he understood, and did not have any
questions].)
Saucedo also argues that the efficacy of the second
advisement—that anything he said could be used against him in
a court of law—was undermined by the detective’s agreement
that his account “stays here” and was “between us.” Our
7
The authorities Saucedo cites in support of his argument
bear no factual resemblance to the instant matter. Unlike in this
case, in Commonwealth of Northern Mariana Islands v. Mendiola
(9th Cir. 1992) 976 F.2d 475, 481–483, overruled on another
ground by George v. Camacho (9th Cir. 1997) 119 F.3d 1393,
1395, Miranda warnings were given in combination with a set of
warnings about local statutory rights; together, the warnings
were equivocal, contradictory, and open to misinterpretation. In
Cooper v. Dupnik (1992) 963 F.2d 1220, 1223–1227, 1242, officers
acted pursuant to a preconceived plan to knowingly violate the
law by ignoring suspects’ invocation of Miranda rights, thereby
turning the advisements into a “farce.” Nothing remotely similar
occurred here. In Wilson v. Lawrence County (8th Cir. 2001) 260
F.3d 946, 952, a civil rights action, officers secured a confession
from a mentally handicapped suspect who had difficulty
distinguishing between fantasy and reality, and “could be talked
into anything.” During the interrogation, they promised leniency
if he confessed, gave him false information about the evidence
against him, and used leading questions and threatening tones
and language. (Wilson, at pp. 952–953.) The suspect was
unlikely to understand the Miranda advisements given due to his
low intelligence. (Id. at p. 953.) Nothing in the record suggests
Saucedo was mentally impaired, and the circumstances present
in Wilson are worlds away from the interrogation here.
21
Supreme Court has rejected a similar contention. In People v.
Gurule, a detective told a suspect that “ ‘what you tell us we’re
going to keep between us.’ ” (People v. Gurule, supra, 28 Cal.4th
at p. 604.) The court recognized that, “If the police had actually
promised defendant his statements would not be used against
him, contrary to the earlier Miranda warning, an error of
constitutional dimension would have occurred.” (Id. at p. 603.)
But the court found the detective’s statements could not be so
construed. The detective told the defendant other persons had
blamed him for the crime, and Gurule denied responsibility. The
detective responded that he could not disclose “ ‘what the other
people have told us because, what you tell us we’re going to keep
between us.’ ” (Id. at p. 604.) Gurule concluded that the record
did not support the conclusion that the officers “made a promise
to hold defendant’s statement in confidence” (id. at p. 603), nor
did it show that Gurule understood the comment to “vitiate the
Miranda warning given just minutes earlier.” (Id. at p. 604.)
Similarly, here, the detective’s statement cannot be
construed, in the context of the record as a whole, as a promise
not to use the statements against Saucedo at trial. Other
portions of the interview make plain that Saucedo’s concern was
with keeping his statements from his accomplices. Saucedo told
detectives that he did not initially report the shooting “because
the gang says not to,” he was “scared of the gang,” and he did not
want his family to have any problems. In that context, he
reiterated, “So I told you right now, please don’t say anything.”
During closing argument, defense counsel acknowledged
Saucedo’s comment stemmed from his fear of the gang. Saucedo’s
concern thus related to retaliation by fellow gang members who
might learn that he provided information to the police, not with
22
the use of his statements at a future trial. In this context,
Detective Rodriguez was merely trying to assuage Saucedo’s fears
about implicating fellow gang members, not reneging on the
advisement, given minutes before, that anything Saucedo said
could be used against him in court. The detective’s statement
was not the equivalent of an assurance that the conversation
would be “ ‘off the record.’ ” (See People v. Bradford (1997) 14
Cal.4th 1005, 1037.)
(iv) Purported police coercion and Seibert violation
Saucedo next contends that his post-advisement statements
should have been suppressed because they were the product of
police coercion, including the detectives’ use of the two-step
interrogation process condemned in Missouri v. Seibert (2004)
542 U.S. 600 (Seibert).
“Under [United States Supreme Court] precedent, the mere
fact that a defendant has made unwarned admissions does not
render subsequent warned confessions inadmissible.” (Krebs,
supra, 8 Cal.5th at p. 307; Oregon v. Elstad (1985) 470 U.S. 298,
314 (Elstad).) “Even when a first statement is taken in the
absence of proper advisements and is incriminating, so long as
the first statement was voluntary a subsequent voluntary
confession ordinarily is not tainted simply because it was
procured after a Miranda violation.” (People v. Williams (2010)
49 Cal.4th 405, 448; Krebs, at p. 307; People v. Scott (2011) 52
Cal.4th 452, 477.) “Absent ‘any actual coercion or other
circumstances calculated to undermine the suspect’s ability to
exercise his free will,’ a Miranda violation—even one resulting in
the defendant’s letting ‘the cat out of the bag’—does not ‘so
taint[ ] the investigatory process that a subsequent voluntary and
informed waiver is ineffective for some indeterminate period.’ ”
23
(Williams, at p. 448, citing Elstad, at pp. 309, 311.) “A
subsequent administration of Miranda warnings to a suspect who
has given a voluntary but unwarned statement ordinarily should
suffice to remove the conditions that precluded admission of the
earlier statement.” (Elstad, at p. 314.)
In Seibert, the high court concluded this Elstad rule is
inapplicable when an officer intentionally uses a two-step
interrogation process in order to circumvent Miranda. (Seibert,
supra, 542 U.S. at p. 604 (plur. opn. of Souter, J.).) There, “the
high court confronted a situation where the interrogating officer
‘made a “conscious decision” to withhold Miranda warnings.’ ”
(Krebs, supra, 8 Cal.5th at p. 308.) An officer testified he had
been taught, as an interrogation technique, to “question first,
then give the warnings, and then repeat the question ‘until I get
the answer that [the suspect] already provided once.’ ” (Seibert,
at p. 606 (plur. opn.).)
Under these circumstances, a majority of the high court
found the postadvisement confession inadmissible. (Seibert,
supra, 542 U.S. at p. 604 (plur. opn.) & p. 618 (conc. opn. of
Kennedy, J.); Krebs, supra, 8 Cal.5th at p. 308.) “The court
fractured, however, on why that is so. A plurality of four justices
explained that ‘when interrogators question first and warn later’
[citation], the later, warned confession is admissible only if ‘in the
circumstances the Miranda warnings given could reasonably be
found effective.’ [Citation.]” (Krebs, at p. 308.) The four-justice
plurality concluded that, under the circumstances in Seibert, the
warnings could not have served their purpose, and the
postadvisement statements were inadmissible. (Seibert, supra,
542 U.S. at pp. 616–617 (plur. opn.).)
24
Justice Kennedy concurred in the judgment but rejected
the plurality’s proposed test as overbroad. (Seibert, supra, 542
U.S. at pp. 621–622 [conc. opn. of Kennedy, J.].) Instead, he
concluded: “I would apply a narrower test applicable only in the
infrequent case . . . in which the two-step interrogation technique
was used in a calculated way to undermine the Miranda
warning.” (Id. at p. 622.) Under his approach, where the two-
step strategy was not deliberately employed to circumvent or
undermine the Miranda warnings, “[t]he admissibility of
postwarning statements should continue to be governed by the
principles of Elstad.” (Ibid.) Where a two-step strategy was
deliberately used for tactical purposes, postwarning statements
related to the substance of the prewarning statements must be
excluded absent curative measures. Such measures may include
a substantial break in time and circumstances between the
unwarned statements and the Miranda warning, or an additional
explanation that the earlier statements are likely inadmissible at
trial. (Seibert, at p. 622.)
“The fractured nature of Seibert has given rise to a debate
over whether it is the plurality’s opinion or Justice Kennedy’s
concurrence that provides the controlling standard,” with the
substantial majority of federal circuit courts concluding that
Justice Kennedy’s approach is the proper test. (Krebs, supra,
8 Cal.5th at p. 309 [listing federal authorities].) Our Supreme
Court, in Krebs, declined to decide the question, because in that
case “the result . . . would be the same under either approach.”
(Ibid.)
Applying this analytical framework, we must first
determine whether Saucedo’s pre- and post-advisement
statements were voluntary. (See People v. Camino (2010) 188
25
Cal.App.4th 1359, 1363–1364.)8 If so, under Elstad, they are
admissible unless they ran afoul of Seibert. To make that second
determination, applying Justice Kennedy’s approach, we consider
whether the detectives deliberately withheld the Miranda
warnings in a calculated attempt to undermine Miranda’s
efficacy, and, if so, whether sufficient curative measures were
taken. Alternatively, applying the Seibert plurality’s approach,
we must determine whether it is reasonable to conclude that the
tardy warnings could function as effectively as Miranda requires.
A. Voluntariness
“In determining whether the prosecution met its burden of
establishing by a preponderance of the evidence that defendant’s
confession was voluntary, we consider the totality of the
circumstances. [Citation.] ‘[N]o single factor is dispositive.
[Citation.] The question is whether the statement is the product
of an “ ‘essentially free and unconstrained choice’ ” or whether the
defendant’s “ ‘will has been overborne and his capacity for self-
determination critically impaired’ ” by coercion.’ [Citation.]”
(People v. Flores, supra, 9 Cal.5th at p. 426.) The factors to be
considered include “any element of police coercion, the length of
the interrogation and its location and continuity, and the
defendant’s maturity, education, and physical and mental
health.” (People v. Suarez, supra, 10 Cal.5th at p. 157; People v.
Peoples, supra, 62 Cal.4th at p. 740.) Our Supreme Court has
“found a confession not ‘essentially free’ when a suspect’s
confinement was physically oppressive, invocations of his or her
8
Of course, an involuntary confession may not be introduced
into evidence even where a Seibert violation is not at issue. (See,
e.g., People v. Spencer (2018) 5 Cal.5th 642, 672; People v. Linton,
supra, 56 Cal.4th at p. 1176.)
26
Miranda rights were flagrantly ignored, or the suspect’s mental
state was visibly compromised.” (People v. Spencer, supra, 5
Cal.5th at p. 672.)
The trial court’s conclusion that Saucedo’s statements were
not involuntary is supported by the evidence. The interview was
not protracted, lasting slightly less than an hour and a half. (See
People v. Linton, supra, 56 Cal.4th at p. 1178 [interviews of two
and a quarter hours did not “reflect the kind of continuous,
prolonged interrogation that has been found to render a resulting
confession involuntary”].) The portion of the interview that
preceded the Miranda advisements was shorter still, lasting only
approximately nine minutes. Saucedo’s handcuffs were removed
before the interview started, and he was offered water. At 23
years old, Saucedo was an adult. The record gives no reason to
suspect he was suffering from any physical or mental disability,
or that his mental acuity was lacking. He responded to questions
cogently and without apparent difficulty, and did not appear
distressed. (See People v. Spencer, supra, 5 Cal.5th at p. 673.)
He “had the wherewithal to articulate . . . a version of events that
minimized his involvement” (ibid.), stating that he had no idea
the victim would be shot and—in contradiction to the video of
him and Alvarado running from the scene—that he fled
immediately upon seeing the gun.
The detectives did not employ improper interrogation
tactics. The trial court found the detectives’ demeanor was not
threatening or demeaning, and we agree. As Saucedo
appropriately acknowledges, the detectives were conversational
and cordial. (See People v. Linton, supra, 56 Cal.4th at p. 1178.)
He does not claim any physical intimidation or deprivation and
makes “ ‘no assertion of coercive tactics other than the contents of
27
the interrogation itself.’ ” (People v. Spencer, supra, 5 Cal.5th at
p. 672; People v. Suarez, supra, 10 Cal.5th at p. 161.) The
detectives “engaged in no name-calling, no obvious strong-arm
tactics, and no base appeals to [defendant’s] deeply held beliefs.”
(Spencer, at p. 673.) Saucedo did not make, and the detectives
did not ignore, any invocation of his rights. Although the record
is not entirely clear, it appears Saucedo had at least one prior
run-in with the police, related to a domestic violence arrest. In
any event, lack of experience with the criminal justice system
does not, by itself, invalidate a Miranda waiver or render
subsequent statements involuntary. (Suarez, at p. 161.) The
record does not reveal much about Saucedo’s education, but he
told the detectives that he had been attending school to learn
English. In short, nothing suggests Saucedo lacked sufficient
education, intelligence, or maturity to voluntarily give his
account of what happened.
Saucedo repeatedly stresses that he came to the United
States from Guatemala, characterizing himself as a “newly
minted immigrant” who spoke little English. To the contrary,
Saucedo told detectives he had been in the United States for four
and a half or five years. The interview was conducted in Spanish
at Saucedo’s request, so the fact he was not a native English
speaker does not suggest involuntariness.
Although Saucedo insists he was “cowed into submission
through threats about lying,” the record does not bear this out.
Detective Rodriguez stated several times that he already had
information about what had transpired, would know if Saucedo
was lying, and wanted the truth. But these statements were
neither deceptive nor coercive. The detectives did, in fact, have
information about what had transpired. And it is not coercive to
28
exhort a suspect to tell the truth. (See People v. Spencer, supra,
5 Cal.5th at p. 674 [repeated assertions that police knew suspect
was lying did not rise to the threshold necessary to taint the
interrogation as unlawful]; Krebs, supra, 8 Cal.5th at p. 306;
People v. Young (2019) 7 Cal.5th 905, 925 [mere exhortation by
police that it would be better for the accused to tell the truth,
when unaccompanied by either a threat or a promise, does not
render subsequent confession involuntary].) “Officers are
permitted to encourage a subject to talk and to challenge
statements as untrue.” (People v. Henderson, supra, 9 Cal.5th at
p. 1024.) The detective’s fleeting statement that if Saucedo lied
he would remain “in here” forever, was, as the trial court found,
too vague to amount to a threat. Statements about potential
consequences arising from a crime are generally not coercive.
(See People v. Orozco (2019) 32 Cal.App.5th 802, 820 [“Law
enforcement does not violate due process by informing a suspect
of the likely consequences of the suspected crimes”]; Spencer, at
p. 675 [constitutional violation will be found only where a
confession results directly from the threat such punishment will
be imposed if the suspect is uncooperative, coupled with a
promise of leniency in exchange for cooperation].) The detective’s
brief statement, “In order to help you, you have to tell me what
happened,” was not an implied promise of leniency. It cannot
reasonably be construed as a promise that if Saucedo cooperated,
he would not be prosecuted or convicted for the murder. (See,
e.g., Krebs, supra, 8 Cal.5th at pp. 305–306; People v. Carrington
(2009) 47 Cal.4th 145, 174.)
In sum, we find no evidence that Saucedo’s will was
overborne in either the pre- or post-advisement portions of the
interview.
29
B. The alleged Seibert violation: Justice
Kennedy’s approach
Having found the statements were voluntary, we turn to
the question of whether the detectives violated Seibert. First,
applying Justice Kennedy’s approach, we consider whether
“ ‘objective evidence and any available subjective evidence, such
as an officer’s testimony, support an inference that the two-step
interrogation procedure was used to undermine the Miranda
warning.’ [Citation.] ‘Such objective evidence would include the
timing, setting and completeness of the prewarning
interrogation, the continuity of police personnel and the
overlapping content of the pre-and postwarning statements.’
[Citation.]’ ” (People v. Camino, supra, 188 Cal.App.4th at
p. 1370.)
We see nothing in the record indicating the detectives
intentionally withheld Miranda warnings as a calculated
interrogation technique. Because Saucedo did not make his
Seibert challenge below, the relevant facts have not been
developed and the detectives have not had an opportunity to
explain their actions and motivations. Therefore, we have no
evidence regarding their subjective intent. (See People v. Gurule,
supra, 28 Cal.4th at p. 603.) But, unlike in Seibert, no evidence
suggests that the Los Angeles Police Department, or the
individual detectives here, had a policy of withholding Miranda
warnings to draw out a confession. (See Krebs, supra, 8 Cal.5th
at p. 310.)
Nor do we think it is reasonable to infer that the detectives
purposefully withheld the advisements as part of a “calculated
plan to elicit incriminating facts,” as Saucedo repeatedly asserts.
There was little overlap between the pre- and post-advisement
30
portions of the interview. With the exception of the few questions
regarding Saucedo’s gang affiliation and tattoos, the pre-
advisement portion of the interview was devoted entirely to
biographical data, such as Saucedo’s name, address, birthdate,
and the like.9 Crucially, the pre-advisement portion was wholly
incomplete in regard to the circumstances of the charged crimes.
The detectives asked no questions regarding the crime itself.
Saucedo admitted his involvement in the murder only after being
advised of his rights; he did not let “ ‘the cat out of the bag’ ”
during the unwarned portion of the interview. (See People v.
Williams, supra, 49 Cal.4th at p. 448; Krebs, supra, 8 Cal.5th at
p. 312.) It is true that the detective briefly confirmed Saucedo’s
gang affiliation at the start of the warned portion of the
interview, but there is no showing he used the earlier admission
to induce Saucedo to admit involvement in the murder. (See
Bobby v. Dixon (2011) 565 U.S. 23, 31 [“unlike in Seibert, there is
no concern here that police gave [defendant] Miranda warnings
9
The People argue that Detective Rodriguez likely failed to
give Miranda advisements earlier because, at the time, the
“booking exception” to Miranda allowed a suspect to be asked
routine questions about biographical data before being given
Miranda warnings. (See Elizalde, supra, 61 Cal.4th at pp. 531–
532; People v. Roberts (2017) 13 Cal.App.5th 565, 573–574.)
Saucedo counters that the booking exception was inapplicable
because the detectives were not questioning him as part of the
booking process. (See People v. Shamblin (2015) 236 Cal.App.4th
1, 22 [whether booking exception applies depends on whether the
questions are legitimate booking questions or a pretext for
eliciting incriminating information].) We need not address this
issue because, regardless of the booking exception’s applicability,
we see no evidence the detectives purposely used the
impermissible two-step procedure.
31
and then led him to repeat an earlier murder confession, because
there was no earlier confession to repeat”].) And, the mere fact
the detectives could have given the advisements earlier does not
demonstrate a calculated plan to undermine Miranda. (Krebs, at
p. 312.)
Moreover, the detectives had already examined Saucedo’s
phone. Therefore, they would have been aware that it contained
photos depicting Saucedo throwing gang signs, one with a caption
“Christian Suspect Fulton Locos MSX3.” Saucedo also had
clearly visible “M” and “S” tattoos. Thus, the detectives would
have surmised they could rather easily prove Saucedo’s gang
affiliation, whether he admitted it or not. Had the detectives
been operating pursuant to a calculated “ask first, warn later”
procedure, it seems unlikely they would have curtailed this effort
after obtaining information only on an aspect of the case that
would have been easily provable apart from Saucedo’s
admission.10
C. The alleged Seibert violation: the plurality’s
test
“Under the plurality’s approach, the relevant inquiry in a
‘question first’ scenario is ‘whether it would be reasonable to find
completeness . . . that in these circumstances the warnings could
function “effectively” as Miranda requires.’ [Citation.] In other
words, ‘[c]ould the warnings effectively advise the suspect that he
had a real choice about giving an admissible statement at that
juncture? Could they reasonably convey that he could choose to
stop talking even if he had talked earlier?’ [Citation.]” (Krebs,
10
Because we conclude the use of the two-step procedure was
not a purposeful attempt to circumvent Miranda, we do not reach
the issue of whether curative measures were taken.
32
supra, 8 Cal.5th at p. 309.) Factors relevant to this
determination are “ ‘the completeness and detail of the questions
and answers in the first round of interrogation, the overlapping
content of the two statements, the timing and setting of the first
and the second, the continuity of police personnel, and the degree
to which the interrogator’s questions treated the second round as
continuous with the first.’ ” (Id. at p. 310.)
Unquestionably, here the Miranda advisements functioned
effectively, giving Saucedo a real choice about keeping silent.
There was minimal overlap between the pre- and post-
advisement discussions. The initial portion of the interview was
not simply incomplete in regard to the murder; it did not address
it at all. Saucedo was not asked about, and gave no information
about, the actual crime. He was not asked about, and did not
admit knowing or spending time, with Alvarado, Tobar, or Ruiz.
He did not discuss any of his actions on the date of the murder.
His only incriminating admission was that he was a gang
member. This fact, by itself, did little or nothing to link him to
the charged crimes.
In sum, Saucedo’s Miranda challenges lack merit.
2. Sufficiency of the evidence
Saucedo raises two challenges to the sufficiency of the
evidence. First, he avers the evidence was insufficient to support
the jury’s true findings on the gang enhancements (§ 186.2,
subd. (b)). Second, he argues that the evidence failed to establish
he committed criminal street gang conspiracy (§ 182.5).
a. Standard of review
To determine whether the evidence was sufficient to
sustain a criminal conviction or an enhancement, “ ‘ “we review
the entire record in the light most favorable to the judgment to
33
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 the defendant guilty
beyond a reasonable doubt.” [Citation.]’ ” (People v. McCurdy
(2014) 59 Cal.4th 1063, 1104.) We presume in support of the
judgment the existence of every fact the trier of fact could
reasonably deduce from the evidence. (People v. Baker (2021) 10
Cal.5th 1044, 1103.) Reversal is unwarranted unless it appears
“ ‘ “ ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support’ ” ’ ” the verdict. (People v.
Penunuri (2018) 5 Cal.5th 126, 142.)
b. The gang enhancement
(i) The pattern of criminal gang activity element
Section 186.22, subdivision (b)(1), enacted as part of the
California Street Terrorism Enforcement and Prevention Act (the
STEP Act), imposes additional punishment when a defendant
commits a felony for the benefit of, at the direction of, or in
association with a criminal street gang. To establish that a group
is a criminal street gang within the meaning of the statute, the
People must prove: (1) the group is an ongoing association of
three or more persons sharing a common name, identifying sign,
or symbol; (2) one of the group’s primary activities is the
commission of one or more statutorily enumerated criminal
offenses; and (3) the group’s members must engage in, or have
engaged in, a pattern of criminal gang activity. (§ 186.22,
subd. (f); People v. Prunty (2015) 62 Cal.4th 59, 66–67 (Prunty);
People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) The
prosecution may rely on expert testimony to prove the elements
of the gang enhancement. (People v. Garcia (2017) 9 Cal.App.5th
34364, 375–376; People v. Weddington (2016) 246 Cal.App.4th 468,
483.)
Saucedo challenges only the sufficiency of the evidence to
establish the third element, the pattern of criminal gang activity.
A “pattern of criminal gang activity” is defined as the
“commission of, attempted commission of, conspiracy to commit,
or solicitation of, sustained juvenile petition for, or conviction of
two or more” specifically enumerated offenses, “provided at least
one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons.” (§ 186.22,
subd. (e); People v. Duran, supra, 97 Cal.App.4th at p. 1457.)
These prior offenses have come to be known as “predicate
offenses.” (People v. Thompkins (2020) 50 Cal.App.5th 365, 402.)
In Prunty, our Supreme Court held that “when the
prosecution seeks to prove the street gang enhancement by
showing a defendant committed a felony to benefit a given gang,
but establishes the commission of the required predicate offenses
with evidence of crimes committed by members of the gang’s
alleged subsets, it must prove a connection between the gang and
the subsets.” (Prunty, supra, 62 Cal.4th at pp. 67–68.) There,
the prosecution’s theory was that the defendant committed an
assault to benefit the Sacramento-area Norteño street gang.
Prunty identified as a Norteño, claimed membership in a
particular Norteños subset, the Detroit Boulevard Norteños, and
said “Norte” when committing the crime. (Id. at p. 67.) To prove
the gang enhancement, the expert testified about the
Sacramento-area Norteño gang’s general existence and origins,
use of shared signs, symbols, colors, and names, and its primary
35
activities. (Ibid.) To prove the pattern of gang activity, the
expert testified about the “predicate activities of two local
neighborhood subsets,” the Varrio Gardenland Norteños and the
Varrio Centro Norteños. (Id. at pp. 67, 69.) Other than the fact
these subsets referred to themselves as Norteños, the expert did
not offer “any specific testimony contending that these subsets’
activities connected them to one another or to the Sacramento
Norteño gang in general.” (Ibid.)
In reversing the gang enhancement for insufficient
evidence, Prunty found the prosecution had failed to prove the
existence of a “single ‘criminal street gang’ ” and establish an
“associational or organizational connection” between the two
subsets that committed the predicates and the larger Norteño
gang that Prunty’s crime was intended to benefit. (Prunty, supra,
62 Cal.4th at pp. 68, 81.) The court explained that when “the
prosecution’s case positing the existence of a single ‘criminal
street gang’ . . . turns on the existence and conduct of one or more
gang subsets, . . . the prosecution must show some associational
or organizational connection uniting those subsets.” (Id. at p. 71.)
Prunty recognized, however, that an informal group “will rarely if
ever” display the attributes of formal groups; they “need not
exhibit an identifiable hierarchy; their membership composition
may be fluid; the boundaries of their ‘turf’ may be porous; and
their methods of communication may be variable.” (Id. at pp. 73–
74.)
Prunty listed numerous potential avenues by which the
prosecution could make this showing. “That connection may take
the form of evidence of collaboration or organization, or the
sharing of material information among the subsets of a larger
group. Alternatively, it may be shown that the subsets are part
36
of the same loosely hierarchical organization, even if the subsets
themselves do not communicate or work together. And in other
cases, the prosecution may show that various subset members
exhibit behavior showing their self-identification with a larger
group, thereby allowing those subsets to be treated as a single
organization. [¶] Whatever theory the prosecution chooses to
demonstrate that a relationship exists, the evidence must show
that it is the same ‘group’ that meets the definition of section
186.22(f)—i.e., that the group committed the predicate offenses
and engaged in criminal primary activities—and that the
defendant sought to benefit under section 186.22(b).” (Prunty,
supra, 62 Cal.4th at pp. 71–72, fns. omitted, 77–81.) Evidence of
a common name, identifying symbol, color, common enemy, or
“loose common ideology,” are, by themselves, insufficient to prove
such a connection between subsets, as is evidence that a local
subset represented itself as an affiliate of a larger organization
absent a showing that a connection exists in fact. (Id. at pp. 72,
74–75, 79.)
(ii) The evidence was sufficient
Here, Officer Jara testified about two “predicate” offenses.
In the first, MS-13 gang member Edwin Lobos committed robbery
in March 2013 and was convicted of that offense in July 2013.
Known as “Gangster” or “Sonny,” Lobos was a member of the
Harvard Criminals MS-13 clique.
In the second predicate, MS-13 gang member Brayan
Ochoa committed attempted murder in July 2013 and was
convicted of that crime in March 2015. During cross-
examination, defense counsel elicited that Ochoa belonged to the
Adams Locos MS-13 clique.
37
Additionally, the jury was instructed that, if it found
Saucedo guilty of “a crime in this case, you may consider that
crime in deciding whether . . . a pattern of criminal gang activity
has been proved.”
Saucedo argues that, as in Prunty, the prosecution failed to
show the requisite organizational or associational connection
between MS-13, his Fulton Locos clique, and the cliques that
committed the predicate offenses, i.e., the Harvard Criminals and
the Adams Locos. We disagree, and conclude the evidence was
sufficient.11
The evidentiary deficiency present in Prunty does not exist
here. Officer Jara’s testimony established a sufficient
associational and organizational connection between the
overarching MS-13 gang and its Los Angeles-area subsets. When
asked to describe “the interaction or the relationship between”
the different MS-13 cliques, Officer Jara stated: “They’re all
under one umbrella. They’re just different areas. They get
together to have meetings because, in the end, they’re all
responsible for pitching in to the gang. So they have to have
some kind of communication amongst each other.” Gang
members “absolutely” share information regarding their
activities and borders, as well as knowledge about rival gangs.
(See Prunty, supra, 62 Cal.4th at pp. 78–79 [evidence showing
subset members “have communicated, worked together, or share
11
The People argue Prunty is inapplicable because the
prosecution’s theory was based on the conduct of MS-13 as a
whole, not on the conduct of any particular subset. (See People v.
Vasquez (July 27, 2021, F078228) __ Cal.App.5th __ [2021
Cal.App.Lexis 606].) We assume Prunty applies and, in light of
our conclusion that the evidence was sufficient, do not reach the
People’s contention.
38
a relationship (however formal or informal) will permit the jury
to infer that the subsets should be treated as a single street
gang”].)
Jara had investigated crimes in which MS-13 gang
members from different cliques acted together. (See Prunty,
supra, 62 Cal.4th at p. 78 [evidence that members of different
subsets have worked in concert to commit a crime permits the
inference that the subsets have some sort of informal
relationship; such evidence “need not be direct, and it need not
show frequent communication or a hierarchical relationship
among the members who communicate”]; People v. Garcia, supra,
9 Cal.App.5th at p. 377; People v. Vasquez (2016) 247 Cal.App.4th
909, 925.) For example, in the charged offenses, Ruiz (Fugitivo)
was a member of the Normandie Locos MS-13 clique, and
“Blackie,” the woman who gave Saucedo her sweater, was from
the Rosario clique. There was also evidence members of different
cliques “hung out” and socialized together. “Espanto”—who was
a member of the same Adams clique as Ochoa—accompanied
Saucedo and his fellow gang members to the beach. (See Prunty,
supra, 62 Cal.4th at p. 78 [“Even evidence of more informal
associations, such as proof that members of two gang subsets
‘hang out together’ and ‘back up each other,’ can help
demonstrate that the subsets’ members have exchanged strategic
information or otherwise taken part in the kinds of common
activities that imply the existence of a genuinely shared
venture.”]; Vasquez, at pp. 924–925 [photos showing members of
two Norteño subsets together, and evidence subset members
attended funeral of Norteño member, showed association with
the larger Norteño gang as a whole].)
39
Jara testified that, due to the gang’s hierarchy, the
different cliques had a common goal. The cliques did not operate
independently, or according to separate agendas. There were
“general principles that govern[ed] the gang,” and the various
cliques did not operate independently of the other cliques.
Instead, there was evidence their actions were coordinated. Jara
explained that in his experience, when officers remove “almost a
whole group, other cliques will come here from different parts of
the city to put in work in that spot.” In 2014, a member of the
Hollywood Locos clique was in charge of the Fulton Locos clique.
There were no rivalries between MS-13 cliques. And, as part of
an overarching MS-13 policy, clique members were not allowed to
obtain MS-13 tattoos until they put in work for the MS-13 gang.
(See Prunty, supra, 62 Cal.4th at p. 77 [evidence subsets are
governed by the same “ ‘bylaws’ may suggest that they function—
however informally—within a single hierarchical gang”].) And, of
course, the fact Saucedo had both MS-13 and Fulton Locos
tattoos demonstrated a connection between MS-13 and Saucedo’s
clique. (See People v. Garcia, supra, 9 Cal.App.5th at p. 379
[defendant had tattoos of both the overarching gang’s name and
his subset, amounting to a “corporeal representation of the
association between the gang and one of its subsets”].)
Saucedo argues that Jara’s testimony about communication
between the MS-13 gang and the subsets was “completely
discredited on cross-examination” and was speculative. We do
not agree; and in any event in evaluating the sufficiency of the
evidence, this court does not weigh credibility or resolve
evidentiary conflicts. (People v. Penunuri, supra, 5 Cal.5th at
p. 142 [“ ‘ “[c]onflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for
40
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.” ’ ”]; People v. Pettie (2017)
16 Cal.App.5th 23, 51 [doubts about the credibility of witness
should be left for the jury’s resolution].)
In sum, the evidence presented showed that the MS-13
gang and its subsets are all the same unitary gang, and the
“group the defendant acted to benefit, the group that committed
the predicate offenses, and the group whose primary activities
are introduced, is one and the same.” (Prunty, supra, 62 Cal.4th
at p. 81.) Unlike in Prunty, the evidence presented here showed
more than a common name, symbol, color, or ideology.
Saucedo also argues that CALCRIM No. 1401, the pattern
jury instruction given on the gang enhancement, was inadequate
because it did not set forth the “requirement of collaboration,
association or relationship between the subsets and MS.” We
disagree. The instruction tracked the language of the statute.
(See Krebs, supra, 8 Cal.5th at p. 331 [the language of a statute is
generally an appropriate and desirable basis for an instruction
and is ordinarily sufficient when the defendant fails to request
amplification].) Saucedo did not request clarifying or amplifying
language and therefore has forfeited any claim of instructional
error. (See People v. Covarrubias (2016) 1 Cal.5th 838, 876–877
[party may not complain on appeal that an instruction was too
general or incomplete without first requesting clarification at
trial].)
c. The criminal street gang conspiracy charge
We turn next to Saucedo’s contention that the evidence was
insufficient to support his conviction for the substantive crime of
criminal street gang conspiracy.
41
Section 182.5, enacted in 2000 by Proposition 21, “created a
new form of conspiracy distinct from the traditional
understanding of the crime and was intended to ‘ “expand[ ] the
law on conspiracy to include gang-related activities.” ’
[Citation.]” (People v. Abbate (2020) 58 Cal.App.5th 100, 108;
People v. Johnson (2013) 57 Cal.4th 250, 261; Elizalde, supra, 61
Cal.4th at p. 539.) Section 182.5 provides, in pertinent part: “any
person who actively participates in any criminal street gang, as
defined in subdivision (f) of Section 186.22, with knowledge that
its members engage in or have engaged in a pattern of criminal
gang activity, as defined in subdivision (e) of Section 186.22, and
who willfully promotes, furthers, assists, or benefits from any
felonious criminal conduct by members of that gang is guilty of
conspiracy to commit that felony and may be punished as
specified in subdivision (a) of Section 182.” (Italics added.)
Here, Saucedo does not challenge the sufficiency of the
evidence to prove the active participation and willful promotion
elements of the crime.12 However, he contends that the evidence
was insufficient to prove the knowledge element. As discussed
ante, section 186.22, subdivision (e) defines “pattern of criminal
gang activity” as “the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of” over thirty
specifically enumerated offenses, “provided at least one of these
offenses occurred after the effective date of this chapter and the
last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions,
or by two or more persons. . . .”
12 Accordingly, we do not address the evidence on these
elements.
42
For well over two decades, California courts have
delineated the parameters of section 186.22, subdivision (e)’s
“pattern of criminal gang activity” element. (See People v.
Zermeno (1999) 21 Cal.4th 927, 930; People v. Gardeley (1996) 14
Cal.4th 605, disapproved on another ground by People v. Sanchez
(2016) 63 Cal.4th 665, 686, fn. 13.) Because section 182.5
expressly incorporates section 186.22, subdivision (e), we look to
those authorities here.
A pattern of criminal gang activity may be proved by
evidence of two or more predicate offenses committed on separate
occasions, or by evidence of such offenses committed by two or
more people on the same occasion. (People v. Loeun (1997) 17
Cal.4th 1, 10; People v. Garcia (2020) 46 Cal.App.5th 123, 165–
166; People v. Miranda (2016) 2 Cal.App.5th 829, 841.) The
charged crime may serve as a predicate offense, as may evidence
of defendant’s own conduct in the current or a prior offense.
(People v. Tran (2011) 51 Cal.4th 1040, 1046; People v.
Thompkins, supra, 50 Cal.App.5th at p. 402; People v. Ochoa
(2017) 7 Cal.App.5th 575, 586; Miranda, at p. 840; People v.
Duran, supra, 97 Cal.App.4th at p. 1457.) A fellow gang
member’s commission of a crime contemporaneous with the
charged crime may establish a second predicate. (Loeun, at pp. 5,
10, 14; Miranda, at p. 840.) “The predicate offenses need not
themselves be ‘ “gang related.” ’ [Citation.]” (Garcia, at p. 165;
Thompkins, at p. 403; People v. Gardeley, supra, 14 Cal.4th at
pp. 610, 624–625 & fns. 10 & 12.) Proof of a conviction is not
necessary; proof of commission of the offense will suffice.
(Thompkins, at p. 403; People v. Garcia (2014) 224 Cal.App.4th
519, 524; People v. Lara (2017) 9 Cal.App.5th 296, 332; In re
Leland D. (1990) 223 Cal.App.3d 251, 258.)
43
Saucedo argues the knowledge element is unsatisfied
unless he knew of the specific predicates offered by the People.
i.e., the crimes committed by Ochoa and Lobos. He is incorrect.
When construing a statute, we must determine the Legislature’s
intent so as to effectuate the law’s purpose. We begin with an
examination of the statute’s words, giving them their usual and
ordinary meaning. (People v. Colbert (2019) 6 Cal.5th 596, 603;
People v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106.) If not
ambiguous, the plain meaning of the statutory language controls,
and we need go no further. (Colbert, at p. 603; Ruiz, at
p. 1106.) “We apply the same rules of construction to statutes
adopted by the voters as to statutes adopted by the Legislature.”
(People v. Valencia (2021) 64 Cal.App.5th 641, 646.)
Section 182.5 nowhere contains such a requirement. Its
plain language indicates that a defendant’s knowledge of any two
qualifying predicate crimes will suffice. Thus, while a
defendant’s knowledge of the predicates offered by the People
would meet the requirement, this is not the only route by which
the knowledge element can be proven: if the evidence shows the
defendant knew of two qualifying offenses, the requirement is
met. Thus, while we agree with Saucedo that there was no
evidence he knew of the Lobos and Ochoa convictions, this does
not demonstrate insufficiency. On the other hand, to the extent
the People suggest the knowledge element is satisfied when a
defendant merely knows that a gang generally commits crimes,
we disagree. As we have discussed, the definition in section
186.22, subdivision (e) has a well-developed and specific meaning,
and requires knowledge of the offenses enumerated in section
186.22, within the statutorily mandated time frame.
44
Here, the evidence was sufficient to prove one predicate.
Saucedo’s conduct in the current offense established he knew of
one enumerated offense, murder, within the relevant time period.
As noted, the charged crime may serve as a predicate offense.
(See, e.g., People v. Miranda, supra, 2 Cal.App.5th at p. 840.)
Where a defendant personally commits a qualifying crime,
section 182.5’s knowledge element is satisfied. In People v.
Johnson, for example, the requisite knowledge existed because
the defendants personally committed several gang-related
murders and other crimes. (People v. Johnson, supra, 57 Cal.4th
at p. 267 [“There was also little question from defendants’
conduct that they had the requisite knowledge of [the gang’s]
pattern of criminal gang activity, having committed much of it
themselves.”].) And, Saucedo’s jury was instructed that the
charged murder could be considered in deciding whether the
pattern of criminal gang activity existed.
The problem for the People is that there was insufficient
evidence of a second crime necessary to establish the pattern of
“two or more” offenses, as required by section 186.22, subdivision
(e). As noted, the requisite pattern can “be established by
evidence of the offense with which the defendant is charged and
proof of another offense committed on the same occasion by a
fellow gang member.” (People v. Loeun, supra, 17 Cal.4th at
pp. 5, 10, 14; People v. Miranda, supra, 2 Cal.App.5th at p. 840
[“[t]he prosecution may ‘rely on evidence of the defendant’s
commission of the charged offense and the contemporaneous
commission of a second predicate offense by a fellow gang
member.’ ”].) But, that principle does not assist the People here.
Where a perpetrator commits a crime and a fellow gang member
simply aids and abets that crime, for purposes of section 186.22,
45
subdivision (e), only one, not two, predicate offenses are shown.
(People v. Zermeno, supra, 21 Cal.4th at pp. 928–929, 931–932
[defendant committed aggravated assault and fellow gang
member aided and abetted by preventing victim’s friends from
coming to his aid; defendant’s and aider and abettor’s combined
activity was a single offense for purposes of section 186.22,
subdivision (e)].) Thus, the prosecution could not rely on
Alvarado’s commission of the murder as a second predicate here.
Nor can the People rely on the fact Saucedo admittedly
knew Tovar was an MS-13 gang member, and had a firearm
concealed in the truck, under the seat. This circumstance could
have established that Tovar was carrying a concealed firearm in
violation of section 25400, an offense which is one of the
enumerated crimes in section 186.22, subdivision (e). But the
jury was never informed that this conduct could qualify as
establishing the pattern of criminal gang activity. “Thus, as far
as the jur[y] knew,” this offense “was not a predicate offense and
could not have been used to satisfy the predicate offense
requirement.” (People v. Lara, supra, 9 Cal.App.5th at p. 331,
and authorities cited therein.)
Certainly, like its other elements, section 182.5’s knowledge
requirement may be proved circumstantially (see People v. Carr
(2010) 190 Cal.App.4th 475, 489–490), and the People argue that
was true here. They point out that Saucedo already had one
tattoo when the murder was committed, and MS-13 does not
allow members to obtain such tattoos unless they have done
“something for the gang.” But Officer Jara testified that going
into a rival gang area and tagging could be enough to earn a gang
member a tattoo. This conduct would not necessarily constitute
the enumerated offense of felony vandalism, which requires
46
damage of $400 or more. (See §§ 186.22, subd. (e)(20), 594,
subd. (b)(1).) The evidence showed Saucedo was an MS-13 gang
member who spent time with his fellow gang members, and Jara
testified that gang members share information regarding their
activities. But Saucedo told police he had only been in the gang
for three months, and no evidence suggested a longer tenure.
There was no showing of any particular crimes committed by MS-
13 during those three months, or by Saucedo’s particular
associates during that time, undercutting any inference that he
discussed any with his associates. Nor was there evidence that
there was an ongoing gang war during that period, which might
have alerted Saucedo that specific qualifying offenses had
transpired. In short, there was no concrete evidence suggesting
Saucedo would have been privy to specifics about the gang’s
crimes. (Contrast People v. Carr, supra, 190 Cal.App.4th at
pp. 488–489 [evidence sufficient to prove knowledge for purposes
of analogous statute where, inter alia, there was an ongoing gang
feud that had resulted in several shootings and was reflected in
local graffiti, the murders occurred in the gang’s territory, and
the defendant had a previous conviction for possession of cocaine
for sale].) We cannot simply assume that because Saucedo was a
recent initiate into a violent and notorious gang, that he was
automatically aware of qualifying offenses within the meaning of
section 186.22, subdivision (e). To do so would eviscerate section
182.5’s knowledge element.
Because the evidence was insufficient, the conviction must
be reversed and the matter remanded for a full resentencing.
(See, e.g., People v. Valenzuela (2019) 7 Cal.5th 415, 424–425;
People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.)
47
3. Prosecutorial misconduct
Saucedo contends the prosecutor committed prejudicial
misconduct during argument. We disagree.
a. Applicable legal principles
“In California, the law regarding prosecutorial misconduct
is settled: ‘When a prosecutor’s intemperate behavior is
sufficiently egregious that it infects the trial with such a degree
of unfairness as to render the subsequent conviction a denial of
due process, the federal Constitution is violated. Prosecutorial
misconduct that falls short of rendering the trial fundamentally
unfair may still constitute misconduct under state law if it
involves the use of deceptive or reprehensible methods to
persuade the trial court or the jury.’ [Citation.]” (People v.
Masters (2016) 62 Cal.4th 1019, 1052.) When a claim of
misconduct is based on the prosecutor’s arguments before the
jury, we consider whether there is a reasonable likelihood the
jury construed or applied the challenged remarks in an
objectionable fashion. (People v. Adams (2014) 60 Cal.4th 541,
568.) We consider the statements in context, and view the
argument and instructions as a whole. (People v. Centeno (2014)
60 Cal.4th 659, 667.)
b. Argument that jurors should “do the right thing”
At the end of his closing argument, the prosecutor
discussed the evidence and reasonable inferences to be drawn
therefrom. He then concluded: “So don’t think for one moment,
ladies and gentlemen, that this was some kind of freak thing that
Mr. Saucedo didn’t know was going to happen. We know that
from Mr. Saucedo himself and the actions of all of his co-
participants. [¶] So, please, ladies and gentlemen, do the right
thing. Find the defendant guilty.” Defense counsel’s objection
48
that the argument was improper was overruled. The prosecutor
continued: “Do the right thing, ladies and gentlemen. Find the
defendant guilty of first degree murder, which is what he’s guilty
of and what we have proven beyond a reasonable doubt.”
Saucedo argues that the prosecutor’s statements that the
jury should “do the right thing” improperly expressed his
personal opinion and implied that his conclusions had been
“ ‘validated by the government’s investigatory apparatus.’ ” He is
incorrect. In context, the comments amounted to nothing more
than an argument that the evidence showed Saucedo’s guilt, and
accordingly the jury should find him guilty. There was nothing
objectionable about this argument. (People v. Seaton (2001) 26
Cal.4th 598, 663 [prosecutor’s argument that “the only just
verdict was to convict defendant of special circumstances murder,
because it is ‘the only right thing to do in this case’ and because
‘[h]e did it’ ” was “fair commentary on the evidence presented”];
see also People v. Mayfield (1997) 14 Cal.4th 668, 781–782,
disapproved on another ground by People v. Scott (2015) 61
Cal.4th 363, 390, fn. 2 [expressions of belief in defendant’s guilt
are not improper if the prosecutor makes clear the belief is based
on the evidence before the jury].)
Saucedo cites various federal authorities in support of his
contentions, but they do not assist him. (United States v. Young
(1985) 470 U.S. 1, 5, 17–19; United States v. Nobari (9th Cir.
2009) 574 F.3d 1065, 1077–1078; United States v. Weatherspoon
(9th Cir. 2005) 410 F.3d 1142, 1146; United States v. Kerr (9th
Cir. 1992) 981 F.2d 1050, 1051–1053; United States v. McKoy (9th
Cir. 1985) 771 F.2d 1207–1212.) Unlike the arguments in those
cases, here the prosecutor’s statements did not reference matters
outside the record, did not vouch for the prosecution’s witnesses,
49
did not imply the prosecutor was privy to information not
presented at trial, did not suggest that jurors should convict for
external policy considerations or to alleviate social problems, did
not appeal to the jurors’ passions or prejudices, and cannot be
read as an assertion of his personal opinion about Saucedo’s guilt
unconnected to the evidence.
Saucedo’s citation of People v. Sanchez (9th Cir. 2011) 659
F.3d 1252, does not assist him because that case bears no
resemblance to this one. In Sanchez, a drug trafficking case, the
defendant presented a duress defense. In closing, the prosecutor
argued that accepting the duress defense would be the equivalent
of “ ‘send[ing] a memo’ ” to drug traffickers that a claim of duress
would allow them to “get away with it.” (Id. at p. 1256.) This
argument was improper because it urged the jury to convict for
reasons wholly irrelevant to the defendant’s guilt or innocence.
(Id. at p. 1257.) In contrast, the prosecutor here argued only that
the jury should convict based on the evidence; he did not state or
imply that the jury should convict to further some societal goal.
Under no stretch of the imagination can the prosecutor’s
comments be understood as “a policy argument against
acquittal,” as Saucedo argues.
In any event, even had the prosecutor’s brief statements
been flawed—a finding we do not make—they were manifestly
harmless. (See People v. Medina (1995) 11 Cal.4th 694, 759–760
[argument that jury should “ ‘do the right thing, to do justice, not
for our society necessarily or exclusively, but for [the victim],’ ”
were brief and isolated and could not have influenced the jury’s
guilt determination].)
50
c. Reference to the prosecutor’s duty
During his closing argument, defense counsel argued that
the prosecution’s reliance on multiple theories of murder
indicated the weakness of the People’s case and showed the
prosecutor was trying “to pull that wool over your eyes.”
Addressing the defense argument, in closing the prosecutor
stated: “This is a murder case, ladies and gentlemen. The People
of the State of California are asking you to convict Mr. Saucedo of
the most serious crime on the books: first degree murder. It is
my duty as a representative of the State of California to present
the evidence. It is my duty as a representative of the People of
the State of California to present the law to you, through, of
course, the judge. [¶] So when the defense then says that I’m
trying to say something about my case, that my case is weak
because I am giving you applicable law in this case is also
offensive. And as jurors, you should want all of the facts that you
can get before making this kind of decision and all of the
applicable law in this case before making your decision. That is
what I’m doing. [¶] There are different ways that people can be
found guilty. I didn’t make these laws, ladies and gentlemen.
I’m simply giving them to you because they’re applicable in this
case.”
Saucedo argues that the prosecutor improperly used the
prestige of his office to “vouch[ ] for himself” and bolster his own
credibility; referenced matters outside the record, i.e., his own
experience; and denigrated defense counsel by casting aspersions
on his character and integrity. He is incorrect.
Defense counsel did not object to the challenged
statements, and therefore Saucedo’s claim has been forfeited. A
claim of prosecutorial misconduct is forfeited when there was
51
neither a timely and specific objection nor a request for an
admonition. (People v. Powell (2018) 6 Cal.5th 136, 182; People v.
Centeno, supra, 60 Cal.4th at p. 674.) Nothing suggests an
objection here would have been futile. In light of this forfeiture,
Saucedo contends his attorney provided ineffective assistance.
We have set forth the relevant principles regarding such a
claim ante. We detect no ineffective assistance.
“ ‘ “[A] prosecutor is given wide latitude to vigorously argue
his or her case” ’ [citation] and ‘ “may make ‘assurances regarding
the apparent honesty or reliability of’ a witness ‘based on the
“facts of [the] record and the inferences reasonably drawn
therefrom.” ’ ” ’ [Citation.] ‘Improper vouching occurs when the
prosecutor either (1) suggests that evidence not available to the
jury supports the argument, or (2) invokes his or her personal
prestige or depth of experience, or the prestige or reputation of
the office, in support of the argument.’ [Citation.] Referring to
facts not in evidence is ‘clearly’ misconduct ‘because such
statements “tend[ ] to make the prosecutor his own witness—
offering unsworn testimony not subject to cross-examination.” ’ ”
(People v. Rodriguez (2020) 9 Cal.5th 474, 480; People v. Bonilla
(2007) 41 Cal.4th 313, 336 [it is misconduct for prosecutors to
bolster a case by invoking their personal prestige, reputation, or
depth of experience, or the prestige or reputation of their office].)
Defense counsel did not err by failing to object because, in
context, the challenged statements were not improper. (See
People v. Bradley (2012) 208 Cal.App.4th 64, 90.) The prosecutor
simply argued, in response to the defense argument, that the
People were not attempting to trick the jury or “pull the wool”
over jurors’ eyes by advancing several theories of guilt; instead,
the prosecutor was offering several theories because the evidence
52
warranted it. The prosecutor’s statements—that he had the duty
to present evidence to prove guilt under the law as given by the
court—was accurate. And these statements did not reference
information outside the record. The jury was instructed that “the
People” had the burden to prove guilt beyond a reasonable doubt
based on the evidence presented at trial and the instructions
given by the court. (CALCRIM Nos. 200, 220.) Nothing about
the challenged argument suggested that the prosecutor possessed
evidence outside the record that supported his theories.
Nor did the prosecutor’s comments vouch for the strength
of his case by invoking his personal prestige, reputation, or
experience, or the prestige of his office. We cannot see how the
statement that the prosecutor—the representative of the state—
had the burden to prove guilt implicitly referenced the prestige of
the prosecutor’s office. The prosecutor did not state or imply that
he was more trustworthy or experienced than defense counsel.
(Contrast People v. Huggins (2006) 38 Cal.4th 175, 207
[prosecutor may not reference his “own experience, comparing a
defendant’s case negatively to others the prosecutor knows about
or has tried”].)
Saucedo’s argument that the prosecutor disparaged defense
counsel fares no better. It is of course misconduct to disparage
defense counsel or attack his integrity (People v. Bell (1989) 49
Cal.3d 502, 538), but the prosecutor did not do so here. “An
argument which does no more than point out that the defense is
attempting to confuse the issues and urges the jury to focus on
what the prosecution believes is the relevant evidence is not
improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302,
fn. 47, abrogated on other grounds by People v. Merritt (2017) 2
Cal.5th 819, 831; see People v. Valencia (2008) 43 Cal.4th 268,
53
305 [vigorous denigration of the defense case is the prosecutor’s
right as an advocate]; People v. Seaton, supra, 26 Cal.4th at
p. 663 [prosecutor’s argument that the defense case was
ludicrous, contrived, concocted, and bogus did not impugn
counsel’s integrity]; People v. Medina, supra, 11 Cal.4th at p. 759
[argument that “ ‘any experienced defense attorney can twist a
little, poke a little, try to draw some speculation, try to get you to
buy something’ ” did not amount to an attack on counsel’s
integrity].)
Nor was the prosecutor’s use of the word “offensive” to
describe the defense argument misconduct. In People v. Medina,
supra, 11 Cal.4th 694, 759, the prosecutor “expressed some
indignation over defense counsel’s ‘patently offensive’ remark
that there were no eyewitnesses to the murder.” Our Supreme
Court found this was a fair comment on the evidence. (Ibid.) In
any event, even assuming arguendo that the prosecutor’s use of
the word “offensive” was ill-advised, this single comment cannot
be said to have infected the trial with unfairness or constituted a
deceptive or reprehensible method of persuasion.13
13
Saucedo makes a variety of assertions about what the
prosecutor’s comments really meant, including the following:
(1) The prosecutor was held to a higher standard than defense
counsel and “wasn’t just some paid hack attorney representing
criminals, but instead, he was ‘(cue the Superman music) a
representative of the People of the State of California.’ ”
(Capitalization omitted.) (2) “Defense counsel is just some shill,
some hired gun to represent a scummy defendant. I am right.
He is wrong. Listen only to what I say because ‘it is my duty
. . . .’ ” (3) The prosecutor “wrap[ped] himself in the flag” and
claimed to be “above the defense, better than the defense, more
pure than the defense, more right than the defense—because the
prosecutor does what he does based on ‘duty,’ or based on his
54
d. Argument on uncharged conspiracy to murder
Saucedo next contends the prosecutor committed
misconduct by arguing conspiracy to commit murder as a theory
of guilt, although the jury was not instructed on that theory. We
conclude the error was harmless.
(i) Additional facts
Just prior to argument, the prosecutor informed the court
he intended to argue, as a theory of murder liability, uncharged
conspiracy to murder. Defense counsel objected on various
grounds. The court concluded circumstantial evidence supported
the conspiracy to murder theory.
Thereafter, in addition to direct aiding and abetting and
premeditated first degree murder, the court instructed the jury
on a different theory of uncharged conspiracy that the parties had
discussed, i.e., that Saucedo could be convicted of murder or
voluntary manslaughter if he conspired to commit simple battery
and murder or voluntary manslaughter was a natural and
probable consequence of such battery. It did not instruct on
uncharged conspiracy to commit murder.
During opening argument, the prosecutor argued that
Saucedo could be guilty of murder even though he was not the
shooter, based on a conspiracy theory. He argued: “A member of
a conspiracy is criminally responsible for the crimes that he
conspires to commit, no matter which member of the conspiracy
position within the Government. . . .” (4) The prosecutor was the
jury’s representative, while defense counsel was a “[p]aid
hitman.” The problem with these colorful and imaginative
assertions is that they bear no resemblance whatsoever to the
prosecutor’s actual words, express or implied. No juror could
possibly have gleaned these meanings as an implied subtext
underlying the prosecutor’s comments, nor do we.
55
commits the crime.” “Conspiracy is basically two people get
together and agree to do a murder. . . . You do not have to kill
somebody in conspiracy. You don’t have to aid and abet the
murder with conspiracy. What we have to show is an agreement
between the parties. [¶] . . . You can find an agreement from the
actions of the people that they had an agreement to kill Mr.
Rubio.”
Between the defense closing and prosecutor’s rebuttal, the
prosecutor informed the court that due to an oversight, he had
failed to request, and the jury had not been given an instruction
on, conspiracy to commit murder as a theory of liability. The
court observed that the prosecutor’s argument correctly stated
the law. Nonetheless, the court was not inclined to add an
instruction on uncharged conspiracy to murder at that point. The
prosecutor obtained permission from the court to continue
arguing the theory in his rebuttal argument, but did not actually
do so.
During deliberations, the jury sent the court a note asking,
“Can we get an itemized list of the criteria that would define
Murder 1, Murder 2 and involuntary manslaughter?” The court
gave a lengthy response.14 As relevant here, the court informed
the jury that in regard to the conspiracy instructions, “what you
have to determine is whether or not there was a conspiracy. . . .
Unless the conspiracy was to commit murder, that was the crime
that they conspired to do, then you have to look at [CALCRIM
No.] 417 and determine whether or not in this case they
conspired to commit the offense of a battery. . . . [¶] Now, if what
you find is they didn’t conspire to commit murder, they conspired
14
We discuss the court’s answer to the question in more
detail where relevant post.
56
to commit battery, then the defendant is only guilty if the murder
was in the furtherance of the conspiracy, it was committed in
order to further the battery and, secondly, that it was a natural
and probable consequence of the commission of the battery. [¶]
. . . . It has to be both. [¶] If the answer to both those questions
is yes, then it’s second degree murder or voluntary manslaughter.
It cannot be first degree murder. . . . Because in order for it to be
first degree murder, . . . the defendant had to have shared an
intent to kill.”
(ii) Discussion
Saucedo complains that the prosecutor’s argument “misled
the jury in an objectionable fashion, i.e., so as to improperly
convict him of murder,” and the trial court erred by failing to
“take any ameliorative steps.” Therefore, he asserts, he was
deprived of a fair trial and his murder conviction must be
reversed. The People argue that the claim is forfeited for failure
to object, but in any event, any error was harmless under any
standard. We agree with the People’s latter argument.
Contrary to Saucedo’s argument, the conspiracy to murder
theory was not legally erroneous; as defense counsel conceded
below and the trial court found, the theory was legally sound.
Nor was it factually unsupported. Thus, this is not a case in
which the prosecutor misstated the law or the facts. The
prosecutor admitted he erred by failing to request the instruction.
But, in light of the trial court’s answer to the jury’s query and the
other instructions given, his misstep was manifestly harmless.
The court clearly explained that if the jury found Saucedo
conspired to murder Rubio, the offense would be first degree
murder. The jury acquitted Saucedo of first degree murder and
convicted him of second degree murder, making it clear beyond a
57
reasonable doubt that it did not rely on the conspiracy to murder
theory. Accordingly, the prosecutor’s error is harmless under any
standard. (Chapman v. California, supra, 386 U.S. 18; People v.
Watson (1956) 46 Cal.2d 818; People v. Ellison (2011) 196
Cal.App.4th 1342, 1353 [“we do not reverse a defendant’s
conviction because of prosecutorial misconduct unless it is
reasonably probable the result would have been more favorable to
the defendant in the absence of the misconduct”].) In light of the
verdict, Saucedo fails to show any violation of his fair trial and
due process rights.
4. Jury deliberations
a. Additional facts
As noted, during deliberations the jury sent a note to the
court requesting “an itemized list of the criteria that would define
Murder 1, Murder 2 and involuntary manslaughter?” After
discussing the note with the parties, the court told the jury: “I
can’t give you a list, but what I’m going to do is go through—
because I gave you the instructions. The criteria for each type of
offense are laid out in those instructions. But what I’ll do is . . .
I’ll give you the list of instructions to look at for what.” The court
suggested that the jury should first determine whether Alvarado
committed a murder, a manslaughter, or acted in perfect or
imperfect self-defense, and referred the jury to the relevant
instructions. The court advised that if the jury found the killing
was lawful, “you’re finished. . . . Because then it wasn’t murder
at all.” If the jury determined the killing was unlawful, it then
needed to determine whether Saucedo was liable and for what
offense, by considering the instructions on aiding and abetting,
natural and probable consequences, conspiracy, withdrawal from
the conspiracy, and other instructions. The court summed up, “I
58
hope this is helpful, but the criteria are there. You’ve got them in
your hands.” The court offered to provide further explanations
about individual instructions.
Defense counsel did not object, other than to reiterate, prior
to the court’s response to the jury, his previously stated position
that the instruction on battery as a target offense of the
conspiracy was illogical.
b. Discussion
Saucedo contends the trial court’s response improperly
interfered with the jury’s deliberations, invaded the jury’s
province, was coercive, and deprived him of his rights to due
process and a fair trial. In his view, the trial court improperly
told the jury which instructions it should consider, and in what
order. He avers that notwithstanding the absence of an
objection, the issue is cognizable pursuant to section 1259; and, if
not preserved, defense counsel provided ineffective assistance.
The People contend that the claim has been forfeited, and is
meritless in any event because the court acted within its
discretion. (See People v. Boyce (2014) 59 Cal.4th 672, 699;
People v. Dykes, supra, 46 Cal.4th at p. 802.)
When a jury asks a question after retiring for deliberations,
section 1138 requires that the court provide information the jury
desires on points of law and help it understand the legal
principles it is asked to apply. (People v. Hodges (2013) 213
Cal.App.4th 531, 539; People v. Montero (2007) 155 Cal.App.4th
1170, 1179.) “ ‘ “This does not mean the court must always
elaborate on the standard instructions. Where the original
instructions are themselves full and complete, the court has
discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury's request for
59
information. [Citation.] Indeed, comments diverging from the
standard are often risky. [Citation.]” [Citation.]’ ” (Montero, at
p. 1179; People v. Williams (2015) 61 Cal.4th 1244, 1267.) On the
other hand, a court “must do more than figuratively throw up its
hands and tell the jury it cannot help. It must consider how it
can best aid the jury and decide whether further explanation is
desirable, or whether the reiteration of previously given
instructions will suffice.” (People v. Moore (1996) 44 Cal.App.4th
1323, 1331; People v. Beardslee (1991) 53 Cal.3d 68, 97.) “ ‘We
review for an abuse of discretion any error under section 1138’ ”
(People v. Hodges, at p. 539), and review de novo the accuracy of
any supplemental instructions provided (People v. Franklin
(2018) 21 Cal.App.5th 881, 887 & fn. 4). Reversal is warranted
only where prejudice is shown. (Beardslee, at p. 97.)
Assuming arguendo that the claim was preserved for
appeal, it lacks merit. The court simply went over the relevant
legal principles and referred the jury to the appropriate
instructions. It did not misstate the law. Its comments were
neutral; it did not act as an advocate in any sense. (See People v.
Montero, supra, 155 Cal.App.4th at p. 1180 [court must not
appear to be an advocate, either endorsing or redirecting the
jury’s inclination]; People v. Moore, supra, 44 Cal.App.4th at
p. 1331.) Its comments did not suggest the jury should render
any particular verdict, nor did they explicitly or implicitly favor
the People.
Saucedo’s arguments to the contrary do not persuade us.
He avers that the court “impose[ed] on the jury its own view of
the evidence.” It did not; its challenged comments did not
reference the evidence. He contends the court engaged in
“argument.” It did not. Its comments were neutral. He urges
60
that the court effectively told the jury it could not consider
manslaughter before rendering a verdict on murder. (See People
v. Dennis (1998) 17 Cal.4th 468, 536 [court may restrict jury from
returning a verdict on a lesser included offense before acquitting
on a greater offense, but may not preclude it from considering
lesser offenses during deliberations].) It did not; moreover it also
instructed, pursuant to CALCRIM No. 640, that the jury could
“consider these different kinds of homicide in whatever order you
wish.” Contrary to Saucedo’s assertions, we see no likelihood
that the court’s response was coercive. And assuming for the
sake of argument that the court’s comments constituted an
improper roadmap, Saucedo fails to explain how they somehow
prejudiced him. There was no reversible error.
5. Cumulative error
Saucedo contends that the cumulative effect of the
purported errors requires reversal, even if they were individually
harmless. As we have “ ‘either rejected on the merits defendant’s
claims of error or have found any assumed errors to be
nonprejudicial,’ ” we reach the same conclusion with respect to
the cumulative effect of any purported errors. (People v.
Cole (2004) 33 Cal.4th 1158, 1235–1236.)
6. Sentencing issues
a. Additional facts
The jury rendered its verdicts in October 2016. Due to a
series of continuances and resolution of a motion for new trial,
sentencing was put off until after passage of Senate Bill 1437. As
relevant here, that statute, which took effect on January 1, 2019,
eliminated the natural and probable consequences doctrine as it
relates to murder, by adding subdivision (a)(3) to section 188.
(See People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).)
61
That section now states that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.”
Senate Bill 1437 also added section 1170.95, which created a
procedure whereby persons convicted of murder under a now-
invalid natural and probable consequences theory may petition
for vacation of their convictions and resentencing.
In March 2019, defense counsel filed a motion to vacate
Saucedo’s second degree murder conviction pursuant to the new
law, arguing that the jury likely convicted him based on the
natural and probable consequences doctrine or as an aider and
abettor who lacked the intent to kill, and both theories had been
abrogated by passage of Senate Bill 1437.15 The People opposed
the motion on the ground the statute was unconstitutional. They
conceded that if the trial court concluded Senate Bill 1437 was
constitutional, “the defendant appears eligible for some relief
under the newly enacted [section] 1170.95,” but if the murder
conviction was vacated, Saucedo should nonetheless be sentenced
on the target crime of assault with a firearm.
On September 18, 2019, the trial court granted Saucedo’s
motion. It found Senate Bill 1437 was constitutional and vacated
the second degree murder conviction on count 1. It reasoned that
Saucedo was not the actual shooter, the jury was instructed on
the natural and probable consequences doctrine, and it was not
15
Contrary to defense counsel’s apparent argument, Senate
Bill 1437 did not do away with an aider and abettor’s liability for
murder. (Gentile, supra, 10 Cal.5th at p. 848 [“Senate Bill 1437
does not eliminate direct aiding and abetting liability for murder
because a direct aider and abettor to murder must possess malice
aforethought”].)
62
possible to determine which theory of murder the jury relied upon
when rendering the guilty verdict.
The court then sentenced Saucedo as follows. On count 2,
the gang conspiracy charge, it imposed a sentence of 15 years to
life in prison, plus one year for the section 12022, subdivision
(a)(1) principal-armed allegation. On count 1, it sentenced
Saucedo on the target offense of assault with a firearm to the
high term of four years, plus five years for the section 186.22
gang allegation, to run concurrently with the sentence in count 2.
The court explained it selected the high term “based on the facts
and circumstances of the underlying case. This is a gang
confrontation that occurred with somebody standing on the
corner. Defendants went out of their way to [confront] him with a
firearm, and he was shot and killed.” The court imposed a
restitution fine of $10,000 and rejected Saucedo’s request to
waive it because he was indigent. It also imposed a criminal
conviction assessment and a court security fee on each count. It
awarded 1,771 days of actual custody credit and 265 days of
conduct credit for a total of 2,036 days.
Saucedo raises a variety of claims related to the sentence
imposed. We address them seriatim.
b. Vacation of murder conviction pursuant to Senate Bill
1437
Saucedo argues that no sentence should have been imposed
on count 2, criminal gang conspiracy, because the target crime of
the conspiracy was murder; the court vacated his murder
conviction pursuant to Senate Bill 1437; and battery, a
misdemeanor, could not serve as the basis for the section 182.5
conviction because that statute requires felonious conduct. In
63
light of our reversal of his conviction on count 2, these
contentions are now moot.
The People argue that the order vacating the murder
conviction resulted in an unlawful sentence because Saucedo
“never filed a section 1170.95 petition.” They point out that the
section 1170.95 petitioning procedure is the exclusive avenue of
relief under Senate Bill 1437. (Gentile, supra, 10 Cal.5th at
p. 839.) Therefore, they argue, the sentence imposed was
unauthorized and the matter should be remanded for
resentencing. Because the People appear to attack the propriety
of the court’s grant of relief under Senate Bill 1437—a question
that is not mooted by our conclusion that the conviction in count
2 must be reversed—we briefly address their arguments.
The People are correct that Saucedo failed to strictly
adhere to the procedural requisites of section 1170.95. The
document he filed was captioned a “motion” rather than a
“petition”; it discussed Senate Bill 1437, but did not specifically
reference section 1170.95;16 and it did not include a declaration
from Saucedo stating that he was eligible for relief because he
was prosecuted under the natural and probable consequences
doctrine, was convicted of second degree murder, and could not
now be convicted of that offense in light of Senate Bill 1437’s
amendments to the law. (See § 1170.95, subds. (a), (b).)
But in the trial court, the People clearly understood and
accepted that Saucedo was seeking relief pursuant to section
1170.95. The People’s opposition opened with the statement that
“The People oppose defendant’s petition for resentencing filed
under Penal Code § 1170.95 . . . .” (Italics added.) Saucedo’s
motion clearly sought relief based on the amendments to the law
16
In his reply, Saucedo expressly referenced section 1170.95.
64
of murder made by Senate Bill 1437. Although the People could
have successfully opposed the petition on procedural grounds,
they failed to do so; instead, they conceded that if Senate Bill
1437 was constitutional, Saucedo was entitled to relief. (See
§ 1170.95, subd. (d)(2) [parties may waive a resentencing hearing
and stipulate that petitioner is eligible to have his murder
conviction vacated and for resentencing].) Nor did the People
seek review of the trial court’s order on the motion. Under these
circumstances, the People cannot now be heard to complain that
the motion was procedurally defective.
Gentile does not assist the People. There, the appellant
contended on appeal that Senate Bill 1437 required reversal of
his murder conviction, even though he had not sought relief in
the trial court via a section 1170.95 petition. (Gentile, supra, 10
Cal.5th at p. 841.) Under those circumstances, Gentile concluded
that “the procedure set forth in section 1170.95 is the exclusive
mechanism for retroactive relief and thus the ameliorative
provisions of Senate Bill 1437 do not apply to nonfinal judgments
on direct appeal.” (Id. at p. 839.) Thus, a conviction suffered
before Senate Bill 1437’s effective date “may be challenged on
Senate Bill 1437 grounds only through a petition filed in the
sentencing court under section 1170.95.” (Id. at p. 852.) Here,
Saucedo did seek and obtain relief in the trial court, albeit before,
rather than after, he was sentenced. To the extent the People
suggest a section 1170.95 petition can be filed only after a
defendant is sentenced, they cannot raise that argument at this
juncture, after failing to oppose or appeal the trial court’s order.
Nor is the sentence imposed unauthorized, as the People
assert. A sentence is unauthorized when it cannot be lawfully
imposed under any circumstance in the particular case. Because
65
imposition of such a sentence exceeds a court’s jurisdiction, an
unauthorized sentence may be reviewed on appeal despite the
absence of an objection below. (See People v. Francis (2017) 16
Cal.App.5th 876, 884; People v. Rivera (2019) 7 Cal.5th 306, 348–
349.) But the People have not shown the sentence here is
unauthorized. Saucedo’s jury was instructed on the natural and
probable consequences doctrine, making him potentially eligible
for relief under section 1170.95. As the People agree, “it is
undisputed that appellant ‘comes within the ambit’ of Senate Bill
1437.” Had the People opposed the motion on procedural
grounds, Saucedo could simply have filed a petition that strictly
complied with section 1170.95’s requisites; his initial failure to do
so would not have been a bar to eventual relief.17
c. The section 12022, subdivision (a)(1) enhancement
The information alleged a section 12022, subdivision (a)(1)
principal armed enhancement as to count 1, murder, but not
count 2, gang conspiracy. The jury found true a section 12022,
subdivision (a)(1) principal armed enhancement on both counts.
The trial court orally imposed a one-year sentence for the
principal armed enhancement on count 2, but not on count 1.
Saucedo contends that because the firearm enhancement was not
pled on count 2, it must be stricken. The People argue that the
failure to plead the enhancement was harmless, and Saucedo had
17
Further, it is not clear why the People think the
appropriate remedy is a remand for resentencing. If the trial
court erroneously granted the motion, the remedy would be
reversal and reinstatement of the murder conviction, and
reconsideration of a new, proper motion pursuant to section
1170.95, not a remand for resentencing.
We offer no opinion on whether the trial court’s ruling that
Saucedo was entitled to relief was correct.
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sufficient notice, because the enhancement was pled as to the
murder count. Because we have reversed Saucedo’s conviction on
count 2, the principal armed enhancement attached to that
conviction is also reversed. Accordingly, the parties’ contentions
are moot and we need not address them.
d. Imposition of the upper term
Saucedo complains that the trial court abused its discretion
by imposing the upper term of four years on count 1, which, after
grant of the motion to vacate, was redesignated as assault with a
firearm.
“Sentencing courts have wide discretion in weighing
aggravating and mitigating factors.” (People v. Lai (2006) 138
Cal.App.4th 1227, 1258.) A trial court is required to state its
reasons for its sentencing choice to impose the upper term.
(People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371.) A single
aggravating factor will support an upper term sentence. (Ibid.)
However, a fact that is an element of the crime or the basis for an
enhancement cannot be used to impose an upper term. (People v.
Moberly (2009) 176 Cal.App.4th 1191, 1197.)
Pointing to the court’s statement that it was imposing the
high term based on the “facts and circumstances of the
underlying case,” including that the murder was a “gang
confrontation,” Saucedo asserts that the court improperly
considered the elements of the offense and the facts underlying
the gang enhancement as the basis for the high term sentence.
Further, he avers that the reasons given were too general and
vague to constitute meaningful, fact-based reasons for the court’s
sentencing choice.
Saucedo did not object to the sentence on these bases below,
and his contentions have been forfeited. (People v. Scott, supra,67
61 Cal.4th at p. 406 [“ ‘A party in a criminal case may not, on
appeal, raise “claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices” if the
party did not object to the sentence at trial.’ ”]; People v. Kidane
(2021) 60 Cal.App.5th 817, 826.)
Saucedo argues that his counsel provided ineffective
assistance by failing to object. The People contend that, apart
from the reasons the court stated, there was a sufficient basis for
its selection of the upper term. We need not further address
these contentions because we are remanding for a full
resentencing, at which time the parties can advance whatever
arguments they wish regarding the appropriate term.
e. Correction of the abstract of judgment, minute order,
and custody credits
The parties point to several errors in the abstract of
judgment and a minute order.
Saucedo contends the abstract of judgment must be
corrected to reflect that his sentence on count 1 was redesignated
as assault with a firearm, section 245, subdivision (a)(2).
Further, he argues that the minute order incorrectly states that
his section 1170.95 motion to vacate the murder conviction was
denied. The People agree with both contentions. We agree that
the abstract must be corrected to reflect that the murder
conviction was redesignated as assault with a firearm and that
the minute order, to the extent it is incorrect,18 must be corrected.
At sentencing, the trial court awarded Saucedo 1,771 days
of actual custody credit and 265 days of conduct credit, at a 15
percent rate, for a total of 2,036 days. The abstract of judgment
18
The reporter’s transcript provided to this court is missing
the cited page upon which this error allegedly appears.
68
erroneously states a total of 1,347 days, with actual days of 1,171
and conduct credit of 176. Saucedo argues that both totals are
incorrect, because his redesignated crime, assault with a firearm,
is not subject to the 15 percent limit mandated by section 2933.1.
Instead, he avers he is entitled to a conduct credits at the day-for-
day rate required by section 4019, subdivision (f), giving him a
total of 3,541 days. The People agree that the abstract of
judgment should be corrected to reflect the oral pronouncement of
judgment. They argue, however, that he is subject to the 15
percent credit limitation because his conviction for criminal
street gang conspiracy under section 182.5 is a felony punishable
by imprisonment in the state prison for life. (See People v. Jacobs
(2013) 220 Cal.App.4th 67, 85; § 667.5, subd. (c)(7).) Saucedo
disagrees. Given that we are reversing the criminal street gang
conspiracy conviction in count 2, the 15 percent limitation does
not apply.
Because we are remanding for a full resentencing, the trial
court is directed, on remand, to correct the foregoing errors and
recalculate Saucedo’s custody credits.
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DISPOSITION
The judgment is affirmed in part and reversed in part.
Saucedo’s conviction for violation of Penal Code section 182.5,
and the attached section 12022, subdivision (a)(1) firearm
enhancement, are reversed. The matter is remanded for a full
resentencing, issuance of a new abstract of judgment, and
correction of the minute order, as set forth above. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
THOMAS, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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