People v. Medina CA2/5 ( 2015 )

Filed 2/5/15 P. v. Medina CA2/5
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B249059
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA118471)
v.
ENRIQUE MEDINA et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County, John A.
Torribio, Judge. Affirmed as modified.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant Enrique Medina.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant Michael Anthony Barrios.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant
Thomas Arellanes.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline and Taylor
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Enrique Medina, Michael Barrios, and Thomas Arellanes were
convicted, following a jury trial, of one count of first degree murder in violation of Penal
Code1 section 187, subdivision (a), and one count of attempted willful, deliberate and
premeditated murder in violation of sections 664 and 187, subdivision (a). The jury
found true the allegations that all three appellants committed the crimes for the benefit of
a criminal street gang within the meaning of section 186.22. The jury found not true the
allegation that Medina personally used a firearm in the commission of the offenses. The
jury found true the allegations as to Barrios and Arellanes that a principal was armed in
the commission of the offenses within the meaning of section 12022.53. The court
sentenced Medina to 40 years to life in state prison, consisting of 25 years to life in state
prison for the murder conviction, plus 15 years to life for the attempted murder
conviction pursuant to section 186.22. The court sentenced Barrios and Arellanes to total
terms of 82 years to life in state prison, consisting of 25 years to life for the murder plus
25 years to life for the firearm enhancement to the murder conviction plus 7 years to life
for the attempted murder conviction plus 25 years to life for the firearm enhancement to
the attempted murder conviction. The court stayed sentence on the gang enhancements
for Barrios and Arellanes.
Appellants appeal from the judgment of conviction, claiming numerous errors by
the trial court. Each appellant joins in the others’ contentions to the extent it accrues to
his benefit.
Medina contends there is insufficient evidence to support his conviction for
attempted murder, the trial court erred in instructing the jury on the kill zone theory of
liability, the prosecutor committed misconduct when arguing the kill zone theory, and the
trial court’s instructions on aiding and abetting contained multiple errors. Medina also
contends the trial court incorrectly calculated his presentence custody credits and the
abstract of judgment fails to show that his liability for direct victim restitution is joint and
several with Barrios and Arellanes.
1
Further statutory references are to the Penal Code unless otherwise indicated.
2
Barrios contends the trial court’s conduct was partisan and constituted misconduct,
the court gave incorrect and incomplete instructions on second degree murder, and the
court imposed restitution and parole revocation fines in unauthorized amounts.
Arellanes contends there is insufficient evidence to support his convictions, the
admission of text messages sent by Barrios violated Arellanes’s Sixth Amendment rights,
the trial court erred in failing to instruct the jury that it could convict him of the lesser
included offense of second degree murder, the trial court erred in instructing the jury on
the kill zone theory of liability, the prosecutor committed misconduct when arguing the
kill zone theory and the cumulative effect of the errors was prejudicial. Arellanes also
contends his presentence custody credits should be corrected.
Respondent agrees Medina and Arellanes are entitled to additional presentence
custody credits and the abstract of judgment should be corrected to show joint and several
liability for victim restitution. We agree as well, and order the credits and liability
corrected as set forth in more detail in the disposition. We affirm the judgment of
conviction in all other respects.
Facts
On November 1, 2010, Barrios lived with Sabrina Ruelas and their young son in
Pomona. Barrios’s half brother, Medina, also lived with them. When Ruelas came home
from work at 6:00 p.m. that day, Medina and Arellanes were at the house with Barrios.
The three men were members of the Brown Assassin gang. The men left together when it
began to get dark. Barrios drove a gold or light brown sports utility vehicle (“SUV”)
during that period of time.
At about 9:00 p.m. that night, Eric Caldera was in the front yard of a home on
Dork Street in Pico Rivera with some friends when a brown SUV, later identified as
Barrios’s SUV, stopped in front of the house. There were four occupants in the SUV.
One got out of the front passenger door and approached Caldera. Caldera did not know
the man, but described the man as being in his mid-twenties, Hispanic, 5’7” to 5’8” tall,
and “husky” or muscularly built, wearing a hoodie or jacket and gloves. The man asked
3
Caldera where he was from and about his “Valero” tattoo. Caldera responded that
“Valero” meant “love for the valley.” The man said “he had love for the valley” and
walked away. As he walked away, the man said, “Fuck Viejo.”
Pico Viejo is a gang in Pico Rivera. It was a rival of Brown Assassins.
Caldera initially identified Medina as the man who had approached him on
November 1. However, at trial, Caldera identified Barrios as the man who had
approached him.
Sometime later that evening, Medina, Barrios, and Arellanes arrived at Daniel
Perez’s house in Pico Rivera. At around 9:45 p.m., Medina, Barrios, and Perez drove to a
7-Eleven store in Barrios’s SUV to buy beer.
Medina entered the 7-Eleven to buy the beer while Barrios and Perez waited in the
SUV. While they were waiting, Barrios asked a bald-headed man which gang he was
from. After Medina returned to the car with the beer, the three men returned to Perez’s
house to drink. At some point, Barrios stepped outside to speak to someone on his cell
phone.
Medina, Barrios, and Arellanes left Perez’s house sometime around 10:30 p.m.
Perez saw Medina and Barrios give each other a “high-five[]” as they left the house.
About five to ten minutes later, Perez’s mother, Tina Perez, heard police sirens and
helicopters nearby.
Sometime after 10:00 p.m., Jacque Bustamante and his brother-in-law were
walking near the intersection of Rosemead Boulevard and Lindell Street in Pico Rivera
when an armed man approached them. He was holding a black semiautomatic weapon
near his waist. Bustamante described the man as being 5’8” to 5’10” tall, medium build,
and Latino. He was wearing a black beanie, black gloves, shorts and a pull-over hoodie
with blue or white lettering on the front and on the sleeves. Bustamante identified
Medina as the armed man in an out-of-court photo lineup and at trial.
Medina “hit up” Bustamante, asking him what gang he was from, because
Bustamante was wearing Pico Viejo gang colors (a Pittsburgh Steelers black and gold
T-shirt). Bustamante replied that he did not “gang bang.” Medina patted Bustamante’s
4
pockets and said that he was looking for drugs. Medina left after Bustamante said he was
not a gang member and did not have drugs, but returned less than a minute later. Medina
pointed the gun at Bustamante and accused Bustamante of lying to him. Medina said that
Bustamante was a Pico Viejo gang member know as “Popeye.” Medina said, “Fuck
Viejas” and eventually left the scene. Bustamante heard gunshots five to ten minutes
after he encountered Medina. Bustamante said the gunshots “sounded pretty close” by.
On November 1, Denise Elizalde was sitting outside her residence on Zola Avenue
in Pico Rivera with some friends. At about 10:30 p.m. that evening, she noticed a gold or
pewter SUV, later identified as Barrios’s SUV, drive up and down Zola Avenue slowly,
passing her house several times. Elizalde testified that the SUV had a sticker at the
bottom of the back window. After the SUV drove by Elizalde’s house the fourth time,
she noticed her neighbors, Ruth Rodriguez and Robert Velasquez, walking south on Zola
Avenue past her house. Elizalde went inside her house. Five to ten minutes later, she
heard several gunshots.
Rodriguez and Velasquez sat on a wall in front of Rodriguez’s house. They were
smoking marijuana when Rodriguez heard a gunshot and saw a street light go out. After
that, Rodriguez saw a brown or tan-colored SUV stop in front of her and Velasquez.
Rodriguez testified that the SUV had a sticker on the back window. Rodriguez also
noticed three men inside the car – the driver, front passenger, and rear passenger. The
men were wearing black or blue ski masks.
The front passenger pointed a gun out the window and fired several shots.
Rodriguez took cover behind the wall on which she was sitting, while Velasquez tried to
run away. When the gunfire stopped, the SUV drove off and Velasquez lay motionless in
Rodriguez’s front yard. Rodriguez believed the shooting occurred close to 11:00 p.m.
Los Angeles Deputy Sheriff Timothy Rashford received a “shots fired” call at
approximately 10:50 p.m., and he and his partner arrived at the crime scene within five to
ten minutes. Deputy Rashford saw Velasquez lying on his left side with what appeared to
be a gunshot wound to the chest. Deputy Rashford did not see any weapon on or around
Velasquez. Velasquez died from the gunshot wound to his chest.
5
Sheriff’s deputies recovered several .45-caliber bullets and nine expended
“Federal” .45-caliber shell casings from the crime scene. The shell casings extended for
three to four feet in a southerly direction. Ballistics tests showed that the shell casings
and bullets were fired from the same gun, likely a Springfield .45-caliber automatic pistol
or a Colt.
According to Ruelas, she woke up at about midnight and saw Barrios asleep in bed
next to her. She testified that a couple of hours before that, she heard Barrios and Medina
come home.
At about 4:00 a.m. on November 2, 2010, Pomona Police Officer Paul Fernandez
saw Barrios’s SUV parked in a driveway on Diana Avenue in Pomona. He watched the
SUV, saw headlights go on, and followed the SUV to a gas station, where the vehicle
stopped. Barrios and two other men were in the SUV.2 Barrios was arrested. Barrios
was placed in the back of a patrol car where he remained for several hours.
Deputy Kirk Halladay swabbed Barrios’s hands for gunshot residue (“GSR”) at
the time of his arrest. Later GSR testing showed that Barrios had particles characteristic
of GSR on his hands, indicating that he had handled a weapon, discharged a weapon, was
near someone who had fired a weapon, or had touched a source of GSR.
There were also particles consistent with GSR on the front passenger seat and
front passenger interior door handle. In addition, fingerprints belonging to Medina were
discovered on the front passenger exterior door handle.
Inside Barrios’s SUV, Detective Ken Perry found one unfired bullet on the left
rear passenger side floorboard. The bullet, a “Federal” .45-caliber, had been cycled
through the gun which fired the casings recovered at the murder scene. The bullet had
jammed and been ejected from the gun without being fired.
The front passenger area of Barrios’s SUV contained the DNA profile of at least
three different individuals. Arellanes was a possible contributor to the mixture of DNA
with a profile match probability being 1 in 8,097 individuals. Medina, however, was
2
The other men were not Arellanes or Medina.
6
excluded as a contributor to the mixture. As for a DNA mixture obtained from the right
rear passenger area inside Barrios’s SUV, Arellanes and Medina were both included as
possible contributors to the mixture. The DNA profile match probability for Medina was
1 in 24 individuals, and 1 in 149 individuals for Arellanes. As for a DNA mixture
obtained from the left rear passenger area inside Barrios’s SUV (behind the driver),
Arellanes and Medina were both excluded as possible contributors to that mixture.
Sheriff’s deputies searched Barrios’s and Medina’s home the day after the
shooting. Inside Barrios’s bedroom, deputies found a black ski cap and a blue bandana.
Both items contained particles consistent with GSR.
Inside Medina’s bedroom, deputies found a box containing various types of
bullets, including .45-caliber bullets, pictures of people flashing gang signs with “Brown
Authority” written on them, a dark blue jacket, and a black bandana. The jacket and
bandana tested positive for GSR particles.
On November 3, 2010, sheriff’s deputies arrested Medina in Ontario. The black-
hooded sweatshirt that Medina was wearing tested positive for GSR particles.
That same day, deputies arrested Arellanes in El Monte. Arellanes tried to flee
from the deputies prior to his arrest.
Data downloaded from the cell phones belonging to Barrios, Medina, and
Arellanes showed several communications between the three men on November 2,
between 4:36 a.m. and 5:37 a.m. At 7:13 a.m., Barrios sent Arellanes a text message that
read, “Go buy [sic] bye. Call Devil.”
Cell tower data evidence showed that on November 1, at 10:35 p.m., Barrios’s cell
phone was using a cell tower that was about one and one-half miles from the crime scene.
Similarly, Arellanes’s cell phone was using a cell tower that was about two miles from
the crime scene at 10:10 p.m. on November 1.
According to Daniel and Tina Perez, several days after the shooting, Barrios went
to their house with two Brown Assassins gang members – “Villain” and “Youngster.”
Barrios told Daniel Perez, “[D]on’t talk to the cops,” and instructed Tina Perez to “keep
[her] mouth shut.”
7
Julio Lucas told detectives in an interview that Barrios called him on the night of
the shooting and asked about police activities in the area of the shooting. Barrios
instructed Lucas to “go in there and check what’s going on ‘cause I know for sure
something happened in there. Go in there and see what’s going on. Are the cops there?”
Lucas stated, “Basically he wants me to go confirm if someone is dead. That’s what it
was. That’s what it came down to. Because he didn’t tell me, oh go see – he told me,
check it out, see what’s going on in there. And then I told him, well what’s up? What
you guys do? What’s going on? And he was like, well that’s why I want you to go
check, to see what’s going on.” A week after the shooting, Barrios told Lucas that “Red”
(Daniel Perez) was “snitching,” and that Lucas needed to “[f]ucking control him and tell
him not to fucking open his mouth.”
The Velasquez murder occurred in Pico Viejo territory. In response to a
hypothetical question that mirrored the circumstances of the shooting in this case, the
gang expert opined the crimes were gang-related, and were committed in association with
and benefited the Brown Assassins gang.
At trial, appellants called several witnesses for the defense.
Medina called Deputy Leticia Reynoso, Deputy Stephanie Mandujano, and
Nicholas Cazares as witnesses on his behalf. Deputy Reynoso testified that when she
interviewed Elizalde, Elizalde stated that she was inside her house at the time of the
shooting. Elizalde did not mention that she saw an SUV with a sticker before the
shooting.
Deputy Mandujano testified that she interviewed Bustamante on November 1, and
he stated that the gunman who approached him wore a white T-shirt and a black beanie,
not a black hoodie. Bustamante did not say the gunman walked with a limp. Medina’s
longtime friend Nicholas Cazares testified that Medina had scoliosis, and he walked with
a crooked gait.
Cazares also testified that Medina came to his house in Ontario at around 11:00
p.m. on November 1, and they drank beer and played video games until 3:00 a.m.
8
Cazares specifically recalled that Medina came to his house the night before the police
searched the house. However, evidence showed that the search occurred on November 3.
Barrios called Eduardo Garcia, his employer, to testify on his behalf. Garcia
confirmed Barrios worked for his construction company. Barrios used a powder-actuated
nail gun daily. Garcia stated it was not uncommon for workers to wear ski caps when the
weather was cold and bandanas as a dust mask.
Discussion
1. Judicial misconduct
Barrios contends the trial court repeatedly injected its own objections into the trial
and made rulings in front of jurors that demonstrated the court’s disregard for Barrios’s
counsel. He contends that the trial court’s lack of impartiality constituted misconduct.
Barrios did not object to the court’s conduct during trial.
“As a general rule, judicial misconduct claims are not preserved for appellate
review if no objections were made on those grounds at trial.” (People v. Sturm (2006) 37
Cal.4th 1218, 1237.) A defendant’s failure to object does not prevent review if an
objection would have been futile. (Ibid.)
Barrios contends objections would have been futile because the trial court was
committed to an “aggressively active” role in the trial. He also points out that the trial
court refused numerous requests by his counsel for sidebars. He contends that if the
claim is forfeited, he received ineffective assistance of counsel.
We agree with Barrios in part. The court did consistently take an active role in the
questioning of witnesses, and did refuse many of counsel’s requests for sidebars. An
objection to the court’s active role in proceedings would no doubt have been futile.
Accordingly, we will review Barrios’s claim.
a. Applicable law
“‘The object of a trial is to ascertain the facts and apply thereto the appropriate
rules of law, in order that justice within the law shall be truly administered.’ [Citation.]
9
To this end, ‘the court has a duty to see that justice is done and to bring out facts relevant
to the jury’s determination.’ [Citation.] The trial court has a statutory duty to control
trial proceedings, including the introduction and exclusion of evidence. [Citation.] As
provided by section 1044, it is ‘the duty of the judge to control all proceedings during the
trial, and to limit the introduction of evidence and the argument of counsel to relevant and
material matters, with a view to the expeditious and effective ascertainment of the truth
regarding the matters involved.’” (People v. Sturm, supra, 37 Cal.4th at p. 1237.)
Concerning examination and cross-examination of witnesses, the trial court has a
duty to “exercise reasonable control over the mode of interrogation of a witness so as to
make such interrogation as rapid, as distinct and as effective for the ascertainment of
truth, as may be . . . .” (Evid. Code, § 765, subd. (a); see People v. Carlucci (1979) 23
Cal.3d 249, 255 [the trial court has a duty to ensure ambiguities and conflicts in the
record are resolved to the extent possible].) A trial court has broad discretion in
controlling the scope of cross-examination. (People v. Lancaster (2007) 41 Cal.4th 50,
102.)
“However, ‘a judge should be careful not to throw the weight of his judicial
position into a case, either for or against the defendant.’ [Citation.]” (People v. Sturm,
supra, 37 Cal.4th at p. 1237.) “Trial judges ‘should be exceedingly discreet in what they
say and do in the presence of a jury lest they seem to lean toward or lend their influence
to one side or the other.’ [Citation.] A trial court commits misconduct if it ‘“persists in
making discourteous and disparaging remarks to a defendant’s counsel and witnesses and
utters frequent comment from which the jury may plainly perceive that the testimony of
the witnesses is not believed by the judge.”’ [Citations.]” (Id. at pp. 1237-1238.)
b. Elizalde
Barrios contends the trial judge twice improperly curtailed his cross-examination
of prosecution witness Elizalde and thereby improperly interfered with his ability to
present a defense. We do not agree.
10
Barrios contends the trial court first interfered when defense counsel was
attempting to demonstrate on cross-examination that Elizalde was being untruthful about
her relationship with the victim and his father. The trial court interrupted counsel as he
began to ask Elizalde if she knew that the victim’s father was a member of the Pico Viejo
gang. The court stopped counsel before he could make the gang reference.
If anything, the court was trying to help defense counsel, not hinder him. Outside
the presence of the jury, the court pointed out that counsel and his cocounsel had moved
to restrict the amount of gang activity that would come out during trial, but that counsel’s
question would open the door to more gang evidence. The court stated: “I’m just
advising you that you are opening a door. If you want to open it, that is your call.” The
court added: “I’m not here to stop you from examining. You are misunderstanding.”
Once the jury returned, defense counsel asked Elizalde; “But you know that his father
was involved with Pico Viejo?” The witness replied that she did not.
Defense counsel then began to impeach Elizalde on this topic, using her
preliminary hearing testimony. After counsel read a series of eight questions and
answers, the trial court stated; “At this time I’m going to sustain my won [sic] objection
under section 352 , and I’ll ask you to terminate now. Your record is made.”
There was no improper interference from the court. As the subsequent discussion
outside the presence of the jury made clear, the court mistakenly believed that the
evidence about Pico Viejo was in the record. When the trial court learned from defense
counsel that the Pico Viejo evidence was not yet part of the record, the court permitted
defense counsel to proceed. Defense counsel then read the preliminary hearing testimony
in which Elizalde testified that she called a relative to get in touch with the victim’s
family because that person “hangs out or knows people” from the Pico Viejo gang.
11
c. Ruth Rodriguez
Barrios contends the trial court abandoned its neutral position by reviewing key
testimony with Rodriguez before she testified and later improperly curtailed cross-
examination of Rodriquez about her marijuana use. We do not agree.
Taken in context, the trial court’s brief summary of Rodriguez’s expected
testimony cannot be reasonably understood as improperly “reviewing” her testimony with
her. The court was questioning Rodriquez because she did not want to testify at trial.
The court’s brief summary of Rodriguez’s testimony was part of an effort by the court to
convince Rodriguez that she would not be a “snitch” if she testified, because she did not
see the shooter and was not naming anyone. The judge told Rodriguez several times that
he just wanted her to “say what you saw that night” and “say what happened out there”
and “tell us what happened that night.” There is nothing improper in that. Further, it
seems very unlikely that the witness misunderstood the court as suggesting that she
testify in a certain way or was somehow unconsciously influenced to testify in the
manner summarized by the court, since she did not testify that the shooter was in a gold
SUV. She testified that the shooter was in a little car and she did not remember the
color.3
The trial court did not improperly curtail counsel’s cross-examination of
Rodriguez. There was no dispute that Rodriguez had smoked marijuana earlier in the
evening. The line of questioning which the court interrupted involved Rodriguez’s intent
to smoke marijuana again that night. Counsel addressed the issue slowly and obliquely,
eventually asking the somewhat argumentative question: “If had you [sic] already
smoked it, why did you need to smoke it again?” Counsel’s reason for inquiring about
this planned activity is not clear, and he did not attempt to clarify it for the trial court. If
Rodriguez was planning to smoke marijuana again, it would be reasonable to infer that it
was because she was not under the influence of the earlier marijuana at the time of the
shooting, an inference which would not be favorable to the defense since it would
3
She was impeached with her preliminary hearing testimony that the vehicle was a
light tan SUV.
12
increase the likelihood that her description of the SUV was accurate. The trial court did
not abuse its discretion in curtailing the cross-examination.
d. Reynoso
Barrios contends the trial court improperly curtailed his cross-examination of
Deputy Reynoso, a witness called by Medina. We do not agree.
Deputy Reynoso had interviewed Elizalde shortly after the shooting, and Elizalde
did not mention that she had seen an SUV with a sticker before the shooting. Barrios’s
counsel asked the deputy: “[W]hen you go to do a canvass--” The court interrupted and
told counsel that he could not question the deputy about “her standards and procedures.”
The court nevertheless permitted Barrios’s counsel to ask the deputy about her training in
conducting interviews as part of a canvass, and whether she followed those procedures in
interviewing Elizalde. Thus, Barrios has not shown how the trial court’s ruling curtailed
his cross-examination in any meaningful way.
e. Daniel Perez
Barrios contends the trial court improperly curtailed his cross-examination of
prosecution witness Daniel Perez. We do not agree.
Defense counsel asked Perez if he had “an exact memory of these events?” Perez
replied, in part, “I don’t remember what time it was or like none of that . . . .” Defense
counsel then asked, “Do you have a memory about the time things happened and the
dates that they happened?” Perez replied, “No.” Counsel then asked if he had “an exact
memory about the order that things happened?” The court asked what things counsel was
referring to, and counsel replied, “Any events that he has testified to.” The court then
sustained its own objection that the question was vague and ambiguous. The court asked,
“Are you talking about from the beginning of the his testimony to the then end?”
Counsel replied that he was talking about “a one- to three-day period.” The court then
sustained its own objection that the question was overbroad.
13
The trial court’s objections were accurate. The trial court has a duty to “exercise
reasonable control over the mode of interrogation of a witness so as to make such
interrogation as rapid, as distinct and as effective for the ascertainment of truth, as may
be . . . .” (Evid. Code, § 765, subd. (a); see People v. Carlucci, supra, 23 Cal.3d at p. 255
[the trial court has a duty to ensure ambiguities and conflicts in the record are resolved to
the extent possible].)
Perez readily admitted that he did not have a good memory of the dates and times
of events. The dates and times of the key events in Perez’s testimony were shown
through other evidence. The 7-11 incident was captured by a security video with a date
and time stamp. The time appellants left Perez’s house was shown by the testimony of
Perez’s mother. Nothing in the court’s objections precluded defense counsel from asking
more specific questions, such as did event X happen before or after event Y. Barrios has
not shown that the court’s objections curtailed his cross-examination in any meaningful
way.
f. Lucas
Barrios contends the trial court improperly curtailed cross-examination of Julio
Lucas, called by the prosecutor but hostile to both sides. We do not agree.
During the early part of the prosecutor’s examination of Lucas, defense counsel
requested a sidebar and stated that the witness was clearly lying. The prosecutor agreed.
The court agreed that the parties could impeach Lucas. The prosecutor sought and
received permission to play a taped interview of Lucas to impeach him. Barrios contends
that “equal-handed treatment” required that he be permitted to impeach Lucas with his
prior convictions for unlawfully possessing a handgun and selling drugs. Barrios never
expressly sought permission for such impeachment.
Counsel did ask Lucas about his prior conviction for possessing a handgun. Lucas
acknowledged the conviction. If counsel wished to next impeach Lucas with a prior
conviction for selling drugs, he could have asked him about such a conviction. He did
not. Instead, counsel asked Lucas about drug sales, which Lucas denied. After Lucas’s
14
second denial, the trial court said, “Counsel, under 352, I will ask you to move on.” The
court acted properly in terminating a line of repetitive questioning which was time
consuming and unproductive.
The taped interview played by the prosecution demonstrated that Lucas was not
truthful. The jury was aware that Lucas had a criminal conviction for possessing a
handgun. Lucas was thoroughly impeached even without evidence of a conviction for
drug sales, assuming such a conviction occurred.
g. Tina Perez
Barrios contends the trial court improperly foreclosed him from impeaching Tina.
We do not agree.
Barrios first contends that the trial court improperly curtailed his attempts to
impeach Tina with her prior convictions. Barrios’s counsel was able to impeach Tina
with a prior conviction for child abuse, and a prior conviction for petty theft.
The court only intervened when counsel attempted to question Tina about two
convictions for violating section 148, but counsel’s question showed that he was
unfamiliar with the nature of the conviction. He asked, “you have two convictions of
California P.C. 148. Is that resisting arrest or giving false information to a police
officer?” The court found this was improper impeachment.
Resisting arrest is a violation of section 148, but whether it is a crime of moral
turpitude would depend on the underlying facts of Tina’s offense. Counsel’s question
indicates he was not aware of those facts. Giving false information to a police officer
would be a crime of moral turpitude, but not a violation of section 148. (See §§148.3,
[false report of emergency]; 148.5 [false report of criminal offense]; 148.9 [giving false
identification to police].) Counsel made no attempt to explain how the underlying facts
of the offense(s) qualified as crimes of moral turpitude, and given his question it seems
unlikely he could have done so.
Barrios next contends the court improperly curtailed his attempts to impeach Tina
with prior inconsistent statements and testimony. Here, too, Barrios’s counsel was able
15
to impeach Tina with prior testimony. The court only intervened when counsel’s
questions became confusing and possibly repetitive and counsel was unable to articulate
the relevancy of the questions.
Counsel asked Tina numerous questions about previous statements and testimony.
She generally replied that she did not remember. Counsel then asked Tina if she had
testified at the preliminary hearing that her son was a gang member. When she denied
this, counsel read her testimony from the preliminary hearing transcript, in which she
admitted her son was a gang member. Counsel then started to ask another, somewhat
convoluted question about Tina’s preliminary hearing testimony, and it was at this point
the court intervened. Counsel was unable to address the court’s concerns about the
questions, and the court instructed counsel to move on.
Following a series of questions about children in the neighborhood who were in
tagging crews and gangs, the court told counsel to come to a sidebar. The court opined
that counsel’s questions were “meandering with no focus” and asked what the relevance
of the questions were, given that “we know she lives in a gang neighborhood.” Counsel
did not make a relevancy argument. The court then told counsel, “I just want to make
sure you have a record. I’m not trying to cut you off.” Counsel replied, “I don’t think
you are cutting me off. I think you have good points.”
h. Paul Fernandez
Barrios contends the trial court improperly curtailed his cross-examination of
Officer Paul Fernandez. We do not agree.
Barrios contends the court prevented him from questioning Fernandez about how
he held/used his flashlight, whether Fernandez searched Barrios’s SUV and who relieved
Barrios at the gas station. Barrios contends these questions were relevant to the delay in
the discovery of a .45-caliber round in the SUV.
It was undisputed that Fernandez did not search the SUV. Counsel was permitted
to ask Fernandez if he ever “even peer[ed]” into the SUV. Fernandez replied that he did
not. Fernandez agreed that visibility was not difficult at the gas station and he was
16
carrying a flashlight. The court found the manner in which Fernandez carried a flashlight
was not relevant. The court was correct. Barrios established that the gas station was well
lit and Fernandez had a flashlight, but did not search the SUV. There is no apparent
relevance to how Fernandez carried the flashlight.
Counsel was permitted to ask Fernandez if he was relieved by Sergeant Perry at
8:30 a.m. Fernandez replied that he did not remember. Fernandez did agree that he was
relieved after sunrise. Counsel was not permitted to attempt to refresh Fernandez’s
recollection as to the name of the officer who relieved him. Whether Fernandez
remembered Perry’s name or not, there was no dispute that Sergeant Perry came to the
gas station the next morning and stated that he discovered the round at that time. There is
no apparent relevance to the fact that Perry relieved Fernandez.
i. Eric Caldera
Barrios contends the court improperly limited his cross-examination of Caldera
concerning Caldera’s convictions. We do not agree.
At some point, the prosecutor provided defense counsel with a list of convictions
for Eric Caldera. When counsel asked Caldera about the first conviction on the list, for
mail fraud, Caldera denied that he had suffered such a conviction. The prosecutor asked
for a sidebar, and explained that he did not know if all the convictions on the list were for
the witness Eric Caldera. The prosecutor represented that he was certain the witness had
been convicted of felony vandalism, burglary and petty theft. The court ruled that
defense counsel could ask about the burglary and petty theft convictions, which were
“clean,” and showed dishonesty, and would make it clear that Caldera was a convicted
felon.
It was clear that defense counsel had not verified that the listed convictions were
suffered by the witness Caldera. Thus, any questions about other convictions would have
been a fishing expedition. The trial court acted reasonably in limiting the questioning to
verified convictions, particularly since those convictions showed dishonesty. Even
assuming the trial court should have granted counsel a little more leeway, there is nothing
17
in the record to show that the fishing expedition would have been successful and thus
nothing to show prejudice.
j. Wayne Holston
Barrios contends the trial court improperly curtailed his cross-examination of
Detective Wayne Holston concerning Caldera’s failure to select Barrios from a six-pack
photographic line-up. We do not agree.
Barrios identifies three areas where his cross-examination was curtailed: (1) the
basics of eyewitness identification; (2) Holston’s opinion about Caldera’s suggestibility;
and (3) whether Holston got the impression that Caldera thought the vehicle he saw was a
clunker.
When defense counsel sought to question Holston about the “basics” of
eyewitness identification, the court ruled the questioning was beyond the scope of direct
and that Holston was not an identification expert. The court was correct. Simply being a
police officer does not make one an expert in eyewitness identification.
The court found that Holston’s opinion about Caldera’s suggestibility would be
“speculation.” Defense counsel did not lay any foundation to show that Holston had any
expertise in evaluating the personalities of witnesses. Holston’s personal opinion, if he
had one, was not relevant. The court also found that Holston’s “impression” that Caldera
believed the vehicle he saw was a “clunker” would be speculation. Barrios offers no
explanation of how it could be otherwise. Holston had no special ability to read
Caldera’s mind. Further, whether Caldera thought the vehicle was a clunker or not was
simply irrelevant.
k. GSR expert
Barrios contends the trial court improperly curtailed his cross-examination of GSR
expert Katrina Fritz on the topics of cartridge based nail guns and GSR transference. We
do not agree.
18
Before Barrios’s cross-examination began, Fritz testified that “consistent with
GSR” particles containing one or two elements could come from firearms but could also
come from many sources other than firearms. One source of “consistent with GSR”
particles is cartridge based nail guns. Barrios contends he presented evidence that he and
his coworkers used cartridge based nail guns and so the trial court acted improperly in
preventing him from asking the GSR expert if she was aware of what he did for a living.
He contends that his next question would have been whether the expert’s opinion
changed in any way knowing that Barrios worked with a nail gun. The court found the
question lacked foundation. Technically, the question was attempting to lay a
foundation. However, Fritz was a prosecution witness and Barrios had not yet presented
his defense evidence. Thus, it appears Barrios would have been unable to lay a
foundation.
Counsel was able to ask a hypothetical question on this subject, as follows: “If
you are doing construction work and you are around a lot of different chemicals, a lot of
different types of metals, could that be consistent with GSR also rubbing against it while
working?” Fritz replied: “There are consistent particles that are produced by certain
construction materials, such as cartridge based nail guns. [¶] The consistent particles
lead and barium are produced in certain nail gun based cartridges. Those are also
produced in GSR.” Thus, if counsel later introduced evidence that cartridge based nail
guns were used at Barrios’s job, there would be an explanation for the “consistent” two
particle GSR found on Barrios and his belongings.
We note that “characteristic GSR” particles containing three elements were also
found on Barrios’s hands. This was the more incriminating GSR evidence, since
“characteristic GSR” particles only come from guns. Showing that Barrios worked with
cartridge based nail guns would not explain the presence of the “characteristic GSR”
particles.
19
l. Opening statement
Barrios contends the trial court acted improperly in calling for a sidebar during
counsel’s opening statement and then ruling that counsel could not mention the contents
of rumors in the community following the shooting.
There was no impropriety. The court was correct that the contents of the rumors
would be hearsay. Defense counsel did not identify any exception to the hearsay rule.
There is nothing to suggest any disrespect by the court to Barrios’s counsel. Moreover,
counsel for codefendant Arellanes objected that the contents of the rumors would be
prejudicial to his client, so the court was not alone in believing it inappropriate to delve
into the contents of the rumors.
2. Murder instructions
Barrios contends the trial court erred in modifying CALCRIM Nos. 520 and 521
by deleting certain references to second degree murder, and by failing to instruct the jury
that second degree murder included an unpremeditated murder with express malice.
Arellanes separately contends the trial court erred in failing to fully instruct the jury on
second degree murder. There was no error.
a. Forfeiture
Respondent contends appellants have forfeited these claims by failing to object to
the trial court’s instructions or to request clarification or amplification of those
instructions. We do not agree.
The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request.” (People v. Blair (2005) 36 Cal.4th 686, 744.) This duty includes a requirement
to instruct on “lesser included offenses is there is evidence that, if accepted by the trier of
fact, would absolve the defendant of guilt of the greater offense but not the lesser.” (Id.
at p. 745.) Appellants’ claims are essentially that the trial court failed to fulfill this
obligation.
20
b. CALCRIM Nos. 520 and 521
Barrios is mistaken in his claim that the trial court modified CALCRIM Nos. 520
and 521.
Trial in this matter took place in November 2012. The trial court used the then
current versions of CALCRIM Nos. 520 and 521. The court did not delete any references
to second degree murder. The versions of CALCRIM Nos. 520 and 521 quoted by
Barrios in his brief are the 2013 versions of the instructions. They did not exist at the
time of trial.
We will treat Barrios’s claim as a claim that the previous version of CALCRIM
Nos. 520 and 521 used by the trial court were not accurate statements of the law because
they did not tell the jury that murder is “presumptively” in the second degree and that if
the prosecutor fails to prove the murder is in the first degree, it is “by default” the lesser
offense of second degree murder.
“When considering a claim of instructional error, we view the challenged
instruction in the context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner. [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
We see no such likelihood.
The version of CALCRIM No. 520 used by the trial court was titled, “First or
Second Degree Murder with Malice Aforethought” and stated that if a defendant killed
another person with malice aforethought, he was guilty of murder. It then stated that if
the jury decided that the defendant committed murder, it “must then decide whether is it
murder of the first or second degree.” The version of CALCRIM No. 521 used by the
trial court told the jury there were two theories of first degree murder in the case, and “the
People have the burden of proving beyond a reasonable doubt that the killing was first
degree murder rather than a lesser crime. If the People have not met this burden, you
must find the defendant not guilty of first degree murder.” It necessarily follows that, if
21
the People proved the defendant was guilty of murder but failed to prove either of the
first degree murder theories, the defendant was guilty of second degree murder.4
The 2013 versions of CALCRIM Nos. 520 and 521 referenced by Barrios make
explicit what was implicit in the earlier versions. The 2103 version of CALCRIM No.
520 ends by telling the jury that if they “decide that the defendant committed murder, it is
murder of the second degree unless the People have proved beyond a reasonable doubt
that it is murder of the first degree . . . .” The 2013 version of CALCRIM No. 521 ends
by telling the jury, “The People have the burden of proving beyond a reasonable doubt
that the killing was first degree murder rather than a lesser crime. If the People have not
met this burden, you must find the defendant not guilty of first degree murder and the
murder is second degree.” While these changes are undoubtedly improvements, the
changes do not mean that the previous versions were inaccurate or incomplete.
c. Second degree murder
Barrios contends the evidence supported a theory of an unpremeditated murder
with express malice, which is second degree murder, and the trial court erred in failing to
instruct the jury on express malice second degree murder as a lesser included offense.5
We do not agree.
4
Arellanes contends that because the instruction used the term “lesser crime” but
failed to explicitly tell the jury that second degree murder was the “lesser crime,” the jury
would have had no means of finding the defendants guilty of second degree murder. That
is a not a reasonable reading of the instructions. In context, “lesser crime” clearly refers
to second degree murder. Further, even if the instructions were ambiguous on this issue,
CALCRIM No. 640, which explained the verdict forms in this case, expressly told the
jury that “if all of you agree that the defendant is not guilty of first degree murder but also
agree the defendant is guilty of second degree murder, complete and sign the form for . .
. guilty of second degree murder.”
5
To the extent Arellanes contends the instructions fail to define implied malice
second degree murder, he is mistaken. The jury was instructed on the definition of
implied malice and that a killing with implied malice was murder. The jury was further
instructed that additional facts such as premeditation and deliberation were required to
make the murder in the first degree. These instructions together adequately described the
offense of second degree implied malice murder.
22
It was undisputed that the shots were fired from a motor vehicle. The jury was
correctly instructed that if those shots were fired with an intent to kill, the shooter was
guilty of first degree murder. (§ 189 [“any murder which is perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another person outside the
vehicle with the intent to inflict death, is murder of the first degree.”].) Since there was
no evidence that the shots were fired from a location other than a motor vehicle, there
was no evidence to support a theory of second degree express malice murder.
Even assuming the jury speculated that the shots were fired from another location,
CALCRIM No. 520 told the jury that second degree murder could be committed with
express malice. The instruction was titled, “First or Second Degree Murder with Malice
Aforethought.” The instruction first told the jury that in order to find the defendant guilty
of the crime of murder, the jury must find that he acted with malice aforethought. The
instruction also explained that there were two kinds of malice: express or implied. The
instruction concluded by telling the jury that if it decided that a defendant committed
murder, then the jury had to decide if the murder was first degree or second degree
murder. Thus, the instruction clearly told the jury that second degree murder could be
committed with express malice. It is unreasonable to read the instruction otherwise.
Appellants’ reliance on People v. Rogers (2006) 39 Cal.4th 826 to show error is
misplaced. In that case, the trial court gave two general instructions on murder plus a
specific instruction on willful, deliberate and premeditated first degree murder and
CALJIC No. 8.31, which instructed the jury on second degree implied malice murder.
The court did not give CALJIC No. 8.30 on second degree express malice murder. (Id. at
p. 866.) Thus, the trial court’s instructions inadvertently emphasized the implied malice
form of second degree murder. The instructions in this case gave no such emphasis to
one form of second degree murder. Further, the Supreme Court rejected the defendant’s
claim that the instructions might have caused the jury to convict him of first degree
murder if it found that the killing was intentional but not premeditated because the
instructions gave no viable option to convict him of second degree murder for such a
killing. The court held that nothing in the instructions “precluded the logical conclusion
23
that if defendant intended to kill, he acted with ‘wanton disregard for life’ or knew that
‘his conduct endangered the life of another’ and acted ‘with conscious disregard for
human life.’ Thus, the instructions, reasonably understood, did not preclude a finding of
second degree murder if the jury believed the killing was intentional.” (People v. Rogers,
supra, 39 Cal.4th at pp. 868-869.) The same is true here.
3. Attempted murder – kill zone
Medina and Arellanes contend there is insufficient evidence that they intended to
kill Rodriguez and so insufficient evidence to support their conviction for her attempted
murder. They contend the evidence shows only that they intended to kill Velasquez.
They further contend that since there was no evidence to support the kill zone theory of
liability, the trial court erred in instructing the jury on that theory, and their attempted
murder conviction cannot be upheld under that theory.
a. Applicable law
“In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] [I]f the circumstances reasonably justify the jury's findings, the judgment may
not be reversed simply because the circumstances might also reasonably be reconciled
with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate a
witness’s credibility. [Citations.]” (People v. Nelson (2011) 51 Cal.4th 198, 210
[internal quotation marks omitted].)
24
A trial court has a “’duty “to refrain from instructing on principles of law which
not only are irrelevant to the issues raised by the evidence but also had the effect of
confusing the jury or relieving it from making findings on relevant issues.” [Citation.]
“It is an elementary principle of law that before a jury can be instructed that it may draw
a particular inference, evidence must appear in the record which, if believed by the jury,
will support the suggested inference [citation].” [Citation.]’ (People v. Sadler (1979) 24
Cal.3d 671, 682.)” (People v. Alexander (2010) 49 Cal.4th 846, 920-921.)
b. Intent required for attempted murder
In order for a defendant to be convicted of attempted murder, there must be
evidence the defendant had the specific intent to kill the victim. (People v. Stone (2009)
46 Cal.4th 131, 136.) If there are multiple victims, the prosecution must prove the
defendant intended to kill each victim. (People v. Smith (2005) 37 Cal.4th 733, 739.)
The doctrine of transferred intent does not apply to the offense of attempted murder.
(People v. Bland (2002) 28 Cal.4th 313, 317.) However, “a shooter may be convicted of
multiple counts of attempted murder on a “kill zone” theory where the evidence
establishes that the shooter used lethal force designed and intended to kill everyone in an
area around the targeted victim (i.e., the ‘kill zone’) as a means of accomplishing the
killing of that victim.” (People v. Smith, supra, 37 Cal.4th at pp. 745-746; People v.
Bland, supra, 28 Cal.4th at pp. 329-330.)
The kill zone theory is “’simply a reasonable inference the jury may draw in a
given case.’” (People v. Smith, supra, 37 Cal.4th at p. 746.) When “a defendant who
intends to kill A, and in order to ensure A’s death, drives by a group consisting of A, B,
and C, and attacks the group with automatic weapon fire or an explosive device
devastating enough to kill everyone in the group . . . [t]he defendant has intentionally
created a kill zone to ensure the death of his primary victim. . . .” (People v. Bland,
supra, 28 Cal.4th at p. 330.) A jury may “reasonably infer from the method employed an
intent to kill others concurrent with an intent to kill the primary victim.” (Ibid.) When,
for example, a defendant uses “a hail of bullets” aimed at a group containing the target
25
rather than “a single bullet aimed at” the target’s head, the jury can infer that the
defendant “intended to kill everyone in A’s immediate vicinity to ensure A’s death.” (Id.
at p. 330.)
Here, the shooter fired at least nine shots at Velasquez and Rodriguez, who were
sitting directly next to each other on a wall in front of Rodriguez’s house. A tree and
three cars near their location were hit by gunfire. Thus, the evidence shows a “hail of
bullets” aimed at both Velasquez and Rodriguez, not a “single bullet” aimed at Velasquez
alone. The jury could reasonably have inferred that appellants intended to kill Rodriguez
concurrently with Velasquez. Thus, there is sufficient evidence to support appellants’
convictions for the attempted murder of Rodriguez.
Appellants contend the evidence shows the shooter “took aim” at Velasquez and
continued shooting at him alone as he ran up the street and thus did not create a kill
zone.6 There is no direct evidence that Velasquez ran up and down the street. Rodriguez
saw Velasquez get off the wall when the shooting started, but did not see where he went.
The shooting lasted only a few seconds and when it stopped, Rodriguez saw Velasquez in
her front yard, lying on the ground. Thus, it does not seem reasonable to infer that he ran
up and down the street while the shots were being fired. However, even if the jury could
have reasonably inferred that Velasquez ran up and down the street and the line of
cartridges showed that the car was following him and so shooting only at him, that would
not require not require reversal of the judgment. (People v. Nelson, supra, 51 Cal.4th at
p. 210 [“if the circumstances reasonably justify the jury’s findings, the judgment may not
be reversed simply because the circumstances might also reasonably be reconciled with a
contrary finding”].)
6
Appellants also contend that since Rodriguez dropped behind the wall once the
shooting started, she was not in any kill zone. We see no significance to the fact that
Rodriguez took shelter behind the wall after the shooting started. The precise timing of
Rodriguez’s movement from the top of the wall to the rear of the wall is not certain,
although given the rapid succession of the shots fired, it is doubtful she actually made it
behind the wall before the shooting ended. Even assuming that she did, she was still in
the area where the shots were being fired, and thus still in the kill zone.
26
We note that appellants’ attack on the sufficiency of the evidence relies in part on
statements by the prosecutor, in which appellants contend the prosecutor effectively
conceded there was insufficient evidence to support the kill zone theory. They point to
statements such as “the target in this case is Robert,” “the evidence doesn’t show they are
trying to kill Ruth” “the shooter is unloading, and if Ruth gets in the way, that’s just
collateral damage,” “this isn’t shooting in the air . . . [t]his is, I’ve acquired a target
[Velasquez], the target is running and so I’m going to keep shooting at the target because
I want to put the target down,” and “[t]hey are trying to kill the enemy, and if somebody
else gets in the way, oh well.” Appellants also contend these remarks are misstatements
of the law.
We discuss the challenged remarks in more detail in subsection d below, in which
we consider appellants’ claim of prosecutorial misconduct. As relevant to appellants’
sufficiency of the evidence argument, we do not view the prosecutor’s remarks as
concessions. Appellants have taken most of the remarks out of context. The prosecutor’s
statement that the evidence did not show appellants were trying to kill Ruth, for example,
was part of the prosecutor’s argument that Velasquez was the primary target, and was
selected because he looked like a gang member. Ruth, in contrast, was not the primary
target. More importantly, the prosecutor was at most arguing his view of the evidence
and inferences to be drawn therefrom, and the jury was not bound by that argument.
Neither are we.
c. Court’s instruction
Since there was sufficient evidence to show that appellants intended to kill
Rodriguez in order to kill Velasquez, the court did not err in instructing the jury on the
kill zone theory of liability for attempted murder. The court used CALCRIM No. 600 to
instruct the jury on this theory, and appellants do not claim there is any flaw in that
instruction.
27
d. Prosecutorial misconduct
Appellants contend the prosecutor committed misconduct by misstating the law
concerning the kill zone theory of liability. Respondent contends that appellants have
forfeited this claim by failing to object to the prosecutor’s statements and request an
admonition. We agree that the claim has been forfeited.
Appellants contend that if their claims are forfeited, they received ineffective
assistance of counsel. An appellant has the burden of proving ineffective assistance of
counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim,
an appellant must show that his counsel's performance fell below an objective standard of
reasonableness, and that, but for counsel's error, a different result would have been
reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694;
People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
A prosecutor is given wide latitude during closing argument. (People v. Harrison
(2005) 35 Cal.4th 208, 244.) However, it is misconduct for a prosecutor to misstate the
applicable law. (People v. Boyette (2002) 29 Cal.4th 381, 435.)
When a statement by the prosecutor is challenged as misconduct, the reviewing
court examines the prosecutor’s statement in the context of the whole argument and all
the instructions in order to determine whether there is a reasonable likelihood the jury
construed or applied the statement in an objectionable way. (People v. Hill (1998) 17
Cal.4th 800, 832.)
The prosecutor argued the kill zone theory as follows:
Now, you also have the crime of attempted murder, which
is sort of an interesting law here. I would submit to you that
how this unfolded is like this: the target in this case is Robert
[Velasquez]. Robert is a 17-year-old Hispanic male wearing
baggy clothes and a L.A. Dodgers hat. He’s standing in front of
a house on a high gang street. This is heart of Pico Viejo. And
he’s dressed in the -- I don’t know if you call it right or wrong,
28
but he is dressed in the appropriate manner to be a target.
They have acquired their target now. It’s not a bunch
people like Elizalde and her family who are celebrating the day
of the dead. This is now a bona fide target. A young Hispanic
male dressed in baggy clothes with a baseball hat in enemy
territory.
I submit to you that what happened here is, as they see
the target, what they think is I’m going to kill Robert
[Velasquez], I’m going to shoot at that guy. And if that girl gets
in the way, we’ll just take her out, too. I’m just going to kill
everybody over there to get to him, to get to Robert. This is
called the kill zone theory. If you look down here, the last
paragraph, it explains what kill zone is.
Basically what all that says is if you want to kill person X
and to get to person X, you don’t mind killing person Y, too,
then you are guilty of the attempted murder of person Y as well.
Even if that wasn’t your intended target, even if who you want
to get is Robert, you are guilty of the attempted murder of Ruth
[Rodriguez], too, because you did everything you could to just
blanket that area with gunfire.
If you look at the different pictures that we have, you can
see this is -- this is not, like, just a couple of shots. This is
People’s 10. Okay. Ruth and Robert are sitting by that tree on
the left of the picture. You all saw [sic] see that? That’s where
they are sitting when this begins. The car pulls up and stops
29
right in front of them and then the shooting begins.
If you look at this, this is going to be People’s 14, which is
the sketch. You see 4123 at the top of the screen, here. So
that’s where they are sitting in front of this tree.
These three cars are all struck with gunfire. This tree is
struck with gunfire. The light down by Denise’s house is shot
out. You see the total of the nine casings which are these little
yellow dots going all the way up the street until you get to the
point right here at the blue truck.
They are doing everything they can to get Robert. Because
if you remember, Robert is running. Robert doesn’t drop behind
the wall. Robert takes off running. So the shooter is unloading,
and if Ruth gets in the way, then that’s just collateral damage
and that’s okay. But because the shooter is creating a kill zone
or a zone of danger where those bullets are going, then that
means that the shooter and the people who are aiding and
abetting him in killing Robert are also guilty of trying to kill
Ruth. Do you all understand that? That’s called the kill zone
theory.
I, don’t think that the -- or I submit to you that the
evidence doesn’t show that they are trying to kill Ruth. What
gain is there in killing a girl. They are trying to kill the enemy,
and if somebody else gets in the way, oh, well.
30
The prosecutor did use somewhat imprecise language in discussing the kill zone
theory, but overall, in context, conveyed the essence of that theory. Taken as a whole,
the prosecutor’s argument told the jury that even though appellants’ intended target was
Velasquez, the jury could find that appellants thought, “I’m just going to kill everybody
over there to get to him, to get to Robert.” That is a correct statement of the kill zone
theory.
The prosecutor’s remarks about the girl getting in the way, collateral damage and
not minding killing another person are most reasonably understood as emphasizing that
Velasquez was the primary target. As the prosecutor also pointed out, Velasquez
appeared to be a gang member and was in territory claimed by a gang which was a rival
of appellants’ gang. Thus, appellants had a motive to kill Velasquez. The prosecutor’s
references to Rodriguez mainly indicated that there was nothing about Rodriguez as an
individual which provided a motive for appellants to try to kill Rodriguez. Appellants,
the prosecutor, argued, wanted to kill Rodriguez solely as a means of ensuring they killed
Velasquez. These remarks are simply an application of the kill zone theory to the facts of
the case.
As a whole, the prosecutor’s argument properly explained the kill zone theory to
the jury, and the application of that theory to the facts of this case. There was no
misconduct.
Since there was no misconduct by the prosecutor, trial counsels’ failure to object
did not fall below an objective standard of reasonableness. “[A] defense counsel is not
required to advance unmeritorious arguments on [a] defendant's behalf.” (People v.
McPeters (1993) 2 Cal.4th 1148, 1173.) Appellants’ ineffective assistance claim fails.
Even if the prosecutor’s somewhat imprecise language had the potential to confuse
the jury, there was no prejudice to appellants. The prosecutor clearly told the jury that his
remarks referred to the kill zone theory. The prosecutor directly referred the jury to the
court’s instructions on the theory, saying, “If you look down here, the last paragraph, it
explains what the kill zone is.” The court’s instruction on this topic was clear and
correct. Absent any contrary indications, we presume the jury followed the court’s
31
instructions. (People v. Mayfield (1993) 5 Cal.4th 142, 179 [“We presume that jurors
treat the court’s instructions as a statement of the law by a judge and the prosecutor’s
comments as words spoken by an advocate in an attempt to persuade”].) That
presumption is particularly strong in this case, given that the prosecutor referred the jury
to the court’s instruction as part of the prosecutor’s explanation of the kill zone theory.
There is no reasonable possibility or probability that appellants would have received a
more favorable verdict absent the prosecutor’s remarks. (Chapman v. California (1967)
386 U.S. 81, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Their ineffective
assistance of counsel claim fails for this reason as well.
4. Aiding and Abetting Instruction
Medina contends the trial court erred in failing to instruct the jury that an aider and
abettor could be found guilty of a lesser included offense even if the jury found the
perpetrator guilty of the greater offense. He further contends the court erred in failing to
instruct the jury that in order to find a defendant guilty of willful, deliberate and
premeditated attempted murder as an aider and abettor, the defendant must have
personally premeditated and deliberated the murder. We do not agree. Viewing the
instructions as a whole, there is no reasonable likelihood the jury would have understood
the instruction as Medina contends.
a. Murder
Medina contends that the aiding and abetting instruction under CALCRIM No.
400 failed to adequately inform the jury that he could be found guilty of a lesser crime
than the actual killer. He asserts the trial court should have instructed the jury that “an
aider and abettor’s culpability is not necessarily coextensive with that of the perpetrator,
and that a person who aided and abetted a crime could also be found culpable for a lesser
crime than the perpetrator.” Absent such an instruction, he believes the jury had no
choice but to convict him of the same crime as the actual perpetrator.
32
The trial court instructed the jury on the general principles of aiding and abetting
pursuant to CALCRIM No. 400 as follows:
A person may be guilty of a crime in two ways. One,
he or she may have directly committed the crime. I will call
that person the perpetrator. Two, he or she may have aided
and abetted a perpetrator, who directly committed the crime.
A person is guilty of a crime whether he or she
committed it personally or aided and abetted the perpetrator.
The court also instructed the jury pursuant to CALCRIM No. 401 as
follows:
To prove that a defendant is guilty of a crime based on aiding
and abetting that crime, the People must prove that:
1. The perpetrator committed the crime;
2. The defendant knew that the perpetrator intended to
commit the crime;
3. Before or during the commission of the crime,
the defendant intended to aid and abet the perpetrator
in committing the crime;
AND
4. The defendant’s words or conduct did in fact aid and
33
abet the perpetrator’s commission of the crime.
Someone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically
intends to, and does in fact, aid, facilitate, promote, encourage,
or instigate the perpetrator’s commission of that crime.
If all of these requirements are proved, the defendant does
not need to actually have been present when the crime was
committed to be guilty as an aider and abettor.
If you conclude that defendant was present at the scene of
the crime or failed to prevent the crime, you may consider that
fact in determining whether the defendant was an aider and
abettor. However, the fact that a person is present at the scene
of a crime or fails to prevent the crime does not, by itself, make
him or her an aider and abettor.
A person who aids and abets a crime is not guilty of that
crime if he or she withdraws before the crime is committed.
In assessing whether jury instructions correctly convey the law, the reviewing
court must look to the instructions as a whole to see whether there is a “reasonable
likelihood” the jury understood the instructions as the defendant contends. (Estelle v.
McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385]; Boyde v. California (1990) 494 U.S.
370, 380 [108 L.Ed.2d 316]; People v. Raley (1992) 2 Cal.4th 870, 899; People v. Kelly
(1992) 1 Cal.4th 495, 525-526.) “[I]nstructions are not considered in isolation. Whether
instructions are correct and adequate is determined by consideration of the entire charge
to the jury. [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 677; accord, Boyde v.
34
California, supra, 494 U.S. at p. 378.) In evaluating jury instructions, courts should “not
engage in a technical parsing of this language of the instructions, but instead approach the
instructions in the same way that the jury would -- with a ‘commonsense understanding
of the instructions in the light of all that has taken place at the trial.’ [Citation.]”
(Johnson v. Texas (1993) 509 U.S. 350, 368 [125 L.Ed.2d 290], quoting Boyde v.
California, supra, 494 U.S. at p. 381.)
One who aids and abets an offense is guilty as a principal. (§ 31.) To be guilty as
an aider and abettor, a person must “act with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense. [Citations.]” (People v. Beeman (1984) 35
Cal.3d 547, 560, italics omitted.) “The liability of an aider and abettor extends also to the
natural and probable consequence of the acts he knowingly and intentionally aids and
encourages. [Citation.]” (Id. at p. 560.)
An aider and abettor may be found guilty of a greater homicide-related offense
than the actual perpetrator: “[W]hen a person, with the mental state necessary for an
aider and abettor, helps or induces another to kill, that person’s guilt is determined by the
combined acts of all the participants as well as that person’s own mens rea. If [the aider
and abettor’s] mens rea is more culpable than another’s, that person’s guilt may be
greater even if the other might be deemed the actual perpetrator.” (People v. McCoy
(2001) 25 Cal.4th 1111, 1122.) Likewise, an aider and abettor can be convicted of a
lesser homicide-related offense than the actual perpetrator. (See People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1164-1165.)
Generally, “the extent of an aider and abettor’s liability is dependent upon his
particular mental state, which may, under the specific facts of any given case, be the same
as, or greater or lesser than, that of the direct perpetrator.” (People v. Mejia (2012) 211
Cal.App.4th 586, 624.)
Courts found a previous version of CALCRIM No. 400 concerning aiding and
abetting to be potentially misleading. That instruction read in pertinent part, “A person is
equally guilty of the crime whether he or she committed it personally or aided and
35
abetted the perpetrator who committed it.” The Samaniego court found the use of the
phrase “equally guilty” to be misleading under the circumstances (but ultimately
harmless). (People v. Samaniego, supra, 172 Cal.App.4th at p. 1164; see also People v.
Nero (2010) 181 Cal.App.4th 504, 518-519 [reaching same conclusion for similar
CALJIC No. 3.00, but finding error prejudicial].)
CALCRIM No. 400 was revised in 2010 to eliminate the word “equally.” (People
v. Lopez (2011) 198 Cal.App.4th 1106, 1119, fn. 5.) The jury in this case was instructed
with the revised version of the instruction. This version correctly states the general legal
requirements for aiding and abetting liability, including that a “person is guilty of a crime
whether he or she committed it personally or aided and abetted the perpetrator.” (See §
31.) It is an introductory instruction which sets out the basic principle that both direct
perpetrators and those who merely aid and abet the commission of a crime are deemed to
share criminal liability. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1122 [holding
that “an aider and abettor ‘shares the guilt of the actual perpetrator.’ [Citation.]”].)
Nothing in CALCRIM No. 400 states that the requirements for being a perpetrator and
for being an aider and abettor are identical, nor would a reasonable juror have interpreted
that language in such a manner.
The requirements for aiding and abetting are set forth in CALCRIM No. 401.
That instruction states that the jury may find aider and abettor liability only when the
aider and abettor “knows of the perpetrator’s unlawful purpose and he or she specifically
intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.” In light of CALCRIM No. 401, the jury could
not have reasonably disregarded Medina’s mens rea in convicting him. Thus, the jury
could only have convicted Medina of first degree murder under an aiding and abetting
theory if it found that he specifically intended to aid Barrios in the murder and knew of
Barrios’s unlawful purpose. If the jury found Medina did not intend to aid Barrios’s
crime, or aided some lesser crime than Barrios committed, then it would have had to
acquit him under an aiding and abetting theory.
36
b. Attempted murder
Medina contends the aiding and abetting instructions were erroneous because they
did not require a finding that Medina personally acted with deliberation and
premeditation in the attempted murder, and did not require a finding that a premeditated
and deliberated attempted murder, as opposed to simply an attempted murder, was the
natural and probable consequence of the target offense of murder. We do not agree.
The prosecution was not required to prove Medina’s personal premeditation and
deliberation. The crime of attempted murder requires “only that the murder attempted
must have been willful, deliberate, and premeditated, not that the attempted murderer
personally must have acted willfully and with deliberation and premeditation.” (People
v. Lee (2003) 31 Cal.4th 613, 622, italics in original (Lee).) Thus, one who aids and abets
another in committing attempted murder can be subject to the greater punishment for
willful, deliberate, and premeditated attempted murder even though he or she did not
personally act with the requisite willfulness, deliberation, and premeditation. (Id. at pp.
616, 627.) This is true even when liability for the attempted murder is based on the
natural and probable consequences doctrine. (See People v. Favor (2012) 54 Cal.4th
868, 879-880 (Favor); People v. Cummins (2005) 127 Cal.App.4th 667, 680; People v.
Curry (2007) 158 Cal.App.4th 766, 791-792.)
Under the natural and probable consequences doctrine as applied to attempted
willful, deliberate, premeditated murder, the jury must find the attempted murder was a
natural and probable consequence of the target crime, here murder. (People v. Favor,
supra, 54 Cal.4th at p. 872. ) The jury need not find that premeditation was a natural and
probable consequence of the target offense. (Ibid.) In other words, “[u]nder the natural
and probable consequences doctrine, there is no requirement that an aider and abettor
reasonably foresee an attempted premeditated murder as the natural and probable
consequence of the target offense. It is sufficient that attempted murder is a reasonably
foreseeable consequence of the crime aided and abetted, and the attempted murder itself
was committed willfully, deliberately and with premeditation.” (Id. at p. 880.)
37
Medina contends that the holdings of People v. Lee, supra, 31 Cal.4th 613 and
People v. Favor, supra, 54 Cal.4th 868 are based on the premise that a finding of
personal willfulness, premeditation and deliberation is not required for aiding and
abetting liability because section 664, subdivision (a) is a penalty provision and so not
subject to the requirements of a jury finding and proof beyond a reasonable doubt. He
argues that the cases are incorrect as a matter of federal constitutional law in light of the
United States Supreme Court’s subsequent decision in Alleyne v. United States (2013)
___ U.S. __ [133 S.Ct. 2151, 186 L.Ed.2d 314] (Alleyne).) We do not agree.
The court in Alleyne v. U.S., supra, ___ U.S. ___ [133 S.Ct. 2151] held that any
fact that increases the mandatory minimum sentence for a crime is an element of the
offense that must be found true by a jury beyond a reasonable doubt. (Id. at p. __ [133
S.Ct. at p. 2158 ].) This holding is based on the court’s earlier decision in Apprendi v.
New Jersey (2000) 530 U.S. 466, in which the court held that any fact which increases
the maximum penalty for a crime is an element of the offense that must be found true by a
jury beyond a reasonable doubt. (Id. at p. __ [133 S.Ct. at pp. 2155-2158].) Section 664,
subdivision (a), increases the maximum penalty for attempted murder and so has long
been subject to the federal constitutional requirement that it must be found true by a jury
beyond a reasonable doubt. Although the court in People v. Lee, supra, 31 Cal.4th 613and People v. Favor, supra, 54 Cal.4th 868 refers to section 664, subdivision (a), as a
penalty provision, nothing in those decisions suggests that the court based its holdings on
an incorrect understanding of established federal constitutional law concerning penalty
provisions. To the contrary, the court in Lee recognized that if section 664, subdivision
(a), contained a requirement that an aider and abettor personally act with premeditation
and deliberation, the jury would have to be instructed to determine whether such an
attempted murderer so acted. (Lee, supra, 31 Cal.4th at p. 616 [potential second issue for
review was “what is the standard of prejudice for a trial court’s failure to instruct the jury
to determine whether such an attempted murderer so acted?”].) Thus, the court was
clearly aware of the requirement of a jury determination before the penalty provision of
section 664, subdivision (a) could be imposed.
38
The holdings of People v. Lee, supra, 31 Cal.4th 613 and People v. Favor, supra,
54 Cal.4th 868, are dispositive of the issue here. Accordingly, Medina’s argument must
be rejected. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In sum, when the aiding and abetting instruction is considered together with the
instructions on murder, attempted murder, and the natural and probable consequences
doctrine (CALCRIM Nos. 402, 520, 521, 600, 601), it is clear the jury was adequately
instructed as to the requisite intent for both aiders and abettors and direct perpetrators,
and thus there was no reasonable likelihood that the jury understood the aiding and
abetting instructions as Medina argues.
5. Arellanes – Sufficiency of the evidence
Arellanes contends there is no solid evidence to show that he was in the SUV
when the shooting occurred or to show that he aided and abetted the shooting and so there
is insufficient evidence to support his convictions. He further contends such convictions
violate his federal constitutional right to due process.
a. Presence in the SUV
Tina Perez testified that Arellanes, Barrios and Medina left her house around
10:25 to 10:30 p.m. on the night of the shooting. Tina testified that David did not leave
the house when the three men did or at any later time that night. Tina heard sirens and
helicopters five to ten minutes later. Elizalde testified that she saw a gold or pewter SUV
drive up and down Zola Avenue at about 10:30 p.m. that night. She went inside and five
to ten minutes later heard gunshots. These facts support a reasonable inference that
Arellanes was in the car with Barrios and Medina when the shooting occurred.
Appellant contends it is more reasonable to infer that David Perez was in the SUV
with Barrios and Medina because David was with the two men earlier when they
“banged” a man at a 7-11 store. The jury was free to disbelieve Tina’s testimony and
infer that David returned to the SUV with the Barrios and Medina on the basis of his
involvement in the earlier encounter. However, the inference that David was in the
39
SUV is, at most, as reasonable as the inference that Arellanes was in the SUV, not more
reasonable. It does not require reversal of the judgment. (People v. Nelson, supra, 51
Cal.4th at p. 210 [“if the circumstances reasonably justify the jury's findings, the
judgment may not be reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding”].)
b. Aiding and abetting
As we discuss in more detail in section 4 above, a defendant is liable as aider and
abettor if he acts “with knowledge of the criminal purpose of the perpetrator and with an
intent or purpose of either committing, or of encouraging or facilitating commission of,
the offense.” (People v. McCoy, supra, 25 Cal.4th at p. 1118.)
Mere presence at the scene of a crime and mere knowledge of criminal conduct are
not alone sufficient to show culpability as an aider and abettor. (People v. Durham
(1969) 70 Cal.2d 171, 181.) However, presence at the scene of the crime is a factor
which may be considered in deciding whether a defendant aided and abetted a crime, as
may companionship with the actual perpetrator, conduct before and after the crime, and
flight from the scene. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Here, Arellanes was with fellow Brown Assassin gang members Medina and
Barrios at the Perez residence. He went with them to Zola Street, which was in the
territory of a rival gang. That street is “not off a main boulevard. So you would have to
kind of make your way into that neighborhood.” According to gang expert Ortega, the
“area is deep in a dense populated gang territory of Pico Viejo gang members. And the
only reason why Brown Authority persons would be there, in my opinion, would be to be
looking for trouble.” Arellanes covered his face with a ski mask, as did Medina and
Barrios, suggesting that Arellanes was aware that that criminal activity was planned.
These facts support an inference that Arellano knew of the others’ criminal purpose and
intended to encourage or facilitate that purpose theory of aiding and abetting. (See
People v. Jones (1989) 212 Cal.App.3d 966, 970 [defendants’ acts of wearing masks and
entering and leaving the crime together supported the theory of aiding and abetting].)
40
This inference is strengthened by Arellanes’s attempt to flee from police when they came
to arrest him, which can show consciousness of guilt. Thus, there is sufficient evidence
to support a finding that Arellanes aided and abetted the murder and attempted murder in
this case.
c. Due process
Since we have determined that “a rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt, the due process clause
of the United States Constitution is satisfied [citation] as is the due process clause of
article I, section 15 of the California Constitution.” (People v. Osband (1996) 13
Cal.4th 622, 690.)
6. Text messages
Arellanes contends evidence that Barrios sent a text to Arellanes which read, “Go
buy [sic] bye. Tell devil.” was inadmissible under the Aranda-Bruton rule and the trial
court erred prejudicially in admitting it.7 He further contends the admission violated his
Sixth Amendment right to confrontation.
The Aranda-Bruton rule addresses a specific issue that arises at joint trials when
the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that
incriminates a codefendant. “‘Aranda and Bruton stand for the proposition that a
“nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the
other defendant is generally unreliable and hence inadmissible as violative of that
defendant’s right of confrontation and cross-examination, even if a limiting instruction is
given.” [Citation].’” [Citation.] (People v. Hajek (2014) 58 Cal.4th 1144, 1176.)
Since the Aranda-Bruton decisions, however, the United States Supreme Court has
clarified that the confrontation clause of the Sixth Amendment is concerned solely with
out-of-court statements that are “testimonial.” (Crawford v. Washington (2006) 547 U.S.
7This rule derives from People v. Aranda (1965) 63 Cal.2d 518 and Bruton v.
United States (1968) 391 U.S. 123.
41
813, 821-825.) Thus, the confrontation clause does not apply to nontestimonial out-of-
court statements (Whorton v. Bockting (2007) 549 U.S. 406, 420), including such
statements by codefendants. (People v. Arceo (2011) 195 Cal.App.4th 556, 571.) Given
this clarification in the law, it is questionable whether the Aranda/Bruton rule applies to
nontestimonial out-of-court statements by a codefendant, since “[i]f none of the
codefendants has a constitutional right to confront the declarant, none can complain that
his right has been denied.” (United States v. Figueroa-Cartagena (1st Cir. 2010) 612
F.3d 69, 85.) The text message to Arellano was not “testimonial.”
Even if the Aranda-Bruton rule still applied to non-testimonial statements, it
would have no application in this case. The rule applies only to statements which are
facially incriminating. (Richardson v. Marsh (1987) 481 U.S. 200, 207-208.) As the
court in Richardson explained, the Aranda-Bruton rule is a “narrow exception [that]
should not apply to confessions that are not incriminating on their face, but become so
only when linked with other evidence introduced at trial. [Citation.]” (People v. Hajek,
supra, 58 Cal.4th at pp. 1176-1177.)
The text message in this case is not facially incriminating. It contains no
references to any crime. The message is not even clear about who is going “buy [sic]
bye.” It could be a suggestion to the recipient that he should go “buy [sic] bye” or a
statement by the sender that he is going “buy [sic] bye” or possibly a directive to the
recipient to tell “devil” to go “buy [sic] bye.” The reason for leaving is not given. (See
People v. Homick (2012) 55 Cal.4th 816, 874-875 [codefendant Woodman’s post-arrest
call to coworker asking him to destroy business cards was not facially incriminating as to
defendant Homick; it became incriminating only when considered with other evidence
showing two of the business cards were Homick’s].)
Appellant contends that the text message is incriminating through inference, and
that the Aranda-Burton rule applies to inferentially incriminating statements. We do not
agree. The class of inferentially incriminating statements to which the Aranda-Bruton
rule applies are “obvious” ones, “inferences that a jury ordinarily could make
immediately, even were the confession the very first item introduced at trial.” (Gray v.
42
Maryland (1998) 523 U.S. 185, 196.) The content of the text message does not pass this
test. Leaving or telling someone else to leave is not incriminatory by itself.
Further, even when considered with other evidence, the message has little, if any,
additional incriminating effect. The evidence showed that Barrios, Medina and Arellanes
were not communicating with each other on their cell phones between 7:19 p.m. and
about 4:00 a.m. when Barrios was arrested. Then, about 4:30 a.m., while Barrios was
apparently alone in the back of a police car, he contacted Medina and Arellanes.
Arellanes’s cell phone record shows that he began moving around 5:00 a.m., toward
Ontario. Thus, Arellanes was already on the move when he received the “buy [sic] bye”
text message at 7:13 a.m., indicating that the message may not have been intended to be a
catalyst for Arellanes’s flight.
Further, given that Barrios’s time alone in the patrol car ended around 7:00 a.m.,
the most reasonable understanding of the message may be that Barrios himself was going
“buy [sic] bye” after several hours of sitting around in the patrol car, or was ending
communications because law enforcement officials had come to the patrol car and he
could no longer communicate freely.
Since the text message was not facially incriminating, its admission was not barred
by the Aranda-Bruton rule. Arellanes’s Sixth Amendment right to confrontation was not
violated.
7. Constitutionally fair trial
Arellanes contends cumulative error requires reversal of their convictions. We
have found few, if any, errors. Considered together, any minor errors were harmless and
did not result in an unfair trial. (See People v. Marshall (1996) 13 Cal.4th 799, 861, fn.
14.)
8. Restitution fines
Barrios claims the trial court erroneously relied on the amended versions of
sections 1202.4 and 1202.45 to impose a $280 restitution fine and a corresponding $280
43
parole revocation fine. He contends these fines violated the prohibition against ex post
facto laws because the amended versions went into effect on January 1, 2013, after the
commission of the crimes in this matter.
“[T]he imposition of restitution fines constitutes punishment, and therefore is
subject to the proscriptions of the ex post facto clause and other constitutional
provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143.) Thus, a defendant may
challenge the imposition of a restitution fine under section 1202.4 as violating the ex post
facto clauses of the California and federal Constitutions, if the fine is greater that
authorized by section 1202.4 at the time he committed his crimes. (Ibid.)
The amended version of section 1202.4 sets the minimum restitution fine at $280.
(§ 1202.4, subd. (b)(1).) The version of section 1202.4 in effect at the time of appellants’
crimes set the minimum fine at $200. Both versions set the maximum fine at $10,000.
(See People v. Souza, supra, 54 Cal.4th at p. 143 [explaining former section 1202.4].)
The same is true for the corresponding parole revocation fine. (§ 1202.45.)
Respondent is correct that the $280 fine imposed by the trial is within the range
authorized by the version of section 1202.4 in effect at the time of the crimes in this case.
However, the minimum fine was $200, and in setting the amount of the fine in excess of
the minimum, the trial court is directed to consider any relevant factors, which include
but are not limited to the defendant’s inability to pay and the circumstances of the
offense. Thus, a trial court must have some reason for departing from the statutory
minimum.
“Express findings by the court as to the factors bearing on the amount of the fine
shall not be required.” (§ 1202.4, subd. (d).) Here, the trial court gave no explanation for
the amount of the fine.
Barrios contends that the fact that the trial court imposed the fines in the minimum
amount required by the amended versions of the sections ($280) shows that the court
intended to impose the minimum fine but erroneously relied on the amended versions to
do so. Such an inference is a reasonable one. It also reasonable to infer that the trial
court was aware that the applicable minimum fine was $200 but properly considered the
44
fact that the Legislature had increased the minimum fine to $280, and decided that the
higher amount was appropriate. (See Peugh v. United States (2013) __ U.S. __ [186
L.Ed.2d 84] [“notwithstanding a rule that retrospective application of a higher Guidelines
range violates the Ex Post Facto Clause, sentencing courts will be free to give careful
consideration to the current version of the Guidelines as representing the most recent
views of the agency charged by Congress with developing sentencing policy . . . . The
newer Guidelines, meanwhile, will have the status of one of many reasons a district court
might give for deviating from the older Guidelines, a status that is simply not equivalent
for ex post facto purposes”].)
We presume that the trial court “knows and applies the correct statutory and case
law [citation] and is able to . . . recognize those facts which properly may be considered
in the judicial decision making process. [Citations.]” (People v. Coddington (2000) 23
Cal.4th 529, 644.) Barrios has not overcome that presumption. His claim fails.
9. Presentence custody
Medina and Arellanes contend they are entitled to a total of 934 days of
presentence custody credit. Respondent agrees. We agree as well.
Both appellants were arrested on November 3, 2010 and sentenced on May 24,
2013. The total number of actual days in custody, including the day of arrest and the day
of sentencing, is 934. (See People v. Bravo (1990) 219 Cal.App.3d 729, 735.)
10. Restitution liability
Medina contends the abstract of judgment must be corrected to show that he is
jointly and severally liable with Barrios and Arellanes for victim restitution. Respondent
agrees, and points out that this notation is missing from all three appellants’ abstracts and
so all should be corrected. We agree.
The court stated that “each defendant is ordered to pay restitution” and it would be
“joint and several.” This is not reflected in the abstracts of judgment. The abstracts are
ordered corrected. (See People v. Arnold (1994) 27 Cal.App.4th 1096, 1098-1100 [joint
45
and several restitution proper; defendant is responsible for full amount of victim’s losses
but payments by other responsible parties are deducted from the amount owed].)
Disposition
The presentence custody credits awarded to appellants Medina and Arellanes are
ordered corrected to 934 days. The abstract of judgment is ordered corrected to reflect
this amount. The abstract of judgment for Medina, Arellanes and Barrios is ordered
corrected to reflect the trial court’s ruling that each is jointly and severally liable for the
direct victim restitution award. The clerk of the superior court is instructed to prepare
amended abstracts of judgment reflecting these changes and to deliver copies to the
Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in
all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK, J.
We concur:
MOSK, ACTING P.J.
KRIEGLER, J.

Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
46