People v. Camacho CA1/3 ( 2016 )

Filed 7/6/16 P. v. Camacho CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v. A132875
JORGE CAMACHO,
(Contra Costa County
Defendant and Appellant. Super. Ct. No. 50809012)
After a jury trial defendant was convicted of the following substantive offenses
with true findings made on the sentence enhancement allegations: (1) first-degree murder
of Luis Perez, with related gang, firearm, and multiple-murder special circumstances
allegations (count 1); (2) first-degree murder of Lisa Thayer, with related gang, firearm,
and multiple-murder special circumstances allegations (count 6); (3) first degree murder
of Rico McIntosh, with a related gang allegation (count 5); (4) conspiracy to commit
murder and assault with a deadly weapon, with a related gang allegation (count 2); and
(5) participation in a criminal street gang (count 3). (Pen. Code,1 §§ 182, subd. (a)(1);
182.5; 186.22, subd. (b)(1)), and (2); 187, subd. (a); 190.2, subds. (a)(3) and (22);
12022.53.) 2 The court sentenced defendant to two consecutive terms of life in prison
without the possibility of parole (count 1 - Perez murder and count 6 - Thayer murder),
1
All further unspecified statutory references are to the Penal Code.
2
The jury acquitted defendant of a charge of first-degree murder of Antonio
Centron, with a related gang enhancement (count four).
1
plus an aggregate term of 95 years to life consisting of consecutive terms of (1) 25 years
to life (count 5 – McIntosh murder); (2) 25 years to life (firearm use enhancement) and
10 years (gang enhancement) related to count 1; and (3) 25 years to life (firearm use
enhancement) and 10 years (gang enhancement) related to count 6. The court imposed
either concurrent terms or stayed sentences on the remaining counts and related gang
enhancement.
On appeal defendant presents various arguments challenging his convictions and
sentences. We find no merit to his claims, except for one sentencing error. We agree
with the parties that the trial court erred in imposing consecutive determinate ten-year
terms for the gang enhancements related to the first-degree murder convictions with
special circumstances under counts 1 and 6. We shall remand the matter to the trial court
to modify the sentences accordingly. In all other respects, we affirm the judgment.
FACTS3
A. Prosecution’s Case in Chief
The prosecution’s theory of liability was that 13 actively-engaged members of the
Varrio Frontero Loco (VFL), a Sureno criminal street gang, whose territory was the City
of Richmond (Richmond), had entered into a conspiracy to “bring back the hood” to gain
increased respect for the gang, by, among other things, committing murders and assaults
against rival Norteno gang members in their territory of the City of San Pablo (San
Pablo)4. Defendant was alleged to be a conspiratorial gang member of the VFL.5
3
The evidentiary portion of the trial was presented from April 19, 2011 to May 16,
2011. It included the testimony of over 40 witnesses and the reading of portions of
witnesses’ testimony elicited at grand jury proceedings and earlier VFL gang prosecution
trials as well as the admission of over 200 exhibits. In this fact section, we present a
basic background of the evidence, generally viewed in the light most favorable to
upholding the verdicts. In the discussion section, we present additional facts necessary to
resolve defendant’s appellate contentions.
4
San Pablo is completely surrounded by Richmond.
5
The indictment filed against defendant named as alleged co-conspirators: Cole
Azamar (Azamar), Luis Hernandez (Hernandez), Hector Molina-Betances (Molina),
Francisco Romero, Jorge Sanchez (Sanchez), Jose Martinez, Frank Rubalcava, Fernando
2
Although not every member of the conspiracy was present at each crime, the
prosecution’s theory was that each co-conspirator was liable for the acts, both intended
and reasonably foreseeable, of his co-conspirators. The “net result of this conspiracy”
was the death of several people, including Luis Perez, Lisa Thayer, and Rico McIntosh.
1. Conspiracy to Commit Murder and Assault with a Deadly Weapon
(Count 2) and Participation in a Criminal Street Gang (Count 3)
To demonstrate that defendant was an active participant in the VFL gang, and had
conspired with other gang members to commit murders and assaults with a deadly
weapon, the prosecution presented, in pertinent part, the sworn testimony and out-of-
court statements of VFL gang members Sanchez6 and Ruelas7 and Mexican Locos (ML)
gang member and VFL associate gang member Victor Cervantes (Cervantes)8.
The VFL and ML gangs were Richmond Sureno gangs. The rivals of the Surenos
were members of the Norteno gang, whose territory was primarily in the Broadway area
Garcia, Jose Mota-Avendano (Mota), Larry Valencia, Javier Gomez (Gomez), and
Gamaliel Elizalde (Elizalde). All of the named co-conspirators were alleged members of
the VFL gang, except for Gomez, an alleged member of the Mexican Locos gang, a
Sureno gang that associated with the VFL gang. The indictment also included charges of
murder, conspiracy, participation in a criminal street gang, against Azamar and
Hernandez, who are not parties to this appeal.
6
By the time of the trial, Sanchez was 23 years old, and had been out of the VFL
gang for three years.
7
Before defendant’s trial, Ruelas had been placed in a witness protection program
and was given money to move to Las Vegas and Redding. By the time of defendant’s
trial, Ruelas had violated his witness protection agreement and he was “kicked out” of
witness protection and informed that the District Attorney’s office could no longer help
him. Ruelas did not testify at defendant’s trial. The jury heard audio-tapes of his
statements to the police and approximately six hours of a video-taped conditional
examination. The prosecutor and defense counsel also read to the jury portions of
Ruelas’ testimony that was elicited at grand jury proceedings and earlier VFL gang
prosecution trials.
8
Cervantes testified that in exchange for his testimony, he got a “six years
suspended state prison [sentence] and a strike on [his] record” for an “assault with a
deadly weapon in Richmond in 2007.” Cervantes claimed he had assaulted Nortenos
who were throwing rocks at his car. By the time of the trial, Cervantes was in protective
custody because he had received calls from persons threatening his life.
3
of San Pablo. The VFL gang relied on violence to create fear and respect and to control
its territory. When Ruelas was recruited in 2001 or 2002, he was told by then VFL leader
Victor Valencia and his younger brother Jose Valencia, that the gang “need[ed] some
people like [Ruelas] to bring the hood back.” Ruelas was expected to “do whatever to
make the hood come up,” including “shootings, robbing, drug dealing, all kinds of stuff.”
Ruelas worked his way up the gang hierarchy by shooting and beating rival Norteno gang
members. When gang members had nothing to do or were bored, they would drive
around San Pablo, “just go looking for people to kill, basically.” In addition to San
Pablo, VFL gang members could find Nortenos to shoot and kill, in “Montalvin, Pinole,
De Anza, everywhere. Everywhere except in Richmond.” Ruelas testified that before
defendant became a member of the VFL, defendant rode along with gang members and if
someone had to be shot, defendant would get out of the car and ask to shoot the person to
earn respect. According to Ruelas, defendant “got caught up with one of our guns at a
store, so he went to Byron” Boys ranch for nine months. After defendant came out, he
got jumped into the VFL gang, according to Ruelas.
Sanchez testified that when he started in the VFL he had heard of defendant but
did not know him because defendant was “in juvenile hall or the ranch.” Sanchez did not
meet or ever see defendant until “jail.” However, Sanchez spoke with Mota and Ruelas
about defendant’s participation in the VFL. When asked, “Where was [defendant’s]
position supposed to be in the conspiracy,” Sanchez replied that defendant was “in the
regular VFL,” “just . . . doing his own thing on the side,” “always in the ranch or . . . just
riding along with different people,” “just stealing cars,” and “attacking rival gang
members,” which was “part of being VFL.” According to Sanchez, defendant was not
considered a lower gang member, but the same as Sanchez, Ruelas and Azamar. Ruelas
confirmed that defendant was “in there with, like the main heads of VFL, was [sic] me,
Richie, and this dude named Sleepy [Azamar], VFL.”
In mid-2007, VFL gang leader Victor Valencia shot a member of the “Richmond
Sur Trece” (RST), a separate City of Richmond Sureno gang. Victor Valencia fled to
4
Mexico and later died there.9 The VFL gang was in turmoil because there was no
acknowledged leader and gang members feared retaliation from RST gang members. At
this time Sanchez considered himself jumped out of the VFL gang and he was trying to
lay low and stay away from the VFL gang. When Elizalde became the gang leader, he
contacted Sanchez and told him he was still in the VFL gang. Elizalde told other gang
members that they “needed to bring the gang back [and] . . . put them on top.” Elizalde’s
plan was to first recruit new people and then start taking them to the streets, “start being
violent, shootouts, drive-bys,” and attacking Norteno gang members, to improve the
reputation of the VFL. Elizalde’s plan to attack rival gang members, sell more drugs, and
obtain more guns, was organized by a “little council” of five gang members: Sanchez,
Azamar, Hernandez, Mota, and Ruelas, who were supposed to “run” their own people.
At the same time, the VFL gang had a close relationship with the ML gang, an
“upcoming” Sureno gang, but there was a split in the ML leadership and some of their
members “were running with [VFL], when we went to do drive-bys or something like
that they were with [the VFL]. . . .”
Victor Cervantes testified he had previously been a member of the ML gang. In
late 2007 and early 2008, after there was an internal split in the ML gang, Cervantes was
accepted as an associate VFL gang member. Cervantes knew defendant, having seen him
hanging around with VFL gang member Molina. According to Cervantes, in late 2007
and early 2008, the VFL and ML gangs were planning to come back up and get their
names back up on the street and expand recruiting members by “just going to get most of
the Nortenos out of Richmond and San Pablo by whooping them, making them get out of
there. Killing them [or] whatever it takes to get them out of there.”
9
After gang members heard of Victor Valencia’s death, a funeral for him was held
in Richmond. The funeral service was attended by several alleged VFL gang members or
associates including defendant, Sanchez, Elizalde, Molina, Romero, Azamar, Hernandez,
Gomez, Mota, Avendano, Menendez, and Ruelas.
5
2. Murder of Luis Perez (Count 1)
To demonstrate defendant’s participation in the murder of Luis Perez, charged as a
substantive offense (count 1) and an overt act of the conspiracy alleged in count 2, the
prosecution presented the sworn testimony and out of court statements of Larry
Valencia10 and Azamar11, as well as evidence of the police investigation of the murder.
On the evening of February 16, 2008, defendant and five other alleged VFL
members or associates (Mota, Azamar, Hernandez, Molina, Larry Valencia), were
socializing at a house in North Richmond. They smoked marijuana and drank “booze,”
and defendant was also “popping pills,” and was “hella fuckin’ high.” At the suggestion
of defendant, the men drove to San Pablo in two cars; defendant and Molina were
passengers in Mota’s car and Larry Valencia and Hernandez were passengers in
Azamar’s car. At 2:15 a.m., Mota’s car stopped near Luis Perez, who was standing on
the street. Perez did not belong to a gang, but he was wearing a red sweatshirt. Exiting
Mota’s car, defendant told Perez, “show me your hands, you’re all dressed in red.” Perez
responded by saying, “what the fuck,” twice. Defendant fired seven shots at close range.
Two shots entered the victim’s back in a downward direction fatally wounding Perez.
Defendant got back into Mota’s car and all the men in the two cars went back to
Richmond. Perez’s neighbor and her boyfriend did not see who shot Perez; they heard
the argument, followed by gunshots, and then the sound of cars driving away.
10
Larry Valencia testified under a grant of use immunity. He had initially been
charged with murder but the charge was dropped. He had not received any consideration
from the prosecution in return for his testimony, and he was not appearing in court as part
of a plea bargain. The court advised the jury that it was taking judicial notice of the
court’s records that a preliminary hearing was held where Larry Valencia was charged
with murder and at the conclusion of a preliminary examination the judge who heard the
evidence did not hold him to answer on the charge of murder and the charge was
dropped.
11
Azamar, an admitted VFL gang member, testified that in exchange for his
testimony at defendant’s trial, the prosecution agreed to reduce the charges against him
from murder to accessory after the fact, and he was sentenced to a five year probationary
term he was then serving.
6
Larry Valencia testified he had never been a VFL gang member, but admitted he
knew gang members including his cousin and defendant. In the past Larry Valencia had
heard VFL gang members brag about beating up rival gang members and he knew the
Broadway area of San Pablo was Norteno gang territory. Additionally, during a police
search of Larry Valencia’s home after the Perez murder, the police found gang indicia
including blue bandanas, blue hats, music CD’s with gang writing and photographs of
persons making Sureno gang signs.
As to the circumstances of the Perez murder, Larry Valencia testified that on the
night in question he was in the backseat of a car when he heard “gunshots.” Larry
Valencia did not actually see the face of the shooter, but he was sure defendant was the
shooter because, unlike the other men in Mota’s car, the shooter, like defendant, was
short in stature, had long hair, and was wearing a hoody. Larry Valencia saw no gun, but
he saw flames coming out of the gun that defendant “was holding up and shooting with.”
After the shooting Larry Valencia panicked; he had never seen “anything like this,” and
he did not know that anyone was carrying a gun that evening. As soon as the cars arrived
back in Richmond, Larry Valencia got into his car and went home. The police arrested
Larry Valencia on May 14, 2008. Larry Valencia told the police that defendant had shot
the man wearing red. At a grand jury hearing and an earlier jury trial, Larry Valencia
testified consistently with his statements to the police.
Azamar, an admitted VFL gang member, also testified as to circumstances of the
Perez murder. On the night in question, Azamar and the other men with him including
defendant were just driving around, hoping to find girls at a party. As Azamar sat in the
driver’s seat of his car, Azamar saw defendant get out of Mota’s car and argue with
Perez, who was wearing red. Acting totally surprised, Perez held up both arms, and
Molina said, “Get him!” Defendant pulled a gun from his waist and fired at Perez. Perez
fell at the first shot. Larry Valencia was screaming that he wanted to go home, and
Azamar told him to “[s]top being a bitch.” Azamar took Larry Valencia to his car and
Larry Valencia drove away. Azamar denied knowing that any of the men had a gun that
night and he did not expect to see anyone get shot. Following his arrest, Azamar was
7
placed in the jail’s Q module with other VFL gang members. According to Azamar,
while VFL gang members were housed in jail, defendant was “calling the shots, . . .
telling [Azamar] what to do in jail, . . . [and] getting the kites [inner jail mail].” On one
occasion Azamar got into a fight with defendant and Azamar lost. Later, Azamar made
arrangements to talk with the police.
During the investigation of the Perez murder scene, the police found nine 9-
millimeter Luger cartridge casings on the ground, mostly within three to five feet of
Perez’s body. The police also recovered a spent bullet with blood on top of the victim’s
red sweatshirt, which had been cut off by the paramedics and left at the scene.
3. Murder of Lisa Thayer (Count 6)
To demonstrate defendant’s participation in the murder of Lisa Thayer, charged as
a substantive offense (count 6) and an overt act of the conspiracy alleged in count 2, the
prosecution’s evidence consisted principally of the testimony of several witnesses who
saw or heard shots fired but did not see the actual shooting or identify the shooter; audio
recordings of three police interviews and portions of the trial testimony of Antonio S.
(Antonio) 12 elicited at an earlier VFL gang prosecution trial on November 15, 2010 13;
and the testimony of police officers who investigated the murder and a forensic
pathologist.
On the afternoon of February 27, 2008, in San Pablo, several people witnessed a
gun fight between several men in a van and a shooter on the street (the shooter) who was
with two or three other men. The shooter, armed with a chrome, semi-automatic pistol,
fired several shots in the direction of the men in a van. The shooter was not identified; he
was described as approximately 18 or 19 years old, Hispanic or Mexican, approximately
12
At defendant’s trial, Antonio was called as a witness but he refused to testify even
under a grant of use immunity. After a hearing, the court found Antonio in contempt of
court and ordered him held in custody until the conclusion of the trial or he agreed to
testify. Despite being given the opportunity to do so, Antonio never agreed to testify
during the trial. The court ordered Antonio’s release at the conclusion of the trial.
13
Defense counsel also read to the jury portions of Antonio’s trial testimony elicited
at the earlier VFL gang prosecution trial on November 15, 2010.
8
five foot seven, approximately 180 pounds, having long black hair worn in a ponytail.
The men in the van drove away and the men on the street ran away. Lisa Thayer, who
was not a member of a gang, was found nearby on the street. Based on the position of
Thayer’s body and the various descriptions of the shooting, the police believed that as the
van drove away the shooter fired a 9-millimeter bullet, which missed the fleeing van and
hit Thayer, fatally wounding her.
Immediately after Thayer was shot, San Pablo police officers received a dispatch
reporting that a person had called saying that “some kids were shot at and then jumped
. . . [or] ran into this apartment complex.” When law enforcement arrived at the
apartment complex, the investigating police officers spoke with a witness, who had heard
gunshots and fifteen minutes later, observed two young men running into the apartment
complex. The witness further explained that the young men went to an apartment for a
few minutes, and then fled toward the laundry room area of the apartment complex. As
the police were interviewing the witness, they spotted two young men, matching the
witness’s descriptions, running in the apartment complex. The two young men, later
identified as defendant and Antonio, were caught and arrested by the police officers. As
the police secured defendant, he was asked if he had any items on his person and he
produced a blue bandana. The police later searched defendant’s home. In defendant’s
bedroom, the police found an empty case for .40 caliber handgun, an empty .40 caliber
magazine, and a holster that would fit a 9-millimeter pistol, but no guns. The police also
found gang drawings and gang graffiti on paper on which was written “Sur,” which was
an abbreviation for Sureno, and the number 13 in between a cross.
During the investigation of the Thayer murder scene, the police found nine 9-
millimeter bullets within a ten-foot circle around Thayer’s body. The location of the
bullets was consistent with a person firing a weapon while standing in place, and not
someone who was running and firing a weapon at the same time. The police also found
.40 caliber shells and an unfired .38 caliber bullet in a cul-de-sac through which
defendant and Antonio had run while fleeing from the men in the van. The gun that fired
the bullet that killed Thayer was never recovered. However, a comparison of the 9-
9
millimeter cartridge casings recovered from the Thayer and Perez murder scenes
established that the casings were fired from the same 9-millimeter pistol.
Over the course of three interviews with the police, Antonio described the basic
events of the day of the shooting. According to Antonio, defendant belonged to the VFL
gang but Antonio did not. Antonio and defendant were walking on San Pablo Avenue
near a liquor store when three men inside a burgundy van looked out and “mean mugged”
them and then the van stopped. There were two Mexicans or Hispanics and an African-
American man in the van. One of the men in the van got out and started shooting at
Antonio and defendant. The man fired five or six shots as Antonio and defendant ran
down the street passing a strip mall with a salon and toward an apartment complex. The
van driver turned the van around and followed Antonio and defendant, and as defendant
and Antonio jumped over a fence into an apartment complex, the men in the van began
shooting at them again.
During the interviews with the police, Antonio was questioned about the
individuals who fired shots during the incident. During the first interview, Antonio
claimed the men in the van fired on defendant and Antonio, and neither Antonio nor
defendant fired back at any time. During the second interview, Antonio claimed the men
in the van initially started shooting. Not knowing that defendant had a gun, Antonio was
shocked when defendant pulled out a chrome gun and fired back five or six times at the
men in the van. Antonio explained that during his initial interview he did not tell the
police that defendant fired a gun because Antonio did not want to get defendant in
trouble. When the men in the van shot at them a second time, defendant and Antonio
were near an apartment complex and defendant did not shoot at the men in the van.
During the third police interview, Antonio stated he did not know if defendant had fired
his gun before or after the men in the van had first started shooting at them.
At an earlier VFL gang prosecution trial, Antonio testified that on the afternoon of
the Thayer shooting, he and defendant went to a store on San Pablo Avenue to pick up
Antonio’s gold-tooth dental grill. The men left the shop and as they were walking on the
sidewalk, a van passed the men and pulled over and stopped. The men in the van
10
“mugged” Antonio and defendant. Antonio and defendant kept on walking and after that
Antonio heard gunshots, which Antonio guessed were fired by the men in the van. After
the shots were fired, Antonio and defendant ran between a construction site, ended up at a
dead end street, and jumped over a fence into an apartment complex. As Antonio and
defendant jumped the fence, the van came around the corner and the men in the van
started shooting again but did not hit Antonio or defendant. Once Antonio and defendant
got to the apartment complex, they sat on the stairs and did not go into anyone’s house.
When the police came, Antonio and defendant left the apartment complex and the police
chased after them. Antonio further testified that after the police discussed with him the
concept of self-defense, he made up a story about defendant firing his gun because he
believed he was helping defendant make it look like self defense. However, Antonio did
not realize that “the whole time” he was incriminating defendant.
On April 24, 2008, the police received information about defendant’s involvement
in the Thayer shooting from Ruelas, who was then acting as a police informant.
According to Ruelas, defendant told him that on the day in question he had two guns.
Defendant had gone to get his gold-tooth dental grill, and when he came out of the store,
defendant saw “the Nortenos on the corner or something.” Defendant “started talking
shit to ‘em. They didn’t say nothing. He said, ‘Man, these mother fuckers some
suckers.’ [Defendant] pulled out the guns. He said he started shooting at ‘em. And he
started running. And there was some black dude wit’ him.” Defendant also said he gave
his guns to “some dude name Nacho,” who was a ML gang member. When asked why
defendant would give a gun to a ML gang member, Ruelas replied that the MLs wanted
to run with the VFL. Defendant told Nacho to sell the guns, but Ruelas did not know if
Nacho had sold the guns.14
14
During cross-examination at his conditional examination, Ruelas testified he had
told the grand jury that he had talked to defendant about “a murder charge” defendant
“was facing” [the Thayer incident], and defendant had said “that he was shooting back at
some dude[s] because the dudes were shooting back at him,” and defendant did not know
that he had shot a lady until afterwards when the cops told him. However, on redirect
examination, Ruelas said that “[e]verybody knew th[e] story” that he had told the police
11
4. Murder of Rico McIntosh (Count 5)
To demonstrate defendant’s participation as a co-conspirator15 in the murder of
Rico McIntosh, charged as a substantive offense (count 5) and an overt act of the
conspiracy as alleged in count 2, the prosecution’s evidence consisted of the testimony of
Oscar Menendez16, as well as evidence acquired during the police investigation of the
murder.
Menendez testified he became involved with VFL gang members when he was 21
years old. He attended parties at the invitation of the VFL gang members, and there were
some parties attended by people from other gangs, including the MLs. Menendez
explained his understanding of the activities of a gang member. On one occasion
defendant told him that to gain respect from the gang, a member had to commit a certain
number of crimes and keep the Nortenos “on check so they can respect you,” which
meant to beat them up. Menendez knew the Surenos were rivals of the Nortenos, and that
the Nortenos’ territory was San Pablo especially on Broadway and Montalvin. He
understood that when you were in the gang, you were supposed to hunt Nortenos in the
Broadway area of San Pablo. Menendez also understood that every time a VFL gang
member saw a Norteno out of Richmond he was to “[b]eat him up” “[a]nd if you had a
gun use that against them.”
On the night of the McIntosh shooting, Mota and Gomez picked up Menendez to
“hang out” together. Mota was driving his new black car, Gomez sat in the front
passenger seat and Menendez sat in the back seat. The men were supposed to go to
McDonald’s, but instead of making a right turn, Mota made a left turn heading toward
about defendant’s involvement in the Thayer shooting, and Ruelas asserted he had made
up the story and had never spoken with the defendant about any murder.
15
On February 27, 2008, defendant was arrested for the Thayer murder. He was still
in custody on the day of the McIntosh murder.
16
Menendez testified he had pleaded guilty to being an accessory after the fact to the
murder of McIntosh with a related gang enhancement, he agreed to spend time in county
jail, and he received some assistance with his immigration issues. He had also agreed to
testify truthfully if called to testify as a witness in defendant’s trial.
12
Broadway in San Pablo. As Mota was driving, the men saw McIntosh walking on the
sidewalk closest to the passenger side of the car; McIntosh was wearing “kind of some
red,” the color claimed by Nortenos. Gomez said to the men in the car that he had
observed McIntosh coming from a party being held at a Norteno house. Mota and
Gomez rolled down the car windows and asked McIntosh if he was a buster. McIntosh
said, “What the fuck is a buster?” Mota then said, “Yeah, he is,” and Gomez pulled out a
gun and shot McIntosh about five times. According to Menendez, McIntosh was “a white
guy” and did not look like a Norteno gang member. After the shooting Mota and Gomez
asked Menendez why he was so scared, and Menendez said he wanted to go home. The
men dropped Menendez at his home; they were acting happy and making fun of
Menendez.
Menendez denied that he, Mota, and Gomez, had ever been out looking for people
to shoot before the night of the McIntosh shooting. On the night of the McIntosh murder
Menendez did not know that Gomez was armed until he pulled out a gun and shot
McIntosh. 17 After the McIntosh shooting, Gomez asked Menendez to hold the gun
because Gomez was on parole. Menendez said, “No,” but when the men dropped
Menendez at his home they just left the gun and Menendez took the gun and hid it in a
cabinet in his room. During a later search of Menendez’s house, the police found a .25-
caliber semi-automatic inside a cabinet. A ballistics analysis showed that the shell
casings found at the scene of the McIntosh shooting were fired from the gun recovered
from Menendez’s residence. The police found no evidence that McIntosh was a gang
member.
After his arrest Menendez was placed in a jail module with VFL gang members
including defendant and Molina. In jail, Menendez was informed that there were certain
17
Menendez testified he had previously found the gun and gave it to Mota because
Ruelas said he (Menendez) did not know how to use a gun. On the night of the McIntosh
murder, Mota gave the gun to Gomez who used it to shoot McIntosh.
13
rules that VFL gang members had to follow while in jail.18 Both Molina and defendant
asked Menendez to turn over his paperwork (police report of his arrest) but Menendez
could not do so because his father had the document. The day he was asked for his
paperwork Menendez was beaten by defendant and another VFL gang member while the
men were returning to their module after a free period. Menendez was then placed in
protective custody.
San Pablo Police Detective Robert Brady confirmed that on the day McIntosh was
killed, Ruelas was working as a confidential informant for the police. Ruelas told Brady
that Mota, Gomez, and Menendez, were driving around the San Pablo area, specifically
the Broadway area and several other areas, hunting for Nortenos, they found a subject,
and they shot him. After the McIntosh murder, Brady participated in a search of
Gomez’s home. Inside Gomez’s room, the police located several CDs and CD cases with
Sureno gang references written on them, a few notebooks with rap lyrics written inside,
and a couple of blue bandanas. One of the CDs had written on it the monikers of certain
gang members and “VFLs, MLs.”
B. Defense Case
Defendant called as a witness gang expert Martin Sanchez-Jankowski, who
identified three models of criminal street gang structures. The witness testified that
Mexican-American street gangs typically fit into the “influential model,” where
charismatic members within the structure are respected leaders. The witness further
testified that gangs generally are hierarchical and the notion that gangs are “loose
associations with little in the way of a cohesive leadership structure is simply not
accurate.” The witness confirmed that collective or organized attacks on rival gangs
helped build cohesion, tended to increase gang membership by improving the gang’s
reputation, and was a method by which a gang rebuilt itself. Individual gang members
gained status and moved up the organization by committing violent acts. However, there
18
Sanchez explained that it was common for gang members to look over
“paperwork,” i.e. police reports of gang members, to ascertain whether the gang members
were cooperating with the police.
14
was “a difference between violence, committed by a gang member that could be
committed any time, at any place, and gang violence which was an organizational
violence that was directed by the leadership of the organization for the benefit of the
organization.” The looser the structure of the gang, the more likely that violence would
be the independent act of individual gang members.
Defendant’s sister testified that defendant had been kicked out of the family
residence when he was 15 years old because he was too rebellious. The witness thought
that defendant’s father was too strict with defendant. Defendant hung around with
cousins who were gang members and got into trouble. However, the witness did not
believe defendant was in a gang; he never carried a blue rag and he never possessed a
gun.
C. Prosecution’s Rebuttal
The prosecution recalled Detective Brady, qualified as an expert on the Norteno
and Sureno gangs, who testified about the history of the Sureno gang and its common
signs and symbols, and that the VFL and ML were gang subsets of the Sureno criminal
street gang. Brady opined defendant was a member of the VFL gang for the following
reasons: (1) defendant self-admitted to investigators during this case to being a VFL
gang member; (2) defendant was carrying a blue bandana in his pocket at the time he was
arrested; (3) defendant was identified as a gang member by VFL informants; and
(4) defendant had “[g]one into classifications, identified himself as being a VFL.”
Detective Brady also opined that Sanchez, Menendez, Azamar, and Ruelas, were VFL
gang members; Larry Valencia was a VFL gang “associate,” and Cervantes was a ML
gang member. Based on hypotheticals of the circumstances of the Perez, Thayer, and
McIntosh murders, Detective Brady opined that such offenses were committed for the
benefit of, in furtherance of, and in association with the VFL gang.
D. Jury Verdicts
Defendant was convicted of the following substantive crimes with true findings
made on the sentence enhancements: (1) the first-degree murder of Luis Perez, with
related gang, firearm, and multiple-murder special circumstances allegations (count 1) ;
15
(2) the first-degree murder of Lisa Thayer, with related gang, firearm, and multiple-
murder special circumstances allegation (count 6); (3) first-degree murder of Rico
McIntosh, with a related gang allegation (count 5); (4) conspiracy to commit murder and
assault with a deadly weapon, with a related gang allegation (count 2); and
(5) participation in a criminal street gang (count 3).
DISCUSSION
I. Convictions for Conspiracy to Commit Murder and Assault with a Deadly
Weapon (Count 2) and Participation in a Criminal Street Gang (Count 3)
Defendant seeks reversal of his convictions for conspiracy to commit murder and
assault with a deadly weapon (count 2) and participation in a criminal street gang (count
3), on the ground that the trial court’s accomplice instructions “ ‘impliedly and
erroneously authorized the jury to find’ ” five police informants – Cervantes, Menendez,
Ruelas, Azamar, and Larry Valencia – were not accomplices, “ ‘thereby making
corroboration [of their testimony] unnecessary.’ ” We conclude defendant’s claim of
instructional error is both forfeited and unavailing.
Initially, we conclude defendant has forfeited his claim of error regarding the
accomplice instructions. Some of the CALJIC accomplice instructions ultimately given
to the jury were listed among defense counsel’s proposed jury instructions submitted to
the court prior to trial. Thereafter, defense counsel lodged no objection to the court’s
accomplice instructions proposed and ultimately given to the jury. (See People v.
Hudson (2006) 38 Cal. 4th 1002, 1011-1012 [“ ‘[g]enerally, a party may not complain on
appeal that an instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying
language’ ”].)
Even if defendant’s failure to object in the trial court did not forfeit his claim of
error in the accomplice instructions, we see no basis for reversal on this ground. The law
is well settled that “[w]hether a person is an accomplice is a question of fact for the jury
unless there is no dispute as to either the facts or the inferences to be drawn therefrom.”
(People v. Garrison (1989) 47 Cal. 3d 746, 772 (Garrison), citing to People v. Rodriguez
16
(1986) 42 Cal. 3d 730, 758-759; People v. Tewksbury (1976) 15 Cal. 3d 953, 960
(Tewksbury); see People v. Sully (1991) 53 Cal. 3d 1195, 1227-1228 (Sully).) The trial
court here advised the jury as to the definition of an accomplice (CALJIC No. 3.10
[Accomplice-Defined]) and the requirements regarding the jury’s consideration of such
testimony (CALJIC Nos. 3.11 [Testimony of Accomplice or Codefendant Must Be
Corroborated], 3.12 [Sufficiency of Evidence to Corroborate An Accomplice], 3.13 [One
Accomplice May Not Corroborate Another], 3.14 [Criminal Intent Necessary to Make
One An Accomplice] and 3.18 [Testimony of Accomplice To Be Viewed With Care And
Caution]). The jury was also instructed that “[i]f the crime of murder was committed by
anyone, Jorge Sanchez was an accomplice as a matter of law and his testimony is subject
to the rule requiring corroboration.” (CALJIC No. 3.16 [Witness Accomplice As Matter
of Law].) The jurors were then instructed that they were to determine if Cervantes,
Menendez, Ruelas, Azamar, and Larry Valencia, were also accomplices and that
defendant bore the burden of proving by a preponderance of the evidence whether those
witnesses were accomplices. (CALJIC No. 3.19 [Burden To Prove Corroborating
Witness Is An Accomplice].) Consequently, as defendant concedes, if the jury
determined the five witnesses were not accomplices, their testimony or out-of-court
statements would not need to be corroborated by independent evidence or viewed with
caution.
In addressing defendant’s challenge to the accomplice instructions, we see no
merit to his arguments that (1) Azamar and Larry Valencia were accomplices as a matter
of law because they were initially named as co-conspirators in the indictment filed
against defendant, and (2) Menendez, Cervantes, and Ruelas, were accomplices as a
matter of law because the prosecutor claimed that those witnesses were co-conspirators.
(See People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335, 431 (Bryant) [the fact
that a witness was initially charged with the same crimes as defendant “did not establish
as a matter of law that he was an accomplice”]; Garrison, supra, 47 Cal.3d at p. 772
[“[t]he fact that a witness has been held to answer for the same crimes as the defendant
and then granted immunity does not necessarily establish that he or she is an
17
accomplice”]; see also Tewksbury, supra, 15 Cal.3d at p. 960 [“[t]he fact that ‘the witness
was prosecuted for the same offense as defendant does not alone establish her to be an
accomplice [as a matter of law],’ ” quoting People v. Gordon (1973) 10 Cal. 3d 460,
467].)
Moreover, the record establishes the status of the five witnesses as accomplices to
the conspiracy (count 2) and participation in a criminal street gang (count 3) was a
contested factual issue at the trial: (1) Larry Valencia denied ever being a VFL gang
member. He testified that he did not know that anyone was carrying a gun on the night of
the Perez murder. (2) Azamar testified that he had been a VFL gang member for seven
years, but he never shot or killed anyone. He also denied that there was a plan to look for
Nortenos or shoot anyone or that he had ever gone with fellow VFL gang members to
Broadway or Montalvin to attack Nortenos. Azamar further testified that he did not know
that any of the men had a gun and he did not expect to see anyone get shot on the night of
the Perez murder. (3) Menendez disavowed membership in the VFL gang, asserting he
had never been jumped in as a gang member. Before the McIntosh murder Menendez
had never been out with Mota and Gomez looking for people to shoot, and, on a prior
occasion when driving with Mota, Menendez had stopped Mota from shooting a man
wearing red and believed to be a Norteno gang member. On the night of the McIntosh
murder, Menendez had no prior knowledge that either Gomez or Mota were armed and
were going to shoot McIntosh or any Norteno gang member. (4) Cervantes, an admitted
VFL associate gang member, denied he had ever entered into an agreement with any
gang to kill people. He claimed that his only activity with VFL gang members consisted
of giving VFL gang member Molina a ride home after Molina had gotten out of jail in
December 2007. (5) Ruelas disavowed membership in the VFL gang, claiming he was
“just a wannabe,” denied that he had ever attacked Nortenos or shot at anyone, and
asserted that in his statements to the police and when he previously testified at grand jury
proceedings and two separate VFL gang prosecution trials he had either lied or
exaggerated his knowledge and defendant’s participation in the VFL gang. During his
conditional examination and at a prior VFL gang prosecution trial, Ruelas also testified
18
that he had been deported to Mexico in 2007, he did not have any contact with members
of the VFL while he was in Mexico, and he did not return to the United States until
March 2, 2008, and the next day he became a police informant. Thus, absent a finding
that the testimony of the five witnesses was inherently incredible, “[t]he trial court could
not have instructed that [the witnesses were accomplices] as a matter of law without
offering to the jury the court’s belief that the witness[es] had given false testimony.
Accordingly, the question was a factual one properly submitted to the jury.” (Garrison,
supra, 47 Cal.3d at p. 772; see People v. Hayes (1999) 21 Cal. 4th 1211, 1272 (Hayes)
[trial court did not err in determining that a witness was not an accomplice as a matter of
law where jury could give credence to witness’s denial that she knew of defendant’s
intent to kill].) 19
Even assuming the jurors found all five witnesses to be accomplices, and
considering the court’s instruction that Sanchez was an accomplice as a matter of law
whose testimony had to be corroborated, we conclude there was sufficient corroborating
evidence of defendant’s commission of the criminal conduct alleged in counts 2 and 3.
“[T]he existence of a conspiracy may be proved by uncorroborated accomplice
testimony; corroboration of accomplice testimony is needed only to connect the
defendant to the conspiracy.” (People v. Price (1991) 1 Cal. 4th 324, 444 (Price); see
People v. Rodrigues (1994) 8 Cal. 4th 1060, 1134, 1135 [accord] (Rodrigues).)
Corroborating evidence connecting a defendant with a crime is sufficient, even if “slight,
. . .entirely circumstantial, and . . . [not] sufficient to establish every element of the
19
Defendant’s reliance on People v. Robinson (1964) 61 Cal. 2d 373 (Robinson) is
misplaced as that case is factually inapposite. In Robinson, a witness had made an
extrajudicial confession, the truth of which he admitted at trial, that he had planned the
robbery during which a victim was killed. (61 Cal.2d at pp. 380-381, 394.) Our Supreme
Court held that under those specific circumstances, the witness’ testimony made him an
accomplice as a matter of law and therefore the trial court erred in failing to instruct the
jury that the witness was an accomplice and his testimony had to be corroborated. (61
Cal.2d at p. 394.) Unlike the situation in Robinson, in this case we do not have
extrajudicial confessions or judicial confessions from any of the witnesses making them
accomplices as a matter of law.
19
charged offense.” (Hayes, supra, 21 Cal.4th at p. 1271, citing to People v. Frye (1998)
18 Cal. 4th 894, 966, and People v. Zapien (1993) 4 Cal. 4th 929, 982.) Here, contrary to
defendant’s contention, the jury reasonably could infer defendant’s participation in the
conspiracy alleged in count 2 and participation in a criminal street gang alleged in count
3, based on (1) the testimony of Sanchez, Cervantes, Menendez, Azamar, Ruelas, and
Larry Valencia, standing alone, which “provided prima facie evidence” of the
conspiracies (Rodrigues, supra, at p. 1128), coupled with (2) the independent evidence of
defendant’s commission of overt acts of the murders of Perez and Thayer, including
defendant’s participation in the Thayer murder (audio recordings of Antonio’s three
police interviews and portions of the trial testimony of Antonio elicited at an earlier VFL
gang prosecution trial on November 15, 2010), the discovery of an empty holster that
would fit a 9-millimeter pistol found in defendant’s bedroom after the Thayer shooting,
and evidence that a comparison of the 9-millimeter cartridge casings recovered from the
Thayer murder scene and from the earlier Perez murder scene established that those
casings were fired from the same 9-millimeter pistol.
Thus, we find no basis to reverse the convictions for conspiracy to commit murder
and assault with a deadly weapon (count 2) and participation in a criminal street gang
(count 3) on the grounds asserted by defendant.
II. Conviction for the McIntosh Murder (Count 5)
Defendant challenges his conviction for the McIntosh murder on several grounds,
none of which requires reversal.
Defendant first argues his conviction for the McIntosh murder was based on the
uncorroborated accomplice testimony of co-conspirators Menendez and Ruelas.
However, as we have previously concluded, the accomplice status of Menendez and
Ruelas as co-conspirators was a factual issue properly submitted to the jury. Because the
jury reasonably could find that the witnesses were not accomplices, under the
appropriately given instructions, we need not, and do not decide, whether there was
sufficient corroborating evidence. (Bryant, supra, 60 Cal.4th at p. 432.)
20
Defendant also argues his conviction for the McIntosh murder should be reversed
because that murder was not committed in furtherance of the conspiracy alleged in count
2. Relying on isolated portions of the trial evidence and the prosecutor’s closing remarks,
defendant specifically contends the scope of the conspiracy as alleged in count 2 was
“never more” than an agreement by VFL gang members to “take back the hood” by
committing crimes against rival Nortenos in Richmond only, and therefore, the alleged
conspiracy did not encompass the Mctosh murder, which took place in San Pablo.
However, consistent with the evidence provided by Sanchez and Cervantes,20 the jury
reasonably could find that the scope of the conspiracy to “take back the hood” in late
2007 and early 2008 was an agreement among VFL gang members to regain street
respect for the gang by the commission of violent acts in the area claimed as Sureno
territory within Richmond and the shooting and beating of rival Norteno gang members
in Richmond as well as their claimed gang territory of San Pablo. The portions of the
evidence mentioned by defendant in support of his appellate argument were “submitted to
the jury [and] w[ere] apparently disbelieved by them. The jurors were entitled to base
their verdict upon the reasonable inferences to be drawn from the testimony offered by
the prosecution and were not bound to accept the evidence [relied on] by the defense in
opposition to such inferences.” (People v. Thomas (1933) 135 Cal. App. 654, 659
(Thomas).) Additionally, the prosecutor, in his closing remarks, did not limit the scope of
the conspiracy to “an agreement to ‘take back the hood’ in Richmond from rival
Nortenos,” as defendant argues. Instead, the prosecutor expressly urged the jury to
20
According to Sanchez, when Elizalde became the VFL gang leader, Elizalde
contacted Sanchez and told him he was still in the VFL gang. Elizalde told other gang
members that they “needed to bring the gang back [and] . . . put them [on] top.”
Elizalde’s plan was to first recruit new people and then start taking them to the streets,
“start being violent, shootouts, drive-bys,” and attacking Norteno gang members, to
improve the reputation of the VFL. According to Cervantes, in late 2007 and early 2008,
the VFL and ML gangs were planning to come back up and get their names back up on
the street and expand recruiting members by “just going to get most of the Nortenos out
of Richmond and San Pablo by whooping them, making them get out of there. Killing
them [or] whatever it takes to get them out of there.”
21
consider the charge of conspiracy as alleged in count 2 in the following manner: “So
let’s talk about why the defendant is guilty of conspiracy . . . . The adoption by a person
of the criminal design and criminal intent entertained in common by others, and of its
object and purposes, is all that is necessary to make that person a co-conspirator. [¶] So,
. . . [O]bviously, there is no direct evidence that the defendant sat down with Gama or
somebody else and said, hey, what are we doing, oh, we are bringing the hood back.
What does that mean, we are going to attack rivals. There is none of that. [¶] . . . [¶] The
defendant on February 16th, 2008, clearly showed that he had adopted the design of the
conspiracy. He went hunting in rival gang territory. And he killed Luis Perez. Just
according to the plan of the conspiracy, which is to attack rival gang members in their
territory. [¶] The act of one conspirator pursuant to or in furtherance of the common
design of the conspiracy is the act of all conspirators. [¶] . . . [O]nce you decide that a
defendant is a conspirator, his fellow co-conspirators, all of these guys, their acts, . . . the
acts of Scrappy, Gomez, Mota when they killed Rico McIntosh, despite the fact that the
defendant wasn’t there, those are his acts, because they have occurred in furtherance of
the common design of the conspiracy. [¶] It is not necessary to show a meeting of the
alleged conspirators or the making of an express or formal agreement. The formation of
a conspiracy may be inferred from all circumstances tending to show the common intent,
either by direct or circumstantial evidence.” (Italics added.)
Nor do we see any merit to defendant’s contention that his conviction for the
McIntosh murder should be reversed because that murder was not a reasonably
foreseeable consequence of the conspiracy alleged in count 2. Again relying on isolated
portions of the trial testimony, defendant contends the McIntosh murder, committed
while he was incarcerated, was an independent spur of the moment act committed by
Mota, an alleged member of the VFL gang, and Gomez, the actual shooter, who was a
member of the ML gang, and not a VFL gang member. However, both Mota and Gomez
were named as alleged co-conspirators in the indictment filed against defendant. At the
time of the conspiracy alleged in count 2, the VFL gang had a close relationship with the
ML gang, an “upcoming” Sureno gang, but there was a split in the ML leadership, and,
22
therefore, according to Sanchez, some of the ML gang members “were running with
[VFL], when we went to do drive-bys or something like that they were with [the
VFL]. . . . Sanchez further claimed that Gomez “put in work” for the VFL gang and
“should have been a VFL” gang member. Consequently, the jury reasonably could find
that Gomez was a member of the ML gang but sufficiently identified as a member of the
VFL gang so as to be considered a VFL gang member and a member of the conspiracy
alleged in count 2. The portions of the evidence mentioned by defendant in support of
his appellate argument were “submitted to the jury [and] w[ere] apparently disbelieved by
them. The jurors were entitled to base their verdict upon the reasonable inferences to be
drawn from the testimony offered by the prosecution and were not bound to accept the
evidence [relied on] by the defense in opposition to such inferences.” (Thomas, supra,
135 Cal.App. at p. 659.) Additionally, the trial court explicitly and appropriately advised
the jurors that they were to decide the scope of the conspiracy and the duration and the
goals of the conspiracy. “[H]ow far the subsequent conduct of defendant[ ] went to
establish a conspiracy, and to what extent [he was] involved in it, whe[re and when] that
conspiracy had its origin . . . ; whether the crime alleged was committed in pursuance of
the conspiracy found to have been formed, or was the act of some of the persons present,
done ‘as a fresh and independent product of the minds of some of them, and outside of
and foreign to the common design,’ were questions exclusively with the jury.” (People v.
Holmes (1897) 118 Cal. 444, 457.)
We also reject defendant’s argument that the trial court violated his due process
rights by allowing the jury to convict him of the McIntosh murder based on “an invalid
conspiracy theory of vicarious liability.” According to defendant, California law does not
allow for conspiracy as a valid theory of vicarious criminal liability. However, he
concedes our Supreme Court has consistently rejected his argument, and upheld
convictions based on a defendant’s vicarious liability for the acts of a co-conspirator.
(See People v. Valdez (2012) 55 Cal. 4th 82, 149-150 (Valdez), and the cases cited
therein; see also People v. Maciel (2013) 57 Cal. 4th 482, 515 (Maciel); People v. Lopez
(2013) 56 Cal. 4th 1028, 1071, disapproved on another ground in People v. Rangel (2016)
23
62 Cal. 4th 1192, 1215-1216.) We see no reason to further address defendant’s
contention, especially in light of the fact that we are bound by the decisions of our
Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455).
III. Admission of Jorge Sanchez’s Testimony about Defendant’s Activities as
VFL Gang Member
Defendant argues the trial court committed prejudicial error by admitting
Sanchez’s testimony concerning conversations the witness had with VFL gang members
about defendant’s activities as a VFL gang member. Our review of the record leads us to
conclude otherwise.
A. Relevant Facts
During the trial, the prosecutor sought to question Sanchez about his discussions
with Ruelas and Mota regarding defendant’s activities as a VFL gang member. The
prosecutor asked Sanchez “[a]nd what role . . . was Camacho playing,” according to
Ruelas and Mota, “who are supposed to be generals” in the VFL. Defense counsel
objected on the ground that the response would be hearsay. The prosecutor replied that
the question sought to elicit “statements in furtherance of the conspiracy.” Defense
counsel argued, however, that there was no foundation for the admission of a co-
conspirator’s statement because Sanchez did not know and had never met defendant.
Sanchez was just “hearing things” about defendant; “[s]o it’s not in furtherance of a
conspiracy at that time, because there had not been any planning with respect to
[defendant].” The court overruled the objection, ruling that “co-conspirators need not
know each or all of the other co-conspirators for them to be members of a conspiracy or
for them to be co-conspirator statements. [¶] In order for it to be clear that the foundation
has been for the existence of a conspiracy, at least among the generals, Mr. Elizalde and
so forth, as to Mr. Camacho’s connection with the conspiracy I’m going to admit the
statements subject to tying up with evidence of Mr. Camacho’s participation, but I think
the existence of a conspiracy has been at least adequately established to lay the
foundation. [¶] The jurors will be deciding whether the conspiracy is proven or not, and
whether the statements are in furtherance of the conspiracy when each of the relevant
24
participants is a member of the conspiracy, but for purposes of foundation . . . of the co-
conspirator exception I do find that an adequate foundation has been laid subject to tying
up the defendant’s role.”
The prosecutor then elicited the following testimony: Sanchez testified
defendant’s position “in the conspiracy” “was just in the regular VFL.” It was
understood amongst Sanchez and his “fellow VFLs,” Ruelas, “Sleepy,” and Mota, that
defendant “was out doing things that the VFL did, including attacking rival gang
members,” as that was what you had to do if you were in the gang; “that is part of what
you have to do. That is part of being VFL.” When asked if defendant was considered a
lower member than Sanchez, Ruelas, and Sleepy, Sanchez replied, “I don’t think so. He
was known as a down ass homie, so not on the lowest level, but the same as us.” When
asked what “down ass homie” meant, Sanchez replied, “That’s when you quit work, you
ain’t scared to get down and fight, whatever you have to do.”
B. Analysis
As noted, the trial court allowed Sanchez’s quoted testimony pursuant to Evidence
Code section 1223, which reads: “Evidence of a statement offered against a party is not
made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the
declarant while participating in a conspiracy to commit a crime or civil wrong and in
furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or
during the time that the party was participating in that conspiracy; and [¶] (c) The
evidence is offered either after admission of evidence sufficient to sustain a finding of the
facts specified in subdivisions (a) or (b) or, in the court’s discretion as to the order of
proof, subject to the admission of such evidence.”
Defendant argues that at the time Sanchez’s testimony was proffered, no evidence
had been introduced from which the trial court could properly find that Sanchez’s
statements had been made (1) while Sanchez was participating in the conspiracy and in
furtherance of its objective, and (2) prior to or during the time defendant was
participating in that conspiracy. However, the records supports the trial court’s finding
that there was a sufficient foundation for the admission of the testimony “subject to”
25
admission of evidence that Sanchez’s statements about defendant were made prior to and
during the time defendant was participating in that conspiracy. If defendant believed the
prosecutor failed to later meet the burden of demonstrating defendant’s connection to the
conspiracy at the time of Sanchez’s discussions with other co-conspirators, then defense
counsel should have made a specific objection on that ground and sought to have the
testimony stricken. Having failed to make an appropriate objection, we cannot conclude
the trial court erred in allowing the testimony on the ground now asserted on appeal.
“[A]s the testimony was admitted conditionally, and as the defendant failed to move to
strike it out on the ground that the promised connection of the testimony had not been
made, any possible error in its admission must be deemed [forfeited].” (People v.
Balmain (1911) 16 Cal. App. 28, 32.)
In all events, we conclude any purported error in the admission of the testimony
was not prejudicial. Sanchez’s testimony concerning defendant’s activities as a VFL
gang member was cumulative of Ruelas’ testimony to the same effect. As we have
discussed, the jury could reasonably find Ruelas was not an accomplice as a co-
conspirator and therefore his testimony did not need corroboration. Consequently, we
conclude the admission of Sanchez’s testimony was harmless under any standard of
review. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson
(1956) 46 Cal. 2d 818, 836 (Watson).)
IV. Admission of Evidence of Defendant’s 2006 Arrest for Gun Possession
A. Relevant Facts
Over defendant’s objection, the trial court allowed into evidence testimony
regarding defendant’s 2006 arrest for possession of a loaded gun. Richmond Police
Detective Christopher Llamas testified that on December 20, 2006, he followed
defendant into a liquor store, detected an odor of marijuana from his person, searched
him there, found a loaded .38 caliber revolver in the pocket of his sweatshirt, and arrested
him. After defendant was read his Miranda rights, and waived them, Llamas asked
defendant whether he belonged to a gang. Defendant said he was a VFL.
26
After the jury heard Officer Llamas’ testimony, the trial court allowed defense
counsel to state, for the record, a discussion held between the court and counsel at a side-
bar conference before the officer’s in-court testimony. At the sidebar the parties argued
as to whether the evidence should have been admitted. The trial court believed that the
evidence was admissible to show that defendant was a member of the VFL gang when he
was arrested in 2006, which was direct evidence of defendant’s state of mind, his intent
or desire to be a member of the VFL. The court further found that defendant’s possession
of the gun while being a claimed member of the VFL was direct evidence of defendant’s
participation in the conspiracy in 2006, “early on and well before any of the homicides.”
B. Analysis
The trial court admitted Detective Llama’s testimony of defendant’s 2006 arrest
pursuant to Evidence Code section 1101, subdivision (b), which provides for the
“admission of evidence that a person committed a crime . . . when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absent of
mistake or accident . . .) other than his or her disposition to commit such an act.” (Ibid.)
In challenging the trial court’s ruling, defendant makes two complaints: (1) the court
improperly commented that the other-crimes evidence showed defendant’s involvement
in the conspiracy in 2006 although the alleged conspiracy did not exist at that time; and
(2) the court improperly relied on Ruelas’ grand jury testimony that the gun possessed by
defendant belonged to the VFL gang when the record failed to establish Ruelas had
personal knowledge of the ownership of the gun. As we now discuss, defendant’s
contentions do not require reversal.
At the outset we conclude defendant’s claim of error is forfeited as he made no
objection to the trial court’s ruling on the two grounds he now asserts on appeal. “Under
California law, error in admitting evidence may not be the basis for reversing a judgment
or setting aside a verdict unless ‘an objection to or a motion to exclude or to strike the
evidence . . . was timely made and so stated as to make clear the specific ground of the
objection or motion.’ (Evid. Code, § 353, subd. (a), italics added.) ‘In accordance with
this statute, [our Supreme Court has] consistently held that the “defendant’s failure to
27
make a timely and specific objection” on the ground asserted on appeal makes that
ground not cognizable. [Citation.]’ (People v. Seijas (2005) 36 Cal. 4th 291, 302 [30
Cal. Rptr. 3d 493, 114 P.3d 742].)” (People v. Zamudio (2008) 43 Cal. 4th 327, 354.)
In all events, even if the other-crimes evidence of defendant’s 2006 arrest should
not have been admitted, defendant has failed to demonstrate prejudice. We find as did
the trial court that any prejudicial effect of the other-crimes evidence was “relatively
low” . . . as it “was no stronger and no more inflammatory than the [evidence] concerning
the charged offenses.” (People v. Ewoldt (1994) 7 Cal. 4th 380, 405.) Moreover, the
verdicts, including defendant’s acquittal for the Centron murder, demonstrates that the
jury did not focus on the other-crimes evidence to the exclusion of other evidence. It is
highly unlikely the jury doubted that defendant committed the charged offenses but
convicted him based on a belief that he had been arrested for possession of a gun in 2006.
(People v. Carpenter (1997) 15 Cal. 4th 312, 380.) On this record, we can be reasonably
certain that the other-crimes evidence and the prosecutor’s remarks regarding that
evidence “could not have affected the jury’s verdicts” under any standard of review.
(People v. Earp (1999) 20 Cal. 4th 826, 858; see Chapman, supra, 386 U.S. at p. 24;
Watson, supra, 46 Cal.2d at p. 836.) Nor do we see any merit to defendant’s conclusory
argument that “the erroneous admission of [the other-crimes] evidence coupled with the
court’s instruction on its permissible use violated [his] federal and state constitutional
rights to due process by lightening the prosecution’s burden of proof.” Accordingly,
defendant’s claim of reversible error on this ground fails.
V. Admission of Defendant’s Statement of Gang Membership
A. Relevant Facts
In support of the prosecution’s theory that defendant was a VFL gang member, the
prosecutor called as a witness Deputy Sheriff Thomas Trindade, an intake officer at the
Martinez Detention Facility. Without objection, Deputy Sheriff Trindade testified he
spoke with the defendant after his arrest and detention in jail on December 27, 2007.
Deputy Sheriff Trindade asked defendant if he was affiliated with a gang, and defendant
replied, “he was a Sureno.” Deputy Sheriff Trindade also testified regarding his duties as
28
an intake officer and the reason for questioning detainees regarding any gang affiliations.
He explained that detainees were asked about their gang affiliations “for safety and
security” so that a self-proclaimed gang member would be housed separately from
members of another gang. As an intake officer, Deputy Sheriff Trindade did not typically
deal with or concern himself with whether a detainee was a member or an associate of a
gang. He just asked whether or not the detainee had any gang affiliations. If the detainee
said he was a member of the Sureno gang, Deputy Sheriff Trindade assumed the detainee
was a gang member and housed the detainee accordingly. Members of different gangs
were placed in separate holding cells until they were interviewed by a classification
officer.
B. Analysis
On appeal, defendant argues the trial court erred in admitting Deputy Sheriff
Trindade’s testimony because there was no evidence that defendant was given Miranda
warnings before the officer questioned defendant about his gang affiliation. Defendant
concedes his trial counsel did not object to Deputy Sheriff Trindade’s testimony, but
argues that his claim of error is cognizable on direct appeal because there can be no valid
strategic reason why counsel would not have objected to the evidence. He further asserts
his trial counsel’s failure to object was prejudicial because his admission of gang
membership “was certainly the prosecution’s strongest evidence on the issue, and
thoroughly disabled the defense from making any argument to the contrary.” According
to defendant, had the evidence been objected to and excluded, there is a reasonable
probability that at least some of the jury’s findings in this case would have been different
and more favorable to him. We conclude defendant’s arguments are unavailing.
As defendant concedes, his trial counsel failed to object to the admission of any
portion of Deputy Sheriff Trindade’s testimony. Consequently, we do not know what the
witness would have said had he been asked if defendant had been informed and waived
his Miranda rights before responding to the question about gang affiliation. Because the
record does not show whether or not defendant was advised of his Miranda rights before
he admitted being a Sureno gang member, defendant’s claim of ineffective assistance of
29
counsel cannot be resolved on this appeal. As an appellate court we cannot declare that
Deputy Sheriff Trindade acted improperly when he questioned defendant, find that it was
error for the trial court to admit the evidence, “and brand a defense attorney incompetent
unless [we] can be truly confident all the relevant facts have been developed and [Deputy
Sheriff Trindade] and [the] prosecution had a full opportunity to defend the admissibility
of the evidence.” (People v. Mendoza Tello (1997) 15 Cal. 4th 264, 267.) “ ‘When . . .
the record sheds no light on why counsel acted or failed to act in the manner challenged,
the reviewing court should not speculate as to counsel’s reasons. . . . Because the
appellate record . . . does not show the reasons for defense counsel’s actions or
omissions, a claim of ineffective assistance of counsel should . . . be made in a petition
for writ of habeas corpus, not on appeal.’ (People v. Diaz (1992) 3 Cal. 4th 495, 557,
558.)” (People v. Lucero (2000) 23 Cal. 4th 692, 728-729.) Even if Deputy Sheriff
Trindade’s testimony of defendant’s admission of gang membership was elicited in
violation of Miranda, as we more fully explain below, we would conclude on this record
that defendant has failed to meet his burden of demonstrating prejudice under any
standard of review. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; Chapman,
supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 838.)
“In Pennsylvania v. Muniz (1990) 496 U.S. 582 [110 L. Ed. 2d 528, 110 S. Ct.
2638, 110 L. Ed. 2d 528] (Muniz), the plurality opinion recognized a ‘ “routine booking
question” exception which exempts from Miranda’s coverage questions to secure the
“biographical data necessary to complete booking or pretrial services.” ’ (Muniz, at
p. 601 (plur. opn. of Brennan, J.).) Quoting an amicus curiae brief, the plurality noted:
‘ “recognizing a ‘booking exception’ to Miranda does not mean, of course, that any
question asked during the booking process falls within that exception. Without obtaining
a waiver of the suspect’s Miranda rights, the police may not ask questions, even during
booking, that are designed to elicit incriminatory admissions.” ’ (Muniz, at p. 602,
fn. 14.) [¶] A concurring and dissenting opinion in Muniz, joined by four justices,
presumed the validity of the ‘ “booking exception.” ’ (Muniz, supra, 496 U.S. at p. 607
30
(conc. & dis. opn. of Rehnquist, C.J.).)” (People v. Williams (2013) 56 Cal. 4th 165, 187.)
Thus, Miranda’s “booking exception” is now well-recognized law. (Ibid.)
In People v. Elizalde (2015) 61 Cal. 4th 523 (Elizalde), our Supreme Court was
faced with the issue of whether Miranda’s “well-recognized booking exception”
extended to “routine questions about gang affiliation, posed to [a] defendant while
processing him into jail on murder charges.” (Id. at p. 527.) The court initially found “it
is permissible to ask arrestees questions about gang affiliation during the booking
process. Jail officials have an important institutional interest in minimizing the potential
for violence within the jail population and particularly among rival gangs, which
‘ “spawn a climate of tension, violence and coercion.” [Citation.]’ (Florence v. Board of
Chosen Freeholders of County of Burlington (2012) [566] U.S. __, __ [132 S. Ct. 1510,
1518].)” (Elizalde, supra, at p. 541.) The court went on to hold that the defendant’s
answers to unadmonished gang questions posed in that case were inadmissible in the
prosecution’s case-in-chief. (Ibid.) Nonetheless, the erroneous admission of the
testimony was subject to harmless error analysis under Chapman, supra, 386 U.S. 18, and
the court found the prosecution in that case had met its burden of proving beyond a
reasonable doubt that the erroneous evidentiary ruling did not contribute to the verdict.
(Elizalde, supra, at p. 542.)
In this case, we similarly conclude that even if Deputy Sheriff Trindade’s
testimony regarding defendant’s admission of gang affiliation was erroneously admitted
into evidence, there was no prejudicial error under Chapman, supra, 386 U.S. 18. The
record reflects that defendant’s “gang affiliation was amply established by independent
and uncontradicted evidence” from Sanchez, Ruelas, Antonio, and Menendez, who all
testified they knew defendant to be a VFL gang member at the relevant times. (Elizalde,
supra, 61 Cal.4th at p. 542.) Even if the jurors found that Ruelas and Menendez were
accomplices, together with Sanchez, who was deemed to be an accomplice as a matter of
law, their testimony and out of court statements were adequately corroborated by the
testimony of San Pablo Police Detective Robert Brady, an expert on Norteno and Sureno
criminal street gangs. (Id. at p. 542.) Brady opined that defendant was a VFL gang
31
member, based on, among other things, defendant’s association with other VFL gang
members, identifications by gang member informants, and the fact that defendant was
carrying a blue bandana when he was arrested in February 2008. The jury could also
consider as corroborating evidence the testimony of the police that gang drawings and
graffiti and notebooks with the notations of “Sur” and “13,” were found in defendant’s
residence after his arrest on February 28, 2008. Accordingly, if the issue was properly
before us, we would conclude defendant’s claim of prejudicial error on this ground fails.
VI. CALJIC No. 2.11.5 – Unjoined Perpetrators of the Same Crimes
Defendant presents several arguments challenging the trial court’s use of CALJIC
No. 2.11.5, none of which requires reversal.
A. Relevant Facts
CALJIC No. 2.11.5 was listed among defense counsel’s proposed jury instructions
submitted to the court prior to trial. Without objection by defense counsel, the court
instructed the jury using CALJIC No. 2.11.5, in the following manner: “There has been
evidence in this case that a person or persons other than the defendant was or may have
been involved in the crime for which that [sic] defendant is on trial. [¶] There may be
many reasons why those persons are not here on trial. Therefore, do not speculate or
guess as to why the other persons are not being prosecuted in this trial or whether they
have been or will be prosecuted. Your sole duty is to decide whether the People have
proved the guilt of the defendant on trial.”
B. Analysis
We conclude defendant has forfeited appellate review of his contention that the
trial court should have omitted CALJIC No. 2.11.5. in its entirety. At no time did
defense counsel object to the use of CALJIC No. 2.11.5. In all events, the instruction
was properly given in this case. In addition to the six witnesses mentioned in the
accomplice instructions (Sanchez, Larry Valencia, Azamar, Menendez, Cervantes, and
Ruelas), the jury heard testimony concerning other participants in the crimes charged
against defendant. Thus, the court appropriately admonished the jury not to consider
whether other participants had been or would be prosecuted in separate proceedings.
32
We also conclude defendant has forfeited appellate review of his related claim that
at a minimum the trial court should have modified CALJIC No. 2.11.5 to expressly limit
the instruction to persons who did not testify at trial and exclude from its application the
testimony of Sanchez, Larry Valencia, Azamar, Menendez, Cervantes, and Ruelas.
“[W]here, as here, the instruction is properly given as to some unjoined perpetrators but
not as to others, a defendant who fails to ask the trial court to give a limiting instruction
may not raise the issue on appeal.” (Valdez, supra, 55 Cal.4th at p. 149, citing to Sully,
supra, 53 Cal.3d at p. 1218.) Defendant’s claim that CALJIC No. 2.11.5 should have
been modified also fails on the merits. The six witnesses (Sanchez, Cervantes, Ruelas,
Azamar, Larry Valencia, Menendez) were questioned concerning the status of any
charges filed against them and any agreements they might have made with the
prosecution. Thus, defendant correctly concedes the jury did not have to speculate as to
why the six witnesses were not joined as co-defendants at his trial. Defendant argues,
however, that neither CALJIC No. 2.11.5 nor the instructions concerning accomplice
testimony directed, or even suggested, that in evaluating the credibility of each of the
witnesses “the jury should consider the fact that the witness’s testimony . . . was the quid
pro quo of his not being prosecuted for those crimes.” We disagree. In addition to
CALJIC No. 2.11.5 and the accomplice instructions given in this case, the trial court gave
“other standard witness credibility instructions, including CALJIC No. 2.20, which
informed the jurors to keep in mind the existence of any ‘bias, interest, or other motive’
on the part of a witness.” (Valdez, supra, 55 Cal.4th at p. 149.) “The jury was also told
to consider the instructions as a whole in accordance with CALJIC No. 1.01. (Sully,
supra, 53 Cal.3d at pp. 1218-1219.) Consequently, as our Supreme Court explained in
Valdez, “in connection with substantially identical facts, when a trial court gives CALJIC
No. 2.11.5 ‘with the full panoply of witness credibility and accomplice instructions, as it
was in this case,’ reasonable jurors will understand that although they may not consider
‘the separate prosecution or nonprosecution of coparticipants, and the reasons therefor,’
they may consider ‘a plea bargain or grant of immunity . . . as evidence of interest or bias
in assessing the credibility of prosecution witnesses. [Citation.]’ ” (Valdez, supra, 55
33
Cal.4th at p. 149; see Maciel, supra, 57 Cal.4th at pp. 538-539 [court rejected defendant’s
contention that CALJIC No. 2.11.5 “should have been ‘limited to exclude those
accomplices who testified under a grant of immunity’ ”].)
Lastly, we reject defendant’s contention that CALJIC No. 2.11.5, as given, was
prejudicial because “[t]he number of prosecution witnesses who fell within the ambit of
the instruction – six – was simply too high, and the quantity and importance of their
evidence to the prosecution case simply too great.” “ ‘When reviewing a supposedly
ambiguous [i.e., potentially misleading] jury instruction, “ ‘we inquire “whether there is a
reasonable likelihood that the jury has applied the challenged instruction in a way” that
violates the Constitution.’ ” ’ (People v. Welch [(1999)] 20 Cal. 4th 701, 766.)” (People
v. Ayala (2000) 24 Cal. 4th 243, 289.) “[T]his record gives no indication of a reasonable
likelihood that the jury applied the instructions given it in a legally improper manner.”
(Id. at p. 290.) “When the challenged instruction is considered in light of the entire
charge, we are persuaded a reasonable juror would not have understood it as precluding
the jury from considering the [various agreements the prosecution made with the six
witnesses] in assessing the credibility of those witnesses.” (Price, supra, 1 Cal.4th at
p. 446.) Although the instruction should have been clarified, “we cannot agree that
giving it amounted to error in this case.” (Ibid.; see Valdez, supra, 55 Cal.4th at p. 149
[accord].)
VII. Prosecutorial Misconduct
Defendant argues that reversal is required because certain remarks made by the
prosecutor during his rebuttal closing argument impugned the integrity of defendant’s
trial counsel. We conclude the argument is not preserved for appellate review and, in all
events, lacks merit.
A. Relevant Facts
During his summation defense counsel commented on the prosecutor’s opening
closing remarks in the following manner: “My colleague, my young colleague, who has
got good computer skills, has repeated those parts of the Judge’s instructions, which
favor him, you know, set them up dramatically, kind of like a good beer ad or something.
34
I mean, very, very, well done presentation, use of media, bombarding us with
comparisons and arrows and so that we get this impression. [¶] . . . [I]t’s a good technique
and it works in selling products, and we know that. Otherwise, companies wouldn’t do it,
but in law we – we should rationally consider things. You have to trust the Judge’s
instructions, not the views that you get from the lawyers. [¶] And, first of all, they are not
excerpted and cut in pieces to make a certain point. They are balanced. The Court’s
instructions are balanced. They will give you an instruction that goes one way, and then
the defense way, they give you a balanced view, not a cut and paste, you know, set of
excerpts. And that is important that we do that. We are trying to make rational
decisions.” Defense counsel also discussed certain police officers’ conduct during their
interviews with certain gang members, arguing that Detective Brady was “sarcastic and
angry” at the end of one of the interviews, that other officers lied and pressured, using “a
bad cop, good cop routine,” to get certain gang members to make statements, and “so
there are police actions that have been affecting the truth in this case, affecting testimony.
Use of ruses. . . . phony videos and things like that.”
In rebuttal, the prosecutor addressed defense counsel’s comments in the following
manner (italicized language is challenged on appeal): “I never have been or had the
presentation of the law referred to as the pitching of beer ads before. That is – that is
something new. [¶] Let me tell you first and foremost, ladies and gentleman, the law that
I presented you with I not only gave you the law, jury instruction number, its referenced
in the packet that you use, that you will have, I gave you the jury instruction number and
I quoted the law. [¶] One of the jobs that I have as a prosecutor representing the People of
the State of California is to tell you what the law is and help you understand it. I guess
from what the defense wanted me to do they would have preferred that I read the entire
packet to you again. [¶] . . . If I was presenting the law in an inappropriate or improper
way, if I had misquoted the law in any of the slides that I had put up, or I will put up in a
few minutes, you would have heard an objection, and that objection would have been
sustained. [¶] Had I ever misrepresented or misquoted the law by saying they are beer ads
or meant to present an unbalanced view of the law to you is grossly inaccurate, and I
35
guess an attempt to just write off the presentation of the law that you got because the
defense doesn’t have an interest in you having [a] clear, unimpeded view of the law,
right? The interest is not for you – to make it easy for you to do your job from that side
of the room. The interest is to throw a bunch of things up and see what sticks. Not to
take a reasoned, careful approach and a logical approach that makes it clear how to
work with the law. Not to their benefit. Something to think about. [¶] I was also
criticized for putting People’s 39 up on the board. . . . In the space of six weeks we have
condensed five months of investigation and a subsequent three years of litigation, police
reports, 137 CDs, 3,000 pages of police reports, 900 pages of Grand Jury transcripts,
thousands more pages from prior trials transcripts . . . . To expect you to pick it up
without a guide or without at least some kind of roster to know who we are talking about
is ridiculous. [¶] Again, clarity, not something that side of the table wants you to
have. . . .” The prosecutor also discussed defense counsel’s criticism of the conduct of
certain police officers in the following manner (italicized language is challenged on
appeal): “That brings me to the next point I want to address, the defense attorney
criticized the job that the San Pablo Police Department did in this case a lot. [¶] . . . [¶]
. . . Criticism of the police to get . . . you [to] take your eye off of the ball, to get you to
take your eye off of what really happened, off of the truth.”
B. Analysis
At the outset we conclude defendant has forfeited his claim of error as he did not
object or request an admonition in the trial court regarding the prosecutor’s closing
remarks in rebuttal. (People v. Gonzales and Soliz (2011) 52 Cal. 4th 254, 305.)
Concededly, “[a] failure to timely object and request an admonition will be excused if
doing either would have been futile, or if an admonition would not have cured the harm.
(People v. Cole (2004) 33 Cal. 4th 1158, 1201 [(Cole)].)” (People v. Linton (2013) 56
Cal. 4th 1146, 1205 (Linton).) However, on appeal defendant makes no argument that an
objection would have been futile or an appropriate admonition would not have cured any
potential harm. Consequently, we deem his claim of error forfeited. (See People v.
Jackson (2014) 58 Cal. 4th 724, 765.) Nor was defense counsel, in effect, “prejudicially
36
deficient for failing to object to the prosecutor’s comments because, as will be discussed,
there was no misconduct by the prosecutor.” (Cole, supra, 33 Cal.4th at p. 1202, fn. 11.)
“A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ (People v. Morales (2001) 25 Cal. 4th 34, 44 [104
Cal. Rptr. 2d 582, 18 P.3d 11]; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181
[91 L. Ed. 2d 144, 106 S. Ct. 2464]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643
[40 L. Ed. 2d 431, 94 S. Ct. 1868].) . . . A prosecutor’s misconduct that does not render a
trial fundamentally unfair nevertheless violates California law if it involves ‘the use of
deceptive or reprehensible methods to attempt to persuade either the court or the jury.’
(People v. Strickland ([1974]) 11 Cal. 3d 946, 955 [114 Cal. Rptr. 632, 523 P.2d 672];
accord, People v. Farnam (2002) 28 Cal. 4th 107, 167 [121 Cal. Rptr. 2d 106, 47 P.3d
988].) [¶] When the issue ‘focuses on comments made by the prosecutor before the jury,
[as in this case], the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.’
(People v. Berryman (1993) 6 Cal. 4th 1048, 1072 [25 Cal. Rptr. 2d 867, 864 P.2d 40],
overruled on another point in People v. Hill [(1998)] 17 Cal. 4th 800, 822-823 [(Hill)];
accord, People v. Clair (1992) 2 Cal. 4th 629, 663 [7 Cal. Rptr. 2d 564, 828 P.2d 705].)”
(Cole, supra, 33 Cal.4th at pp. 1202-1203.)
Here, we conclude the prosecutor’s closing remarks in rebuttal did not so infect
the trial with unfairness as to deny defendant his Fifth and Fourteenth Amendment rights
to due process or involve the use of deceptive or reprehensible methods to attempt to
persuade the jury. “Although defendant singles out particular sentences to demonstrate
misconduct, we must view the statements in the context of the argument as a whole.”
(Cole, supra, 33 Cal.4th at p. 1203.) “Each of the statements about defense counsel was
made in the context of rebutting a statement defense counsel had made during his closing
argument.” (Ibid.) Moreover, the prosecutor did not improperly quote or present a
misleading version of the instructions as given by the trial court. “When the comments
are considered in context, there is no likelihood that the jury would have understood the
37
comments as anything beyond criticism of defense counsel’s tactical approach in
argument and the defense view of the evidence in the case, as is allowed. (People v.
Huggins [(2006)] 38 Cal.4th [175,] 207; [Cole, supra, p. 1203].) The comments did not
constitute an improper argument or an attack on counsel’s personal integrity. (People v.
Chatman (2006) 38 Cal. 4th 344, 387 [42 Cal. Rptr. 3d 621, 133 P.3d 534]; People v.
Medina (1995) 11 Cal. 4th 694, 758-759 [47 Cal. Rptr. 2d 165, 906 P.2d 2].)” (Linton,
supra, 56 Cal.4th at p. 1206; see Cole, supra, at pp. 1201, 1203-1204 [prosecutor’s
comments in rebuttal that “defense counsel was attempting to ‘mislead,’ ‘deceive,’ or
give the ‘wrong idea’ to, the jury; was ‘sneaky’; was ‘unfair’ to the jury and to the
characterization of evidence and the law; and ‘wasn’t being straight’ with the jury,” did
not constitute improper personal attacks on defense counsel’s integrity or otherwise infect
trial “with such unfairness as to make the conviction a denial of due process” or “involve
‘the use of deceptive or reprehensible methods to attempt to persuade . . . the jury’ ”].)
“We presume the jurors treated ‘the comments as words spoken by an advocate in an
attempt to persuade’ (People v. Clair, supra, 2 Cal.4th [at p.] 663, fn. 8), and we find
nothing in the record that would suggest otherwise.” (Cole, supra, at p. 1204, fn.
omitted.) Accordingly, defendant’s claim of prosecutorial misconduct fails.21
VIII. Cumulative Error
We reject defendant’s contention that reversal is required based on the cumulative
effect of the purported errors raised on appeal. “[A] series of trial errors, though
independently harmless, may in some circumstances rise by accretion to the level of
reversible and prejudicial error.” (Hill, supra, 17 Cal.4th at pp. 844-845.) This is not
such a case. “To the extent we concluded or assumed that the trial court erred, no single
error warrant[s] reversal, and we are not persuaded that reversal is warranted when those
21
We are not persuaded by defendant’s reliance on Hill, supra, 17 Cal.4th at p. 832;
People v. Vance (2010) 188 Cal. App. 4th 1182, 1200; People v. Thompson (1988) 45
Cal. 3d 86, 112, People v. Fierro (1991) 1 Cal. 4th 173, 212, and Cassim v. Allstate Ins.
Co. (2004) 33 Cal. 4th 780, 796. Those cases are factually inapposite from this case, and,
in all events, do not warrant reversal of defendant’s convictions on the ground of
prosecutorial misconduct.
38
same nonprejudicial errors are considered collectively.” (People v. Nelson (2011) 51
Cal. 4th 198, 224-225.)
IX. Sentences of Life Without The Possibility of Parole
Defendant argues the two consecutive terms of life without the possibility of
parole (LWOP) constitutes cruel and/or unusual punishment under the federal and state
constitutions22 because the sentences deny him any chance of parole even if he
demonstrates rehabilitation and fitness for release. He asserts the Eighth Amendment
precludes mandatory sentences of life without the possibility for parole for juveniles, and
then argues that we should apply the same rationale to him, even though he was not a
juvenile at the time of the commissions of the crimes, but 18 years and nine months old.
He asks us to vacate his sentences and “order appropriate relief,” arguing that “before
sentencing him to life imprisonment without any possibility of parole,” the trial court had
an Eighth Amendment duty to consider his youth and immaturity and the real likelihood
22
“The Eighth Amendment of the United States Constitution prohibits infliction of
‘cruel and unusual punishments.’ This prohibition is applicable to the states by virtue of
its incorporation in the due process clause of the Fourth Amendment.” (People v. Byrd
(2001) 89 Cal. App. 4th 1373, 1382, fn. 13, italics added.) “The California Constitution
prohibits ‘cruel or unusual punishment.’ (Cal. Const., art. I, § 17, italics added.) We
construe this provision separately from its counterpart in the federal Constitution. (Raven
v. Deukmejian (1990) 52 Cal. 3d 336, 355 [276 Cal. Rptr. 326, 801 P.2d 1077].)” (People
v. Cartwright (1995) 39 Cal. App. 4th 1123, 1135-1136 (Cartwright).) “A punishment
may violate the California Constitution although not ‘cruel or unusual’ in its method, if
‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience
and offends fundamental notions of human dignity.’ (In re Lynch (1972) 8 Cal. 3d 410,
424 [105 Cal. Rptr. 217, 503 P.2d 921], fn. omitted [(Lynch)].) The Lynch court
identified three techniques courts used to administer this rule. First, they examined the
nature of the offense and the offender. (Id. at p. 425.) Second, they compared the
punishment with the penalty for more serious crimes in the same jurisdiction. (Id. at
p. 426.) Third, they compared the punishment to the penalty for the same offense in
different jurisdictions. (Id. at p. 427.)” (Cartwright, supra, at pp. 1135-1136.) Although
defendant mentions all three techniques, he relies only on the first technique (the nature
of the offense and offender), and presents no substantive arguments on the second and
third techniques.
39
he will eventually be rehabilitated and fit to reenter society.” We conclude defendant’s
arguments are unavailing.23
Relying on Miller v. Alabama (2012) 567 U.S. __ [132 S. Ct. 2455], Graham v.
Florida (2010) 560 U.S. 48, and Roper v. Simmons (2005) 543 U.S. 551, defendant
argues the rationale applicable to the sentencing of juveniles should apply to him because
he committed the February 2008 murders of Perez and Thayer only nine months after his
18th birthday. However, in adopting a categorical rule barring imposition of the death
penalty on any offender under 18 years of age, the United States Supreme Court in Roper
v. Simmons, supra, 543 U.S. 551, explained: “Drawing the line at 18 years of age is
subject, of course, to the objections always raised against categorical rules. The qualities
that distinguish juveniles from adults do not disappear when an individual turns 18. By
the same token, some under 18 have already attained a level of maturity some adults will
never reach. . . . [H]owever, a line must be drawn. . . . The age of 18 is the point where
society draws the line for many purposes between childhood and adulthood. It is, we
conclude, the age at which the line for death eligibility ought to rest.” (Id. at p. 574.)
“Making an exception for a defendant who committed a crime just [nine] months past his
18th birthday opens the door for the next defendant who is only [ten] months into
adulthood. Such arguments would have no logical end, and so a line must be drawn at
some point. We respect the line our society has drawn and which the United States
Supreme Court has relied on for sentencing purposes and conclude [defendant’s]
sentence[s] [are] not cruel and/or unusual . . . .” (People v. Argeta (2012) 210
Cal. App. 4th 1478, 1482 [court declined to apply juvenile sentencing principles to 18-
year-old defendant who was convicted of first-degree murder, as a principal, rejecting his
23
At no time in the trial court did defendant object to his sentences on the grounds
he now asserts on appeal. To the extent an objection was required to preserve his
appellate claims, we have considered his arguments on the merits in light of his
contention that his trial counsel was ineffective for failing to object in the trial court.
(See People v. DeJesus (1995) 38 Cal. App. 4th 1, 27 [court considers constitutionality of
sentence to “ ‘forestall a subsequent claim of ineffectiveness of counsel’ ”].)
40
argument that he was entitled to relief because the offense was committed five months
after his 18th birthday].)
We also reject defendant’s argument that the Eighth Amendment precludes
mandatory LWOP sentences in his case. Defendant asks us to consider that he was “just”
18 years old at the time of the crimes, he could not be described as a mature adult at that
time, and as a matter of developmental, psychological reality, he did not transform from
an immature minor to mature adult, when he turned 18 years of age, thereby being
rendered incapable of ever being rehabilitated. Defendant concedes the jury found he
shot and killed two people, but he asserts he committed those crimes as “an article of
faith that every member of the VFL was expected to shoot people believed to be
Nortenos,” and his situation is “a paradigm case of a violent gang culture leading a
troubled, immature, impetuous youth to commit violent crimes.” However, none of the
mentioned factors render the sentences unconstitutional under either the federal or state
Constitutions.
Defendant also argues the imposed sentences violated his constitutional rights
because under section 190.224 the trial court was required to impose life sentences
without parole, and therefore, was precluded from giving any consideration to his
immaturity and potential for rehabilitation. However, neither the federal nor state
constitution forbids “even the death penalty (and here defendant received the lesser
penalty of life imprisonment without parole) (People v. Loustaunau (1986) 181
Cal. App. 3d 163, 177 [226 Cal. Rptr. 216]) for a person who was not the actual killer and
did not actually intend to kill, but who was a major participant in the underlying felony,
24
Section 190.2, provides, in pertinent part, that “[t]he penalty for a defendant who
is found guilty of murder in the first degree is death or imprisonment in the state prison
for life without the possibility of parole if one or more of the following special
circumstances has been found under Section 190.4 to be true: [¶] . . . [¶] The defendant,
in this proceeding, has been convicted of more than one offense of murder in the first or
second degree” or [¶] . . . [¶] “[t]he defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang, as defined in subdivision (f)
of Section 186.22, and the murder was carried out to further the activities of the criminal
street gang.” (§ 190.2, subd. (a)(3), (22).)
41
acting with reckless indifference to human life.” (People v. Mora (1995) 39 Cal. App. 4th
607, 616, fns. omitted, citing to Tison v. Arizona (1987) 481 U.S. 137, 152, 158 [death]
and People v. Purcell (1993) 18 Cal. App. 4th 65, 73, 76 [life without parole], disapproved
on another ground in People v. Estrada (1995) 11 Cal. 4th 568, 579.) 25
X. Section 186.22, Subdivision (b), Gang Enhancements
By its verdicts, the jury found true the allegation that defendant shot both Perez
(count 1) and Thayer (count 6) for the benefit of a gang within the meaning of section
186.22, subdivision (b)(1), and also found true the allegation that defendant committed
the first degree murders while an active member of a gang within the meaning of section
190.2, subdivision (a)(22). The court sentenced defendant to two consecutive terms of
life without the possibility of parole (§ 190.2, subd. (a)(22)) on the convictions for first-
degree murder with special circumstances in counts 1 and 6. The court also imposed
consecutive determinate 10-year terms for the gang enhancements related to counts 1 and
6 under section 186.22, subdivision (b)(1)(C).
On appeal, the parties agree, and we concur, that the trial court erred by imposing
consecutive determinate 10-year terms for the gang enhancements related to counts 1 and
6 under section 186.22, subdivision (b)(1)(C). (See People v. Lopez (2005) 34 Cal. 4th
1002, 1010-1011 (Lopez).) As the court explained in Lopez, when a defendant is
25
We decline defendant’s suggestion that we remand the matter for resentencing to
allow the trial court to consider his youth and immaturity and the real likelihood he will
eventually be rehabilitated and fit to reenter society. “Although largely academic,” the
trial court explained its sentencing decisions by addressing the circumstances in
aggravation and mitigation as outlined in the California Rules of Court. The trial court
found, in pertinent part, that defendant and his associates “engaged in a campaign to
murder people on the streets of San Pablo for nothing more than wearing clothing of a
certain color;” and that defendant’s willingness to kill innocent people based on such a
trivial reason showed a severe level of depravity. The trial court also found that
defendant had sustained several juvenile petitions “of increasing seriousness,” he was on
probation at the time he committed these crimes, and his performance while on juvenile
probation was “consistently unsuccessful,” and, “obviously, couldn’t be much worse.”
Were we to remand the matter, we are reasonably certain the trial court would impose the
same sentences on defendant’s first-degree murder convictions with special
circumstances.
42
convicted of a violent felony that is punishable by imprisonment in the state prison for
life (such as first-degree murder), paragraph (5) of subdivision (b) of section 186.22
prohibits the court from imposing an additional and consecutive 10-year gang
enhancement. (Lopez, supra, at pp. 1010-1101; see § 186.22(b)(1)(C), (5)26.)
Accordingly, we shall remand the matter to the trial court with directions to modify the
sentence by deleting the 10-year gang enhancements imposed on counts 1 and 6 under
section 186.22, subdivision (b)(1)(C).
DISPOSITION
The matter is remanded to the trial court with directions to modify the sentence by
deleting the 10-year gang enhancements imposed on counts 1 and 6 under Penal Code
section 186.22, subdivision (b)(1)(C), to prepare an amended abstract of judgment
accordingly, and to transmit a certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
_________________________
Jenkins, J.
We concur:
26
Section 186.22, subdivision (b), provides, in pertinent part: (1) “Except as
provided in paragraphs (4) and (5), any person who is convicted of a felony committed
for the benefit of, at the direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which he or she has been
convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a violent felony, as
defined in subdivision (c) of Section 667.5, the person shall be punished by an additional
term of 10 years;” and “(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by imprisonment in the state
prison for life shall not be paroled until a minimum of 15 calendar years have been
served.”
43
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
People v. Jorge Camacho, A132875
44