People v. Bejarano CA6 ( 2023 )

Filed 3/3/23 P. v. Bejarano CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047892
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. F1554600)
v.
RODRIGO EDWARD BEJARANO III,
Defendant and Appellant.
Defendant Rodrigo Edward Bejarano III was convicted of the felony murder of
Robert Heiser, who was killed in his own bedroom. On appeal, Bejarano contends that
the evidence adduced at trial is consistent with the conclusion that codefendant Gerardo
Cruz Cisneros1 killed Heiser after the completion of a home-invasion robbery. Bejarano
contends that the trial court prejudicially failed to adequately instruct the jury on the
aspects of the felony-murder rule applicable to such a scenario. Further, Bejarano
contends that the prosecution improperly failed to disclose impeachment evidence
concerning the medical examiner who testified at trial. Even if his conviction is upheld,
Bejarano argues that his sentence to life in prison without the possibility of parole
1
Bejarano was tried jointly with Cisneros. Both Bejarano and Cisneros were
convicted of felony murder, burglary, and robbery. Bejarano and Cisneros filed separate
appeals. A different panel of this court affirmed Cisneros’s convictions.
violated the guarantee of equal protection secured by the federal and California
Constitutions. Finally, Bejarano contends that the trial court improperly imposed a $300
parole revocation restitution fine and a $129.75 criminal justice administration fee. We
reverse the imposition of the fine and the fee and otherwise affirm the judgment.
I. BACKGROUND
A. The Information
The Santa Clara County District Attorney charged both Bejarano and Cisneros
with (1) murder (Pen. Code, §§ 187, 190.2(a)(17))2 committed in the commission,
attempted commission, and/or immediate flight after felony robbery (§§ 211 and 212.5)
and burglary (§ 459, 460(a)); (2) first degree robbery of an inhabited dwelling,
voluntarily acting in concert (§§ 211-213(a)(1)(A)); and (3) first degree burglary (§§ 459,
460(a)).
B. Trial Evidence
Law enforcement identified four people who, in their view, shared responsibility
for Heiser’s death—Bejarano, Cisneros, Isabella Chaidez, and Gabriela Ortiz. Pursuant
to a plea agreement, Ortiz testified at the trial. Her testimony was at the heart of the
prosecution’s case against Bejarano and Cisneros, neither of whom testified.3
1. Ortiz’s Testimony
Ortiz met Chaidez when both were in custody in juvenile hall. Post-release, the
two became friends—Chaidez stayed in Ortiz’s house about twice a week, and the two
used drugs and drank alcohol together. Ortiz met Bejarano and Cisneros through
Chaidez.
Chaidez, Bejarano, and Cisneros recruited Ortiz to assist them with home invasion
robberies. Chaidez described a home invasion robbery that she had committed with
2
Undesignated statutory references are to the Penal Code.
3
Chaidez was neither a party nor a witness in the trial court proceedings.
2
Bejarano and Cisneros in Fremont. Chaidez met the victim online, then used drugs with
him several times in person. On their final encounter, Chaidez slipped Xanax into his
drink at his home. While he was incapacitated, Chaidez let Bejarano and Cisneros into
the home, and Cisneros tied the victim up and punched him in the face. The three made
off with electronics and $1,000. Chaidez encouraged Ortiz to help them meet men to
target, telling her that she was pretty.
Chaidez, Bejarano, and Cisneros persuaded Ortiz to participate in a similar home
invasion robbery in Oakland. Responding to an advertisement from a man seeking to
“party and hang out with females and do drugs,” Bejarano and Cisneros dropped Chaidez
and Ortiz off at the man’s home. Although the plan was for Chaidez and Ortiz to
incapacitate the man then let Bejarano and Cisneros into the home, Ortiz balked. After
several hours of drug use, they left the home without incident.
On February 15, 2015, Chaidez got ready at Ortiz’s house for a “date” with
Heiser. Chaidez said she was just going to have dinner with “an older man” she met
online to warm him up for a future robbery. Even so, Bejarano, Cisneros, and Ortiz all
went together to drop Chaidez off at an Olive Garden for the date. The plan, at the time,
was to rejoin Chaidez after her dinner date and for the four to spend the evening together
using drugs and drinking.
While waiting for Chaidez, Bejarano, Cisneros, and Ortiz smoked marijuana and
ate fast food. At the same time, Cisneros and Ortiz began sharing a mixed drink
containing a liter of vodka. Ortiz also took around two and a half Xanax pills. Ortiz had
only taken Xanax once or twice before that, and Xanax tended to put her in “a dream
state of mind” and make her “[s]lower, drowsy, forgetful. Like if I did something and I
fall asleep, I wake up and I don’t really recall everything.”
After about two hours, Chaidez contacted the group telling them that Heiser was
going to take her to his house, so they would meet her there. Chaidez did not yet know
the address but told the group it was somewhere in Gilroy.
3
Due to the change in plans, Bejarano drove to a drug store, from which he and
Cisneros stole white “fabric” or “cotton” gloves. Bejarano then drove them to Gilroy to
await further word from Chaidez. Chaidez relayed the address and told them to she
would open the door for them after Heiser fell asleep. At that time, their plan was for
Cisneros to tie Heiser up so the group could ransack the house. Over the course of about
two hours of waiting, Ortiz and Cisneros finished the vodka mixed drink, Ortiz took
another half pill or pill-and-a-half of Xanax, and the three smoked more marijuana.
Bejarano drove Cisneros and Ortiz to Heiser’s address. Heiser’s house was
located in a long driveway, which served multiple houses, off of a cul-de-sac at the end of
Bay Tree Drive. The end of the cul-de-sac was to the left of the driveway and across an
open lot from Calle Del Rey. While waiting for further instructions from Chaidez,
Bejarano moved the car to Calle Del Rey, where it remained easily reachable on foot
from Heiser’s house.
When Chaidez texted that Heiser had fallen asleep and she was waiting for them at
the end of the driveway, Bejarano, Cisneros, and Ortiz each did a key shot of crystal
methamphetamine—a drug that would help Ortiz wake up—then left the car to meet
Chaidez.
Chaidez led the group inside the home and directed Bejarano and Cisneros, both
gloved, to the upstairs master bedroom where Heiser slept. Chaidez handed Ortiz a bag,
clothing, keys, and a purse and directed Ortiz to take a laptop and a wallet. Chaidez went
upstairs while Ortiz remained below to collect valuables, taking two champagne bottles
in addition to the laptop and wallet.
After about five minutes, Ortiz heard Heiser scream and call for help. Chaidez
appeared from upstairs and, seeing that Ortiz was shaken, called her “a pussy” and
directed her to put the bag in an SUV in Heiser’s garage. Ortiz complied but Chaidez
went back into the house after failing to open the garage door to allow the SUV to exit.
Ortiz heard no more noise from Heiser after the initial call for help.
4
Ortiz waited in the garage for another five minutes until the other three ran out of
the house and told her to run to their car. None of the others had collected anything from
the house. Ortiz grabbed the bag she had filled and ran with them out of the garage.
Bejarano ran back to assist her as she struggled with the bag, and the four of them made it
to the parked car.
As the group was getting into the car or immediately thereafter, Cisneros said that
he had left a hat or a glove in the house and had to go back. Cisneros ran to the house
alone and ran back to the car a short time later. Upon his return, Cisneros told the group
that he had “punched [Heiser] one last time and put him to sleep.”
While they were driving away, Chaidez, Bejarano, and Cisneros recounted for
Ortiz the events in Heiser’s bedroom. Bejarano said that Heiser cried out when Bejarano
jumped from the doorway onto his back. Bejarano said that he sat on top of Heiser
because it was hard to keep him still so he could be tied up. Cisneros said that in an
attempt to pacify Heiser, someone told him, falsely, that they had a gun, but that Heiser
responded by fighting more forcefully. Cisneros said that he punched Heiser, causing a
nosebleed.
The group drove to a CVS or a Walgreens and then a 7-Eleven, where they tried to
use Heiser’s credit cards. Ortiz and Chaidez successfully obtained a prepaid card in the
first store but their transactions were rejected in the second. From there, the group
stopped at a gas station before meeting friends in the Alum Rock mountains to drink,
smoke marijuana, and use crystal methamphetamine for a couple hours, by which time
the sun had risen. The group then did laundry, sold the stolen laptop, and booked a room
in a hotel the following evening, February 17, 2015.
In the hotel room, the group learned from the news that Chaidez was wanted for a
burglary in Fremont and that a Gilroy man had been found dead in his home. Bejarano,
Cisneros, and Chaidez attempted to persuade Ortiz to join them in leaving town, but at
5
her insistence they dropped her off at her house instead. Ortiz turned herself in to police
the next day.
In talking with Gilroy police, Ortiz said initially that she learned what had
happened in Gilroy only through word-of-mouth. Later Ortiz admitted that she had been
in Gilroy but claimed to have remained in the car asleep. She identified the other
individuals involved using their nicknames and said that those individuals had beaten
Heiser badly because he was fighting back. She told law enforcement that Bejarano sat
on Heiser because Heiser kept trying to get up. Ortiz ultimately admitted entering
Heiser’s home and stealing things. Ortiz was arrested and charged.
Pursuant to a plea agreement, Ortiz pled guilty to eight felonies—first degree
robbery; voluntary manslaughter; burglary; assault with force likely to produce great
bodily harm; attempted carjacking; false imprisonment; grant theft; and identity theft.
The agreement spared Ortiz the potential for a sentence of life without parole, limiting
her maximum sentence to 18 years and two months. The agreement required Ortiz to
testify truthfully at the trial. The trial judge presiding over the proceedings was expected
to sentence Ortiz after the trial and could impose a sentence below the maximum.
Although Ortiz described extensive substance use and little to no sleep on the
night in question, inducing a “dream state of mind” during the central events, Ortiz
testified that she could remember the critical events and only “little parts and pieces” of
the events were missing from her memory. Ortiz denied that her references to her own
drug use were intended to minimize her responsibility.
2. Other Evidence
The prosecution introduced evidence generally corroborating Ortiz’s testimony
about the Fremont incident. The victim from the Fremont incident described meeting
6
Chaidez online through Craigslist before she persuaded him4 to take Xanax, after which
he was tied up, beaten, and robbed by Chaidez and two or three unidentified men.
The prosecution introduced evidence generally corroborating Ortiz’s testimony
about the sequence of events on February 15, 2015. There was an Olive Garden bag with
leftovers in Heiser’s refrigerator. A waitress from the Olive Garden recognized only
Chaidez and not Ortiz when shown photos of each. Heiser’s credit card records reflected
a transaction at Olive Garden on February 15, 2015, at 10:26 p.m. Cell phone data
confirmed Bejarano’s movements from the vicinity of the Olive Garden in San Jose to the
vicinity of Heiser’s home in Gilroy in line with Ortiz’s timeline of events. A neighbor,
awoken by her dogs barking, saw one individual running from Heiser’s house in the
direction of Calle Del Rey about 3:00 a.m.
Heiser’s credit card records showed attempted transactions, the first successful and
the next three declined, between 5:02 a.m. and 5:16 a.m. on February 16, 2015, at a CVS
and a 7-Eleven in San Jose. Surveillance video from the CVS and the 7-Eleven showed
Chaidez and Ortiz entering the stores at the time of the transactions. Surveillance video
from a gas station about 5:53 a.m. on the same day showed Bejarano and Chaidez
entering a gas station at which a purchase was made using the prepaid card from the
CVS.
Surveillance video from the hotel showed Cisneros and Ortiz getting out of
Bejarano’s car and checking in at the front desk on the evening of February 17, 2015.
Ortiz turned herself in by going to a police station in San Jose on the evening of
February 18, 2015.
4
At trial, the victim testified that although he initially told police Chaidez had
drugged his drink, he in fact voluntarily took the Xanax at her encouragement. He
initially lied because he was embarrassed. This differed from Ortiz’s telling, in which
Chaidez told Ortiz that she drugged the victim’s drink. Based on this inconsistency,
Cisneros’s trial counsel argued that Ortiz had reviewed the police reports and was
testifying based on their contents, rather than statements actually made to her by Chaidez.
7
Heiser’s body was found face down on his bed with a charging cable around his
wrists. One of Heiser’s hands was only loosely bound. He had a bruise with a laceration
above the right eye and there were additional bruises on the lower left chest, the inner left
forearm, left side of the abdomen, the left hip, the belly button, and the right side of the
abdomen. The bruising was recent. He also had a puncture wound on his upper lip,
which Dr. Michelle Jorden, the medical examiner, opined was likely from Heiser’s own
tooth. Jorden identified petechial hemorrhaging in the oral mucosa, both eyes, and in the
bruise on the right side of Heiser’s abdomen. The petechial hemorrhaging indicated a
lack of oxygen, consistent with being beaten and subjected to compressional asphyxia.
Jorden opined that Heiser’s cause of death was “probable compressional asphyxia
while being restrained in the form of bondage during a home invasion.” However, Jorden
elaborated that Heiser was subjected to “a physical assault where [he was] sustaining
blunt head trauma. He has evidence of bruising to the head. He has evidence of
abrasions to the face and he has a laceration. So there’s blunt trauma to the head. And
[at the same time] Mr. Heiser has a poor heart. He has a compromised heart. And there’s
evidence that he’s [sic] an early right-sided heart failure based on the autopsy. [¶] So if
someone is being restrained against their will and if they are sustaining injuries to their
body, there’s a pain factor that occurs. And when a -- when someone is in pain their
heart rate increases. And when their heart rate increases, it increases demand [for]
oxygen to the heart. [¶] Now, if the heart is not completely functioning up to par and you
have the pain increasing the heart rate, a component of being scared or frightened that’s
all going to increase heart rate and further compromise the heart. So in this particular
case there could be a simultaneous component of compressional asphyxia if someone is
leaning into Mr. Heiser and compressing his chest where he can’t adequately breathe and
his heart is not getting enough oxygen and at the same time you’re having the heart
fail. . . . [¶] So there could have been predominantly a component of asphyxia by
someone just sitting on Mr. Heiser because that is -- there’s definite evidence of
8
asphyxia, but there’s also a component that his heart might have given out. So it could
have been asphyxia with a sudden cardiac arrythmia.” Thus, Jorden noted “blunt force
trauma” as an “other significant condition[]” because it “causes increased heart rate
which would have impacted Mr. Heiser’s dilated cardiomyopathy.”
Pieces of white latex from a broken glove were recovered from Heiser’s bedroom,
including one piece pinned between Heiser’s face and the bed, and were linked to
Cisneros’s DNA. Cisneros’s DNA was also found on Heiser’s hands, on Heiser’s
fingernail clippings, on Heiser’s shirt,5 on stains on the wall above Heiser’s bed, and on
the knob of the door leading from the house to the garage. The only item that contained
DNA for which Bejarano was a possible contributor, together with Heiser, was a
charging cable of unspecified origin collected from the driveway.
Cisneros called one witness, an expert who opined on the extent to which the
drugs and alcohol Ortiz testified she consumed would have affected Ortiz’s likely ability
to recall the events of February 15 and 16, 2015. Bejarano did not call any witnesses.
In closing, Bejarano’s trial counsel argued that the prosecution had not proven
beyond a reasonable doubt that Bejarano entered Heiser’s house. Bejarano contended
that the only evidence suggesting he entered the house was Ortiz’s testimony and that
Ortiz was not a credible witness.
C. Conviction, New Trial Motion, and Appeal
The jury convicted Bejarano and Cisneros of first degree murder, first degree
robbery, and first degree burglary. As to the murder conviction, the jury found true the
special circumstances that Bejarano and Cisneros “commit[ed] the murder while engaged
in the commission of a burglary” and “robbery.” As to the burglary conviction, the jury
5
There was another contributor, aside from Heiser, in a sample collected from the
lower back of Heiser’s shirt. Testing ruled out Bejarano, Cisneros, and Ortiz. It is not
apparent from the record whether a sample of Chaidez’s DNA was obtained for testing
purposes.
9
found that a person not an accomplice was present in the residence during the
commission of the offense.
After the trial, the prosecution disclosed to Bejarano redacted versions of two
internal memoranda from the District Attorney’s office discussing interactions between
Jorden and law enforcement. The unredacted text, which involved two cases in which
children died under suspicious circumstances, contained an assertion that “Dr. Jorden . . .
sees herself as an advocate for victim.”
Bejarano moved for a new trial. In addition to challenging the adequacy of his
trial counsel’s representation, Bejarano argued that the Jorden memos were “crucial
evidence” known to the prosecution, the non-disclosure of which violated the
requirements of Brady v. Maryland (1963) 373 U.S. 83 (Brady). If the memos had been
disclosed, Bejarano asserted that he would have sought to impeach Jorden as a “victim’s
advocate” who does not operate independently from law enforcement, and would have
sought appointment of an independent medical examiner to evaluate Jorden’s findings.
The trial court denied the new trial motion. As to the alleged Brady violation, the
trial court reasoned that, considering the facts of this case in contrast to the cases
addressed in the memos, the memos were not “exculpatory material that would have been
material to any of the particular outcomes based on the charges that were before the jury,
and that there has been no prejudice shown and that to the extent that . . . the information
[had] been presented for potential impeachment, the Court likely would have done a
balancing under the circumstances of this case and ruled that the material was not
probative to [Jorden’s credibility such that] it would have been proper for introduction
when a balancing would have been conducted based on undue consumption of time,
misleading the jury, or the risk of undue prejudice based on tangential issues.”
After denying the new trial motion, the trial court sentenced Bejarano to life
without the possibility of parole (LWOP) for his felony-murder conviction. The court
imposed middle-term sentences of six years for the robbery conviction and four years for
10
the burglary conviction, both which it stayed pursuant to section 654. Among other fines,
fees, and restitution, the court imposed a suspended $300 parole revocation restitution
fine pursuant to section 1202.45 and a $129.75 criminal justice administration fee
pursuant to Government Code section 29550.2.
Bejarano timely appealed. At Bejarano’s request, we took judicial notice of
judicial notice of the clerk’s transcripts filed February 1, 2019, May 9, 2019, and
August 7, 2019, in Cisneros’s separate appeal under case number H046294.
II. DISCUSSION
A. The Jury Instructions and the Response to Jury Question Number 1
First, Bejarano argues that the trial court failed to adequately instruct the jury on
the “in perpetration of” element of felony murder, in that it should have instructed, sua
sponte, on the “one continuous transaction doctrine” and the “escape rule” in light of
Ortiz’s testimony that, after the group had reached their car, Cisneros returned alone to
Heiser’s house and “put him ‘to sleep.’ ” Second, Bejarano contends that the trial court
erred by failing to include an instruction listing factors that may be pertinent in assessing
whether an individual acted with “reckless indifference to human life.” Third, Bejarano
contends that the trial court failed to adequately explain the significance of an individual
juror’s determination as to whether Bejarano was an actual killer to the felony murder
analysis when it answered Jury Question Number 1 with a supplemental instruction. In
this particular case, we conclude that (1) the trial court did not have an obligation to
provide, sua sponte, the instructions that Bejarano now contends should have been given;
and (2) the trial court provided an accurate and complete answer to Jury Question
Number 1.
Anticipating our conclusion as to the trial court’s duty to instruct on the theories
he now argues, Bejarano alternatively contends that trial counsel rendered ineffective
11
assistance by failing to request the instructions he now seeks.6 We conclude, however,
that Bejarano has not demonstrated ineffective assistance of counsel through this direct
appeal.
1. Felony Murder
Under the law in effect at the time of trial, the felony-murder rule held “those who
commit the enumerated felonies . . . strictly responsible for any killing committed by a
cofelon whether intentional, negligent, or accidental, during the perpetration or attempted
perpetration of the felony.” (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt).)
Effective January 1, 2019, the Legislature limited the scope of the rule. (See People v.
Lewis (2021) 11 Cal.5th 952, 957.) Under current law, “[a] participant in the perpetration
or attempted perpetration of a felony listed in subdivision (a) in which death occurs is
liable for murder only if one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer
in the commission of murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless indifference to human life, as
described in section (d) of Section 190.2.” (§ 189, subd. (e); see also People v. Garcia
(2022) 82 Cal.App.5th 956, 964.) Thus, the requirements for felony murder liability
under section 189, subdivision (e), now run parallel to the special circumstances
requirements under section 190.2, subdivisions (b)-(d). (Compare § 189, subd. (e), with
§ 189, subds. (b)-(d).)
“ ‘[T]he felony-murder rule requires both a causal relationship and a temporal
relationship between the underlying felony and the act resulting in death.’ (Cavitt, supra,33 Cal.4th at p. 193.) The causal relationship is established by a ‘logical nexus’ between
6
Bejarano also contends that trial counsel was ineffective because he failed to
object to the trial court’s response to Jury Question Number 1. Because we conclude that
the trial court’s response was appropriate, we need not address this argument separately.
12
the felony and the homicidal act, and ‘[t]he temporal relationship is established by proof
the felony and the homicidal act were part of one continuous transaction.’ (Ibid.)”
(People v. Wilkins (2013) 56 Cal.4th 333, 346-347 (Wilkins).) “When the killing occurs
during flight, . . . the escape rule establishes the ‘outer limits of the “continuous-
transaction” theory.’ ” (Id. at p. 345.) Pursuant to the escape rule, flight following a
felony is considered part of the same transaction as long as the felon has not reached a
“place of temporary safety.” (See id. at pp. 343, 345.) “ ‘[W]hether the defendant has
reached a place of temporary safety is an objective [question] to be determined by the
trier of fact.’ ” (People v. Hernandez (2021) 60 Cal.App.5th 94, 113; see also Wilkins,
supra, 56 Cal.4th at p. 350.)
2. Standard of Review
“A trial court must instruct the jury, even without a request, on all general
principles of law that are ‘ “closely and openly connected to the facts and that are
necessary for the jury’s understanding of the case.” ’ ” (People v. Burney (2009) 47
Cal.4th 203, 246 (Burney); see also Cavitt, supra, 33 Cal.4th at p. 204; People v.
Montoya (1994) 7 Cal.4th 1027, 1047, 1050 (Montoya); People v. Waxlax (2021) 72
Cal.App.5th 579, 590-591.) This includes a sua sponte duty to instruct the jury on the
definition of the substantive offenses charged and the elements of any applicable
sentencing factors alleged. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)
But, absent a close and open connection, the trial court is not “under [an] obligation to
sift through the evidence to identify an issue that conceivably could have been, but was
not, raised by the parties, and to instruct the jury, sua sponte, on that issue.” (Montoya,
supra, 7 Cal.4th at p. 1050; People v. Wade (1959) 53 Cal.2d 322, 334, disapproved on
another ground in People v. Carpenter (1997) 15 Cal.4th 312, 381-382 [“the trial court
cannot be required to anticipate every possible theory that may fit the facts of the case
before it and instruct the jury accordingly”].) Upon request, however, the defendant has a
right to an instruction that pinpoints the theory of the defense, although the trial court
13
may properly refuse such an instruction “ ‘if it incorrectly states the law, is
argumentative, duplicative, or potentially confusing [citation], or if it is not supported by
substantial evidence [citation].’ ” (Burney, supra, 47 Cal.4th at p. 246.)
We assess de novo whether instructions correctly state the law and whether
instructions effectively direct a finding adverse to a defendant by removing an issue from
the jury’s consideration. (People v. Posey (2004) 32 Cal.4th 193, 218.) “In assessing a
claim of instructional error, ‘we must view a challenged portion “in the context of the
instructions as a whole and the trial record” to determine “ ‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way’ that violates the
Constitution.” ’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 831.)
Similarly, pursuant to section 1138, “when the jury ‘desire[s] to be informed on
any point of law arising in the case . . . the information required must be given.’
However, ‘[w]here the original instructions are themselves full and complete, the court
has discretion under section 1138 to determine what additional explanations are sufficient
to satisfy the jury’s request for information.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 97
(Brooks).) We review the legal accuracy of any supplemental instructions de novo. (See
People v. Franklin (2018) 21 Cal.App.5th 881, 887, fn. 4; People v. Doane (2021) 66
Cal.App.5th 965, 980.)
3. Bejarano’s Challenges to the Trial Court’s Instructions
Each of Bejarano’s instructional arguments shares a common premise that, on the
evidence presented, the jury could reasonably have concluded that Bejarano did not
actually kill Heiser and that it was Cisneros alone who killed Heiser on his solo return to
the house. In Bejarano’s view, if the jury believed Cisneros to be the only actual killer,7
7
Bejarano does not contend that the jury was required to find those facts true. The
factual conclusion that Bejarano seeks relies on Ortiz’s testimony that Cisneros returned
to Heiser’s home alone and, upon his return to the getaway car, told the group that he put
14
then the jury was permitted to acquit Bejarano of felony murder on one of two alternative
grounds: (1) Bejarano did not act with reckless indifference to human life; or (2) Cisneros
killed Heiser only after the completion of the felonies in which Bejarano participated, not
during the perpetration of those felonies. Accepting for the sake of argument Bejarano’s
contention that the record permitted the jury to make the foregoing factual
determinations, we are not persuaded that the trial court failed to adequately instruct the
jury.
a. Actual Killer—Jury Question No. 1
As to felony murder, the trial court instructed the jury using CALCRIM
Nos. 540A, “Felony Murder – . . . Defendant Committed the Fatal Act,” 540B, “Felony
Murder – . . . Defendant or a Perpetrator Committed the Fatal Act,” and 540C, “Felony
Murder – . . . Felony Was Substantial Factor in Causing Death.” The 540B instruction
contained four elements: “1. The defendant committed or aided and abetted robbery or
burglary; [¶] 2. The defendant intended to commit or intended to aid and abet the
perpetrator in committing robbery or burglary; [¶] 3. If a defendant did not personally
commit robbery or burglary, then a perpetrator, whom the defendant was aiding and
abetting[,] committed robbery or burglary; AND [¶] 4. While committing[] robbery or
burglary, the defendant or a perpetrator caused the death of another person.” The final
paragraph of 540B provided: “You may not find the defendant guilty of felony murder
unless all of you agree that the defendant or a perpetrator caused the death of another.
You do not all need to agree, however, whether the defendant or a perpetrator caused that
death.”
As to special circumstances, the trial court instructed the jury using
CALCRIM No. 703, “Special Circumstances Defendant Not the Actual Killer.” Through
Heiser “to sleep.” The jury was not required to credit either Cisneros’s reported
statement or Ortiz’s testimony that he made the statement.
15
that instruction, the trial court identified the elements the prosecution was required to
prove to support a special circumstance finding if the defendant was not the actual killer.
Among other things, 703 explains: “If you decide that the defendant is guilty of first
degree murder, but you cannot agree whether the defendant was the actual killer, then, in
order to find the special circumstances true, you must find that the defendant acted with
reckless indifference to human life and was a major participant in the crime.”
During deliberations, the jury submitted a written question: “For 540B, we
understand the perpetrator as the ‘person [who] did the act that resulted in death.’ Do we
have to determine if Cisneros or Bejarano[] is the perpetrator? Or can anyone be a
perpetrator? Can there be more than one?” After giving counsel an opportunity to
address its proposed response and without objection from defense counsel, the trial court
answered the question in writing, repeating the final paragraph of CALCRIM No. 540B
and adding: “For instruction 540B, to find a defendant guilty of felony murder, you do
not all need to agree on a specific perpetrator, so long as all of you agree that the
defendant or a perpetrator caused the death of another. There can be more than one
perpetrator.” The trial court concluded with two paragraphs encouraging the jury to
consider all of the instructions it had been provided, underscoring the prosecution’s
burden of proof, and stating that the jury had to “all agree” on “a verdict of guilty or not
guilty, or true or not true, on any count, special circumstance, or allegation.”
Bejarano argues that the trial court’s answer to the jury’s question was misleading
because it suggested that the individual jurors “did not even need to concern themselves
with determining which of the two defendants was the direct perpetrator of Heiser’s death
so long as one of them was.” We find nothing misleading about the answer, which
accurately reflected the law.8 It was not necessary for the jury or an individual juror, to
8
Bejarano concedes that, under existing law, a true finding on the special
circumstances is sufficient to support liability for felony murder. Accordingly, Bejarano
does not challenge the felony-murder instruction itself; instead, he contends that the
16
decide which participant in the commission of the felony killed Heiser, given the
available alternate paths to a guilty verdict for a defendant who was not the actual killer.
For example, a juror could vote to convict Bejarano where that juror believed, beyond a
reasonable doubt, that either Bejarano actually killed Heiser in the perpetration of a
felony or that Cisneros actually killed Heiser during the perpetration of a felony in which
Bejarano (1) was a participant before or during the killing; (2) was a major participant;
and (3) acted with reckless indifference to human life, even if the juror could not decide
which of the two scenarios was more likely. “Not only is there no unanimity requirement
as to the theory of guilt, the individual jurors themselves need not choose among the
theories, so long as each is convinced of guilt. Sometimes, as probably occurred here, the
jury simply cannot decide beyond a reasonable doubt exactly who did what. There may
be reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that
he was the aider and abettor, but no such doubt that he was one or the other.” (People v.
Santamaria (1994) 8 Cal.4th 903, 919; see also People v. Potts (2019) 6 Cal.5th 1012,
1048.)9
The balance of Bejarano’s argument appears to be that the trial court was required
to go beyond a narrow answer to the question posed in its supplemental instruction and
should instead have instructed on the legal significance of the actual-killer determination
to the special circumstances analysis, which is now coextensive with the felony-murder
special circumstances instruction set the bar too low, such that neither the true finding nor
the underlying substantive murder conviction can be upheld on appeal. As relevant to
this section, the issue raised by Bejarano on appeal is solely whether the trial court’s
answer to Jury Question Number 1 posed a risk of confusing the jury as to the impact the
actual killer determination would have on the balance of the special circumstances
analysis.
9
Bejarano offered no authority in support of his assertion that the individual jurors
must each settle on a discrete theory of liability to vote for a conviction and has not
responded to contrary authority cited by the Attorney General.
17
law as the Legislature has since narrowed it. But the instructions the trial court had
already provided, including CALCRIM No. 703, adequately addressed the impact that the
actual killer determination would have on the special circumstances analysis. The trial
court encouraged the jury to review all of the instructions. The trial court did not err in
constraining itself to answering the question posed by the jury without rehashing all
relevant instructions. (See generally, Brooks, supra, 3 Cal.5th at p. 97 [trial court acted
“well within its discretion” when it decided to reread selected portions of the standard
instruction where it determined that the standard instruction adequately conveyed the
concept at issue].)10
b. Continuous Transaction and Escape
In instructing the jury per CALCRIM Nos. 540A, 540B, and 540C, the trial court
advised the jury that the act causing Heiser’s death had to occur while the person who
committed the fatal act was “committing robbery or burglary.” The instructions included
cross-references to the trial court’s robbery and burglary instructions. Even so, the
pattern instructions did not clearly articulate when, for the purposes of felony-murder
liability, the person who committed the fatal act began “committing robbery or burglary”
and ceased “committing robbery or burglary.”11
10
The jury in this case sent follow-up questions when necessary. It did not follow
the trial court’s response to Jury Question Number 1 with any further questions on the
subject.
11
The Attorney General points out that the trial court’s instruction on the timing of
the formation of intent for aiding abetting a robbery referred to and defined “reach[ing] a
place of temporary safety[:]” “To be guilty of robbery as an aider and abettor, the
defendant must have formed the intent to aid and abet the commission of the robbery
before or while a perpetrator carried away the property to a place of temporary safety.
[¶] A perpetrator has reached a place of temporary safety with the property if he or she
has successfully escaped from the scene, is no longer being pursued, and has
unchallenged possession of the property.” But, like the rest of the trial court’s
instructions, this instruction does not directly define the temporal scope of the robbery
and/or burglary for the purposes of felony-murder liability.
18
Bejarano contends that the trial court’s instruction was inadequate because it “did
not provide guidance as to when the felony was considered completed for purposes of
felony murder.” First, we reject Bejarano’s framing of the claimed error as a failure to
instruct on an element of the offense. The trial court provided a proper instruction on the
required relationship between the felony and the murder, which relationship was an
element of the crime, including that the murder had to be committed during the
perpetration of the felony. Second, because Bejarano did not request a more detailed
instruction in the trial court, we must assess whether the record here required the trial
court to provide a more detailed instruction sua sponte. (Compare Cavitt, supra, 33
Cal.4th at p. 204 [sua sponte instruction on the logical nexus between a burglary-robbery
was not required because the evidence did not raise the issue] with Wilkins, supra, 56
Cal.4th at pp. 341, 347-348 [trial court was required to give the escape rule instruction
requested by the defense because the instruction was legally correct and supported by
substantial evidence].) The trial court was required to do so only if the continuous
transaction doctrine and the escape rule were “ ‘closely and openly’ ” connected to the
facts adduced at trial and necessary for the jury’s understanding of the case. (See
Montoya, supra, 7 Cal.4th at pp. 1047, 1050.) In the present case, however, the
connection between the theories urged on appeal and the facts adduced at trial is not so
close and open that the trial court had a sua sponte obligation to instruct on the
continuous transaction doctrine or the escape rule.
The present case resembles Montoya. There, Montoya was convicted of burglary
of an inhabited dwelling, either as a direct perpetrator or as an aider and abettor.
(Montoya, supra, 7 Cal.4th at p. 1031.) At trial, the prosecution adduced evidence that
Montoya was aware of his codefendant’s “intent to commit a burglary and formed the
intent to assist him in that enterprise prior to its commencement. There [was] scant
evidence to suggest it was only after [his codefendant’s] departure that defendant
belatedly learned a burglary was being committed.” (Id. at p. 1048.) The defense theory
19
of the case was that Montoya did not know that his codefendant was committing a
burglary—he believed that his codefendant was recovering his own items from his own
apartment. (Id. at pp. 1049-1050.) In that context, the California Supreme Court held
that the trial court had no sua sponte obligation to instruct on the precise time at which
the requisite intent of an aider and abettor must have been formed, because the issue was
not “ ‘closely and openly’ ” connected to the facts before it. (Id. at pp. 1048, 1050.)
In trial, the parties called little attention to Ortiz’s testimony that Cisneros put
Heiser “to sleep” when he returned to the house to recover his hat or glove. The
prosecution’s theory of the case was that Bejarano and Cisneros together killed Heiser,
with Bejarano sitting or jumping on Heiser’s back while Bejarano and Cisneros hit Heiser
in a joint effort to subdue him. Bejarano’s defense at trial was that there was insufficient
evidence of Bejarano’s participation in the underlying burglary or robbery, because Ortiz
was the sole source of evidence that Bejarano ever entered Heiser’s house, let alone had
contact with Heiser, and her testimony as an accomplice required corroboration. This
was apparent not only in closing argument but also in cross-examination of Ortiz, where
Bejarano’s counsel addressed her motive to falsely incriminate both Bejarano and
Cisneros and the effects of her drug and prescription medication abuse on her ability to
perceive and recall the events of the evening, such as her difficulty in clearly articulating
what Cisneros left in the house such that he chose to go back, and the inconsistency
between her trial testimony that the participants wore “white cotton” gloves, her prior
statement to law enforcement that the participants did not wear gloves, and the physical
evidence collected at the scene reflecting that the participants wore latex gloves.
Cisneros, the only party to address Ortiz’s testimony that he put Heiser “to sleep” when
he returned to the house, argued in closing that the testimony was not credible.
In view of the evidence presented and the parties’ framing of their respective
theories of the case, the significance of the group initially reaching the car and whether it
rendered Cisneros’s subsequent retrieval of his hat or glove a different transaction, was
20
not “ ‘closely and openly’ ” connected with the facts and the jury’s understanding of the
case. As in Montoya, there was “scant evidence” adduced at trial that might support the
new defense theory—raised for the first time on appeal—that Cisneros’s reentry into the
home was an independent transaction during which Heiser was killed. (See Montoya,
supra, 7 Cal.4th at pp. 1048-1050.) Considering the evidence presented and the
arguments advanced by the parties in the trial court, the trial court was not obligated to
sift through the evidence and instruct the jury, sua sponte, on theories that the parties had
either rejected or not considered. (Id. at p. 1050; see also People v. Oehler (1970) 7
Cal.App.3d 685, 688 [question “is not whether the point of law is obscure but whether its
relation to the facts of the case is obscure”].)12
Wilkins, the case on which Bejarano primarily relies, is distinguishable because it
does not involve the trial court’s duty to provide sua sponte instructions. There, Wilkins
stole items from a house in Menifee, California and put them in the bed of his truck, with
the tailgate down. (Wilkins, supra, 56 Cal.4th at p. 338.) While he was driving on the
freeway, a stolen stove fell off the bed of his truck. (Ibid.) A motorist who later swerved
to avoid the stove died. (Id. at p. 339.) The trial court refused a defense request to
provide an instruction on the escape rule. (Id. at p. 341.) The California Supreme Court
held that the trial court’s refusal was prejudicial error. (Id. at pp. 347-351.) Because,
even under the prosecution theory of the case, Wilkins had been driving at normal speeds
on the freeway for more than an hour without pursuit and was 62 miles away from the
12
In finding the special circumstances true, the jury necessarily rejected
Bejarano’s factual theory by determining that Bejarano was either an actual killer or a
major participant in the underlying felonies who acted with reckless indifference to
human life. We cannot reconcile these jury findings, in the context of the whole record
presented, with a contrary determination on the “in perpetration of” element predicated
on the proposition that, based on Ortiz’s testimony that Cisneros went back and
reportedly hit Heiser one more time, the attack in which Bejarano participated was not a
substantial factor in causing Heiser’s death. (See, generally, People v. Garcia (2022) 82
Cal.App.5th 956, 963 [discussing proximate causation in the felony-murder context].)
21
scene of the burglary when the stove fell out of his truck, the court explained that
“reasonable trier of fact could have concluded either that defendant had reached a place
of temporary safety before the fatal act occurred, or that he had not.” (See id. at p. 350;
see id. pp. 347-348, 350-351.) Setting aside the factual differences between Wilkins and
the present case, Wilkins was decided under a different standard. There, the question was
whether there was substantial evidence for the requested instruction on general legal
principles; here the question is whether the general legal principles were closely and
openly connected to the facts before the trial court and necessary for the jury’s
understanding of the case that the trial court was required to instruct the jury on them
without a request. (See id. at pp. 341, 347-348.)13 Accordingly, nothing in Wilkins
disturbs our conclusion that the trial court was not required, absent a request, to instruct
the jury on the continuous transaction doctrine or escape rule.
c. Reckless Indifference to Human Life
The trial court instructed the jury on the essential elements for a special
circumstances finding in connection with a felony murder conviction, where the
defendant is not the actual killer, using CALCRIM No. 703. As set forth in the
instruction, the three essential elements are: (1) the defendant’s participation in the crime
began before or during the killing; (2) the defendant was a major participant in the crime;
and (3) when the defendant participated in the crime, the defendant acted with reckless
indifference to human life.
Addressing the special circumstances statute, the California Supreme Court
explained that “the generally accepted meaning of the phrase, ‘reckless indifference to
human life,’ in common parlance amply conveys to the jury the requirement of a
defendant’s subjective awareness of the grave risk to human life created by his or her
13
Similarly, People v. Salas (2006) 37 Cal.4th 967, 982-983, which Bejarano cites
for the first time in his reply brief, is inapposite because it concerns the trial court’s
obligation to instruct on affirmative defenses.
22
participation in the underlying felony. This is the meaning intended by the phrase
‘reckless indifference to human life’ as it is used in [the special circumstances statute.]
The phrase therefore does not have a technical meaning peculiar to the law, and the trial
court had no sua sponte duty to further define the statutory phrase for the jury.” (People
v. Estrada (1995) 11 Cal.4th 568, 578 (Estrada).)
In two subsequent opinions addressing sufficiency of the evidence challenges,
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), the California Supreme Court discussed factors relevant to assessing
whether a defendant acted with reckless indifference to human life. (See People v. Price
(2017) 8 Cal.App.5th 409, 447-451 (Price).)
In Banks, the court held that an individual who had driven the getaway car in
connection with the armed robbery of a marijuana dispensary, but who was not present at
the scene when the robbery took place and who had not participated in planning or
procuring weapons, was not a “major participant.” (See Banks, supra, 61 Cal.4th at
pp. 804-807; see also Price, supra, 8 Cal.App.5th at p. 448.) Further, there was
insufficient evidence to support a finding of reckless indifference. (See Banks, supra, 61
Cal.4th at pp. 807-811; see also Price, supra, 8 Cal.App.5th at p. 448.) “[T]here was no
evidence that appellant ‘knew that his own actions would involve a grave risk of death,’
‘intended to kill’ or ‘knowingly conspired with accomplices known to have killed
before.’ ” (Price, supra, 8 Cal.App.5th at p. 448, quoting Banks, supra, 61 Cal.4th at
p. 807.) The killing was “apparently a spontaneous response to armed resistance from the
victim,” which was not anticipated. (Banks, supra, 61 Cal.4th at p. 807; see id, at p. 811.)
The Banks Court provided a series of “factors” that “may play a role in
determining whether a defendant’s culpability is sufficient to make [the defendant] death
eligible” as a major participant. (Banks, supra, 61 Cal.4th at p. 803.) The factors are:
“What role did the defendant have in planning the criminal enterprise that led to one or
more deaths? What role did the defendant have in supplying or using lethal weapons?
23
What awareness did the defendant have of particular dangers posed by the nature of the
crime, weapons used, or past experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to facilitate or prevent the
actual murder, and did [the defendant’s] own actions or inaction play a particular role in
the death? What did the defendant do after lethal force was used?” (Ibid., fn. omitted.)
“No one of [the] considerations” set forth in Banks “is necessary, nor is any one of them
necessarily sufficient. All may be weighed in determining the ultimate question, whether
the defendant’s participation ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered major [citation].” (Ibid.)
The following year, the Clark Court concluded that there was insufficient evidence
to support a finding that a defendant who participated in an armed robbery acted with
reckless indifference to human life, where there was only one gun loaded with one bullet
at the scene and the defendant, who was not carrying the gun and who planned the
robbery in a way that was intended to minimize the risk of violence, was waiting for the
shooter on the other side of a parking lot when the killing took place. (Clark, supra, 63
Cal.4th at pp. 618-623; Price, supra, 8 Cal.App.5th at p. 449.) In Price, the Court of
Appeal read Banks and Clark to “indicate the felony-murder special circumstance may
not lightly be applied to every participant in a felony murder and that the evidence
required to meet the major participant and reckless indifference elements in the case of a
nonkiller must reflect a high degree of culpability.” (Price, supra, 8 Cal.App.5th at
p. 451; see also People v. Strong (2022) 13 Cal.5th 698, 719-720 (Strong).)
Prior to the trial in this case, CALCRIM No. 703 was revised to include optional
language discussing the Banks “major participant” factors. In its present form,
CALCRIM No.703 also includes optional language addressing the “reckless
indifference” factors, derived from Clark. (CALCRIM No. 703 (2022 ed.).) As to
reckless indifference, the optional language addresses the defendant’s knowledge about
the number of weapons, if any, that would be present and the likelihood that they would
24
be, or were, used; the defendant’s knowledge about coparticipant’s propensity for
violence; the duration of the crime; and the defendant’s proximity to, and ability to
prevent or reduce the likelihood of, the killing. (Ibid.)
The trial court’s instruction in this case provided the optional instruction
addressing the major participant factors listed in Banks, but not the subsequently added
optional language addressing the reckless indifference factors derived from Clark.
Bejarano contends that the failure to provide a sua sponte instruction on the reckless
indifference factors was error. As Bejarano acknowledges, the Courts of Appeal in Price
and People v. Allison (2020) 55 Cal.App.5th 449 (Allison)14 have both concluded,
consistent with the bench notes appended to the current CALCRIM No. 703 instruction,
that trial courts are not required to include the optional language discussing the Banks and
Clark factors without a request to do so. (See Price, supra, 8 Cal.App.5th at p. 451;
Allison, supra, 55 Cal.App.5th at p. 458 [acknowledging that CALCRIM No. 703 has
been updated to include optional language in light of Banks and Clark, but concluding
that the optional language does not materially change the instruction]; see also Strong,
supra, 13 Cal.5th at p. 719-720 [acknowledging that the mandatory instructions did not
change after Banks and Clark, but noting that the availability of optional instructions may
influence trial strategies and encourage counsel to request the optional instructions].) We
decline to break with Price, which we find well reasoned.
Fundamentally, the Price Court determined that Estrada remains binding
precedent for the proposition that trial courts have no sua sponte obligation to instruct on
the jury on the phrase “ ‘ “reckless indifference to human life” ’ ” because the phrase is
intended to be defined as used in common parlance. (Price, supra, 8 Cal.App.5th at
p. 450; see id. at p. 451.) Although subsequent Supreme Court decisions have focused
14
After briefing was completed, the California Supreme Court disapproved of
Allison on another ground. (See Strong, supra, 13 Cal.5th at p. 718, fn. 3.)
25
the inquiry on certain factors to focus the analysis, and optional instructions have been
created to do the same where requested, the holding in Estrada has not been abrogated.
(See, generally, Strong, supra, 13 Cal.5th at pp. 705-707, 719-720 [noting the holding in
Estrada; describing how Banks and Clark changed the legal landscape without causing a
change in the mandatory instructions].) Accordingly, we follow it here—the trial court
was not required to provide an instruction explaining the phrase “reckless indifference to
human life” where no explanation was requested.15
4. Ineffective Assistance of Counsel
To the extent the court was not required to give the instructions Bejarano now
argues were appropriate without a request from his trial counsel, Bejarano contends that
his trial counsel rendered ineffective assistance by failing to make the request. As
discussed below, Bejarano has not demonstrated ineffective assistance of counsel through
this direct appeal.
“A criminal defendant’s federal and state constitutional rights to counsel
[citations] include[] the right to effective legal assistance. When challenging a conviction
on grounds of ineffective assistance, the defendant must demonstrate counsel’s
inadequacy. To satisfy this burden, the defendant must first show counsel’s performance
was deficient, in that it fell below an objective standard of reasonableness under
15
Bejarano’s primary argument is that Estrada is no longer good law after the
decisions in Banks and Clark—Banks and Clark have redefined “reckless indifference to
human life” to have a technical meaning. We disagree, the guidance on the types of
evidence that would sustain a “reckless indifference” finding does not abrogate the
holding in Estrada. (See Strong, supra, 13 Cal.5th at pp. 705-707 [discussing the
evolution of the body of law].) In the alternative, Bejarano argues that even if Estrada
remains the law insofar as “reckless indifference to human life” has a non-technical
meaning that “does not need further definition,” the trial court still had a “duty to provide
the jury with all relevant considerations it needs to make its decision.” But if the jury
knows what reckless indifference to human life means based on its common usage, then
the jury does not “need[]” the term to be explained. Of course, an explanation may be
beneficial—there is an optional instruction that may be requested.
26
prevailing professional norms. Second, the defendant must show resulting prejudice, i.e.,
a reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceeding would have been different. When examining an ineffective assistance claim,
a reviewing court defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable professional assistance. It
is particularly difficult to prevail on an appellate claim for ineffective assistance. On
direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. All other claims of ineffective assistance are
more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57
Cal.4th 986, 1009.)
In this direct appeal, Bejarano contends that there can be no satisfactory
explanation for trial counsel’s failure to request instructions on the one continuous
transaction doctrine, the escape rule, and the Clark factors and a response to Jury
Question Number 1 that laid out the impact a determination that Bejarano was not the
actual killer would have on the pathway to a true finding on the felony-murder special
circumstance allegations. Bejarano has not met the “particularly difficult” standard for
reversal on direct appeal.
As to the failure to request additional instructions on general legal principles,
Bejarano acknowledges that his trial strategy was “to convince the jury that the outcome
of the trial hinged on the believability of Gabriela Ortiz and to make the case for why she
should not be believed,” a strategy that he “does not challenge.” Implicitly
acknowledging that the instructions he now seeks would not further the theory that he
never entered Heiser’s house, he argues that counsel should have requested the
instructions to create an alternative pathway to at least resist the special circumstances
allegations.
27
In hindsight, Bejarano argues that there can be no satisfactory explanation for the
failure to raise these alternative arguments because “the defense had nothing to lose.”
Trial counsel could have reasonably concluded that Bejarano had much to lose by
muddying the waters with alternative arguments. Each step he took towards conceding
the veracity of Ortiz’s testimony, in the context of the physical evidence collected at the
scene, took him closer to a version of events in which Bejarano was the primary killer
because he caused Heiser to asphyxiate by jumping on Heiser from the doorway and
sitting on Heiser’s back while Heiser was face down on his bed, being beaten and bound
by Cisneros. Trial counsel could reasonably have decided that it would undermine
Bejarano’s primary objective to contest whether the conduct described by Ortiz evinced a
reckless indifference to human life or whether, solely on the strength of Ortiz’s
testimony, Heiser was killed only after the underlying felonies had concluded.16 Even if
trial counsel believed otherwise, we are unable on this record to rule out the possibility
that Bejarano precluded trial counsel from conceding participation even in the predicate
felony offenses. (See, e.g., McCoy v. Louisiana (2018) 138 S.Ct. 1500, 1509; People v.
Bloom (2022) 12 Cal.5th 1008, 1039 [“the decision whether to concede the defendant
should be found guilty of . . . even a lesser crime than the one the prosecution charged . . .
necessarily belongs to the defendant”].) Bejarano has not demonstrated the absence of a
rational explanation for trial counsel’s failure to pursue the theory that he participated in a
home-invasion robbery only up until he reached the getaway car, or only without reckless
indifference to human life, and was therefore not liable for a killing attributable only to
Cisneros.
16
In denying a new trial motion in which Bejarano first raised a claim of
ineffective assistance, the trial court observed that counsel “was very focused on the
issues that trial counsel felt or at least from the Court’s perspective perceived to feel gave
Mr. Bejarano the best chance of being acquitted, particularly of the homicide charge.”
28
As to the failure to seek a more detailed response to Jury Question Number 1, as
discussed above, no more detailed response was called for. The jury had already been
provided an instruction explaining the elements required to find the special circumstances
true if, under then-existing law, it determined that Bejarano was guilty of felony murder
but was not the actual killer. The answer to Jury Question Number 1 directed the jurors
to review all of the instructions they had been given. Moreover, as discussed above, to
the extent that Bejarano contends that individual jurors had to select a single theory of
liability, we reject that contention.
B. Brady Error
Bejarano argues that the prosecution violated his right to due process of law under
Brady by failing to timely disclose the Jorden memos. Accepting that the Jorden memos
were favorable to the accused as impeachment evidence relating to a prosecution witness
and were suppressed by the state, we conclude that no Brady violation occurred here
because, on the facts of this case, the Jorden memos were not material.
1. Legal Principles
Pursuant to Brady and its progeny, the accused’s constitutional right to due
process of law requires the prosecution to disclose evidence that is “ ‘favorable to [the]
accused’ and ‘material to either guilt or punishment.’ ” (Association for Los Angeles
Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40 (Los Angeles Deputy Sheriffs)
[quoting Brady, supra, 373 U.S. at p. 87]; People v. Superior Court (Johnson) (2015) 61
Cal.4th 696, 709.) “Such disclosure may be required even if the prosecutor is not
personally aware that the evidence exists.” (Los Angeles Deputy Sheriffs, supra, 8
Cal.5th at p. 36.) “[F]avorable” evidence includes evidence that would impeach a
prosecution witness. (Id. at p. 40.) “Evidence is material ‘ “if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” ’ [Citation.] Evaluating materiality requires
consideration of the collective significance of the undisclosed evidence [citation], as well
29
as ‘the effect of the nondisclosure on defense investigations and trial strategies [citation].
[Citations.] ‘A reasonable probability does not mean that the defendant “would more
likely than not have received a different verdict with the evidence,” only that the
likelihood of a different result is great enough to “undermine[] confidence in the outcome
of the trial.” ’ [Citation.]” (Los Angeles Deputy Sheriffs, 8 Cal.5th at p. 40; see also
People v. Deleoz (2022) 80 Cal.App.5th 642, 656.)
“We independently review the question whether a Brady violation has occurred,
but give great weight to any trial court findings of fact that are supported by substantial
evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176 (Letner and Tobin);
see also People v. Wilson (2020) 56 Cal.App.5th 128, 160.)
2. Materiality
Bejarano argues that Jorden’s testimony, together with Ortiz’s testimony that
Bejarano pinned Heiser by sitting on his back, tended to implicate Bejarano as a direct
perpetrator of Heiser’s death because Jorden identified asphyxiation as a cause of death.
Bejarano contends that if the Jorden memos had been available to him, he would have
been able to call Jorden’s determination that Heiser died as a result of asphyxiation into
question, strengthening his arguments that his liability had to be assessed as a nonkilling
accomplice rather than a direct perpetrator. But, taking into account the facts of this case
and the subject matter of the Jorden memos, we are not persuaded that the provision of
the Jorden memos would create a reasonable probability of a different result.
Jorden’s opinion in this case did not exist in a vacuum. Jorden’s opinion was
rendered based on the state of Heiser’s body at the time of autopsy, which was
documented in contemporaneous photographs and by a medical examiner at the scene.
Bejarano has raised no question as to the foundation for Jorden’s opinion: there is no
dispute that, for example, Heiser’s body exhibited bruising and petechial hemorrhages, as
confirmed by both Jorden and the medical examiner who reported to the scene, or that
Heiser had an enlarged heart. Nor has Bejarano suggested that he could or would adduce
30
evidence that, for example, petechial hemorrhaging is not a sign of asphyxia or that an
enlarged heart is not a sign of heart failure. Bejarano’s trial counsel had an opportunity
to evaluate the nexus between Jorden’s opinions and the factual record without receiving
the Jorden memos.
To be sure, the Jorden memos could be used to challenge Jorden’s opinions
indirectly by challenging her motives. But even in that usage, Jorden’s motives as
identified in the Jorden memos are not easy to transpose in the present case. The Jorden
memos identify two cases. Both cases involved Jorden’s concern that law enforcement
did not immediately treat the deaths of children in suspicious circumstances as homicides
and resulting conflicts between Jorden, in her perceived role as an “advocate for victims,”
and law enforcement. The present case did not present similar issues—Heiser’s death
was indisputably a homicide, the question at trial was who would be liable. Bejarano has
identified no alternative explanation, aside from the cause of death proffered by Jorden,
that fits with the facts of this case as illustrated by the physical evidence and testimony
adduced at trial. Accepting that the defense could have attempted to paint Jorden as a
biased medical examiner attempting to secure a conviction, the prospect of such an effort
does not—on this record—undermine our confidence in the outcome of the trial. (See
Letner and Tobin, supra, 50 Cal.4th at p. 177 [“ ‘ “In general, impeachment evidence has
been found material where the witness at issue ‘supplied the only evidence linking the
defendant(s) to the crime’ [citations], or where the likely impact on the witness’s
credibility would have undermined an element of the prosecution’s case [citation].” ’ ”].)
C. Equal Protection
Bejarano, who was 22 years old at the time of the offenses, contends that his
LWOP sentence violates his right to equal protection under the United States and
California Constitutions because section 3051 grants youthful offender parole hearings to
individuals who are subject to de facto LWOP sentences for offenses committed before
the age of 26, and there is no sufficient justification to treat similarly youthful offenders
31
who are subject to true LWOP sentences differently. Consistent with the majority of the
published authority addressing the issue, we conclude that there is a rational basis for the
distinctions drawn by the Legislature in section 3051. Accordingly, we reject Bejarano’s
constitutional challenge to his sentence.17
1. Legal Principles
“Both the federal and California Constitutions guarantee that no person shall be
denied the equal protection of the laws. (U.S. Const., 14th Amend.; Cal Const., art. I,
§-7.)” (People v. Hardin (2022) 84 Cal.App.5th 273, 282-283, review granted
Jan. 11, 2023, S277487 (Hardin).) Our evaluation of Bejarano’s constitutional claim
proceeds in two steps: “First, we consider whether ‘ “the state has adopted a
classification that affects two or more similarly situated groups in an unequal manner.” ’
[Citation.] . . . Second, if two similarly situated groups have been identified and no
suspect class or fundamental rights are at issue, we must decide whether there is any
rational basis to support treating the groups differently. [Citation.]” (Sands, supra, 70
Cal.App.5th at p. 202.)
“ ‘ “[R]ational basis” scrutiny is exceedingly deferential: A law will be upheld as
long as a court can “speculat[e]” any rational reason for the resulting deferential
treatment, regardless of whether the “speculation has ‘a foundation in the record,’ ”
regardless of whether it can be “empirically substantiated,” and regardless of whether the
Legislature ever “articulated” that reason when enacting the law.’ ” (People v. Jackson
(2021) 61 Cal.App.5th 189, 196 (Jackson).) “As a result, ‘[t]o mount a successful
17
The People argue that Bejarano forfeited his equal protection claim by failing to
raise it in the trial court. Bejarano maintains that even if his claim were forfeited we
retain discretion to consider the pure question of law and, alternatively, his counsel was
ineffective in failing to raise it. In light of our determination of the merits, which turns
on a constitutional analysis ordinarily conducted independently (People v. Sands (2021)
70 Cal.App.5th 193, 202 (Sands)), we need not address the forfeiture and ineffective
assistance of counsel arguments.
32
rational basis challenge, a party must “ ‘negative every conceivable basis’ ” that might
support the disputed disparity.’ ” (People v. Morales (2021) 67 Cal.App.5th 326, 344
(Morales).)
2. Unequal Treatment of One or More Similarly Situated Groups
In addressing whether groups are similarly situated for equal protection purposes,
“the pertinent question . . . is whether the . . . groups are properly distinguishable for
purposes of the law being challenged, even if they are dissimilar for other (or even most)
purposes.” (Hardin, supra, 84 Cal.App.5th at p. 287, review granted.)
Section 3051 “provides an opportunity for release (via youth offender parole
hearings” to most persons convicted of crimes committed before the age of 26 in their
15th, 20th, or 25th year of incarceration, depending on the sentence imposed for their
‘ “[c]ontrolling offense.” ’ ” (Sands, supra, 70 Cal.App.5th at p. 198.) But “[t]he process
is unavailable to offenders ‘sentenced to life in prison without the possibility of parole for
a controlling offense that was committed after the person had attained 18 years of age.’ ”
(Id. at p. 199, italics removed.)
As it relates to all non-LWOP sentences, section 3051 was intended to permit “a
determination whether a person who committed a serious or violent crime between the
age of 18 and 25 has sufficiently matured and outgrown the youthful impulses that led to
the commission of the offense”; the Legislature enacted section 3051 “in light of
neuroscience research that demonstrated the human brain continues to develop into a
person’s mid-20’s.” (Hardin, supra, 84 Cal.App.5th at pp. 287-288, review granted; see
also People v. Acosta (2021) 60 Cal.App.5th 769, 776-777 (Acosta).) As it relates to
individuals subject to LWOP sentences for controlling offenses committed prior to the
age of 18, the statute was intended to “ ‘bring California into compliance with the
constitutional requirements of [United States Supreme Court decisions]’ ” by
“ ‘remedy[ing] now unconstitutional juvenile sentences of life without the possibility of
parole,’ without the need for ‘a resentencing hearing, which is time-consuming,
33
expensive, and subject to extended appeals.’ ” (Acosta, supra, 60 Cal.App.5th at p. 777;
see also In re Williams (2020) 57 Cal.App.5th 427, 433 (Williams); Sands, supra, 70
Cal.App.5th at p. 198.)
“[S]ection 3051 ‘permit[s] the reevaluation of the fitness to return to society of
persons who committed serious offenses prior to reaching full cognitive and emotional
maturity,’ unless the person was ‘between 18 and 25 years of age when they committed
their offense [and] were sentenced to life without the possibility of parole.’ [Citation.] It
therefore ‘distinguishes both between those who committed their offenses under 18 years
of age and those between 18 and 25 years of age, and between offenders 18 to 25 years of
age sentenced to prison terms with the possibility of parole and those in the same group
who have been sentenced to life without the possibility of parole.’ ” (Acosta, supra, 60
Cal.App.5th at p. 777.)
We assume that individuals who are subject to LWOP sentences for controlling
offenses committed between the ages of 18 and 25 are similarly situated with individuals
who are subject LWOP sentences for controlling offenses committed prior to the age of
18 and individuals who are subject to de facto LWOP sentences for controlling offenses
committed between the ages of 18 and 25. (See Sands, supra, 70 Cal.App.5th at p. 203
[making same assumption]; see also Morales, supra, 67 Cal.App.5th at p. 347 [similar
assumptions]; compare Acosta, supra, 60 Cal.App.5th at p. 778; see id. at p. 779 [“young
adult LWOP offenders are similarly situated to young adult offenders sentenced to life
and juvenile offenders sentenced to life or LWOP . . . for the purpose of section 3051”];
Hardin, supra, 84 Cal.App.5th at pp. 287-288, review granted [young adult LWOP
offenders are similarly situated with all other young adult offenders for the purposes of
section 3051]; Jackson, supra, 61 Cal.App.5th at pp. 201-202 (conc. opn. of Dato, J.);
with Jackson, 61 Cal.App.5th at p. 199 [young adult LWOP first degree murderers and
other young adult first degree murderers are not similarly situated because LWOP
34
offenses carry a greater degree of culpability]; Williams, supra, 57 Cal.App.5th at
pp. 434-436.)
3. Rational Basis Review
Rational basis review applies where a “ ‘ “ ‘statutory classification that neither
proceeds along suspect lines nor infringes fundamental constitutional rights.’ ” ’ ”
(Hardin, supra, 84 Cal.App.5th at p. 284, review granted.) “Where a class of criminal
defendants is similarly situated to another class of defendants who are sentenced
differently, courts look to determine whether there is a rational basis for the difference.”
(People v. Edwards (2019) 34 Cal.App.5th 183, 195; Acosta, supra, 60 Cal.App.5th at
p. 778.) Each court to address an analogous equal protection challenge to section 3051
has applied the rational basis standard. (See Hardin, supra, 84 Cal.App.5th at pp. 284-
285, review granted; Acosta, supra, 60 Cal.App.5th at pp. 779-781; Sands, supra, 70
Cal.App.5th at pp. 203-205; Williams, supra, 57 Cal.App.5th at pp. 433-436; Jackson,
supra, 61 Cal.App.5th at pp. 199-200; Morales, supra, 67 Cal.App.5th at pp. 347-349; In
re Murray (2021) 68 Cal.App.5th 456, 462-465 (Murray).) We do the same.
Bejarano correctly does not dispute that there is a rational basis for differential
treatment between juveniles subject to LWOP sentences and young adults subject to
LWOP sentences. (See, e.g., Murray, supra, 68 Cal.App.5th at pp. 463-464; Hardin,
supra, 84 Cal.App.5th at pp. 285-286, review granted.) Accordingly, we focus our
attention on his contention that there is no rational basis for distinguishing between
young adults with LWOP sentences and individuals of the same age with de facto LWOP
sentences.
Several courts have concluded that there is a rational basis for the statutory
distinction, reasoning as follows. LWOP sentences are prescribed by California law for
crimes the Legislature has determined are so serious “ ‘as to warrant a sentence that
carries no hope of release for the criminal and no threat of recidivism for society.’ ”
(Sands, supra, 70 Cal.App.5th at p. 204; Acosta, supra, 60 Cal.App.5th at p. 780.) Thus,
35
several courts have held that there is a rational basis to treat LWOP offenders more
harshly than their counterparts, their offenses are more grave. (Sands, supra, 70
Cal.App.5th at p. 204-205; Acosta, supra, 60 Cal.App.5th at p. 780; Williams, supra, 57
Cal.App.5th at p. 436; Morales, supra, 67 Cal.App.5th at p. 349; Jackson, supra, 61
Cal.App.5th at pp. 199-200.)
More recently, the Hardin court charted a different course. The court questioned
“the premise that assessing relative culpability has a proper role in a statute expressly
intended to recognize the diminished culpability of youthful offenders based on their
stage of cognitive development.” (Hardin, supra, 84 Cal.App.5th at p. 289, review
granted.) Accepting the premise, the Hardin court parted company with prior decisions
for three related reasons. First, the Hardin court reasoned that the statutory distinction
could not be explained by the relative level of culpability because there is no meaningful
difference in the level of culpability of a person who has been sentenced to LWOP for a
single offense and a person who has received a de facto LWOP sentence for the
commission of multiple violent crimes. (Ibid.) Second, the Hardin court stated that “the
Legislature eschewed any attempt to assess the offenders’ overall culpability” “[b]y
defining the youth parole eligible date in terms of a single ‘controlling offense,’ rather
than the aggregate sentence.” (Ibid.) Third, the Hardin court explained that the
difference between a first degree murder subject to a life sentence with the possibility of
parole and a special circumstances first degree murder subject to LWOP is “illusory”
because special circumstances allegations can be included in most cases, “leaving the
decision of whether a [LWOP] sentence may be imposed to the discretion of local
prosecutors.” (Id. at p. 290.)
We respect the Hardin court’s incisive criticism of the differential treatment
imposed by section 3051, as a matter of public policy and youthful brain development.
But we find the majority of the published opinions addressing the equal protection issue
persuasive. Operating in tandem with sentencing statutes, section 3051 implicates the
36
broad legislative authority to prescribe a graduated system of punishment that in its
collective judgment—itself the subject of compromise—balances the often messy
agglomeration of disparate factors relevant to criminal sentencing. We are unable to
conclude that the distinctions codified in section 3051 represent an irrational exercise of
legislative power.
First, section 3051 reflects a rational legislative effort to tie both the timing and
availability of a youth offender parole hearing to the “offense or enhancement for which
any sentencing court imposed the longest term of imprisonment.” (See § 3051,
subds. (a)(2)(B), (b)(1)-(4), (h).) Although section 3051 is not itself a sentencing statute,
it is part of a body of law that potentially mitigates the maximum sentence for youth
offenders who commit certain offenses at 25 or younger. Policy considerations such as
severity, deterrence, retribution, and incapacitation are salient in this context, even
though culpability may be lower for young adults than older adults. (See Sands, supra,
70 Cal.App.5th at p. 205.)
Reasonable minds may legitimately reject the wisdom of using the longest
available maximum term of imprisonment as a proxy for a young person’s degree of
incorrigibility. But we are unable to say that the Legislature’s resort to this deciding
factor lacks any rational basis. Even accepting, as we do, that as with Ortiz, Bejarano’s
still-developing capacity for judgment, restraint, and respect for life influenced his role in
Heiser’s death, the Legislature may rationally decide to consign even youthful offenders
over the age of 18 to mandatory LWOP sentences, by virtue of their controlling offense.
Second, although we recognize the troubling implications of the statutory scheme,
we do not believe these are sufficient to allow us to override the judgment of the
Legislature on an equal protection challenge. “[T]he Legislature expressly recognized
that cognitive brain development continues into the early 20s or later, and the parts of the
brain that are still developing during this process affect judgment in ways that are highly
relevant to criminal behavior. Since the Legislature has determined a 17-year-old who is
37
sentenced to life or LWOP for committing a crime when his or her brain is not yet fully
developed should receive a youth offender parole hearing . . ., a 21-year-old sentenced to
LWOP for committing a crime when his or her brain is not yet fully developed should
arguably receive the same hearing. We are also mindful of the public policy purpose of
the statute, which is to permit the eventual evaluation of a young offender who
committed a serious offense before reaching full cognitive and emotional maturity with
an eye toward determining whether that individual has become fit to return to society.
Arguably an LWOP offender and a non-LWOP offender are equally capable of gaining
maturity, so we question whether the exclusion for young adult LWOP offenders from
this process is consistent with the statute’s purpose and legislative history.” (Acosta,
supra, 60 Cal.App.5th at pp. 780-781; see also Murray, supra, 68 Cal.App.5th at p. 464;
Morales, supra, 67 Cal.App.5th at p. 349.) But “[t]he Legislature’s distinction is not
irrational simply because some offenders sentenced to life without the possibility of
parole are arguably less culpable than some offenders receiving lesser sentences. A
legislative classification does not fail rational basis review because it is ‘ “imperfect” ’ or
‘ “because it may be ‘to some extent both underinclusive and overinclusive.’ ” ’ ”
(Sands, supra, 70 Cal.App.5 that pp. 204-205.)
Consistent with the foregoing, we reject Bejarano’s equal protection challenge to
his sentence predicated on his equal protection challenge to section 3051, pending further
guidance from the California Supreme Court or the Legislature. (See, e.g., Murray,
supra, 68 Cal.App.5th at pp. 464-465 [“encouraging the Legislature to revisit where it
has drawn the line with section 3051, subdivision (h), and to reconsider whether a
youthful offender who was sentenced to LWOP for a crime committed at an age while
cognitive brain development was still ongoing should be afforded the possibility of
release like those under 18 years old at the time of their offense”]; see also Morales,
supra, 67 Cal.App.5th at p. 349; Acosta, supra, 60 Cal.App.5th at p. 781.)
38
D. Other Issues
At least assuming that we otherwise uphold the judgment, the parties agree that the
portions of the judgment requiring Bejarano to pay any balance associated with the
$129.75 criminal justice administration fee pursuant to Government Code
section 29550.2 that remained unpaid as of July 1, 2021 and the $300 parole revocation
fine pursuant to section 1202.45 should be vacated. Having otherwise upheld the
judgment, we vacate the judgment as to the fine and fee at issue. (See People v. Greeley
(2021) 70 Cal.App.5th 609, 625-627; People v. Carr (2010) 190 Cal.App.4th 475, 482,
fn. 6.)
III. DISPOSITION
The trial court’s imposition of the $129.75 criminal justice administration fee
pursuant to Government Code section 29550.2 is modified to vacate any portion of that
amount that remained unpaid as of July 1, 2021. The trial court’s imposition of the $300
parole revocation fine pursuant to section 1202.45 is vacated. In all other respects, the
judgment is affirmed. The trial court shall prepare an amended minute order and abstract
of judgment to reflect the vacatur of the unpaid balance of the criminal justice
administration fee and the parole revocation fine.
39
____________________________
LIE, J.
WE CONCUR:
____________________________
GREENWOOD, P.J.
_____________________________
GROVER, J.
People v. Bejarano
H047892