People v. Ramirez CA2/6 ( 2021 )

Filed 10/7/21 P. v. Ramirez CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302257
(Super. Ct. No. NA102334)
Plaintiff and Respondent, (Los Angeles County)
v.
ALBERTO DEJESUS
RAMIREZ et al.,
Defendants and Appellants.
John Gilbert Alvarado, Alberto DeJesus Ramirez,
and Ivan Hernandez appeal from the judgment after juries
convicted them of first degree murder (Pen. Code, § 187, subd.
(a)),1 and convicted Hernandez of shooting at an occupied motor
vehicle (§ 246) and two counts of premeditated attempted murder
(§§ 664/187, subd. (a)). The jury found true allegations that the
death and great bodily injuries were caused by discharge of a
1
Subsequent undesignated statutory references are to the
Penal Code.
firearm (§ 12022.53, subds. (c) & (d)), and that the crimes were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)). The trial court sentenced Alvarado and Ramirez
to state prison for 50 years to life, and Hernandez for 114 years to
life.
All defendants contend the trial court erred in not
instructing the jury sua sponte regarding second degree implied
malice murder. Ramirez and Hernandez contend: (1) the trial
court erred by admitting Alvarado’s hearsay statements against
them as a declaration against penal interest, (2) uncorroborated
accomplice testimony constituted insufficient evidence for
conviction, (3) the court erred by failing to instruct the jury
regarding accomplice testimony, and (4) cumulative errors
require reversal. Alvarado and Hernandez contend they are
entitled to additional custody credits. Hernandez contends his
confession was involuntary and should have been excluded.
Ramirez contends the trial court erred in admitting evidence he
possessed firearms unrelated to the charged crimes. The
Attorney General contends Ramirez’s custody credits must be
reduced, and Hernandez must be ordered to pay additional
assessments.
We modify the judgments to correct the custody
credits and to impose the required assessments. In all other
respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Alvarado, Ramirez, and Hernandez were charged
with the murder of Jose Pineda (count 1, § 187, subd. (a)).
Ramirez and Hernandez were charged with the attempted
murders of S.G. (count 2) and M.T. (count 3) (§§ 664/187, subd.
(a)) and shooting at an occupied motor vehicle (count 5, § 246).
2
The defendants were simultaneously tried by two juries: one for
Alvarado and Ramirez, and the other for Hernandez.
Attempted murders of S.G. and M.T.
On July 18, 2015, M.A. had a party in Wilmington for
her daughter’s baptism. At the party was her boyfriend Ronald,
who was from San Pedro. The guests included S.G. and her
boyfriend M.T., who had a visible “RSP” tattoo, referring to the
Rancho San Pedro street gang. S.G. had a child whose father
was a member of the East Side Wilmas street gang.
Shortly after midnight, M.A., Ronald, S.G., and M.T.
drove to 25th and Leland Streets in San Pedro. M.A., asleep in
the back seat, was awakened by gunshots. S.G. was shot in the
leg and abdomen. M.T. was shot in his left shoulder.
A nearby resident heard approximately five or six
gunshots. He saw a man shooting at a parked car. Another man
was nearby. The two men ran down the sidewalk. Someone said,
“Wilmas.” The two men entered a dark gray car and sped away
with “tires screeching.”
Minutes after the shootings, Hernandez’s mother
texted Ramirez and asked if Hernandez was with him. Ramirez
responded, “Yes, he is.” About an hour later, Alvarado texted
Ramirez that he was home. Ramirez texted that he and
Hernandez were home, and warned Alvarado to be careful
because police were everywhere.
Murder of Jose Pineda
Two days later, several San Pedro residents observed
two men chase Jose Pineda on the 13th Street sidewalk. Pineda
had an “RSP” tattoo on the back of his head and a “Rancheria”
tattoo on his head or body. One of the men screamed, “Where are
you from?” A few seconds later, shots were fired.
3
One man appeared to be wearing gloves and shot a
gun with an extended magazine clip and a long barrel using his
left hand. Alvarado is left-handed.
Pineda fell to the sidewalk. One of the men walked
up to Pineda and shot him three or four more times. The two
men ran down 13th Street toward the alley.
Pineda died of multiple gunshot wounds. He had at
least nine gunshot wounds, including wounds through his neck,
arm, stomach, liver, lung, and brain.
Surveillance video from a nearby apartment showed
two men walking south in the alley toward 13th Street, and later
running north in the alley. One wore gloves and held a long
handgun in his left hand.
Investigation
At the scene of the shootings of S.G. and M.T., police
recovered 28 shell casings and two expended bullet rounds, all
fired from a nine-millimeter firearm.
At the scene of the Pineda murder, police recovered
23 nine-millimeter TulAmmo shell casings fired from the same
firearm as the shootings of S.G. and M.T., and five .380-caliber
casings. Some of the nine-millimeter casings were just inches
from Pineda’s body. The number of nine-millimeter casings
suggested the gun had an extended magazine.
A search of Hernandez’s home recovered clothing
similar to that worn by the suspects as shown in the surveillance
video for the Pineda murder, including a long belt with a silver
tip.
Police searched a shed with a makeshift bed where
Ramirez stayed. They recovered an unloaded .22-caliber revolver
and three live .380-caliber rounds. East Side Wilmas gang
4
graffiti was on the wall.
A search of Alvarado’s home recovered a sweatshirt
with writing on it that matched the one in the surveillance video,
gloves, a nine-millimeter TulAmmo round, and a .380-caliber
round.
Hernandez’s confession
Hernandez confessed to police that he was one of the
shooters in both incidents. The confession was presented to only
his jury.
Regarding the July 19 shootings, Hernandez said
M.A. invited him to the party, and he and Ramirez attended. At
the party, he saw Ronald and other “enemies” “from the Ranch.”
He felt threatened because they were looking at him “funny,” and
had “threatened” his family by passing by his house. He “wanted
to get revenge.”
After the party, while driving Ramirez’s gray Kia,
Hernandez recognized two men from the party. He parked the
car, walked over to them, fired 10 to 15 rounds at them, then ran
back to the car.
Regarding the murder of Pineda, Hernandez said he
and a “friend” were “cruising” around San Pedro looking for
Ronald. Hernandez was wearing pants with a long belt.
They saw Pineda, who “banged on” them and was
“throwing up R’s and shit.” Pineda did not have a gun.
Hernandez got out of the car and shot five rounds from a
.22-caliber gun. Hernandez said he and his friend “shot at”
Pineda but did not “shoot him” and did not kill him.
5
Perkins operation
Police conducted a “Perkins operation”2 in which
Alvarado was placed in a cell with two informants posing as gang
member inmates and a recording device. Portions of the
conversations were played for both juries.
Alvarado said: He was “Chiquito, from Eastside
Wilmas.” There was “tension” with “[f]ools from Rancho.” A
“fool” from “Pedro” was with a “homegirl.” “That fool” and “[f]ools
from Rancho” were entering Alvarado’s “hood.”
Alvarado said he and “Rocket” asked Pineda a
question. Pineda responded “Pedro.” Pineda’s hands were in his
pockets. Alvarado admitted shooting “that fool from Pedro” about
25 times with a nine-millimeter gun, including about seven times
in the head and seven times in the neck. Alvarado said he was
the “lead.” He and Rocket used a Glock 17 and a .380, both with
“extended burners.” Alvarado had two “extendos.” He “[made]
sure he was dead in my face when I walked away.”
Alvarado admitted he was the person running in the
surveillance video. He said police also showed him pictures of
Rocket. He said police showed him the sweatshirt he wore, and
he “fucked up” by not getting rid of it.
Alvarado said the driver, “Pinky,” was “from the
hood.” Alvarado said they all felt “happy” after the shooting.
Gang expert
A gang expert testified that Alvarado, Ramirez
(whose nickname is Pinky), and Hernandez (whose nickname is
Rocket) were members of the East Side Wilmas gang. Rancho
San Pedro was a rival of East Side Wilmas. If a woman had a
2 Illinois v. Perkins (1990) 496 U.S. 292.
6
baby with a gang member and then dated a member of a rival
gang, the first gang would retaliate.
Verdicts
As to count 1, the jury found Alvarado, Ramirez, and
Hernandez guilty of first degree murder (§§ 187, subd. (a)), 189,
subd. (a)). The jury found that Alvarado personally discharged a
firearm causing death. (§ 12022.53, subd. (d).) It found that
Hernandez personally discharged a firearm (§ 12022.53, subd.
(c)), but found “not true” that it caused Pineda’s death
(§ 12022.53, subd. (d)). As to Ramirez and Hernandez, the jury
found that a principal discharged a firearm causing death
(§ 12022.53, subd. (d)).
The jury found Hernandez guilty of the premeditated
attempted murders of S.G. and M.T. (counts 2 and 3, §§ 664/187,
subd. (a)), and shooting at an occupied motor vehicle (count 5,
§ 246). As to each count, the jury found Hernandez personally
discharged a firearm causing great bodily injury (§ 12022.53,
subd. (d)). The jury found Ramirez not guilty of attempted
murder and shooting at an inhabited vehicle (counts 2, 3, and 5).
As to all convictions, the jury found the crimes were
committed to benefit a criminal street gang (§ 186.22, subd.
(b)(1)(C)).
DISCUSSION
Voluntariness of confession
Hernandez contends his confession was involuntary
and the trial court erred when it did not suppress it. We
disagree.
1. Interview
Hernandez was 16 years old when he was arrested.
He was interviewed at the police station over the course of five
7
hours. One of his hands was handcuffed to a chair. He was given
water, used the restroom, and had several breaks in which he
slept.
Hernandez said he had been to a juvenile camp for 11
months for assault with a deadly weapon, followed by six months
for violation of house arrest. He was still on juvenile probation.
His older brother was currently incarcerated for attempted
murder, which an officer said made Hernandez “man of the
house.”
Hernandez was advised of, and acknowledged
understanding, his Miranda3 rights. The officers did not ask if
he waived his rights but began questioning him. He said he was
not nervous.
Hernandez denied involvement in another shooting
incident.4 Officer Romulo said they had evidence he was the
shooter, that it was “not looking good” for him, and they “just
want to see [his] side.” Officer Williams suggested there might be
“more to” the story, and someone might have shot at Hernandez
first. Williams said, “if you walk out of here saying, hey, I wasn’t
there” and other people said he shot the victim, “it’s not gonna go
well in court” because the judge would not believe him.
Williams said, “[L]et’s rewind here for a second.
Okay? Because I want to believe you.” Hernandez responded,
“No. I’m done already.” Williams said, “Let me ask you this.”
Hernandez responded, “I’m done.” Williams asked, “You sure you
want to leave it like that, man?” Hernandez continued to deny he
was present at the shooting. He asked, “what do you want me to
3 Miranda v. Arizona (1966) 384 U.S. 436.
4 The jury deadlocked on this count and it was dismissed.
8
tell you so I could tell you?” Williams responded, “The truth.”
Romulo said this was the brief “window of
opportunity” for Hernandez to say “what really happened.”
Romulo discussed Hernandez’s brother being in prison and said,
“This is your opportunity not to go there.”
Detectives Halka and Reynoso then interviewed
Hernandez regarding an unrelated murder. Halka said he was
worried that someone would come looking for Hernandez and end
up hurting his mother, brother, or sister. Halka said, “I would
hate to see somebody get hurt—[¶] . . . [¶]—off of you not telling
the truth. Because if you’re—[¶] . . . [¶]—telling me the truth
and then—[¶] . . . [¶]—if there is something up with it, I can’t
help you. [¶] . . . [¶] I can help your family.” Hernandez
continued to state he had not done anything.
Detectives Maffei and Romulo then questioned
Hernandez about the shooting of S.G. and M.T. Maffei stood at
first, stating that the interview would not take long because up to
that point, Hernandez was “full of shit.” Less than five minutes
later, he sat down for the rest of the interview.
Maffei said some “Ranchers” were at the party, and
Hernandez was “pissed.” He said that Hernandez followed them
to San Pedro and shot at them at 25th and Leland. A few days
later, Hernandez looked for them but found someone else.
Hernandez denied he was involved.
Maffei mentioned Hernandez’s little brother and
sister and said, “Now is the time to be honest with us, because
without you at home with them, who’s gonna protect them?
[¶] . . . [¶] Because, now, Ivan’s not around anymore—
[¶] . . . [¶]—because he lied to the police.” He continued, “And if
you want to try to tell your side of the story, now is the time to do
9
it. Otherwise, you’re going away forever. You’ll never see your
mom again. You’ll never see your little sisters. You won’t be out
there to protect them.” Hernandez continued to deny being at the
party.
Maffei said, “if you want to get out at some point to
see your little sister and your little brother, then now’s the time
to tell the truth.” The following exchange then occurred:
“[Maffei]: So what I need to know from you is what
happened at that party and what pissed you off so much
regarding the guys at the party and the girls at the party that
caused the incident at 25th and Leland.
“[Hernandez]: I’m gonna go to jail anyways.
“[Maffei]: If you lie you’re going to jail for a long
time. You tell me the truth, maybe there’s something we can do
about it. But I guarantee you if you lie to me because you know I
know a little bit about what I’m talking about, you lie to me,
there’s a good chance you’re going away forever. Okay?”
Hernandez then made incriminating statements
about the crimes.
2. Denial of motion
The trial court stated that Hernandez had prior
experience in the system and did not look scared in the video. It
noted that Hernandez was “holding firm” in his denials when
officers made general assertions about the crimes, but confessed
once they proved they had done their “homework” by describing
the evidence in detail. He confessed at that point because he
realized “the jig is up,” not because of references to his family.
The court noted that Hernandez was given several breaks
between questioning and that the recording included a “very
relaxed conversation” with a detective about basketball.
10
3. Discussion
The federal and state constitutions prohibit use of
involuntary confessions. (People v. Dykes (2009) 46 Cal.4th 731,
752.) Courts consider the “‘totality of the circumstances.’” (Ibid.)
“‘The test for determining whether a confession is voluntary is
whether the defendant’s “will was overborne at the time he
confessed.”’” (People v. McWhorter (2009) 47 Cal.4th 318, 346-
347.)
The voluntariness of a confession must be established
by a preponderance of the evidence. (People v. McWhorter, supra,
47 Cal.4th at p. 346.) “‘On appeal, the trial court’s findings as to
the circumstances surrounding the confession are upheld if
supported by substantial evidence, but the trial court’s finding as
to the voluntariness of the confession is subject to independent
review.’” (People v. Holloway (2004) 33 Cal.4th 96, 114.)
“‘“When, as here, the interview was tape-recorded, the facts
surrounding the giving of the statement are undisputed, and the
appellate court may independently review the trial court’s
determination of voluntariness.”’” (McWhorter, at p. 346.)
After acknowledging that he understood his Miranda
rights, Hernandez implicitly waived them by answering
questions. (People v. Lessie (2010) 47 Cal.4th 1152, 1169.) “The
fact that a suspect chooses to speak after being informed of his
rights is, of course, highly probative” as to voluntariness.
(Oregon v. Elstad (1985) 470 U.S. 298, 318.)
Stating that a suspect is facing a severe punishment,
and suggesting that he “would benefit from giving a truthful,
mitigated version of the crimes,” does not render a confession
involuntary. (People v. Holloway, supra, 33 Cal.4th at p. 115.)
The police here “did not represent that they, the prosecutor or the
11
court would grant defendant any particular benefit if he told
them how the [crimes] happened.” (Id. at p. 116.) They “did no
more than tell defendant the benefit that might ‘“flow[ ] naturally
from a truthful and honest course of conduct.”’” (Ibid.) “The
overall import of the interrogation was appropriate in that the
officers presented defendant with incriminating evidence,
emphasized the seriousness of the charges, and urged him not to
lie, because lies would antagonize the court and the jury.”
(People v. Williams (2010) 49 Cal.4th 405, 442.) The officers
permissibly suggested possible explanations of events and asked
the defendant to provide details. (Id. at p. 444.)
Even when police engage in coercive activity, it
renders a confession involuntary only if it is the proximate cause
of the statements. (People v. Jablonski (2006) 37 Cal.4th 774,
814.) The record here does not establish that Hernandez’s
statements were the result of improper statements.
Hernandez continued to exercise free will even after
he decided to admit some of his conduct. Although he admitted
his involvement in the shooting of Pineda, he maintained that he
only shot “at” him, and declined to provide the name of the other
shooter.
This case is unlike In re Elias V. (2015) 237
Cal.App.4th 568, 570-571, cited by Hernandez. The suspect there
was 13 years old and had no prior contacts with police. (Id. at p.
591.) Police asserted his guilt of child molesting as a fact without
having evidence to support it. (Id. at p. 593.) Police employed
the “false choice” strategy by offering him only two possibilities:
that he acted based on natural “‘curiosity,’” or did what any
“normal person” would find “‘exciting.’” (Id. at pp. 584-586.)
When the minor accepted the detective’s assertions as to what
12
happened, it was unclear that he understood he was admitting a
crime. (Id. at pp. 593-594.)
In contrast here, Hernandez was 16 years old and
understood the significance of his admissions. His experience in
the criminal justice system was a factor showing his confession
was voluntary. (People v. Williams, supra, 49 Cal.4th at p. 442.)
Police had a factual basis for their assertions and did not present
Hernandez with a false choice.
Nor is this case like In re T.F. (2017) 16 Cal.App.5th
202, also cited by Hernandez. The minor there was 15 years old
with a diagnosed intellectual disability and was sobbing and
distraught throughout the interview. (Id. at pp. 212-213.) He
had minimal prior contact with police. (Id. at p. 221.) Hernandez
was not disabled, had been sent to juvenile camp before, and was
calm during the interview.
Hernandez relies on Welfare and Institutions Code
section 625.6, which requires that a minor consult with counsel
before a custodial interrogation. The statute was not enacted
until after Hernandez was questioned. (Stats. 2017, ch. 681, § 2.)
At the time the trial court heard the motion to suppress the
confession, the statute applied only to minors age 15 or younger.
(Ibid.) While the legislative findings underlying Welfare and
Institutions Code section 625.6 discuss the cognitive development
of juveniles (Stats. 2017, ch. 681, § 1; Stats. 2020, ch. 335, § 1),
the statute does not provide an independent basis to suppress a
statement. (In re Anthony L. (2019) 43 Cal.App.5th 438, 450.)
Firearm possession
Ramirez contends the trial court erred when it
admitted evidence that police found an unloaded .22-caliber
13
revolver unrelated to the crimes in the shed where he stayed, and
a text message that someone left a gun in his car. We disagree.
Ramirez forfeited his challenge to the gun in the shed
by failing to object in the trial court. (People v. Flinner (2020) 10
Cal.5th 686, 726-727.)
Ramirez received the text message three weeks
before the murder. It stated that a .22-caliber gun was left in his
car. Ramirez objected that the prejudicial effect of the evidence
outweighed its probative value. (Evid. Code, § 352.) The
prosecutor offered the evidence to show “Ramirez’s reliability as a
driver and somebody who you can store your guns in the car.” As
such, it was probative and not unduly prejudicial. The court
found that whether or not the sender of the text was a gang
member went to the weight rather than the admissibility of the
evidence and overruled the objection. The trial court did not
abuse its discretion when it allowed the evidence. (People v.
Waidla (2000) 22 Cal.4th 690, 724.)
Ramirez forfeited the argument that the text was
improper character evidence (Evid. Code, § 1101) because he did
not make that objection in the trial court. (People v. Flinner,
supra, 10 Cal.5th at pp. 726-727.) The argument also fails on the
merits because the evidence was not admitted for the improper
reason to show Ramirez “is the sort of person who carries deadly
weapons,” but to show he transported another person with a
deadly weapon who trusted him with its possession. (See People
v. Cox (2003) 30 Cal.4th 916, 956-957, disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Declaration against interest
Ramirez and Hernandez contend the trial court erred
in admitting Alvarado’s statements against them. We are not
14
persuaded.
Alvarado’s statements were admitted pursuant to the
hearsay exception for declarations against penal interest. (Evid.
Code, § 1230.) We review the ruling for abuse of discretion.
(People v. Grimes (2016) 1 Cal.5th 698, 711.)
A defendant’s declarations against interest that
implicate a codefendant are admissible if they are “‘specifically
disserving to the interests of the declarant.’” (People v. Duarte
(2000) 24 Cal.4th 603, 612.) To be admissible, the statements
must be trustworthy. (Id. at p. 614.) Whether they are
trustworthy is based on “the totality of the circumstances in
which the statement was made, whether the declarant spoke
from personal knowledge, the possible motivation of the
declarant, what was actually said by the declarant and anything
else relevant to the inquiry.” (People v. Greenberger (1997) 58
Cal.App.4th 298, 334.) Statements implicating both the
declarant and a codefendant are trustworthy when “made under
circumstances that . . . suggest reliability . . . such as statements
made to a personal acquaintance in a noninvestigatory context
where the setting suggests no motive to speak falsely” or to “shift
blame or curry favor.” (Id. at pp. 334-335.)
The court is not required “to sever and excise any and
all portions of an otherwise inculpatory statement that do not
‘further incriminate’ the declarant.” (People v. Grimes, supra, 1
Cal.5th at p. 716.) The “statement is more likely to satisfy the
against-interest exception when the declarant accepts
responsibility and denies or diminishes others’ responsibility . . .
as opposed to attempting to assign greater blame to others.”
(Ibid.)
The trial court found Alvarado’s statements were
15
trustworthy because he believed he was talking to fellow gang
members. He spoke about incidents at which he was present and
participated. He admitted a greater role in the murder than
Ramirez or Hernandez. He did not attempt to shift blame, but
admitted he was the “lead” in the killing, that he shot the victim
numerous times in the head and neck, and made sure he was
dead. Alvarado’s statements about Ramirez and Hernandez were
trustworthy because they “were an integral part of the statement
in which he implicated himself” as the person primarily
responsible. (People v. Greenberger, supra, 58 Cal.App.4th at p.
340.)
This case is not like People v. Lawley (2002) 27
Cal.4th 102, 151-155, cited by Ramirez and Hernandez. There,
the trial court did not abuse its discretion when it excluded an
inmate’s statement that he committed murder because he was
paid to do so by the Aryan Brotherhood. Because he was seeking
membership in the Aryan Brotherhood, the statement “was not
specifically disserving of his interests” but “might have been an
exercise designed to enhance its prestige or his own.” (Id. at pp.
154-155.) Here, the trial court determined that the statements
naming Ramirez and Hernandez were an integral part of a
statement that specifically disserved Alvarado’s interests.
People v. Lawley, supra, 27 Cal.4th 102, was
distinguished in People v. Samuels (2005) 36 Cal.4th 96, 120-121.
There, a conspirator’s statement that the defendant paid him to
commit the murder was properly admitted. As is the case here,
the statement was “in no way exculpatory, self-serving, or
collateral . . . or an attempt to shift blame.” (Id. at p. 120.)
“Instead, the reference was inextricably tied to and part of a
specific statement against penal interest.” (Id. at p. 121.)
16
Nor is this case like People v. Gallardo (2017) 18
Cal.App.5th 51, cited by defendants. There, a defendant
attempted to minimize his role, claimed he was only the getaway
driver, and identified the codefendants as the shooter and the
driver of the vehicle from which the shots were fired. (Id. at pp.
73-75.) Here, Alvarado admitted being the “lead” shooter who
shot the victim in the head and neck to make sure he was dead.
Discussion of the roles of Ramirez and Hernandez specifically
disserved Alvarado because it showed concerted effort for the
benefit of a criminal street gang. And unlike Gallardo, where the
trial court admitted the transcript of the entire discussion with
informants (id. at p. 72), the trial court here excised statements
that were not specifically disserving of Alvarado’s interests.
The trial court did not abuse its discretion in
admitting the statements. Because the trial court followed the
law regarding declarations against interest, the court did not
deny Ramirez or Hernandez’s right to due process or liberty
interest by misapplying state law. (See Estelle v. McGuire (1991)
502 U.S. 62, 72-73; Hicks v. Oklahoma (1980) 447 U.S. 343, 346.)
Corroboration of accomplice
Ramirez and Hernandez contend the evidence was
insufficient to convict them of Pineda’s murder because it was
based on uncorroborated statements of an accomplice. They are
incorrect.
In general, section 1111 requires corroboration of
accomplice testimony, or “‘“out-of-court statements of accomplices
. . . used as substantive evidence of guilt which are made under
suspect circumstances.”’” (People v. Brown (2003) 31 Cal.4th 518,
555, italics omitted.) But “‘[t]he usual problem with accomplice
testimony—that it is consciously self-interested and calculated—
17
is not present in an out-of-court statement that is itself
sufficiently reliable to be allowed in evidence.’ [Citation.]” (Id. at
pp. 555-556.) Because the statements “were themselves made
under conditions sufficiently trustworthy to permit their
admission into evidence . . . [as] declarations against his penal
interest . . . no corroboration was necessary.” (Id. at p. 556.)
Accomplice instruction
Ramirez and Hernandez contend the trial court erred
in failing to instruct the jury sua sponte that Alvarado was an
accomplice whose statements must be corroborated and viewed
with caution. There was no error.
The defendants did not request accomplice
instructions. (See CALJIC Nos. 3.10—3.20; CALCRIM Nos. 334,
335.) Because Alvarado’s statements were sufficiently
trustworthy to be admitted as declarations against interest, “the
court was not required to instruct the jury to view [the]
statements with caution and to require corroboration.” (People v.
Brown, supra, 31 Cal.4th at p. 556.)
Second degree murder instruction
Defendants contend the trial court erred in not
instructing the jury with CALJIC No. 8.315 regarding second
5 CALJIC No. 8.31 states: “Murder of the second degree is
[also] the unlawful killing of a human being when: [¶] 1. The
killing resulted from an intentional act; [¶] 2. The natural
consequences of the act are dangerous to human life, and [¶]
3. The act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life. [¶]
When the killing is the direct result of such an intentional act it
is not necessary to prove that the defendant intended that the act
would result in the death of a human being.” (CALJIC No. 8.31
(Spring 2009 revision), bracketed language imposing liability for
18
degree murder based on implied malice. They are incorrect.
We review de novo the claim that the trial court erred
when it failed to give the jury instruction. (People v. Wilson
(2021) 11 Cal.5th 259, 295.) Even where, as here, the defendants
did not request the instruction, “‘“‘“the trial court must instruct
on the general principles of law relevant to the issues raised by
the evidence.”’”’” (Ibid.)
A jury instruction is not required if it is duplicative.
(See People v. Scully (2021) 11 Cal.5th 542, 592-593.) Failure to
give CALJIC No. 8.31 was not error because “the other
instructions provided by the trial court adequately imparted this
information to the jury.” (People v. Lucas (2014) 60 Cal.4th 153,
295, disapproved on other grounds in People v. Romero and
Self (2015) 62 Cal.4th 1, 53, fn. 19.)
Both juries received CALJIC No. 8.11, which defines
implied malice in language “virtually identical to CALJIC No.
8.31.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 104.)
“CALJIC No. 8.11 . . . contains everything necessary to fully
instruct the jury on this form of [implied] malice as a possible
theory of second degree murder.” (People v. Chun (2009) 45
Cal.4th 1172, 1202.) The juries were further instructed that:
first degree murder requires “willful, deliberate and
premeditated killing with express malice aforethought” (CALJIC
No. 8.20), second degree murder requires “malice aforethought
when the perpetrator intended unlawfully to kill a human being
but the evidence is insufficient to prove deliberation and
premeditation” (CALJIC No. 8.30), the jury must determine the
degree (CALJIC No. 8.70), and the jury must find the murder to
failure to act deleted.)
19
be of the second degree if it has a reasonable doubt as to degree
(CALJIC No. 8.71).
The court instructed as to both degrees of murder,
and the jury selected first degree. By finding the murder was
deliberate and premeditated, the jury rejected the theory that the
killing resulted from commission of a dangerous act with
conscious disregard for human life without the intent to kill.
Cumulative error
Ramirez and Hernandez contend their convictions
must be reversed based on cumulative error that denied their
state and federal rights to due process and fair trial. Because we
have rejected defendants’ claims of error, “we likewise conclude
that the cumulative effect of these asserted errors was not
prejudicial and does not require reversal.” (People v. Bonilla
(2007) 41 Cal.4th 313, 360.)
Credits and assessments
Alvarado and Hernandez correctly contend that their
presentence custody credits were improperly calculated and that
each is entitled to two additional days. The Attorney General
agrees. We order Alvarado’s judgment be modified to show 1,470
actual days custody credit, and Hernandez’s judgment be
modified to show 1,512 actual days custody credit.
The Attorney General correctly contends that
Ramirez’s presentence credit award of 1,501 actual days is three
days too many. He was arrested on August 19, 2015, and
sentenced on September 24, 2019. The correct calculation is
1,498 days. We must correct the overcalculation of custody
credits as an unauthorized sentence when the Attorney General
raises the issue in a defense appeal. (§ 1252; People v. Dotson
(1997) 16 Cal.4th 547, 554, fn. 6; People v. Johnson (2015) 234
20
Cal.App.4th 1432, 1457.)
The Attorney General also contends that Hernandez’s
judgment must be modified to impose additional assessments.
We agree. The trial court imposed a $30 court facilities
assessment (Gov. Code, § 70373, subd. (a)) and a $40 court
operations assessment (§ 1465.8, subd. (a)). Because Hernandez
was convicted of four counts, the court must impose four $30
court facilities assessments (People v. Lopez (2010) 188
Cal.App.4th 474, 480) and four $40 court operations assessments
(People v. Roa (2009) 171 Cal.App.4th 1175, 1181).
DISPOSITION
The judgments are modified to correct the actual
days of presentence credit to 1,470 days for Alvarado; 1,512 days
for Hernandez; and 1,498 days for Ramirez. The judgment
against Hernandez is modified to impose four $30 court facilities
assessments (Gov. Code, § 70373, subd. (a)) and four $40 court
operations assessments (§ 1465.8, subd. (a)). The clerk of the
court shall amend the abstracts of judgment and forward
certified copies to the Department of Corrections and
Rehabilitation. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J. PERREN, J.
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Laura L. Laesecke, Judge
Superior Court County of Los Angeles
______________________________
John A. Colucci, under appointment by the Court of
Appeal, for Defendant and Appellant Alberto Ramirez.
Leslie Conrad, under appointment by the Court of
Appeal, for Defendant and Appellant Ivan Hernandez.
Eric R. Larson, under appointment by the Court of
Appeal, for Defendant and Appellant John Alvarado.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven E. Mercer and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.