People v. Fernandez CA4/2 ( 2021 )

Filed 11/16/21 P. v. Fernandez CA4/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071837
v. (Super.Ct.No. RIF1309149)
ADRIAN MARIA FERNANDEZ et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed with directions as to Fernandez; affirmed in part as
modified and reversed in part with directions as to Martinez.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and
Appellant, Adrian Fernandez.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant
and Appellant, Enrique Martinez.
1
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
Appellant Adrian Fernandez owed a substantial amount of money to Sergio Lopez,
which he couldn’t pay. The money related to narcotics and cash the police had seized
from an employee of Fernandez. Eventually, Lopez told Fernandez he would harm his
family if he didn’t make him whole.
Fernandez sought the help of appellant Enrique Martinez, Martinez’s brother, and
a third man named Jorge to kill Lopez. Jorge contacted Lopez and lured him from
Northern California to Riverside County on the false promise of payment. Lopez and a
friend drove to Riverside County, where they followed directions communicated by text
and phone. The witness accounts differ on the details, but after Jorge had them relocate
several times, Lopez and his friend figured out what was going on and fled in their car.
Jorge pursued them in his car, and Martinez and his brother pursued in a second vehicle.
All three shot at Lopez and his friend, and the pursuit led to a car crash. Lopez’s friend
escaped on foot, though he suffered a gunshot wound. Lopez wasn’t so lucky; Martinez
and his brother grabbed him, put him in their vehicle, and drove off. Fernandez was in the
vicinity on a motorcycle during these events. Days later, police found Lopez’s body with
two gunshot wounds to the head dumped in a remote area. They also found Martinez’s
vehicle, with Lopez’s blood in the back seat, abandoned in San Diego County.
2
Prosecutors tried Fernandez and Martinez together, and a jury convicted them—
partially on the testimony of one of their accomplices—of murder, attempted murder, and
kidnapping and found true special circumstances—that the murder was committed by
means of lying in wait and by kidnapping—warranting increased punishment.
Appellants challenge the prosecution’s reliance on uncorroborated accomplice
testimony, certain evidentiary rulings of the trial judge, the sufficiency of the evidence
absent the challenged evidence, as well as the trial judge’s jury instructions and
sentencing decisions. We conclude the accomplice testimony was sufficiently
corroborated, there was no evidentiary or instructional error, and substantial evidence
supports the verdicts. However, the People concede the matter should be remanded to
correct certain sentencing errors, and to allow amendments to the abstracts of judgment,
and we agree. We therefore reverse and remand on those limited sentencing issues, but
otherwise affirm the judgments.
I
FACTS
A. The Conspiracy
Adrian Fernandez owned a landscaping business in Washington state, where he
also sold illegal drugs, which he obtained from contacts in San Bernardino. In the drug
trade, Fernandez worked for Sergio Lopez Fernandez, the murder victim in this case, who
was a member of a Mexican cartel. We refer to the victim by the name Lopez.
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1
Martinez and Jorge were low-level drug dealers who lived in Moreno Valley.
Martinez worked for Fernandez. Jorge was a salesman at a shoe store in a mall where
Martinez worked as a security guard. After they met and became friends, Martinez tried
to get Jorge to sell drugs for him. Jorge resisted at first, but eventually arranged for
Martinez to sell him methamphetamine on credit. Jorge would use a portion of the drug
himself and resell the rest to fund his own habit. Martinez introduced Jorge to Fernandez.
Eventually, Fernandez invited Jorge to move into his home, which enmeshed him further
in the drug trade.
In June 2013, Fernandez asked another subordinate, Luis, to drive to Washington
state and pick up some items. Fernandez’s wife, Cecilia, rented a car, and Fernandez gave
it to Luis. While Luis was in Washington, the car was loaded with items which Luis was
expected to deliver to Fernandez. Luis testified that he was acting on behalf of Fernandez
in making the pickup.
While Luis was driving back, but still in Washington, a highway patrol officer
stopped him, seized all of the items in the car, and arrested him. The seizure netted about
925 grams of methamphetamine, $17,000 in cash, nine firearms, and over 1000 rounds of
ammunition, all of which had been secreted away in the car. The total amount of the loss
was around $60,000.
1We refer to percipient witnesses by their first names to protect their
confidentiality.
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When he found out about the seizure, Lopez texted Fernandez and suggested he
would harm his family if Fernandez didn’t repay the $60,000. Either Fernandez or his
wife answered the texts claiming Fernandez was in custody and couldn’t do anything
about the debt. Lopez responded, “Look Mrs. or lady, I don’t believe that it’s true what
my cousin is saying that he is or where he’s at. I know because you are not good at lying.
The thing is that he pretended like he was detained so I don’t go out looking for him.
What a shame. I’m a good person but not a fool. No, lady. I’m sorry if I am mistaken, but
that’s what I believe.” “Please make him rethink. Tell him to answer me, please. What
he’s doing, it’s grave. I want him to face me.”
On August 3, Lopez sent several texts, including, “He’s not answering me. I am
calling him” and “I apologize for bothering you, lady . . . I’m ashamed with you. I know
I’ve been bothering you and it’s not your fault about what’s happening. But I also don’t
expect you to understand me.” Cecilia responded, “Listen to me. You were calling my
son on my husband’s phone. If you don’t want to believe me, then you can come and
look for him yourself. . . . As to my family’s—my husband’s fucking family, I don’t care
now. . . . I don’t give a fuck about you and F your fucking family, and I’m going to give
the police all the numbers that I found on this fucking phone because I have kids. . . And
I’m tired of being harassed.”
In response, Fernandez and his associates came up with a plan to kill Lopez. Much
of the direct evidence regarding these incidents comes from Jorge, who was an
accomplice of appellants, and from Lopez’s friend, Luis Rodriguez, who was in the car
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with Lopez when the plan came to fruition. Because Jorge was an accomplice who faced
legal jeopardy for the same crimes, his testimony requires some measure of
corroboration, so we note his statements explicitly. Though Rodriguez was not an
accomplice, and he witnessed these events, he didn’t positively identify appellants.
Jorge testified he talked several times with Fernandez, Martinez, and Martinez’s
brother Rolando to discuss how to carry out the killing. Fernandez said he wanted to act
before Lopez tried to follow through with his threats. They agreed “[t]he guy was going
to get whacked.” According to Jorge, Fernandez told Martinez he would be paid $30,000
or $35,000 if he helped Fernandez with the hit, and Martinez agreed. Jorge said he
offered to help. Together they planned to lure Lopez to Riverside County on the promise
Fernandez would pay him. When he arrived, Martinez would kill Lopez instead.
B. The Shootout
According to Jorge, on the night of August 10, 2013, Fernandez gave him a phone
to use when communicating with Lopez. Jorge texted Lopez to say Fernandez was in jail,
but that if Lopez came to Moreno Valley, they would pay him. According to Rodriguez,
Lopez was already planning to go to Mexico around the same time and had asked
Rodriguez to drive him to Tijuana and in return agreed he would let Rodriguez use his
green Toyota Camry while he was away.
Jorge texted Lopez on the morning of August 11 to arrange a meeting place.
Rodriguez said he and Lopez headed south that morning, and at some point Lopez told
him he needed to stop to pick up some money. Rodriguez said someone gave directions
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to Lopez by text message, and Lopez told him where to go. When Rodriguez got to
Riverside County, Lopez had him get off the freeway and drive to a house. After they
received another text message, Rodriguez kept driving and stopped at a gas station.
Lopez then received a message saying it was going to take a while to get the money, so
the two went to a restaurant to get something to eat.
Jorge said he returned to Martinez’s house, where the others were waiting, and
told them Lopez had arrived in town with another man. Fernandez instructed Jorge to
drive to a certain gas station and minimart. Martinez and Rolando drove there in
Martinez’s black Jeep Cherokee. Jorge had a .22-caliber handgun which Fernandez had
given him, Martinez had a nine-millimeter semiautomatic handgun, and Rolando also had
a gun. Jorge said he then coordinated the meeting at the minimart.
When Lopez and Rodriguez arrived, Jorge drove over to them, got out of his car (a
Charger), and told Lopez the money would be there shortly. Martinez and Rolando
parked their Jeep at the gas pumps right behind the other two cars. Jorge said he and
Martinez then went into the minimart, while Rolando stayed with the Jeep by the pumps.
According to Jorge, while they were inside, Martinez tried to get him to shoot Lopez.
“That is your chance. Go ahead. Handle him.” Jorge said he didn’t want to shoot through
the car window because he didn’t know which man was Lopez and he didn’t want to
shoot the wrong one.
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Jorge said he called Lopez after coming out of the minimart and told him to drive
to a house where the money was located. Rodriguez said he followed Jorge’s directions
but got lost and ended up in a deserted part of town. Confused, he stopped at a corner and
parked. He said Jorge showed up and parked the Charger in front of him, leaving his
engine running. Two other men drove up in a black Jeep and started shooting at them
from inside the vehicle. Rodriguez sped away.
Jorge told this part of the story somewhat differently. He said Rodriguez and
Lopez followed him in their vehicle but became suspicious and tried to pass him. Jorge
chased Rodriguez while Rodriguez first turned right, then left. After the left turn, Jorge
saw Martinez’s Jeep stopped at a corner. Martinez got out of the Jeep, pulled out his gun,
and shot out the windows of Rodriguez’s car as Rodriguez tried to get away. Jorge aimed
his own gun at Rodriguez’s Camry and fired four or five shots. One of the shots went
through Jorge’s own windshield. Rodriguez and Lopez continued to flee in the Camry.
Jorge said Fernandez had been in Martinez’s Jeep, but by this point was in the area on his
motorcycle and identified Fernandez in surveillance photographs.
Both Rodriguez and Jorge testified Jorge and Martinez pursued the Camry in their
respective vehicles, continuing to shoot at the Camry, though Rodriguez did not identify
the people pursuing him. Rodriguez tried to make a sharp right turn, was unable to
negotiate it, lost control of the Camry, and struck a stop sign. Jorge, who could not stop
his Charger in time, drove over a curb and into some bushes. According to Jorge,
Martinez and Rolando pulled up in the Jeep and stopped in the middle of the street.
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Rodriguez confirmed seeing the Jeep had stopped near the Camry. Rodriguez got out of
the Camry, told Lopez to follow him, and fled the area on foot. Rodriguez said he looked
back and saw one of the men from the Jeep holding Lopez at gunpoint and the other man
was shooting at Rodriguez. According to Jorge, Martinez waited in the driver’s seat of
the Jeep while Rolando got out of the passenger’s seat, grabbed Lopez from the Camry,
and threw him in the back seat. Rodriguez was shot in the leg but escaped. Martinez told
Jorge to get in the Jeep with them. When Jorge hesitated, Martinez sped away without
him. Jorge hitched a ride back to the minimart. The driver who picked him up telephoned
the police, and Jorge was later arrested.
C. The Investigation
A detective with the Riverside County Sheriff’s Department responded to the
crash site. He found the Charger crashed at the corner of a housing complex and the
Camry a little further down, crashed against a horse rail. There were glass fragments in
the back seat of the Camry and bullet holes all over the car. The detective found a
Walther P22 semiautomatic pistol on the driver’s side floorboard of the Charger. It
included a magazine with nine live .22-caliber rounds. He also found a Kydex holster, a
live .22-caliber bullet, two spent casings, a baggie containing 20.5 grams of
methamphetamine, and $41 in cash. The Charger had been stolen from someone in
Washington.
Law enforcement also found rounds from at least two different guns along the
route Rodriguez had driven in an attempt to get away from the gunfire. They found 11
9
nine-millimeter luger casings at one location and 9 nine-millimeter luger casings and four
.22-caliber casings at a second location.
D. The Statements of Martinez and Fernandez
Police identified Martinez and Fernandez as suspects and interviewed both, in
Martinez’s case before they had determined what happened to Lopez. Both spoke with
the police without the assistance of lawyers. Fernandez gave a second interview five
months later. The prosecution played video recordings of these lengthy interviews for the
jury.
1. Martinez’s statement
The investigators interviewed Martinez three days after the shooting. Martinez’s
story shifted as the interview progressed. At first, he said some men from Mexico were
after him because he had lost $2 million while working for them in Iowa several years
earlier. He said the police pulled him over, took the money, and gave him a receipt. On
the day of the shooting, he said, he went to the minimart to buy a soda, but when he got
back in his Jeep, some men followed him in an SUV and started shooting at him. He
believed the men were after him because of the lost $2 million. He said he stopped his
Jeep at an intersection, got out, and ran away, leaving his cell phone in the vehicle.
According to this story, he wasn’t in possession of his Jeep at the time of the assault on
Lopez.
However, when pressed, Martinez changed his story. He said the men in the SUV
had previously asked him to take a truck to Sinaloa, Mexico. He did as he was asked,
10
drove the truck filled with drugs from Michoacan to a house in Sinaloa, and received
$1,000 for doing the job. He said he was then driven to the Sinaloa airport, and he flew
home. However, he said he lost $2 million during the drive, and the men had come to
collect on the debt.
The investigators told Martinez they had surveillance footage which contradicted
his story. They said the video showed Martinez paying for his soda, talking to the driver
of a silver Charger, approaching and getting into a Jeep Cherokee parked at the gas
pumps, the same vehicle that was later involved in the chase which had ended in two cars
crashing, a shooting, and an abduction. They told him they knew he was in the Jeep with
a second person. Martinez said he knew nothing about those events and denied there was
a passenger in his Jeep. He acknowledged talking to someone while he was in the
minimart but said he just told the man to move out of the way. Martinez denied having a
gun that night, participating in the shooting, or taking Lopez anywhere after it was over.
He said he had abandoned his Jeep and phone, but this time he said it was because he
owed a lot of money on a loan for the Jeep and couldn’t make payments.
Investigators asked Martinez for the name of the man in the Charger. Martinez
identified Jorge. Asked why he was angry at Jorge that day and what happened inside the
minimart, Martinez said he and Jorge just happened to be there at the same time. After
they left, “I followed Jorge, yeah, I went that way. It was . . . kind of stupid. It was the
east, what’s he gonna do.” Martinez said he did not know whether Jorge was shooting at
anyone. He denied he was shooting.
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Investigators showed Martinez a photo of Lopez. Martinez said he was in a
Mexican cartel and used to be his boss. He said Lopez was a “big guy”, a “drug dealer[]”
in crystal, and the $2 million Martinez had lost belonged to him. Martinez said that on
August 11, he received a call from someone in a cartel in Michoacan who asked him to
pick up “some guy” in Moreno Valley. They said they would forgive the $2 million debt
if he did. Martinez said he took Lopez out of Lopez’s car and put him in the Jeep. But he
denied leaving with Lopez, instead he claimed someone else pulled him over, took Lopez
from the Jeep, and drove away with him.
Investigators asked Martinez why he shot at the victims. Martinez initially denied
shooting. However, confronted with the surveillance footage he said, “All right, but I
shoot at him on this side, the driver’s side.” He said Jorge was also shooting. Martinez
then revised his story from the beginning. He said he had stopped at the minimart, bought
a soda, and spoke to Jorge, like before. But he added that Jorge had pointed Lopez out
and said, “[H]e’s right here. Get him.” Martinez responded, “You get him.” Instead, they
followed Lopez. According to Martinez, Jorge and Rodriguez got into a shootout. Both
cars crashed. Martinez stopped his Jeep, took Lopez out of the passenger seat of the
Camry, and put him in the front seat of his vehicle. But then four men in a Suburban
stopped Martinez and took Lopez from the Jeep. Martinez said he fired six or seven shots
at the vehicle and blew out its front windows. However, the men escaped with Lopez, and
Martinez denied knowing what happened to him, saying he was probably in Mexico.
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2. Fernandez’s statement
Fernandez was interviewed on August 30, 2013 and January 28, 2014. Fernandez
consistently denied any involvement in the conspiracy or shooting. He did admit he had
been a drug dealer in Washington and had served a prison sentence for that crime.
Shown surveillance footage of himself riding his motorcycle near the minimart
during the time period of the offenses, Fernandez stated, “So that’s me, right?” To
counter this video evidence, Fernandez presented two defense experts who analyzed
video clips from the minimart and from Fernandez’s storage unit and opined that the
person at the storage unit, confirmed to be Fernandez, was not the same person as the one
at the minimart.
E. Discovery of Lopez’s Dead Body and Other Evidence
On August 16, 2013, Lopez’s decomposing body was discovered in a concrete
culvert in a remote area of Moreno Valley. Law enforcement found five nine-millimeter
shell casings nearby. The first was on the west side of the roadway on the shoulder, the
second was in the street, the third was on the right shoulder, and the fourth and fifth were
by the culvert near the body.
A forensic pathologist performed an autopsy on Lopez’s body. The body was in a
moderate state of decomposition indicating Lopez had been dead at least several hours
but more likely for a matter of days. He had two gunshot wounds to the head. One
entered his forehead and exited the left side of his head. Another entered his left cheek
and exited his right ear. It was impossible to tell which gunshot came first. Each was
13
independently fatal. The pathologist concluded multiple gunshot wounds to the head
caused Lopez’s death.
A few days after the shooting, officers executed a search warrant at Martinez’s
home in Moreno Valley. They found an empty Smith & Wesson gun case under his bed
and two Colt 1911 .45-caliber handguns. They also found evidence Martinez was in
possession of the Jeep involved in the crime. Ten days after the shooting, a worker for
Southern California Edison found a Smith & Wesson Parabellum nine-millimeter
semiautomatic pistol on a desolate road in Moreno Valley. The gun was empty and had
no magazine.
In a search of a storage unit Fernandez rented, police found a portion of a
motorcycle seat and Fernandez’s motorcycle helmet. The motorcycle itself wasn’t in the
unit. A search of the browsing history on Fernandez’s phone revealed that on August 14,
2013, he made three searches under the words, “Shooting last Sunday at Cactus and
Redland Boulevard, California.” He also searched for an accident occurring in Moreno
Valley and visited the sheriff-coroner’s website.
Later, police found Martinez’s Jeep Cherokee abandoned in a neighborhood in
Chula Vista, in San Diego County. The Jeep was towed to the Moreno Valley Sheriff’s
station for processing. In it, they found a live round underneath the right front passenger
seat. The round had been cycled but not fired through a Smith & Wesson. DNA testing
revealed the presence of bodily fluids belonging to Lopez on the bullet. Although
14
someone had tried to wipe down the inside of the Jeep, a forensic analysis showed blood
in the center and right back seats. The blood was Lopez’s.
F. Evidence About Appellants’ Connection to Santa Muerte Worship
In the search of Martinez’s home and Fernandez’s storage unit, police found
posters of Santa Muerte and several figurines of Santa Muerte in the garage.
The prosecution sought to introduce the evidence that Fernandez and Martinez
worshipped Santa Muerte, as well as the testimony of an officer experienced in narcotics
cases explaining that people involved in the narcotics trade often worshipped the figure.
Appellants both objected the evidence was irrelevant and unduly prejudicial.
At a pretrial Evidence Code section 402 hearing, an investigator testified Santa
Muerte is “almost a folk character” and part of “a folk religion in Mexico.” He said both
criminals and non-criminals “follow Santa Muerte,” but said drug traffickers “believe that
the Santa Muerte will protect the transportation of their drugs and will protect their own
safety during these operations.” The investigator said he didn’t know how many people
worship Santa Muerte worldwide or how many of those worshippers were involved in the
drug trade. He conceded he had investigated several hundred drug cases in his career and
only five to 10 involved Santa Muerte paraphernalia. The investigator described the
objects related to Santa Muerte police had found in the possession of Martinez and
Fernandez.
The trial judge determined the evidence was probative because it went to “a
central issue” of the People’s case, namely, that the defendants were “part of an
15
organization whose purpose is buying, selling, and transporting drugs.” The judge
concluded the probative value outweighed the risk of unfair prejudice without providing a
detailed analysis. He therefore allowed the evidence to be admitted at trial.
At trial, the prosecution elicited testimony about the Santa Muerte displays police
had found. A different investigator testified about the significance of that evidence,
concluding it indicated Fernandez and Martinez were involved in the drug trade. The
investigator conceded he had no idea how many people worshipped Santa Muerte
worldwide, or what proportion of those worshippers were involved in the drug trade.
The prosecutor relied on the evidence in closing argument. He mentioned it
several times and concluded Fernandez and Martinez were more likely to be guilty of the
charged crimes because they’re the type of person who commit such crimes.
G. The Verdicts and Sentences
The Riverside County District Attorney charged appellants with murder (Pen.
Code, § 187, subd. (a), count 1, unlabeled statutory citations refer to this code),
kidnapping (§ 207, subd. (a), count 2), and attempted willful, premeditated, and
deliberate murder (§§ 664/187, subd. (a), count 3). The district attorney alleged two
special circumstances related to the murder count—defendants had committed an
intentional killing by means of lying in wait (§ 190.2, subd. (a)(15)) and while engaged in
the crime of kidnapping (§ 190.2, subd. (A)(17)(B)). The district attorney also alleged
Martinez had personally and intentionally discharged a firearm within the meaning of
16
section 12022.53, subdivision (c) and section 1192.7, subdivision (c)(8) while
committing the kidnapping and attempted murder offenses.
A jury found both appellants guilty on all three counts and found the special
circumstances allegations true. The trial judge sentenced Fernandez to prison for a total
term of eight years, plus seven years to life, plus life without the possibility of parole.
The judge sentenced Martinez to prison for a total term of 48 years plus life without the
possibility of parole.
Martinez and Fernandez filed timely notices of appeal.
II
ANALYSIS OF GUILT ISSUES
A. Corroboration of Accomplice Testimony
Jorge, who admitted being an accomplice to the conspiracy to kill Lopez as well as
one of the shooters, testified against Martinez and Fernandez. His testimony was an
important part of the prosecution case against both defendants. Because he was an
accomplice, however, the prosecution could not rely on his testimony alone. Fernandez
argues insufficient evidence corroborated Jorge’s testimony. Martinez joins the argument.
The requirement of corroboration is statutory. “A conviction can not be had upon
the testimony of an accomplice unless it be corroborated by such other evidence as shall
tend to connect the defendant with the commission of the offense; and the corroboration
is not sufficient if it merely shows the commission of the offense or the circumstances
thereof.” (§ 1111.)
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Though accomplice testimony must be corroborated, the corroborating evidence
need only “tend[] to connect the defendant with the commission of the offense in such a
way as reasonably may satisfy a jury that the accomplice is telling the truth.” (People v.
Vu (2006) 143 Cal.App.4th 1009, 1022 [cleaned up].) “The entire conduct of the parties,
their relationship, acts, and conduct may be taken into consideration by the trier of fact in
determining the sufficiency of the corroboration.” (People v. Dalton (2019) 7 Cal.5th
166, 245 [cleaned up].) The independent evidence doesn’t have to corroborate every fact
about which the accomplice testifies. (People v. Davis (2005) 36 Cal.4th 510, 543.) Nor
does the independent evidence need to independently establish every element of the
offense. (People v. Williams (2008) 43 Cal.4th 584, 636.)
We don’t lightly displace the jury’s finding on review. “Unless a reviewing court
determines the corroborating evidence should not have been admitted or that it could not
reasonably tend to connect a defendant with the commission of a crime, the finding of the
trier of fact on the issue of corroboration may not be disturbed on appeal.” (People v.
Szeto (1981) 29 Cal.3d 20, 25 [cleaned up].)
In our view, the evidence independent of Jorge’s testimony was sufficient to
connect Fernandez to the commission of the crime and to give the jury a reasonable basis
for finding the accomplice’s testimony to be true. Surveillance video at the minimart
confirms he was in the area, on his motorcycle, at the time of the offenses. Fernandez can
be seen near Martinez’s Jeep as well as Jorge’s car. It also shows Fernandez in the
minimart, talking to Martinez. A defendant’s presence at the crime scene, while not
18
independently sufficient corroboration, can play a role in corroborating accomplice
testimony. (People v. Williams (2013) 56 Cal.4th 630, 679; People v. Williams (1997) 16
Cal.4th 635, 681.) Also relevant is the fact Fernandez told investigators he wasn’t at the
scene. Making false or misleading statements to authorities can be corroborating
evidence. (People v. Vu, supra, 143 Cal.App.4th at p. 1023.)
There was also independent evidence Fernandez and Jorge were in close contact at
the time of the offense. Cell phone records may be used to corroborate an accomplice’s
testimony. (People v. Mackey (2015) 233 Cal.App.4th 32, 124.) Jorge had Fernandez’s
work and home numbers saved in his phone. In the weeks and days leading up to the
shooting, Jorge and Fernandez were in regular phone contact. On the day of the shooting,
Jorge was alternately in contact with Fernandez and Lopez. In addition, the Walther P22
semiautomatic pistol recovered from Jorge’s Charger had been stolen from someone in
Washington, where Fernandez had lived and run a business. This evidence tends to
support Jorge’s testimony that Fernandez gave him the gun he used in the killing. The
phone search also showed Fernandez had conducted several Google searches in the days
after the offense looking for information relating to the shooting. All of this independent
evidence corroborates Jorge’s testimony about Fernandez’s involvement in the shooting
and its planning.
Independent evidence also established Fernandez had a motive to kill Lopez.
Fernandez owed Lopez a considerable amount of money lost when Luis was detained by
police while making a delivery on Fernandez’s behalf, and Lopez was threatening
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Fernandez’s family in an effort to obtain payment. Luis testified and refused to answer
questions straightforwardly, however an investigator who had interviewed Luis testified
he told her at the time of his arrest that he was acting at Fernandez’s direction. This
evidence corroborates Jorge’s testimony by establishing Fernandez had a motive and the
opportunity to commit the offense. (People v. Samaniego (2009) 172 Cal.App.4th 1148,
1177.)
The evidence corroborating Jorge’s testimony against Martinez was even stronger.
Though his story shifted around during his interviews with law enforcement, he
eventually admitted he was involved in the car chase and that he fired six or seven shots
at Lopez’s vehicle. Martinez said he had a Remington nine-millimeter gun and he shot
out Lopez’s front windows. He said he wanted to get Lopez, but didn’t care about
Rodriguez. He also acknowledged knowing no one was going to pay Lopez at their
meeting, but that Lopez would be killed. These extra-judicial statements adequately
corroborated Jorge’s testimony. (People v. Gurule (2002) 28 Cal.4th 557, 628.)
But there was more. Rodriguez said a black Jeep was involved in the incident.
Rodriguez testified that after Jorge gave him directions which led to an uninhabited area,
a black Jeep showed up and drove towards them. Two men got out of the Jeep and started
shooting. Rodriguez escaped but then saw the Jeep parked on a road and the men in the
vehicle shot at him again. Later, after he had crashed his vehicle and fled, Rodriguez saw
one of the men from the Jeep pointing a gun at Lopez. Lopez’s blood was detected on a
PMC brand live round found in Martinez’s Jeep as well as in the center and right rear
20
seats of the Jeep, which had been found cleaned up and abandoned in San Diego County.
Thus, in addition to his own statement, the testimony of an independent witness and
physical evidence tied Martinez to the crimes. We therefore conclude the jury heard
sufficient evidence, independent of the accomplice’s testimony, to reasonably conclude
the accomplice was telling the truth.
Fernandez and Martinez also argue the trial judge erred by failing to instruct the
jury on the need for corroboration. The People concede Jorge was an accomplice and the
instruction was required. However, though failing to give the instruction was error, it was
harmless because “[e]ven where accomplice instructions were required, [the California
Supreme Court has] found no prejudice where, in fact, the witness’s testimony was
sufficiently corroborated.” (People v. Boyer (2006) 38 Cal.4th 412, 467.)
B. Admission of Santa Muerte Evidence
Fernandez and Martinez argue the trial court erred by allowing evidence showing
they were followers of Santa Muerte and allowing law enforcement to testify those
practices tied them to the drug trade.
While investigating the shooting, police officers found what could be
characterized as shrines to Santa Muerte, a folkloric figure who has been associated with
people involved in the illegal drug trade. After a preliminary hearing, the trial judge
concluded the evidence was relevant and not unduly prejudicial, and allowed the
evidence at trial.
21
Thus, the jury heard testimony that police found a poster of Santa Muerte, and
several figurines of Santa Muerte in Martinez’s home and a storage unit rented on
Fernandez’s behalf. An investigator said the Santa Muerte evidence indicated Fernandez
and Martinez were in fact involved in the drug trade. In closing argument, the prosecutor
relied on the evidence and argued Fernandez and Martinez were more likely to be guilty
of the charged crimes.
Courts have reached different conclusions about the admissibility of evidence that
defendants implicated in the drug trade had maintained shrines dedicated to Santa Muerte
and similar figures. In United States v. Medina-Copete (10th Cir. 2014) 757 F.3d 1092,
the defendants were charged with trafficking in narcotics and firearms offenses. During a
vehicle stop, defendant was holding a written prayer to Santa Muerte in her hands,
reading it to herself. The prosecution introduced the prayer and the testimony of a United
States marshal who had extensively studied “how the Mexican drug traffickers involve
the spiritual world in their activity.” The trial judge screened the testimony for reliability
as expert testimony and allowed it. (Id. at p. 1098.) At trial, the expert explained many
people pray to Santa Muerte, including drug traffickers and criminals, and said the
defendant’s prayer was atypical in asking for protection from law enforcement. (Id. at
p. 1099.) The Tenth Circuit United States Court of Appeals, analyzing admissibility as
expert testimony, concluded the trial judge abused his discretion in allowing the
testimony because it didn’t have an adequate evidentiary foundation.
22
The Eighth Circuit Court of Appeals reached a contrary conclusion in United
States v. Holmes (8th Cir. 2014) 751 F.3d 846. There, the defendants were charged with
conspiracy to possess methamphetamine with the intent to distribute. A law enforcement
officer linked drug trafficking to shrines of another “[drug] saint” found in a defendant’s
home. He explained the figure was a ‘“narco-saint’ hailed as a ‘Mexican Robin Hood’”
but allowed he was also a patron saint of the poor and many people not involved in drug
trafficking worshipped him. (Id. at p. 849.) The Eighth Circuit rejected defendants’
claims that the evidence was irrelevant and unfairly prejudicial. The court concluded
“drug iconography in the defendant’s home is highly relevant,” because the government
had to prove a drug trafficking conspiracy. (Id. at p. 851.)
We need not resolve the issue in this case, because the evidence that Fernandez
and Martinez worshipped Santa Muerte was of minor importance. It is undoubtedly true,
as the People argue, that appellants’ involvement in the drug trade was an important issue
in the case. They were not charged with drug offenses, but the background regarding their
failed drug transactions provided the factual scaffolding upon which the prosecution built
its case. However, the evidence of this background was overwhelming, leaving aside the
indications that Fernandez and Martinez worshipped Santa Muerte. The jury heard
firsthand from Jorge what happened on August 11, 2013, and about what led to those
events. His testimony was supported by text messages and phone calls and the admissions
of both men that they trafficked drugs in their interviews with the police. In the setting of
so much evidence on the point, it is impossible to conclude appellants were harmed by
23
the admission of evidence that they shared an interest in Santa Muerte with many people
involved in the illegal drug trade. It’s not reasonably probable appellants would have
received more favorable verdicts absent the Santa Muerte evidence. (People v. Watson
(1956) 46 Cal.2d 818, 836.)
C. Informing the Jury Fernandez’s Wife Invoked Marital Privilege
Fernandez argues the trial judge violated his federal constitutional right to due
process when he told the jury his wife, Cecilia, had invoked her statutory right not to
testify against her husband. Martinez joins the argument.
Though she testified at the preliminary hearing in this case, Cecilia invoked the
spousal privilege and elected not to testify at trial. The court deemed her unavailable and
allowed her preliminary hearing testimony to be read to the jury. The judge explained to
the jurors that Cecilia “indicated to me that she did not wish to testify . . . against her
husband, and that is a privilege under the Evidence Code. And she also did not wish to
testify as to private marital confidential communications and discussions that she had
with her husband. [¶] . . . [¶] Now, when this case went to preliminary hearing, she
testified for about 10 or 12 minutes without asserting the privilege. After about 10 or 12
minutes, she asserted the spousal privilege and, so, therefore, there were no further
questions asked of her. [¶] And, so, because I have determined that she’s unavailable as a
witness in this matter, then the Court is going to allow [the prosecutor] to have a reader
read to you the transcript from the preliminary hearing before she exercised her
privilege.”
24
Cecilia’s preliminary hearing testimony was then read to the jury. She said at the
time of the shooting, she and Fernandez had lived in Moreno Valley for 10 months and
before that she had lived in Mount Vernon, Washington—for 22 years overall and with
Fernandez beginning in 1998. She said she knew Martinez, had visited his home, and had
seen shrines to Santa Muerte at his house. She confirmed she had rented the car Luis had
used to transport drugs and cash from Washington. She then claimed not to remember
several things related to the time of the shooting. However, when asked whether she told
an investigator she knew Fernandez was selling drugs in Washington, she invoked her
spousal privilege and refused to testify further.
Evidence Code section 971 precludes an adverse party from calling a party’s
spouse as a witness, without the spouse’s prior express consent. Evidence Code section
980 gives a spouse or domestic partner, subject to certain exceptions, “a privilege during
the marital or domestic partnership relationship and afterwards to refuse to disclose, and
to prevent another from disclosing, a communication if he or she claims the privilege and
the communication was made in confidence between him or her and the other spouse
while they were spouses.” Counsel may not comment on a witness’s invocation of a
privilege, and the court must, on request, instruct the jury “that no presumption arises
because of the exercise of the privilege and that the jury may not draw any inference
therefrom.” (Evid. Code, § 913.)
In the context of the right not to testify against yourself, the California Supreme
Court has held that “permitting the jury to learn that a witness has invoked the privilege
25
against self-incrimination serves no legitimate purpose and may cause the jury to draw an
improper inference of the witness’s guilt or complicity in the charged offense.” (People v.
Cudjo (1993) 6 Cal.4th 585, 619.) For that reason, “it is the better practice for the court to
require the exercise of [that] privilege out of the presence of the jury.” (People v.
Frierson (1991) 53 Cal.3d 730, 743.) Though it has stopped short of commanding that
approach, the court has “commended [it] because it operates as a means by which to
avoid the potentially prejudicial impact of the witness asserting the privilege before the
jury.” (People v. Smith (2007) 40 Cal.4th 483, 517.)
The same reasoning suggests the trial court correctly held a hearing outside the
presence of the jury to determine whether Cecilia would exercise her spousal privilege
but should not have advised the jury that she would in fact exercise it. The better practice
would have been to permit a reading of the preliminary hearing transcript without any
comment on why Cecilia was unavailable to testify in person.
Regardless, we conclude the disclosure didn’t prejudice Fernandez or Martinez.
First, the trial judge instructed jurors that “[a] witness may have refused to answer
questions that called for privileged information. Under the law, Cecilia [] was justified in
refusing to answer certain questions. Do not consider her refusal to answer for any reason
at all, and do not guess what her answer might have been.” Fernandez’s counsel
emphasized this point in closing argument. “My client’s wife has a right not to testify
against her husband, just like any of you would have with your spouse. You don’t have to
come in and testify against your husband or wife. You can’t—you have to set that aside.
26
You can’t consider it.” We presume the jury followed the instruction and did not draw
any inferences from the invocation. (People v. Smith, supra, 40 Cal.4th at pp. 517-518.)
Fernandez argues the admonition was not enough and speculates jurors couldn’t
help but infer Cecilia had “significant evidence” against Fernandez, especially since the
trial judge described what she had done as invoking her right not to testify “against her
husband.” We think Cecilia’s preliminary hearing testimony does not, as a factual matter,
underwrite the inference she had significant evidence Fernandez was involved in the
shooting. She stopped testifying at the preliminary hearing when questioned about
whether she knew Fernandez was selling drugs while they lived together in Washington.
Such an admission could have far-reaching consequences for herself and Fernandez that
have nothing to do with his trial for a murder, committed nearly a year after they moved
away.
In any event, our Supreme Court has found an instruction similar to the one given
here cured any prejudice from a witness’s invocation of the Fifth Amendment right
against self-incrimination. (People v. Smith, supra, 40 Cal.4th at pp. 517-518 [“[t]he
crucial assumption underlying our constitutional system of trial by jury is that jurors
generally understand and faithfully follow instructions”].) We conclude the same logic
applies to cases involving the spousal privilege.
D. Sufficiency of the Evidence on Murder and Special Circumstances
Fernandez and Martinez argue the prosecution presented insufficient evidence to
support the jury’s first degree murder verdicts and two of their special circumstance
27
findings. They argue there is insufficient evidence Lopez’s murder was accomplished by
means of (1) discharging a firearm from a motor vehicle, (2) lying in wait, or (3)
kidnapping.
The prosecution tried appellants on four separate theories of first degree murder–
premeditation, lying in wait, discharge of a firearm from a vehicle, and kidnapping felony
murder, and the trial judge instructed the jury on all four. “The defendant has been
prosecuted for first degree murder under the following theories: [¶] 1. The murder was
willful, deliberate, and premeditated; [¶] 2. The murder was committed by lying in wait;
[¶] 3. The murder was committed by firearm discharge from a vehicle; [¶] 4. The murder
was committed during the commission of kidnapping.”
Fernandez and Martinez challenge the sufficiency of the evidence related to three
of the four theories, but do not contest that sufficient evidence supported a first degree
murder conviction on the theory that the murder was premeditated. They argue knocking
out any one or more of the theories of first degree murder requires reversal. As the trial
judge instructed, the jury could “not find the defendant guilty of first degree murder
unless all of [the jurors] agree that the People have proved that the defendant committed
murder . . . [however] all of [the jurors] do not need to agree on the same theory.” Thus, it
was legally permissible to convict Fernandez and Martinez of first degree murder if—as
an example—six jurors found they committed the murder in a premediated fashion but
not by firing a gun from inside a vehicle, while the other six jurors found they committed
the murder by firing a gun from inside a vehicle but did not act with premeditation.
28
The jury returned general verdicts that both Fernandez and Martinez were guilty of
first degree murder. We know from their special circumstances findings that the jury
unanimously found both men committed the murder while engaged in committing
kidnapping and by means of lying -in wait for the victim. We also know the jury found
both men acted willfully, deliberately, and with premeditation when they attempted to
murder the victim’s driver, which occurred at the same time they were firing at the
murder victim. The jury made no finding that discloses whether they concluded
Fernandez and Martinez carried out the murder by means of shooting from inside a
vehicle.
The question we face is whether the murder verdicts stand if one or more of the
potential bases for conviction is valid but one or more of the other potential bases for
conviction was invalid because they’re not supported by substantial evidence. (People v.
Guiton (1993) 4 Cal.4th 1116, 1123-1124 (Guiton).) This is a case “in which the jury has
merely been ‘left the option of relying upon a factually inadequate theory,’ or . . . phrased
slightly differently, [a] case[] in which there was an ‘insufficiency of proof.’” (Id. at
p. 1128.) “If the inadequacy of proof is purely factual, of a kind the jury is fully equipped
to detect, reversal is not required whenever a valid ground for the verdict remains, absent
an affirmative indication in the record that the verdict actually did rest on the inadequate
ground.” (Id. at p. 1129.)
Fernandez argues to the contrary that this case is one in which the legal theory was
inadequate. (Guiton, supra, 4 Cal.4th at p. 1128 [distinguishing cases where “‘a particular
29
theory of conviction . . . is contrary to law,’ or, phrased slightly differently, cases
involving a ‘legally inadequate theory’”].) He argues the questions whether the killing
occurred “by means of” shooting from a vehicle or at a time too distant from the ruse that
implicated the lying-in-wait theory are legal questions outside the jurors’ own
intelligence and experience. We disagree. Appellants themselves articulate their
arguments in terms of the sufficiency of the evidence to support these theories of guilt.
We agree with the approach, and conclude the questions presented to the jury—whether
the murder was committed by certain means—fall directly within the jury’s factfinding
expertise. For that reason, we think the rule articulated by Guiton applies here. There is
no reason to reverse the jury’s verdict—guilty of premeditated murder—that all parties
agree is well supported by the record on the theory that some jurors may have found them
guilty on an alternative and factually weak theory that the murder was committed by
means of shooting the victim from inside a vehicle (a theory that doesn’t require
premeditation). We presume jurors are rational, and therefore capable of rejecting a
factually weak theory even if the trial judge would have done better by excluding that
theory from the jury instructions. (Guiton, at pp. 1128-1129.)
As a result, to take advantage of these alleged evidentiary deficiencies, Fernandez
and Martinez must show there’s some indication in the record that the jury did rely on the
factually invalid theories to the exclusion of a factually valid theory. They argue the
record does establish that the jury relied on the theories that appellants committed the
murder by means of lying in wait and while committing kidnapping because the jury
30
affirmatively found they did so in passing on the special circumstances questions. They
also argue we should infer the jury didn’t reach the issue of premeditation because they
didn’t need to. We agree the findings establish the jury unanimously found they
committed the murder by means of lying in wait and while engaged in kidnapping, but
not that they did so to the exclusion of finding appellants acted with premeditation.
Nevertheless, because Fernandez and Martinez challenge the sufficiency of the
evidence to support the special circumstances findings, we will address their arguments
as they relate to the sufficiency of the lying-in-wait and kidnapping evidence. We will not
take the time to discuss the sufficiency of the evidence that they committed the murder by
firing a gun from a vehicle because there’s no indication the jury relied on that theory.
1. Lying in wait
Fernandez and Martinez argue there was insufficient evidence to establish they
committed the murder by means of lying in wait for purposes of both the felony murder
verdicts and the special circumstance findings.
“All murder that is perpetrated by means of . . . lying in wait . . . is murder of the
first degree.” (§ 189, subd. (a).) Moreover, if a jury finds “[t]he defendant intentionally
killed the victim by means of lying in wait,” the offense is punishable by death or life in
prison without the possibility of parole. (§ 190.2, subd. (a)(15).)
The lying-in-wait special circumstance requires “an intentional murder, committed
under circumstances which include (1) a concealment of purpose, (2) a substantial period
of watching and waiting for an opportune time to act, and (3) . . . a surprise attack on an
31
unsuspecting victim from a position of advantage.” (People v. Johnson (2016) 62 Cal.4th
600, 629.) The same circumstances must be present for a conviction of first degree
murder under a lying-in-wait theory. (Ibid.; People v. Poindexter (2006) 144 Cal.App.4th
572, 584-585.)
On a challenge to the sufficiency of trial evidence to support a jury’s factual
determinations, we review the whole record to determine whether “any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. The
standard of review is the same in cases in which the prosecution relies mainly on
circumstantial evidence. We presume in support of the judgment the existence of every
fact the trier of fact could reasonably infer from the evidence. If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.” (People v. Westerfield (2019) 6 Cal.5th 632, 713 [cleaned up].)
The prosecutor’s theory of the case against Fernandez was that he wasn’t the
actual shooter but that he had aided and abetted the murder by luring Lopez to Riverside
County on the pretext of paying his debt and then sending Martinez, Jorge, and Rolando
to execute him in a surprise attack. “A lying-in-wait special circumstance can apply to a
defendant who, intending that the victim would be killed, aids and abets an intentional
murder committed by means of lying in wait.” (People v. Johnson, supra, 62 Cal.4th at
p. 630.) For Fernandez, we ask whether substantial evidence shows he aided and abetted
32
the killing with the intent that Lopez be killed and that the killer intentionally killed
Lopez by means of lying in wait. (Ibid.)
The prosecutor’s theory of the case against Martinez was more direct. He, too,
participated in planning to lure Lopez to a surprise attack. And the jury could have found
him guilty of lying-in-wait murder as an aider and abettor if they found another person
committed the killing in the end. However, the prosecutor also sought to prove Martinez
was one of the people who actually carried out the surprise attack on Lopez and that he
was the actual killer.
Viewing the evidence in the light most favorable to the verdicts, we conclude the
requirements for lying-in-wait murder and the lying-in-wait special circumstance were
supported by substantial evidence. (People v. Johnson, supra, 62 Cal.4th at p. 630.) From
Jorge’s testimony about Fernandez’s debt to Lopez, Lopez’s threats, and the discussions
in which Fernandez, Martinez, and Jorge concocted the plan to lure Lopez to Riverside
County and kill him, the jury reasonably could infer both Fernandez and Martinez
harbored an intent to kill Lopez.
The record also contains substantial evidence Fernandez aided and abetted the
killing. “[A] person aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages, or instigates, the commission of the crime.” (People v.
Johnson, supra, 62 Cal.4th at p. 630.) Again, Jorge’s testimony established both
33
defendants knew of the unlawful purpose. Jorge testified Fernandez facilitated the
commission of the offense by offering to pay Martinez $30,000 to $35,000 to kill Lopez
as well as by supplying Jorge with a phone to use to lure the victim, and a firearm to use
in the offense. Substantial evidence also establishes Martinez was present throughout the
assault on Lopez and Rodriguez and participated directly in carrying out the planned hit.
The jury could reasonably conclude from this evidence that both men knew of the plan to
kill Lopez, intended to facilitate that plan, and at least acted to aid the other parties to the
conspiracy in committing the killing.
Fernandez argues the evidence didn’t support finding the murder was committed
by lying in wait because there was no evidence that the perpetrators were watching and
waiting for Lopez. Instead, they say, Martinez, Jorge, and Rolando attacked Rodriguez
and Lopez immediately upon approaching them. This argument leaves out what happened
before the shooting. Fernandez gave Jorge a phone to use in reaching out to Lopez. Jorge
used the phone to reach out to Lopez the night before and the next day Jorge used the
phone to guide Lopez from place to place and ultimately to a minimart where Martinez
and Fernandez appeared, without the victim’s knowledge. Jorge then directed the victim
to another, more remote location, and it was during this last leg of the journey that
Martinez, Rolando, and Jorge found the opportunity to open fire. This evidence provided
the jury with a reasonable basis to find Fernandez and Martinez were watching and
waiting for the opportunity to spring their trap and kill Lopez.
34
Fernandez also argues the surprise attack didn’t result in the murder. He points to
the testimony of Rodriguez, who said the initial shooting was unsuccessful, forcing the
attackers to pursue Rodriguez and Lopez and try again. According to Fernandez, that
broke the link between the surprise attack and the later killing and even allowed the
victims to “outpace their pursuers.” We disagree with this characterization. Martinez,
Jorge, and Rolando did not spring a surprise attack that failed and then regroup and
pursue a new plan. The attack was continuous, and the victims were in jeopardy
continuously. In any event, Jorge testified the shooting started after Rodriguez and Lopez
passed a traffic sign at a street corner near the minimart. He said Martinez was parked at
a corner and got out and started shooting when Rodriguez’s vehicle went by. A car chase
ensued until Rodriguez lost control of his vehicle and crashed. At that point, Lopez was
abducted and thrown into the back of the Jeep. Given our conclusion Jorge’s testimony
was adequately corroborated, the jury were entitled to believe this version of events and
find there was no break in time between the surprise attack and the kidnapping which led
to Lopez’s murder. (People v. Fleming (2018) 25 Cal.App.5th 783, 788-789.)
Finally, both Fernandez and Martinez argue the evidence didn’t support a finding
that the killing was accomplished by means of lying in wait because the evidence shows
the perpetrators didn’t kill Lopez at the scene of the car crash, but rather pulled him into
Martinez’s vehicle and drove off. They say the evidence establishes only that the killing
occurred some indeterminate time later.
35
However, there’s no requirement that a murder be committed during or shortly
after the springing of a surprise attack to support a finding that it occurred by means of
lying in wait. Under an earlier version of section 190.4, subdivision (a), the People were
required to prove “the defendant intentionally killed the victim while lying in wait.”
(Italics added.) The special circumstance thus previously did require a close temporal
proximity between the lying in wait and the murder. (Domino v. Superior Court (1982)
129 Cal.App.3d 1000, 1011-1012.) To support the special circumstance finding, “the
killing [had to] take place during the period of concealment and watchful waiting or the
lethal acts must begin at and flow continuously from the moment concealment and
watchful waiting ends.” (Id. at p. 1011, italics added.) The lying-in-wait murder statute
(§ 190.2, subd. (a)(15)) never included this limitation but allowed a conviction for first
degree murder any time the murder was committed “by means of” lying in wait. In 2000,
California voters changed the word “while” in the special circumstance to “by means of,”
as in the murder statute. (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th
297, 307-308.) As the court pointed out in Bradway, the change in language was
designed to “permit the finding of a special circumstance not only in a case in which a
murder occurred immediately upon a confrontation between the murderer and the victim,
but also in a case in which the murderer waited for the victim, captured the victim,
transported the victim to another location, and then committed the murder.” (Ibid.) That’s
what the evidence in this case establishes, and we conclude there is a sufficient
36
evidentiary basis for the jury to conclude Fernandez and Martinez committed lying-in-
wait murder and to conclude the lying-in-wait special circumstance was true.
Appellants make much of the fact the police found Lopez’s body days after the
shootout and argue there’s no evidence that Lopez wasn’t alive days later. However,
Lopez’s blood was found in the back seat of the Jeep. In addition, the forensic pathologist
said Lopez had “more likely” been dead for days by the time police found his body. The
jury could reasonably infer from this evidence that Lopez was shot shortly after he was
forced into the Jeep or as soon as Martinez and Rolando could get him to a more remote
location.
2. Kidnapping
a. Martinez
There was also sufficient evidence for the jury to find Martinez kidnapped Lopez
and murdered him during the course of a kidnapping. “All murder . . . committed in the
perpetration of . . . kidnapping . . . is murder of the first degree.” (§ 189.) A defendant is
also eligible for enhanced punishments—life without possibility of parole or the death
penalty—if “[t]he murder was committed while the defendant was engaged in, or was an
accomplice in, the commission of . . . [kidnapping] in violation of Section 207, 209, or
209.5.” (§ 190.2, subd. (a)(17)(B).)
To prove kidnapping, the prosecution must show: (1) the victim was unlawfully
moved by the use of physical force or fear; (2) the movement occurred without the
victim’s consent; and (3) the movement covered a substantial distance. (People v. Bell
37
(2009) 179 Cal.App.4th 428, 435.) Here, the prosecution presented substantial evidence
of all of those elements. Two witnesses testified one of the men in the Jeep moved Lopez
into the Jeep by pointing a gun at him and then drove off. The jury could reasonably find
Martinez used force or fear to move Lopez a substantial distance without his consent
based on that evidence alone.
Martinez concedes the kidnapping occurred but argues there was insufficient
evidence Lopez was murdered during the course of a kidnapping. Martinez argues the
evidence contained evidentiary gaps, most importantly concerning how long Lopez was
deceased and whether there was a gap between the kidnapping and the murder. However,
the jury could reasonably infer from the presence of Lopez’s blood in the Jeep, the
decomposed state of his body when found, and the pathologist’s testimony that it was
more likely that he had been dead for days that the kidnapping and murder were part of a
single course of events.
b. Fernandez
Fernandez argues there was no evidence he aided and abetted the kidnapping,
requiring reversal of the kidnapping special circumstance and his conviction for simple
kidnapping. He argues there was no evidence he shared the intent to kidnap Lopez and
the natural and probable consequences doctrine does not apply to fill the gap.
“An aider and abettor is someone who, with the necessary mental state, ‘by act or
advice, aids, promotes, encourages or instigates, the commission of the crime.’” (People
v. Smith (2014) 60 Cal.4th 603, 616.) “A person who knowingly aids and abets criminal
38
conduct is guilty of not only the intended crime [target offense] but also of any other
crime the perpetrator actually commits [nontarget offense] that is a natural and probable
consequence of the intended crime. The latter question is not whether the aider and
abettor actually foresaw the additional crime, but whether, judged objectively, it was
reasonably foreseeable.” (People v. Medina (2009) 46 Cal.4th 913, 920.) Moreover,
members of a “conspiracy [are] liable for the acts of any of the others in carrying out the
common purpose, i.e., all acts within the reasonable and probable consequences of the
common unlawful design.” (In re Hardy (2007) 41 Cal.4th 977, 1025-1026.)
Here, there was evidence Martinez, Fernandez, and Jorge concocted a plan to lure
Lopez to Riverside County with a promise to pay him and then kill him instead. There
was also evidence Jorge, in consultation with Fernandez and Martinez, directed Lopez to
move to various locations, before meeting him at a minimart and then directing him to go
to a more remote area where Jorge, Martinez, and Rolando shot at his vehicle and
Martinez and Rolando abducted him at gunpoint. The jury could reasonably conclude
from this evidence that it was foreseeable that carrying out the plot to kill Lopez in this
way would not be simple and would make it necessary to move Lopez elsewhere before
killing him.
The jury could also reasonably have concluded Fernandez directly aided and
abetted the kidnapping based on Jorge’s testimony that Fernandez was at one point in
Martinez’s Jeep and later driving a motorcycle in the vicinity and the surveillance video
which showed him to be present at the minimart. Although Fernandez denied he was the
39
person on the motorcycle, the jury could reasonably have found his denials lacked
credibility.
We therefore conclude substantial evidence supports the convictions of both
Fernandez and Martinez for first degree murder and supports the jury’s true finding on
the two special circumstances that make them eligible for sentences of life without
possibility of parole. Since there is no indication any jurors relied on the theory that the
murder was committed by someone shooting from a vehicle, we will uphold the
convictions and the true findings against these challenges.
E. Sufficiency of the Evidence of Attempted Murder
Fernandez argues the evidence doesn’t support the jury finding him guilty of the
premeditated attempted murder of Rodriguez, who was with Lopez in the Camry, and
was shot while fleeing after the crash. He points out there’s “no evidence that he
participated in or directed the shooting of Rodriguez” nor “that he shared the intent to kill
Rodriguez or conspired to kill him.”
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Pettie
(2017) 16 Cal.App.5th 23, 52.) However, the defendant doesn’t have to commit an
element of the underlying offense. (People v. Lee (2003) 31 Cal.4th 613, 623.) “[T]o be
guilty of attempted murder as an aider and abettor, a person must give aid or
encouragement with knowledge of the direct perpetrator’s intent to kill and with the
40
purpose of facilitating the direct perpetrator’s accomplishment of the intended killing.”
(Pettie, at p. 52.)
As we’ve noted, there was substantial evidence that Fernandez participated in the
plot to shoot Lopez, knew Rodriguez was in the car with Lopez, was present at the
minimart just before the shooting occurred, and was riding a motorcycle in the vicinity
during the shootout. Jorge testified he was in contact with Fernandez about how to set up
the shooting and that Fernandez gave him the phone he used to lure Lopez. In carrying
out the plan, Martinez, Jorge, and Rolando fired indiscriminately at Lopez’s car, which
Rodriguez was driving. After the car crashed, Rodriguez testified one of the men in the
Jeep fired at him repeatedly as he fled on foot, even while the other man held Lopez at
gunpoint. The jury could reasonably infer based on all this evidence that Fernandez, who
was the ringleader and the would-be beneficiary of the crime, had the intent to kill not
only Lopez but also his driver and at minimum gave encouragement to the perpetrators
with knowledge of their intent to kill Rodriguez along with Lopez. (People v. Foster
(2021) 61 Cal.App.5th 430, 445 [holding the jury reasonably inferred intent to kill and
convicted of multiple counts of attempted murder where the defendant fired a
semiautomatic weapon seven times into a group of rival gang members].)
F. Requiring Fernandez to Share an Interpreter
Fernandez argues the trial judge erred by allowing him to share an interpreter with
Martinez while his wife, Cecilia, invoked the marital privilege and during the reading of
her preliminary hearing testimony. Martinez joins in the argument.
41
At trial, the prosecution informed the trial judge that Cecilia had decided to invoke
the marital privilege. The judge decided Cecilia should take the witness stand outside the
presence of the jury to formally invoke the privilege. Because she didn’t have an
interpreter, the judge asked if one of the interpreters for the defendants could interpret for
Cecilia, leaving the other interpreter to translate for both defendants in the interim. The
court asked, “Is that agreeable with both of the defendants?” Counsel for Fernandez said,
“That’s fine.” Counsel for Martinez didn’t respond. The judge didn’t ask for personal
waivers from the defendants.
With Fernandez’s interpreter assisting Cecilia, the trial judge asked if she wished
to testify against her husband. She said no, and the court asked, “And, so, if I ask you that
question in front of the jury, would your answer be the same?” She said yes, and the
judge said, “Well, counsel, I don’t see any need to have her do that in front of the jury.”
Cecilia then left the witness stand and returned to the witness room while the prosecution
read her preliminary hearing testimony to the jury.
As we discussed above, Cecilia’s preliminary hearing testimony was very limited
because she invoked the privilege then too. She said she and Fernandez had lived in
Moreno Valley for 10 months and in Mount Vernon and Washington for 22 years before
that. He said she had lived with Fernandez since 1998. She knew Martinez, had visited
his home, and had seen shrines to Santa Muerte at his house. She confirmed she had
rented the car Luis had used to transport drugs and cash from Washington. She said she
didn’t remember several things related to the time of the shooting. Then she invoked her
42
spousal privilege when asked whether she told an investigator she knew Fernandez was
selling drugs in Washington. After the reading was complete, Fernandez asked for an
opportunity to talk to his counsel with the assistance of his interpreter. The court ordered
a recess and they consulted.
The California Supreme Court has held article I, section 14 of the California
Constitution “requires that when an interpreter is appointed for a non-English speaking
accused, the accused has a constitutional right to the assistance of the interpreter
throughout the entire proceeding.” (People v. Aguilar (1984) 35 Cal.3d 785, 787
(Aguilar).) “The defendant’s right to understand the instructions and rulings of the judge,
the questions and objections of defense counsel and the prosecution, as well as the
testimony of the witnesses is a continuous one. At moments crucial to the defense—when
evidentiary rulings and jury instructions are given by the court, when damaging
testimony is being introduced—the non-English speaking defendant who is denied the
assistance of an interpreter, is unable to communicate with the court or with counsel and
is unable to understand and participate in the proceedings which hold the key to freedom.
Thus, the ‘borrowing’ of [an] interpreter, the accused’s only means of communicating
with defense counsel and understanding the proceedings, [is] a denial of a constitutional
right.” (Id. at pp. 790-791, footnote omitted.)
In Aguilar, the trial judge deprived the defendant of the focused services of his
translator at critical points of the trial. Though the judge had properly appointed an
interpreter at the outset of the trial, he borrowed the interpreter to translate the testimony
43
of two prosecution witnesses for the benefit of the court and jury. Defense counsel agreed
to the process without consulting Aguilar. (Aguilar, supra, 35 Cal.3d at pp. 789-790.)
The Supreme Court concluded the situation required more than one interpreter because it
“‘is nearly impossible for one interpreter to translate the testimony of a witness while
simultaneously translating and listening to the discussions between defendant and
counsel. It is in these circumstances that a defense interpreter is most needed to ensure
adequate representation by the defendant’s counsel.’ [Citation.] Requiring two
interpreters in cases such as the one before us has additional benefits to the criminal
justice system because ‘it is difficult for an interpreter who has worked closely with the
defendant and his counsel in the preparation of the defense from the pretrial stage to
translate the court proceedings impartially. Finally, a separate defense interpreter would
serve to ensure the accuracy of the proceedings and witness interpreters.’” (Id. at p. 793.)
When there are two non-English speaking defendants, “the best and preferred
means . . . is to require that each defendant have assigned to him an interpreter who
remains at his side throughout the proceedings, unless such assistance has been waived.”
(People v. Rodriguez (1986) 42 Cal.3d 1005, 1013.) This way, “speculation regarding
possible adverse consequences arising out of shared or absent interpreters can be
avoided.” (Ibid.) The Supreme Court has also established the waiver of the right to an
interpreter may not take the form of acquiescence by counsel. (Aguilar, supra, 35 Cal.3d
at pp. 794-795.) Instead, to ensure the defendant has knowingly and intelligently waived
the right, the waiver must be personal to the defendant. (Ibid.)
44
The People do not contest depriving Fernandez of his own interpreter during the
testimony of his wife was error. Nor do they contend his attorney’s acquiescence to
borrowing the interpreter constituted waiver. Indeed, they acknowledge “the trial court
should have asked appellants to personally waive the right to their own interpreters
before allowing one of the interpreters to be used by Cecilia.”
Instead, the People argue we should affirm the convictions because the error didn’t
prejudice either defendant. The Supreme Court has established error in denying an
accused with an interpreter is reviewed for harmless error under the standard announced
in Chapman v. California (1967) 386 U.S. 18. (People v. Rodriguez, supra, 42 Cal.3d at
p. 1012.) That standard is appropriate because “denial of an interpreter in any given case
may take many forms . . . rang[ing] from complete failure to provide an interpreter to the
momentary absence of an interpreter at an inconsequential moment in the proceedings.”
(Ibid.) Thus, denial of an interpreter for part of a trial may be deemed harmless if we are
‘“able to declare a belief that it was harmless beyond a reasonable doubt.”’ (Ibid.)
We conclude this case is one where the error was harmless. This was a long trial
centered on linking the defendants to a well-documented shootout which ended in one
victim being wounded and another found dead a short time later. Fernandez’s wife did
not testify regarding the shootout, the killing, the conspiracy to kill the victim, or even
her husband’s participation in the drug trade, which, according to the People’s theory,
precipitated the offenses. At trial, she didn’t testify at all, but instead invoked the marital
privilege, and the trial judge declared her an unavailable witness. The judge allowed the
45
prosecution to read the transcript of her testimony at the preliminary hearing, but even
that testimony was brief because she invoked the marital privilege there as soon as the
prosecution asked her about her knowledge of her husband’s prior participation in the
drug trade—a fact established by Fernandez’s own statements to the police. Thus, we
conclude there’s no likelihood the appellants would have received a better outcome, even
if the interpreter was assisting Fernandez and helped him decide to challenge the
introduction of her preliminary hearing testimony. Cecilia’s testimony simply played
little or no role in the appellants’ convictions.
G. Purported Misconduct During Closing Argument
Fernandez argues counsel for Martinez committed misconduct during closing
argument. Martinez doesn’t join this argument.
In closing, Fernandez’s counsel argued Martinez decided on his own to kill Lopez.
He said the evidence showed “this enterprise got out of hand because Enrique [Martinez]
decided to take the money and to make a murder out of something that wasn’t a murder.
It wasn’t intended to be a murder.” Fernandez says the response of Martinez’s counsel
constituted a direct attack on Fernandez’s counsel when he responded, “I didn’t know,
coming in here, that I was working against two prosecutors. I didn’t know that.
Apparently [Fernandez’s counsel] thinks it’s in his interest to try to throw my client under
the bus. I don’t know why he’s done that.”
According to Fernandez, this accusation by Martinez’s counsel was a way of
saying Fernandez’s counsel was so dishonest and unscrupulous that he was willing to
46
falsely charge Martinez with the murder in order to save his own client. He also claims
the accusation reflected back on Fernandez because the jury would infer Fernandez had
agreed to falsely accuse his codefendant for his own benefit. He argues this was a serious
and prejudicial attack. (People v. Woods (2006) 146 Cal.App.4th 106, 116-117 [“‘It is
generally improper for the prosecutor to accuse defense counsel of fabricating a defense’
or to otherwise denigrate defense counsel”].)
This argument relies entirely on misconstruing counsel’s comment. Contrary to
Fernandez’s argument, accusing his counsel of “throw[ing] him under the bus” doesn’t
imply the falsity of Fernandez’s claim that Martinez acted alone. It simply implies
Fernandez was conceding Martinez’s guilt in an attempt to protect himself. There’s
nothing nefarious about such a comment. Martinez’s counsel then said the choice to
throw him under the bus didn’t matter “because at the end of the day, this is a case about
credibility” and focused his argument on the evidence, much of it showing Martinez
acted from coercion by people, like Fernandez, higher up the food chain in the drug trade.
We therefore conclude counsel’s comment was neither misconduct nor prejudicial to
Fernandez.
H. The Investigation into Juror Misconduct
Fernandez argues the trial judge failed to adequately investigate when he learned
one juror (Juror No. 6) may have committed misconduct by saying something about the
case to a second juror during the course of the trial. The second juror reported Juror No.
6’s comments, and the trial judge interviewed Juror No. 6, dismissed her from the jury,
47
and replaced her with an alternate juror. Fernandez doesn’t challenge those decisions but
argues the judge should have investigated the second juror as well to determine whether
she committed misconduct by discussing the case with Juror No. 6 and whether she had
questionable motives for trying to have Juror No. 6 removed.
The second juror sent a note to the trial judge in the middle of trial to report
concerns about Juror No 6. The note reported “Juror Number 6 said, ‘I don’t know what
we are doing here.’ I asked, ‘Where?’ Juror Number 6 said, ‘in the courtroom.’ I said,
‘It’s a trial.’ Juror Number 6 said, ‘I know, but what are we supposed to be doing.’ I said,
‘Well, the defendants are two innocent men. The assistant D.A.’s job is to prove to us
without a reasonable doubt they are guilty.’ Juror 6 said, ‘How?’ I said nothing further.
Juror 6 said, ‘The one with the attorneys and the guys that did it.’ I said, ‘Well, the
attorneys are the ones doing the talking, asking the questions.’ Juror 6 said, ‘I can’t hear a
word those two say.’ I said, ‘There are three attorneys.’ Juror 6 said, ‘Only two? Are you
sure?’ I asked, ‘If you can’t hear them, how are you writing notes?’ Juror 6 said, ‘I hear
the answers and I try to figure out the question.’ I said, ‘You should let the judge know
you can’t hear.’ Juror 6 said, ‘It’s okay. I’m retired and I have nothing else to do.’ She
and I stopped talking to each other.”
The judge called Juror No. 6 into the courtroom and asked her about the
conversation the note reported, focusing initially on the comment that she couldn’t hear
the attorneys. She acknowledged the conversation “was similar to that, but not exactly
that.” She said, “I was just saying I wish they would talk louder. It’s not that I couldn’t
48
hear them. It’s that I could hear them better if they talked louder.” Asked about the other
reported comments, she said she didn’t recall making those comments and didn’t know if
she made the remainder of the statements attributed to her. She said she could be a fair,
impartial juror.
The judge asked Juror No. 6 to step into the hallway. The judge then reported to
counsel he thought Juror No. 6 had for the most part denied making the statements but
had violated his admonition about not talking about the case. He said he didn’t think there
was a need to call in the second juror because there was probable cause to excuse Juror
No. 6. He also expressed concern that the juror couldn’t hear the attorneys. The
prosecutor and Fernandez’s counsel agreed with the court’s proposal, and Martinez’s
counsel said nothing. The judge then called Juror No. 6 back in, excused her, and
replaced her with an alternate.
“Trial courts may remove any juror who ‘becomes ill, or upon other good cause
shown to the court is found to be unable to perform his or her duty. . . .’ (§ 1089.) A trial
court learning of grounds for dismissal ‘has an affirmative obligation to investigate.’
[Citation.] However, ‘[b]oth the scope of any investigation and the ultimate decision
whether to discharge a given juror are committed to the sound discretion of the trial
court.’” (People v. Duff (2014) 58 Cal.4th 527, 560.)
Fernandez argues the second juror’s participation in the conversation obligated the
judge to inquire further. We disagree. “[N]ot every incident involving a juror’s conduct
requires or warrants further investigation. ‘The decision whether to investigate the
49
possibility of juror bias, incompetence, or misconduct—like the ultimate decision to
retain or discharge a juror—rests within the sound discretion of the trial court.’” (People
v. Cowan (2010) 50 Cal.4th 401, 506.) Here, the only thing the second juror did that
could be construed as misconduct was participate in the conversation Juror No. 6
initiated. But her responses were limited to clarifying procedural aspects of the trial about
which Juror No. 6 expressed confusion and encouraging her to let the judge know she
couldn’t hear the attorneys. There is no suggestion at all that she spoke about the case
details, and she immediately informed the court of her conversation. In these
circumstances, there’s no basis for us to find the trial court judge abused his discretion
when he failed to call the second juror in for questioning on his own motion.
Fernandez argues the second juror may have been “lying about the conversation,
and evidently seeking to have no. 6 excused” which he says would be “improper
disruption.” This is rank speculation. Juror No. 6 acknowledged she had trouble hearing,
at first denied making the other comments, but then claimed she didn’t remember what
else she said. The trial judge noted her position, and though he didn’t say whether he
found her credible or not, apparently did not find in her ambiguous denial a basis for
questioning the motives of the second juror. On this record, we can’t find the trial judge
abused his discretion in declining to interview the second juror.
I. Natural and Probable Consequences Instruction
Martinez argues the trial judge erred by instructing the jury on the natural and
probable consequences theory of guilt. Relying on People v. Chiu (2014) 59 Cal.4th 15550
(Chiu), where the California Supreme Court held an aider and abettor cannot be
convicted of first degree premeditated murder under the natural and probable
consequences doctrine (Id. at pp. 165-166.), he argues we should extend that holding to
coconspirators. In other words, he argues Chiu supports a rule prohibiting coconspirators
from being convicted of first degree murder under a natural and probable consequences
doctrine. We conclude the extension of Chiu is unwarranted where the aim of the
conspiracy is lying-in-wait murder as the jury found occurred here.
Chiu distinguished between second degree murder and first degree premeditated
murder and held that the lesser “punishment for second degree murder is commensurate
with a defendant’s culpability for aiding and abetting a target crime that would naturally,
probably, and foreseeably result in a murder under the natural and probable consequences
doctrine.” (Chiu, supra, 59 Cal.4th at p. 166.) The court looked, in part, at the correlation
between the defendant’s culpability and the punishment imposed. “A primary rationale
for punishing such aiders and abettors—to deter them from aiding or encouraging the
commission of offenses—is served by holding them culpable for the perpetrator’s
commission of the nontarget offense of second degree murder. [Citation.] It is also
consistent with reasonable concepts of culpability. Aider and abettor liability under the
natural and probable consequences doctrine does not require assistance with or actual
knowledge and intent relating to the nontarget offense, nor subjective foreseeability of
either that offense or the perpetrator’s state of mind in committing it.” (Chiu, at p. 165.)
51
But, with respect to first degree premeditated murder, the Supreme Court held the
same calculus did not apply. “First degree murder, like second degree murder, is the
unlawful killing of a human being with malice aforethought, but has the additional
elements of willfulness, premeditation, and deliberation, which trigger a heightened
penalty. [Citation.] That mental state is uniquely subjective and personal. It requires more
than a showing of intent to kill; the killer must act deliberately, carefully weighing the
considerations for and against a choice to kill before he or she completes the acts that
caused the death. [Citations.] Additionally, whether a direct perpetrator commits a
nontarget offense of murder with or without premeditation and deliberation has no effect
on the resultant harm. The victim has been killed regardless of the perpetrator’s
premeditative mental state. Although we have stated that an aider and abettor’s
‘punishment need not be finely calibrated to the criminal’s mens rea’ [citation], the
connection between the defendant’s culpability and the perpetrator’s premeditative state
is too attenuated to impose aider and abettor liability for first degree murder under the
natural and probable consequences doctrine, especially in light of the severe penalty
involved and the above stated public policy concern of deterrence.” (Chiu, supra, 59
Cal.4th at p. 166.)
Martinez’s argument is that Chiu’s reasoning should be extended beyond first
degree premeditated murder to the first degree lying-in-wait murder. We don’t think the
extension is warranted. As the Fourth District, Division One held, “First degree
premeditated murder is characterized by the ‘uniquely subjective and personal’ mental
52
state harbored by the perpetrator. [Citation.] First degree lying-in-wait murder, by
contrast, is characterized by the objective facts of the killing itself, i.e., the manner in
which the perpetrator carried out the murder. As noted, the jury here was instructed that
first degree lying-in-wait murder consists of the following elements: (1) the perpetrator
concealed his purpose from the person killed; (2) the perpetrator waited and watched for
an opportunity to act; and (3) from a position of advantage, he intended to and did make a
surprise attack on the person killed. [Citations.] [¶] These elements distinguish lying-in-
wait murder from other murders, both morally and legally. Murder committed by lying in
wait has been ‘anciently regarded . . . as a particularly heinous and repugnant crime.’
[Citation.] The moral culpability of the offender who murders by lying in wait justifies
fixing the murder in the first degree. . . . [¶] [Thus], unlike ordinary premeditated murder,
a lying-in-wait murder, committed with intent to kill, justifies the most severe
punishment of death.” (People v. Gastelum (2020) 45 Cal.App.5th 757, 768 (Gastelum).)
We agree with our sister court that “[b]ecause lying-in-wait murder requires proof
of certain conduct, rather than a ‘uniquely subjective and personal’ mental state, the
reasoning of Chiu is inapplicable. [Citation.] The disconnect identified in Chiu between
the perpetrator’s mental state and the aider and abettor’s culpability is not present.
[Citation.] A lying-in-wait murder is murder of the first degree based on the objective
facts of the perpetrator’s conduct; it does not turn on the vagaries of the perpetrator’s
mind. It is therefore consistent with long-standing principles of the natural and probable
53
consequences doctrine to hold the aider and abettor liable for first degree lying-in-wait
murder.” (Gastelum, supra, 45 Cal.App.5th at p. 768.)
Given the jury’s unanimous finding that Martinez participated in a lying-in-wait
killing and our upholding that finding against a substantial evidence challenge, we
conclude Martinez hasn’t shown the trial judge erred by instructing the jury on the natural
and probable consequences doctrine.
J. Senate Bill 1437
1. Martinez
Martinez seeks the benefit of Senate Bill 1437, which abrogated natural and
probable consequences murder, second degree felony murder, and first degree felony
murder for persons who were not the actual killers, did not act with an intent to kill, or
were not major participants who acted with reckless disregard for life.
Initially, he asked us to conditionally reverse the judgment against him so he could
petition for relief under section 1170.95. However, the Legislature has since amended
that provision to permit defendants convicted under the old law to challenge their
convictions on direct appeal, so long as their convictions aren’t final. (Sen. Bill No. 775
(2020-2021 Reg. Sess.); Revised § 1170.95, subd. (g).) We allowed supplemental
briefing on the issue and Martinez argues that, under the amended law, his murder
54
conviction must be reversed because the jury was wrongly instructed that he could be
convicted for murder without the requisite intent.2
At the time of trial, section 189 provided that “‘[a]ll murder . . . committed in the
perpetration of, or attempt to perpetrate . . . kidnapping [or other predicate crimes] . . . is
murder of the first degree.” “The mental state required” at the time was “simply the
specific intent to commit the underlying felony [citation], since only those felonies that
are inherently dangerous to life or pose a significant prospect of violence are enumerated
in the statute.” (People v. Cavitt (2004) 33 Cal.4th 187, 197, italics added.) If someone
perpetrated or attempted to perpetrate one of the enumerated felonies, they would be
deemed guilty of first degree murder for any homicide committed in the course of
committing the enumerated felony. (Ibid.) The trial judge instructed the jury on this law.
Thus, the jury could have found Martinez guilty of first degree murder if they found he
had the specific intent to kidnap the victim, even if they found he didn’t have the intent to
kill.
It was also possible at the time to convict Martinez of murder as an aider and
abettor under the natural and probable consequences doctrine. “A person who knowingly
aids and abets criminal conduct is guilty of not only the intended crime [target offense]
but also of any other crime the perpetrator actually commits [nontarget offense] that is a
2Though the amendment doesn’t go into effect until January 1, 2022, meaning the
issue isn’t technically ripe, the People ask us to rule on the issue now out of a concern for
judicial economy. We agree this is the better approach. Appellants’ cases cannot become
final before the date the amendments become effective, so refusing to rule on the issue
now serves no purpose but to delay resolution and proliferate judicial proceedings.
(People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
55
natural and probable consequence of the intended crime. The latter question is not
whether the aider and abettor actually foresaw the additional crime, but whether, judged
objectively, it was reasonably foreseeable.” (People v. Medina, supra, 46 Cal.4th at p.
920 [cleaned up].) The trial judge instructed the jury the defendants could be found guilty
of murder if the killing was the natural and probable consequence of an uncharged
conspiracy to commit kidnapping. Thus the jury were permitted to find Martinez guilty of
murder, even if they found he intended only the kidnapping, so long as they found the
murder was reasonably foreseeable. (See People v. McCoy (2001) 25 Cal.4th 1111,
1117.)
The People concede the jury instructions are not consistent with current law but
argue Martinez was not prejudiced because the jury’s verdict establishes they found he
had the required intent to kill. We agree. The jury found the lying-in-wait and kidnapping
special circumstances to be true as to both Martinez and Fernandez. The trial court
instructed the jury that to find the lying-in-wait special circumstance true, they must find
defendants had a state of mind equivalent to premeditation and deliberation. The
kidnapping special circumstance instruction also required the jury to find the defendants
had the intent to kill. “The defendants are charged with the special circumstance of
intentional murder while engaged in the commission of kidnapping . . . . [¶] To prove that
this special circumstance is true, the People must prove that: [¶] 1. The defendant
committed or attempted to commit, or aided and abetted, or was a member of a
conspiracy to commit kidnapping; [¶] 2. The defendant intended to commit, or intended
56
to aid and abet the perpetrator in committing, or intended that one or more of the
members of the conspiracy commit kidnapping; [¶] 3. If the defendant did not personally
commit or attempt to commit kidnapping, then another perpetrator, whom the defendant
was aiding and abetting or with whom the defendant conspired, personally committed or
attempted to commit kidnapping, [¶] [a]nd [¶] 4. The defendant intended that the other
person be killed. (CALCRIM No. 731, italics added.)
As we’ve noted, the jury found both special circumstances true as to both
defendants. It follows that the jury concluded Martinez acted with the intent to kill. These
findings foreclose the possibility that the jury convicted Martinez of murder, as they
could have done at the time, despite finding he did not intend to kill the victim.
Instructing the jury on those theories was harmless because we conclude beyond a
reasonable doubt that the record establishes the jury based its verdicts on a legally valid
theory. (See People v. Covarrubias (2016) 1 Cal.5th 838, 902, fn. 26.)
2. Fernandez
Fernandez also seeks the benefit of Senate Bill 1437 after Senate Bill 775
broadened it to apply to attempted murder. Among other changes, the amendment
“[c]larifies that persons who were convicted of attempted murder under . . . the natural
and probable consequences doctrine are permitted the same relief as those persons
convicted of murder under the same theories[.]” (Sen. Bill No. 775 (2020-2021 Reg.
Sess.) § 1(a).)
57
The problem with Fernandez’s argument is the trial judge didn’t instruct the jury
that it could find him guilty of attempted murder under the natural and probable
consequences doctrine; he instructed the jury that they could find him guilty of murder or
kidnapping under such a theory. The key instruction is CALCRIM 417, which addresses
a defendant’s liability for the acts of coconspirators. “A member of a conspiracy is
criminally responsible for the crimes that he or she conspires to commit, no matter which
member of the conspiracy commits the crime. [¶] A member of a conspiracy is also
criminally responsible for any act of any member of the conspiracy if that act is done to
further the conspiracy and that act is a natural and probable consequence of the common
plan or design of the conspiracy.” The jury in this case was instructed that “[t]o prove
that the defendant is guilty of the crimes charged in Counts 1 and 2, the People must
prove that: [¶] 1. The defendant conspired to commit one of the following crimes:
murder, attempted murder, and/or kidnapping; [¶] 2. A member of the conspiracy
committed murder, attempted murder and/or kidnapping to further the conspiracy; [¶]
And [¶] 3. The murder, attempted murder, and/or kidnapping was a natural and probable
consequence of the common plan or design of the crime that the defendant conspired to
commit.” Count 1 was the murder charge and count 2 was the kidnapping charge. The
instruction plainly excluded count 3, the charge for attempted murder.
It’s true that the trial judge initially included count 3 in the oral instruction, but
Martinez’s counsel alerted the judge to the error and the judge cleaned up the instruction
immediately. “[Counsel] just pointed out to the Court that one of the instructions I just
58
gave to you has an error in it. [¶] Now, you recall in CALCRIM 416 the evidence of the
uncharged conspiracy, I read to you the People contend that the defendants conspired to
commit one of the following crimes: Murder, as charged in Count 1, kidnapping, as
charged in Count 2. And then the next crime – I mean, the next CALCRIM is No. 1417.
And in that, I read to you this language: To prove that the defendant is guilty of the
crimes charged in Counts 1, 2, and 3, the People must prove that – well, the error that we
made is Count 3 should not be included. So to prove the defendants guilty of the crimes
charged, it would be in Counts 1 and 2, not Count 3; okay?” (Italics added.)
It follows that the jury was not given the choice of convicting Fernandez of
attempted murder under the natural and probable consequences doctrine. And as we’ve
noted in part II.E. ante, the jury was instructed on direct aiding and abetting principles,
which is not affected by Senate Bill No. 775, and substantial evidence supports a
conviction on that basis. We conclude the jury was not presented with a theory of liability
for attempted murder that could be deemed potentially erroneous when the modification
of section 1170.95 becomes effective. (See People v. Daniel (2020) 57 Cal.App.5th 666,
677, review granted Feb. 24, 2021, S266336 [holding petitions for resentencing may be
denied if the jury instructions show the jury was not instructed on either the natural and
probable consequences or felony murder doctrines].) Thus, Fernandez is not a person
convicted of attempted murder under the natural and probable consequences doctrine and
he is ineligible for relief under Senate Bill 775.
59
K. Attempted Murder as a Lesser-Included Offense on Count 1
Martinez argues the trial court erred by declining his request to instruct the jury on
attempted murder as a lesser-included offense to the murder of Lopez.
Martinez’s counsel argued at trial that jurors could find Martinez guilty of
attempting to murder Lopez if they believed that Martinez shot at Lopez, but someone
else killed him. Counsel said, “juries do strange things and believe certain things and
come to conclusions in almost every case that I’ve done that are contrary to what the law
may necessarily require.” The trial judge responded by pointing out the prosecution had
presented three theories of liability—felony murder, aider and abettor, and conspiracy—
and attempted murder would not be a lesser-included offense. The court refused to offer
the instruction.
Even assuming attempted murder is a lesser-included offense of murder, the trial
court had no duty to instruct on that crime. A trial court has a “duty to instruct on a
lesser-included offense . . . if there is substantial evidence the defendant is guilty of the
lesser offense, but not the charged offense.” (People v. Breverman (1998) 19 Cal.4th 142,
177.) “In this context substantial evidence means evidence which is sufficient to deserve
consideration by the jury and from which a jury composed of reasonable persons could
conclude the particular facts underlying the instruction existed.” (People v. Oropeza
(2007) 151 Cal.App.4th 73, 78.) “In deciding whether evidence is ‘substantial’ in this
context, a court determines only its bare legal sufficiency, not its weight.” (Breverman, at
p. 177.) A trial judge is not required to instruct on theories “unsupported by any evidence
60
upon which a reasonable jury could rely.” (People v. Moye (2009) 47 Cal.4th 537, 555.)
We exercise independent review of the trial judge’s decision not to instruct on attempted
murder. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Here, there was no substantial evidence Martinez merely tried to kill Lopez during
the initial shooting and that someone else shot him later. Rather, the evidence showed
appellants planned the killing in advance, lured Lopez to them, conducted a coordinated
pursuit of Lopez and participated in a shoot-out before kidnapping him in Martinez’s
Jeep. More, Lopez’s blood was found in the Jeep and Lopez’s decomposed body was
found a few days later. The notion that someone other than appellants killed Lopez is
fantastical. Accordingly, there was insubstantial evidence that the offense was less than
the charged crime of murder.
L. Suppression of Martinez’s Statement
Martinez argues the trial judge should have granted his motion to suppress his
statements to law enforcement, later played for the jury, because they were obtained in
violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
1. Additional background
Before trial, Martinez moved to suppress his statements to law enforcement. He
argued his waiver wasn’t knowing and voluntary because Spanish is his primary
language, and he didn’t understand his rights, and also because he never actually gave the
officers permission to interview him.
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The prosecutor argued Martinez did in fact appear to understand his rights at the
only interview he challenged—his first interview on August 13, 2013. On that occasion,
Martinez asked only one clarifying question and twice gave the investigators permission
to speak with him. They point out the interview was over an hour long, was conducted in
English, and that Martinez was able to understand and answer every question asked of
him.
The trial judge reviewed the video clips submitted by the defense. Martinez argued
the officers tried at least five times to get a waiver, but each time his conduct suggested
he didn’t understand what was being asked of him. He argued that even when he said, “I
want to talk to you,” it was not clear he knew what he was talking about. He emphasized
he kept telling the officers he didn’t know why he was at the station, or what he did
wrong. The officers responded, “I can’t talk to you. I need your permission to talk to you
first,” suggesting they didn’t have permission. Martinez then started talking about
pressures on his family. He never affirmatively said he wanted to talk to them. He argued
the interview was inadmissible because the officers never obtained Martinez’s explicit
permission. The prosecutor responded by noting Martinez said he understood his rights,
asked clarifying questions, and then said, “I want to talk to you. I want to be honest.”
The judge concluded Martinez did understand his rights, as he indicated to the
officer. Further, although the officers never obtained an explicit waiver of the rights, he
concluded a waiver was implicit in his response. The judge held Martinez’s statement
that, “Okay, but I want to talk to you guys. I want to be honest to you,” was a direct
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statement indicating he wanted to talk and had waived his rights. The trial judge denied
the motion to suppress and allowed the jury to hear Martinez’s statement.
2. Knowing and intelligent waiver
In Miranda, the United States Supreme Court held that before law enforcement
officials may interrogate a suspect who is in custody, they must clearly inform the
suspect of certain basic rights—“that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed.” (Miranda, supra, 384 U.S. at p. 444.) Unless
the suspect waives those rights, interrogation must cease. (Id. at pp. 445, 475-476.)
When challenged, the prosecution must prove, by a preponderance of the
evidence, that a defendant waived their Miranda rights. (People v. Williams (2010) 49
Cal.4th 405, 425.) Although a presumption exists against finding a waiver, “ultimately
the question becomes whether the Miranda waiver was knowing and intelligent under the
totality of the circumstances surrounding the interrogation.” (People v. Cruz (2008) 44
Cal.4th 636, 668.) A Miranda waiver may be express or implied. (People v. Sauceda-
Contreras (2012) 55 Cal.4th 203, 218-219.) “Where the prosecution shows that a
Miranda warning was given and that it was understood by the accused, an accused’s
uncoerced statement establishes an implied waiver.” (Berghuis v. Thompkins (2010) 560
U.S. 370, 384 (Thompkins).)
We accept the trial court’s resolution of disputed facts and inferences, as well as
its evaluations of the credibility of witnesses, as long as they are supported by substantial
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evidence. We determine independently whether those facts show that the challenged
statement was obtained unlawfully. (People v. Williams, supra, 49 Cal.4th at p. 425.)
Here, after engaging Martinez in some small talk, the investigator advised him of
his Miranda rights. Martinez said he understood, then said he could not afford a lawyer.
He questioned why he would need a lawyer to talk. The investigator told him he could
choose whether or not to talk and reminded him he was the one who asked for the
interview. Martinez then said, “I’m gonna talk to you.” Martinez also said he was worried
about retaliation and the investigator assured him his family was fine. Martinez then said,
“Okay, but I wanna talk to you guys but I wanna be honest to you.” Despite his promises
of honesty, Martinez repeatedly changed his story throughout the interview and never
completely told the truth, showing that he felt comfortable and was able to hold his own.
Martinez refers to the arguments made in the trial court as support for challenging
the trial judge’s decision. He concedes he acknowledged understanding his rights but
argues there is a fuller context, namely “when the officer immediately asked him if we
wanted to talk, Martinez asked if the officer could read his rights again.” When the
officer did so, Martinez asked, “So I don’t know how to buy a lawyer . . . . or hire or do
something like that. Why I need a lawyer right now to talk?” The officers then repeated
their query whether he wanted to talk and understood his rights, but Martinez never
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acknowledged he understood. According to Martinez, this shows he never waived his
rights and, even if he did, the waiver was not knowing and voluntary.
We conclude the trial court’s determination that Martinez understood his rights
and waived them was well supported. Martinez didn’t struggle to answer questions about
his identity, employment, and health. He said affirmatively that he understood his right to
an attorney, asked why he would need an attorney to talk, and said he had decided to talk.
He also expressed that his primary concern was for his family. He then had a long,
coherent conversation with the investigators. The fact that a defendant has some
difficulty with English does not render a waiver of Miranda rights invalid. (United States
v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 752 [“Despite the language difficulties
encountered by appellant, the evidence seems to indicate that he understood his rights and
voluntarily, knowingly, and intelligently waived them”].) We conclude the trial judge
was warranted in concluding that, though Martinez has limited skills in English, the
totality of the circumstances show he knowingly, intelligently, and voluntarily waived his
Miranda rights.
Nor do we conclude Martinez in fact requested a lawyer by remarking “So I don’t
know how to buy a lawyer . . . . or hire or do something like that. Why I need a lawyer
right now to talk?” Rather, Martinez was informing the investigators he couldn’t afford a
lawyer and didn’t feel he needed one to speak with them. “If an accused makes a
statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no
statement, the police are not required to end the interrogation . . . or ask questions to
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clarify whether the accused wants to invoke his or her Miranda rights.” (Thompkins,
supra, 560 U.S. at p. 381.) Courts have held isolated, ambiguous statements such as,
“Maybe I should talk to a lawyer,” and “[t]here wouldn’t be [an attorney] running around
here now, would there?” are not sufficiently clear invocations of the right that officers
must terminate an interview. (E.g., Davis v. United States (1994) 512 U.S. 452, 455;
People v. Scaffidi (1992) 11 Cal.App.4th 145, 153.) We conclude the remark did not
require the trial judge to find the investigator should have stopped questioning Martinez
and ask him again if he understood his rights.
M. Cumulative Error
Fernandez and Martinez argue the cumulative prejudicial effect of the trial court’s
errors require reversal.
“Under the cumulative error doctrine, the reviewing court must review each
allegation and assess the cumulative effect of any errors to see if it is reasonably probable
the jury would have reached a result more favorable to defendant in their absence.”
(People v. Williams (2009) 170 Cal.App.4th 587, 646 [cleaned up].) “The litmus test for
cumulative error is whether defendant received due process and a fair trial.” (People v.
Mireles (2018) 21 Cal.App.5th 237, 249 [cleaned up].)
Here, we have identified a few errors or potential errors at trial, but they were of a
very limited nature, affecting only marginal issues. As we’ve discussed, they were
harmless individually, and in our judgment, are harmless together. Appellants received a
fair, if not perfect, trial. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) This trial
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was fair beyond any reasonable doubt, despite a few scattered errors on peripheral issues.
(People v. Rivas (2013) 214 Cal.App.4th 1410, 1437.)
III
ANALYSIS OF SENTENCING ISSUES
A. Fernandez’s Abstract of Judgment
Fernandez argues there are two errors in his abstract of judgment. He argues the
abstract should be amended to show he has 1289 days of actual presentence custody
credits. Second, he argues his indeterminate terms on counts 1 (murder) and 3 (attempted
murder) should be deemed concurrent because the trial judge didn’t specify whether they
were concurrent or consecutive. The People concede both these points, and we agree.
At sentencing the trial judge said, “With regard to credit for time served, the
defendant is entitled to 1289 days. Because this is a first degree murder case, he’s not
entitled to any credit for time served.” It was a mistake to decline to award those credits.
(People v. Taylor (2004) 119 Cal.App.4th 628, 647.) “A sentence that fails to award
legally mandated custody credit is unauthorized and may be corrected whenever
discovered.” (Ibid.) Fernandez is entitled to 1289 days of presentence custody credit and
on remand the trial court shall prepare an amended abstract of judgment showing the
credit.
At sentencing, the trial judge sentenced Fernandez to life without possibility of
parole on count 1, life with the possibility of parole after seven years on count 3, and a
consecutive term of eight years on count 2, but didn’t specify whether the sentences on
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counts 1 and 3 would be consecutive or concurrent. “So that’s the defendant’s aggregate
sentence in this matter. It is a determinate sentence of eight years and an indeterminate
sentence of seven years to life without the possibility of parole on Count[s] 1 and 3. So
then that would be the aggregate sentence.”
The judge’s failure to specify whether the sentences would run consecutively
requires that they run concurrently. “Upon the failure of the court to determine how the
terms of imprisonment on the second or subsequent judgment shall run, the term of
imprisonment on the second or subsequent judgment shall run concurrently.” (§ 669,
subd. (b).) We therefore order that Fernandez’s abstract of judgment be amended to show
the sentences are to be served concurrently. (People v. Caudillo (1980) 101 Cal.App.3d
122, 126-127.)
B. Ability to Pay Hearing for Fernandez
Fernandez argues he is entitled to a hearing on his ability to pay certain fees and
fines levied against him under People v. Dueñas (2019) 30 Cal.App.5th 1157.
Specifically, he objects to the trial court’s imposition of a $5,000 restitution fine, a $90
criminal conviction assessment under Government Code section 70373, and a $120 court
operations fee under Penal Code section 1465.8.
Fernandez already had a hearing on his ability to pay the restitution fine. The
probation officer recommended Fernandez pay the $10,000 maximum restitution fine and
a $90 criminal conviction assessment based on his conviction on three counts. His
counsel asked the court to set the restitution fine at zero or some low amount because his
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wife was destitute and the family had no income. The trial judge agreed to reduce the
restitution fine. “With regard to the restitution fine, at the request of [Fernandez’s
counsel] I’m going to reduce that to $5,000, so that would be the restitution fine.”
However, the court ordered him to pay the $90 criminal conviction assessments and a
$120 court operations fee.
In Dueñas, the Court of Appeal held “the assessment provisions of Government
Code section 70373 and Penal Code section 1465.8, if imposed without a determination
that the defendant is able to pay, are . . . fundamentally unfair; imposing those
assessments upon indigent defendants without a determination that they have the present
ability to pay violates due process under both the United States Constitution and the
California Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also
concluded the restitution statute (section 1202.4) violates due process by prohibiting a
trial judge from considering a defendant’s ability to pay when imposing the minimum
restitution fine of $300. (Dueñas, at p. 1171.)
Fernandez is not entitled to relief under Dueñas. The trial court already considered
his ability to pay the fine and assessments against him. Even before Dueñas was decided,
the restitution statute allowed trial judges to consider an offender’s ability to pay
restitution above the $300 minimum award. Fernandez’s counsel took advantage of that
provision and explained Fernandez’s financial circumstances to the court. Though the
court could have reduced the restitution fine to as low as $300, he chose to reduce the
fine to $5,000 and to impose the additional $210 in assessments, despite his financial
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circumstances. Further proceedings “under the subsequent due process analysis in
Duenas” are not required because the trial judge already determined Fernandez was able
to pay $5,210 in fines and fees.
C. Resentencing for Kidnapping
Fernandez and Martinez argue the trial court erred by not staying their sentences
on their kidnapping counts under section 654, because the kidnapping special
circumstance already elevated their sentences for murder to life without possibility of
parole for the exact same acts. Martinez also argues the trial judge misunderstood his
sentencing discretion and that remand is required for that reason. The People concede the
second point but contest the first.
1. Staying the kidnapping sentences under section 654
Fernandez argues the trial judge erred by failing to stay the sentence on his
kidnapping count because “the jury found the special circumstance of kidnapping felony
murder to be true, that is, that the murder of Lopez was committed while Fernandez was
engaged in the commission of kidnapping Lopez . . . [and] [t]hat kidnapping of Lopez
was the same conduct against the same victim charged in count 2 for kidnapping, for
which the jury found Fernandez guilty.”
“An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
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provision.” (§ 654, sub. (a).) The purpose is to ensure punishment is commensurate with
culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Fernandez relies on that statutory language and People v. Montes (2014) 58
Cal.4th 809 to argue the kidnapping sentence must be stayed. The defendant in Montes
was convicted of felony murder, kidnapping during a carjacking, and carjacking, with
true findings on the special circumstances of murder in the commission of robbery,
kidnapping, and carjacking. (Id. at p. 819.) The trial judge “sentenced defendant to
concurrent terms on all four counts, including count II (kidnap during a carjacking) and
count III (carjacking), the predicate felonies for the finding of first degree murder on a
theory of felony murder.” The California Supreme Court held “section 654 precludes
imposition of separate terms for [underlying] felonies, [which] are the predicate felonies
for the theory of felony murder” because “felony murder was the sole theory of murder
under which the case was prosecuted.” (Id. at p. 898.)
This case is different. Felony murder was not the only theory on which Fernandez
and Martinez were prosecuted and convicted. In addition, the jury were instructed on
murder by means of lying in wait, murder by means of shooting from an occupied motor
vehicle, and first degree premeditated murder. Further, on the special circumstances, the
court instructed the jury on a lying-in-wait special circumstance in addition to the
kidnapping special circumstance. Most important, the special circumstance findings
establish the jury found Fernandez and Martinez to have committed the lying-in-wait
offense and the kidnapping offense. Thus, the trial judge was free to impose the murder
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sentence on one theory (lying-in-wait or premeditated murder) and the special
circumstance on the other (kidnapping). We therefore conclude section 654 does not
come into play and provides no basis for staying the sentences for kidnapping.
2. Sentencing discretion
Martinez argues the trial judge declined to apply section 654 to the kidnapping
count based on an incorrect belief that the murder count and the kidnapping count
involved separate victims, when in fact Lopez was the victim of both offenses.
Martinez is correct that the trial judge concluded section 654 didn’t apply
“because there is a different victim in Count 2 [kidnapping] than Count 1 [murder].” The
People properly concede the trial court made a factual error which requires correction.
“Relief from a trial court’s misunderstanding of its sentencing discretion is
available on direct appeal when such misapprehension is affirmatively demonstrated by
the record.” (People v. Leon (2016) 243 Cal.App.4th 1003, 1026.) When it is unclear how
the judge would have otherwise exercised its discretion, we may order a limited remand
of the matter so that the judge may properly exercise its discretion and again decide
whether or not to stay the sentence on count 2. (Ibid.)
D. Corrections on Martinez’s Abstracts of Judgment
Martinez identifies several problems with his abstracts of judgment. First, he
argues—as Fernandez did—that his indeterminate terms on counts 1 (murder) and 3
(attempted murder) should be deemed concurrent. The People concede, and we agree.
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During Martinez’s sentencing, the court said, “So then, the defendant’s sentence, I
break down as follows: The total period [of] incarceration is a determinate term of 48
years and an indeterminate term of life without the possibility of parole. Now, I also
would order, pursuant to Penal Code section 669, that the defendant serve the determinate
term before he undertakes [serving] the indeterminate term. So, then, in summary, this is
the indeterminate sentence of life in prison without the possibility of parole, along with a
determinate term of 48 years in state prison.” As in Fernandez’s case, the judge’s failure
to specify whether the sentences would run consecutively requires that they run
concurrently, and we order that Martinez’s abstract of judgment be amended to show the
sentences are to be served concurrently. (§ 669, subd. (b); People v. Caudillo, supra, 101
Cal.App.3d at pp. 126-127.)
Second, he argues the trial judge improperly concluded he had no right to any
credits due to the nature of his conviction. Though Martinez had no right to conduct
credits, he did have a right to custody credits. (People v. Taylor, supra, 119 Cal.App.4th
at p. 647.) He was arrested on August 14, 2013 and sentenced on June 19, 2019 for a total
pre-sentence custodial period of 2,136 days. He has a right to the award of those credits
and on remand the trial court shall prepare an amended abstract of judgment showing the
credit.
Third, Martinez identifies two clerical errors in his abstract of judgment. He says
the section 12022.53, subdivision (c) enhancement attached should be included on the
CR-292 abstract which records the judgment on count 3, not the CR-290 determinate
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term abstract which records the judgment on count 2. He also says an attachment to the
abstract indicates he is subject to a $514.58 booking fee, when the trial court determined
“he does not have to pay the fines and fees until such time as it is determined that he has
the financial ability to do so.” The People concede these clerical errors and that it is
appropriate for this court to correct them. We agree. (People v. Mitchell (2001) 26
Cal.4th 181, 187-188 [“[W]here, as here, the Attorney General identifies an evident
discrepancy between the abstract of judgment and the judgment that the reporter’s
transcript and the trial court’s minute order reflect, the appellate court itself should order
the trial court to correct the abstract of judgment”].)
IV
DISPOSITION
We reverse Martinez’s sentence on count 2 and remand to the trial court to
exercise its discretion on whether to stay that sentence, understanding the offense had the
same victim as the offense in count 1. In addition, we direct the trial court to modify
Martinez’s abstract of judgment by (i) striking the $514.58 booking fee, (ii) adding the
section 12022.53, subdivision (c) enhancement to count 3, (iii) removing the
enhancement on count 2, (iv) recording that he has 2136 days of actual presentence time
served, and (v) recording that his sentences on counts 1 and 3 are to be served
concurrently, and to forward the modified abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects we affirm the judgment against
Martinez.
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In Fernandez’s case, we direct the trial court to modify Fernandez’s abstract of
judgment to show he has 1289 days of actual presentence time served and his sentences
on counts 1 and 3 are to be served concurrently, and to forward the modified abstract of
judgment to the Department of Corrections and Rehabilitation. We affirm the judgment
against Fernandez as so modified.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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