People v. Luna CA5 ( 2021 )

Filed 11/22/21 P. v. Luna CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077054
Plaintiff and Respondent,
(Super. Ct. Nos. CRM032204B &
v. CRM032204E)
JULIAN JUNIOR LUNA et al.,
OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant Julian Junior Luna.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant Arturo Morfin.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa
Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
I. Procedural History
Following the fatal, gang-related shooting of Francisco Pena, 1 coappellants Julian
Junior Luna and Arturo Morfin were charged with first degree murder that was willful,
deliberate, and premediated and perpetrated by means of lying in wait (Pen. Code,
§§ 187, subd. (a), 189, subd. (a); count 1).2 The information further alleged murder
special-circumstances of lying in wait and active gang participation (§ 190.2,
subd. (a)(15), (22)), a firearm enhancement (§ 12022.53, subds. (d), (e)(1)), and a gang
enhancement (§ 186.22, subd. (b)(5)). In connection with a shooting that occurred four
days earlier and injured Francisco’s young nephew, Morfin was also charged with
shooting at an occupied vehicle (§ 246; count 2) with attached firearm and gang
enhancements (§§ 12022.53, subd. (d), 186.22, subd. (b)(4)); and assault with a firearm
(§ 245, subd. (a)(2); count 3), with attached firearm, personal infliction of great bodily
injury (GBI), and gang enhancements (§§ 12022.5, subd. (a), 12022.7, subd. (a), 186.22,
subd. (b)(1)(C)). As to Morfin, the information alleged he suffered one prior serious or
violent felony conviction within the meaning of the Three Strikes law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)) and alleged, based on the same conviction, a prior
serious felony conviction enhancement (former § 667, subd. (a)(1)) and a prior prison
term enhancement (former § 667.5, subd. (b)). 3
The jury convicted Luna and Morfin as charged and found the premeditation and
lying in wait allegations, the murder special-circumstance allegations, and the sentence
1 In this case, several involved parties share the same last name. Therefore, in some
instances, we refer to individuals, including Francisco, by first name. No disrespect is intended.
2 All further statutory references are to the Penal Code unless otherwise stated.
3 The amendments to former section 667, subdivision (a)(1), and former section 1385,
subdivision (b), are discussed in part II.B.3. of the Discussion. (2017–2018 Reg. Sess.; Senate
Bill No. 1393.) Section 667.5, subdivision (b), was amended effective January 1, 2020, to limit
the convictions upon which a prior prison term enhancement may be based (2019–2020 Reg.
Sess.; Senate Bill No. 136); and effective January 1, 2022, section 1171.1 was added to the Penal
2.
enhancement allegations true. In a bifurcated proceeding, the trial court found the prior
conviction and prison term allegations against Morfin true.
On count 1, the trial court sentenced Luna and Morfin each to a term of life
without the possibility of parole for murder and an additional, consecutive term of
25 years to life for the firearm enhancement. On count 2, the court sentenced Morfin to
the upper term of seven years for shooting at an occupied vehicle, doubled to 14 years for
the prior strike conviction, plus additional, consecutive terms of 25 years to life for the
firearm enhancement, 15 years to life for the gang enhancement, and five years for the
prior serious felony conviction enhancement. 4 On count 3, the court sentenced Morfin to
the upper term of four years for assault with a firearm, doubled to eight years, plus
additional terms of 10 years for the firearm enhancement, three years for the GBI
enhancement, and 10 years for the gang enhancement. The sentence on count 3 was
stayed under section 654.
II. Appellate Claims
On appeal, Luna claims that given the inflammatory nature of the charges against
Morfin for shooting a child, the trial court erred when it denied his motion to sever his
trial from Morfin’s. He also claims, joined by Morfin, that the trial court erred under
state law when it admitted Francisco’s brother’s statement that Francisco said he was
going to meet with Lazy the night he was killed. Relatedly, Luna claims admission of
that statement also violated the confrontation clause of the Sixth Amendment; and the
trial court erred when it denied his motion for a mistrial, brought after the prosecutor’s
Code to provide that any sentence enhancement imposed under that section prior to January 1,
2020, except for those qualifying sexually violent offenses, is legally invalid (Sen. Bill No. 483
(2021-2022 Reg. Sess.) ch. 728, § 3). In this case, the trial court did not impose the one-year
prior prison term enhancement, but Morfin’s prior assault conviction is no longer a qualifying
offense and, therefore, we shall order the finding stricken.
4 As discussed in part II.B.4. of the Discussion, there were several errors with Morfin’s
sentence.
3.
direct examination of Francisco’s brother regarding Francisco’s statement contravened
the in limine ruling. Lastly, Luna claims that admission of cumulative, prejudicial, and
irrelevant evidence violated his constitutional right to a fair trial, and that his murder
conviction is not supported by substantial evidence.
Morfin claims his Sixth Amendment right of confrontation was violated by the
admission of Detective Sanchez’s testimony that he had information Morfin confessed
involvement in shooting a child to other gang members. Joined by Luna, Morfin also
seeks remand under Senate Bill No. 620 (2017–2018 Reg. Sess.; Senate Bill No. 620),
effective January 1, 2018, on the ground that the record is silent regarding whether the
trial court understood it had discretion to strike the firearm enhancements, and he claims
imposition of the 25-year-to-life firearm enhancement on count 1 was improper double
punishment given his murder sentence. Finally, Morfin seeks remand under Senate Bill
No. 1393, effective January 1, 2019, to allow the trial court to exercise its discretion
regarding whether to strike the five-year prior serious felony conviction enhancement
imposed under former section 667, subdivision (a)(1), and he claims the court erred in
doubling the enhancement to ten years on count 2.
The People concede that Morfin is entitled to remand under Senate Bill No. 1393
and that the trial court erred in doubling the prior serious felony conviction enhancement
on count 2, but they otherwise dispute Luna’s and Morfin’s entitlement to any relief on
their claims.
We affirm Luna’s judgment.
Morfin is entitled to remand under Senate Bill No. 1393. In addition, as explained
in part II.B.4. of the Discussion, the trial court erred in its imposition of sentence on
count 2, necessitating remand for resentencing under the penalty provision in
section 186.22, subdivision (b)(4). Morfin’s judgment is otherwise affirmed.
4.
FACTUAL SUMMARY
I. Prosecution Case
A. Background
In the early 1990’s in the town of Winton, teenaged brothers Francisco and Jose
P., along with a group of their friends, founded the Winton Varrios Parque (WVP) street
gang and Sureño subset. At the time of Francisco’s murder, Jose, known as “Locs,” and
Francisco, known as “Spooks,” remained committed to and active in the gang, and they
were respected senior leaders. Jose testified that as they aged, however, they were less
interested in going out looking for trouble.
Luna, known as “Lazy,” and Morfin, who went by both “Mato” and “Art,” were
younger and ran with a different group in WVP. 5 Jose did not view Morfin as an
“influential person in the neighborhood,” and approximately three years before
Francisco’s murder, bad blood developed between the two after Jose’s release from
prison. Jose testified that on the day he arrived home, Morfin came over and started
talking about getting the neighborhood more organized and setting up a “mesa,” or table,
to call shots. Jose was not interested in talking about what he considered “prison
politics” while out on the streets. He told Morfin he did not want to deal with it and just
wanted to enjoy life, and he warned Morfin to stop talking about it or there would be a
fight. After Morfin persisted, Jose hit him and the two fought until others broke it up.
Jose testified Morfin was angry with him after that, because Morfin felt Jose was
disrespecting him in front of the younger gang members. They fought physically two
additional times. The second time, Jose and another person ran into Morfin, who was
also with someone else, at the liquor store. Jose testified he might have called Morfin a
punk and they started fighting. When Jose gained the upper hand, Morfin asked the other
5 Luna and Morfin were both 24 years old at the time of Francisco’s murder.
5.
men there to get Jose off of him. They had further words and then went their separate
ways.
Following that fight, Morfin gave Jose dirty looks when they encountered one
another around town. Jose made it known that Morfin was acting up when Jose was out
with his family and Jose was looking to fight Morfin “‘heads up and one on one’” so
Morfin would get the message to leave Jose alone around his family. Jose never had any
issues with Luna, his brother Fernando Luna, or anyone else in the neighborhood other
than Morfin, but Luna and Fernando hung around with Morfin and “[t]hey had their own
little group.”
Morfin and some members of his group lived in an apartment complex on Myrtle
Street, known and referred to as “‘[t]he Block’” throughout trial. 6 Although Jose only
lived a block away and Francisco lived next door, neither hung out at the Block.
The third fight occurred when Francisco asked Jose to take him to the Block,
possibly to buy weed. Jose stayed in the car, but Morfin opened his front door and
looked at Jose. Jose rolled down his window, asked Morfin if he was ready, and got out
of the car. Morfin came at Jose, who hit Morfin, dropped him, and “started hammering
away.” After others broke it up, Morfin went back inside and came out acting like he had
a gun, although Jose did not see one. Morfin threatened to shoot, and Francisco started
arguing with him. Others present calmed things down, and someone said Morfin was just
mad because he got a beating. Francisco and Jose then left.
B. Oscar’s Shooting
Although they were not a couple, Jose and Vanessa had a two-year-old son, Oscar,
together. On December 19, 2013, four days before Francisco was killed, Oscar was taken
to the hospital with a gunshot wound to his buttocks. He remained hospitalized for a day
6 Fernando, known as “Bones,” lived in apartment No. 2; Morfin lived in apartment No. 4;
and Alejandro Fierro, known as “Danger,” lived in apartment No. 5.
6.
or two. At that time, Vanessa was affiliated to some degree with A-Town, a Sureño gang
based in Atwater and a rival of WVP. Vanessa’s then-boyfriend, Erick, was an A-Town
member and was driving with Oscar in his car when the shooting occurred.
At the hospital, Vanessa gave a statement to an Atwater Police officer.
Approximately four months later, she was interviewed at her apartment by Detectives
Sanchez and Ruiz with the Merced County Sheriff’s Department. By then, five men had
been arrested in connection with Francisco’s murder and detectives theorized Oscar’s
earlier shooting might be connected. Shortly thereafter, Erick was also interviewed by
Sanchez.
1. Erick’s Testimony
Erick testified with obvious reluctance. He told the jury that he had just dropped
Vanessa off at a gas station in Atwater and was driving with Oscar in the car when he
heard a bang he thought was a firework. He did not recall where he was at the time and
he denied seeing anyone, seeing any vehicles he recognized, or seeing a green car. He
said he took Oscar home and then, after he picked Vanessa up along the way, he drove to
the hospital because Oscar was crying. He did not check Oscar for injuries or contact the
police and he did not see any blood, holes in Oscar’s clothing, or damage to his car.
Erick conceded A-Town is a Sureño gang, but denied knowing any details about
it, denied knowing what WVP was, and denied any gang involvement, including in A-
Town. He described the tattoo of three dots under his eye as “Lucky 13,” a non-gang
related “clothing symbol or something.” He recalled speaking with a detective at the
parole office, but denied he told the detective he was an active A-Town member, even
after the prosecutor provided his statement to refresh his recollection. Erick denied
knowing Francisco, Morfin or Luna, and he stated he had never seen Morfin or Luna
before. He knew who Jose was, but said he saw Jose for the first time at the hospital after
the shooting and he did not know if Jose was gang affiliated. Erick testified he did not
know who shot at his car and he did not know if Oscar was the intended target, and he
7.
denied telling Vanessa that he saw Morfin in a green car or that Morfin was the shooter.
He also denied telling Jose at the hospital that Morfin was the shooter.
Detective Sanchez testified that when he interviewed Erick, Erick was hesitant to
talk because he was an active A-Town member and had safety concerns. Although Erick
did not provide a name, he told Sanchez that Oscar’s shooter was in custody for
Francisco’s murder and Oscar was not the target. 7 After Sanchez informed Erick he had
spoken with Vanessa, Erick said that Sanchez already knew everything and that
everything Vanessa told him was true. Erick denied making those statements at trial, but
said he told Sanchez the truth when interviewed.
2. Vanessa’s Testimony
Vanessa, who also testified reluctantly, denied her family was gang affiliated, but
said her brother was an active A-Town Sureño. She also said Erick was an active A-
Town member at the time of the shooting, but was not involved anymore, and she
considered both Erick and her brother family men.
The day Oscar was shot, Vanessa planned to carpool to work with Erick’s sister
and they met at the gas station. Erick dropped her off and drove off with Oscar. After
Erick’s sister gassed up the car and they left, Vanessa saw Erick driving back toward
them, waving them over. Oscar was crying and although Erick did not say Oscar had
been shot, Vanessa saw he was bleeding from a hole in his buttock. Erick’s sister drove
Vanessa and Oscar to the hospital. Erick and Jose both arrived later.
Vanessa denied she told Jose at the hospital that one of his “homeboys” shot
Oscar. She also denied she told detectives she found a bullet in Erick’s car, denied she
knew Morfin or anything about a green car, and denied Erick said anything about a green
car. After Vanessa stated she did not recall what she said during her interview with
7 At that time, Luna, Morfin, Fernando, Ricardo Romo, and Elias Vera were in custody for
the murder of Francisco. Fernando, Romo, and Vera later pled guilty to voluntary manslaughter.
8.
Detectives Sanchez and Ruiz, excerpts from the recorded interview were played for the
jury. During the interview, employing what he later described as a ruse, Sanchez told
Vanessa that one of the people arrested for Francisco’s murder confessed to shooting
Oscar.
Although Vanessa was reluctant to cooperate throughout the interview, she was
also concerned about losing custody of her son and was upset he was shot. She told
detectives that when Erick dropped her off at the gas station, the person who shot Oscar
was gassing up his green car at the station across the street. He was by himself and she
recognized him. As he drove past, he looked at her “crazy.” Vanessa did not see the
shooting or hear any gunshots, but after she departed from the gas station and Erick
waved her down, she saw a bullet in the backseat of his car. She said Erick told her the
green car shot at him, and there was only one green car on the street. Vanessa then
selected Morfin from the six-photo lineup presented and stated she knew him as Arthur.
3. Jose’s Testimony
Although A-Town and WVP were both Sureño subsets, Jose testified they had a
“nasty” rivalry in December 2013, and they had “‘green light[s]’” on one another, which
meant an order or an expectation to attack or shoot rivals on sight. After Jose arrived at
the hospital, Vanessa told him repeatedly that his “‘homeboy with a green car’” shot
Oscar. Jose also spoke with Erick, and after he pressed Erick about Vanessa’s statement
that one of his homeboys shot Oscar, Erick said the shooter was “‘Art.’”
C. Francisco’s Murder
1. Summary of Shooting
On December 23, 2013, Francisco and his girlfriend, M.S., were shopping at
Walmart. While there, they ran into J.V. and his girlfriend, A.V. Jose described J.V. as
“a hang-around” who always “chauffeur[ed]” Romo and Elias Vera around. Francisco
and J.V. shook hands. Francisco and M.S. checked out around 5:35 p.m. and went to
watch a friend’s children’s karate class.
9.
While there, Francisco stepped out to take an incoming cell phone call. At
6:52 p.m., Francisco called Jose, sounding upset and confused. After the murder, Jose
told Detective Sanchez that Francisco said he was meeting Lazy.
M.S. testified that prior to leaving the karate class to take the phone call, Francisco
was happy, but when he returned, he was “very serious, sad, or quiet.” Francisco told
M.S. that they had to go home. At the corner of Winton and Myrtle, Francisco directed
M.S. to stop the car. He got out and told M.S. to go home, which was nearby on Myrtle.
M.S. drove home and parked. She then heard numerous gunshots and called Francisco’s
phone, but there was no answer.
The jury heard three calls to 9-1-1 reporting shots fired. One of callers, who lived
nearby, reported hearing someone jump the fence and then gunshots. Another caller who
lived in the apartment next to Morfin’s reported hearing 15 to 20 high-powered gunshots
and, at the scene, she told law enforcement she thought she heard someone on the roof
and people might have been shooting from up there. Deputies were dispatched to the
scene around 7:15 p.m.
Francisco’s body was found on the ground in the rear of the Block between the
property line fence and the apartment building, consistent with him having just jumped
the fence. He had a nine-millimeter gun tucked in his waistband and had been shot three
times. The fatal shot, which entered his upper back at the base of his neck and exited
through his chest, severed his spinal cord and paralyzed him. The shot traveled
downward and was consistent with being fired from the roof. The other two shots went
through his left forearm and left thigh. The pathologist was unable to determine whether
the shots came from the same or different firearms, but he opined they did not come from
a shotgun due to the absence of pellets.
On the roof, Detective Ruiz located a round hole in the tarp over the air
conditioning unit above Morfin’s apartment, and, along the same trajectory, a hole in the
roof, the fascia board, and the rain gutter consistent with a bullet hole. Following the
10.
trajectory to the ground, Ruiz located a bullet hole in the fence and then a bullet lodged in
the dirt.
Although no firearms linked to the shooting were ever recovered, law enforcement
officers located three spent Winchester-brand 12-gauge shotgun shells; 10 spent Fiocchi-
brand 7.62 by 39-millimeter caliber rifle casings, four in the backyard of apartment No. 5
in the vicinity of Francisco’s body and six in the backyard of apartment No. 4; and an
unspent Luger nine-millimeter bullet in front of apartment No. 1. Inside apartment No. 4,
leased by Morfin, officers located a gun cleaning kit and a blue latex glove with four 12-
gauge shotgun shells in the fingers, among other items.
2. Investigation
a. Events Prior to Shooting
After Francisco’s murder, Jose told Detective Sanchez that Francisco was going to
meet Lazy, as previously stated, and investigators began piecing together the events of
that night through interviews and phone records. J.V. was interviewed by detectives
several times and testified at trial, reluctantly. In his testimony, he said he did not recall
receiving a call from someone with an unknown number asking for Francisco’s number,
although he told the police he did; he did not think Morfin called while he was at
Walmart; and he did not have Francisco’s number. He also claimed he was not familiar
with A-Town, did not know anyone in WVP, did not know Luna or Morfin, and did not
know anyone who lived at the Block. He denied he made contrary statements to
detectives and said he was panicked at the time because he was trapped inside a patrol car
and scared of going to jail.
Excerpts of J.V.’s statement to Detectives Ruiz and Macias were played for the
jury. In his interview, J.V. said he was not affiliated with WVP except to the extent he
hung around with members, and he expressed fear he would be killed for talking. J.V.
was aware of “the beef” between A-Town and “the park,” but said he was not really
11.
involved with any of it. He also said Francisco “had love for everyone” and treated him
“like a son.”
J.V. stated that Morfin was angry with Francisco and Jose, and Morfin “wanted to
control the park.” A year prior to the murder, J.V. went to the Block with Francisco.
There, Francisco and Jose each fought and bested Morfin to “squash[] the beef.”
Subsequently, months before the murder, J.V. heard Morfin talking about “wiping some
homies out” for “being drop outs or some shit,” and Morfin specifically mentioned
Francisco. J.V. had just arrived at the time, and Fierro looked at him and then told
Morfin they would talk about it later.
In his statement, J.V. said that on the day of Francisco’s murder, he received a call
at around 12:00 from someone with a deep voice repeatedly asking for Francisco’s
number, which scared him. At 3:00, Morfin called and asked for Francisco’s number.
Francisco did not want J.V. giving out his number and J.V. did not like Morfin, so he said
he lost his phone contacts but gave Morfin the number for his cousin, Vera.
At trial, A.V. denied that J.V. hung around with gang members or talked about
gang stuff. However, she said that just prior to running into Francisco at Walmart, J.V.
received a phone call from someone asking for Francisco’s number. J.V. said he did not
have it and, as they were checking out, J.V. received another phone call from someone
asking for Francisco’s number. J.V. again said no, but told the caller he had just seen
Francisco in the store. A.V. testified she did not know who called but during her police
interview that was played for the jury, she said one of the two incoming calls showed the
name Art, although she did not remember which call.
At 6:54 p.m., someone sent a text message from Denise D.’s cell phone to Fierro’s
cell phone asking, “They wanna knoe if its coo to come inside and watch the game. Lazy
lucky and esgar.” Someone texted in response, “Yeah if they help you clean.”
At trial, both Denise D. and Fierro disclaimed any recollection of sending or
receiving those texts. Denise was at the Block inside Fierro’s apartment that night and
12.
she acknowledged she hung out with WVP members, but she said her cell phone was not
password protected, it was on the kitchen table charging, and other people always
grabbed her phone and used it. She said there were two or three other people inside
Fierro’s apartment with her, but she did not know them and did not really interact with
them. Fierro was not there, she did not recall if Romo was there, and she denied knowing
Morfin, Luna or anyone named Lazy. She also denied she knew Fernando, although she
recognized him from a photograph and knew his girlfriend, Alma M.
Denise testified she was watching football inside Fierro’s apartment when she
heard gunshots. When she left shortly thereafter, it was quiet outside and no one was
around. She later found out about the murder.
Fierro testified he used to be active in WVP, but was not anymore. Francisco had
been a roommate of his in the past and he also knew Jose, Morfin, and Luna. However,
he said he “barely” knew Morfin and Luna because he had been in prison, he did not
know if they were involved in WVP, and he did not recall seeing any fights, including
between Jose and Luna or Morfin. He denied Morfin lived next door to him, he did not
recall if Morfin ever lived in the apartment next door, and he did not recall if he told
Sanchez otherwise.
Fierro said he was not home at the time of the shooting and he did not know if
Denise was there. He knew who Lazy (Luna) and Lucky (Romo) were in the text, but did
not recall receiving the text. When he returned home later that night, the crime scene was
blocked off and he learned the next day that Francisco had been shot.
Luna’s younger brother, Fernando, was the prosecution’s key witness. 8 He
testified that he spent the afternoon of Francisco’s murder in Fierro’s apartment at the
Block. Also present were Denise, Fierro, and Fierro’s brother. Romo and Vera came by
8 The prosecutor anticipated testimony by both Romo and Fernando regarding the details
of Francisco’s murder in exchange for grants of immunity. However, Romo invoked his Fifth
Amendment rights and refused to answer any questions beyond basic background information.
13.
at some point, and they told Morfin and Luna that they ran into brothers Francisco and
Jose at a store. The brothers pulled a gun, and one of them said not to hang “around with
the people on ‘The Block’ because they were no good.” Fernando described Romo and
Vera as scared by the run-in, but he also said they tended to exaggerate.
Fernando testified that Morfin did not like Francisco or Jose, and, in Fernando’s
view, Morfin was trying to turn younger gang members, including Romo and Vera,
against the brothers by “brainwashing” them with free drugs. Angered by what Romo
and Vera reported, Morfin and Luna decided to try obtaining a phone number to talk with
Jose and Francisco.
Fernando said he had no “beef” with Jose or Francisco, but at Morfin’s request, he
used Denise’s phone to access his Facebook account. He sent Francisco’s sister a
message at 6:19 p.m. asking, “Aye whats your bros number?” Francisco’s sister did not
see the message until after Francisco’s death and never responded to it.
According to Fernando, someone else used Denise’s phone and started calling
around looking for Francisco’s phone number. At some point, either Romo or Vera
obtained the number. Someone reached Francisco, and Morfin and Luna confronted him
about the run-in with Romo and Vera.9 The phone call was on speaker and Fernando
heard attempts made to meet up with Francisco.
After that phone call, Fernando, Luna, Morfin, Vera, Romo, and Ruben A. went to
Morfin’s apartment next door, which was empty because Morfin was moving out, and
began grabbing guns from a black, guitar-like briefcase. 10 Fernando testified that the
9 Fernando’s testimony was inconsistent. He testified he did not remember who called
Francisco, but in later testimony, he said Morfin and Luna talked to Francisco and told him he
needed to come to the Block to talk about what happened with Romo and Vera. He then testified
that Luna did not make a call trying to find Francisco’s number and was not nearby when the
phone call to Francisco was made.
10 Ruben was later located by phone during the investigation, but he was in Mexico and did
not provide any information.
14.
guns belonged to Morfin. Fernando took a nine-millimeter and Luna had a .40- or .45-
caliber, Vera had a .357-caliber, Romo had a rifle, and Ruben had a shotgun.
Fernando denied there was any plan to shoot Francisco, but he and Ruben lifted
Romo onto the roof of the apartment complex. Fernando said the area between the air
conditioning units for apartment Nos. 4 and 5 was frequently used as a lookout location.
Fernando last saw Luna, Morfin, and Vera standing by the trash can, which was another
lookout location they used. He said he had been given marijuana to roll and he went back
inside Fierro’s apartment to do that. Fierro, Fierro’s brother, and Denise were also inside.
Fernando heard someone say that someone was coming through the back several
times and he then heard multiple gunshots. Morfin came to the apartment door alone and
told Fernando in a panicked tone to “‘dip,’” which meant leave. Fernando testified he
then ran alone to his aunt’s house, approximately one mile away. He testified he did not
fire his gun, did not see a body, and did not know who shot Francisco, but he heard shots
from two different guns.
b. Events Subsequent to Shooting
On December 24, 2013, between 1:15 a.m. and 4:45 a.m., approximately, a series
of text messages was exchanged between cell phones linked to Fernando’s girlfriend,
Alma M., and Luna’s girlfriend, Sandra V.11 The first text sent from Alma’s phone read,
“Babe u up[?]” Someone responded, “Layn dwn wit penelope.” Although Sandra
disclaimed knowledge of the texts, she conceded no one other than Luna called her
“Babe” and the two shared a daughter named Penelope.
Someone sent a text from Alma’s phone asking to be picked up and received the
response, “We went on friday to pik u up but u decided to hide.” A text sent from
Alma’s phone then said, “Im in some shit babe. [¶] Dont ask ill tell u later.”
11 Sandra testified she did not recall her phone number or the text messages, and she denied
she picked Luna up on December 24, 2013. However, the cell phone was in Sandra’s possession
when Luna was arrested, and Redding police documented the phone number.
15.
Other texts reflected that the person texting from Alma’s phone was being driven
by “Nando,” which was Fernando’s nickname, and the person texting from Sandra’s
phone was with “tio,” which was what Sandra called her sister’s husband. By text, an
arrangement was reached to meet at a gas station in Dunnigan, which is between Winton
and Redding.
On December 25, 2013, around 2:45 p.m., someone who self-identified as “Flaco
de Turlock” texted from Alma’s phone about an SKS rifle for sale. Around 11:00 p.m., a
text sent to Alma’s phone asked for a picture of the SKS and the response read, “I dnt gt
none bt its hella sick jst dnt tell no one i gt it.” At trial, Fernando testified he did not own
a cell phone, but he and other people used Alma’s phone. He did not know how Luna
ended up with Alma’s phone on December 24, 2013, and he denied he sent the texts
about the SKS or had any knowledge about an SKS for sale. Fernando identified Flaco
as Alma’s brother, but said Flaco was not gang-involved.
On December 26, 2013, Fierro and his brother were pulled over and arrested after
police found a gun and drugs in the car. Fierro later pleaded no contest to being an
accessory after the fact, based on aiding Romo after the commission of a murder. Fierro
also pleaded to possession of a firearm and a controlled substance. Fierro testified the
accessory charge was based on hiding the murder weapons, but he denied he was
involved and stated he took the plea deal because he was tired of fighting the case. Fierro
denied he helped anyone after the murder and said he did not recall having uniforms
inside his car with the name Arturo on them.
In February 2014, Fernando and Alma were arrested. They discussed alibis while
in the backseat of the patrol car. Fernando told Alma not to say anything but at trial, he
denied he told her to make up a story. After initially telling Detective Sanchez he was
not at the Block that night and did not know anything, Fernando reached out to Sanchez
through Alma and began cooperating with law enforcement in exchange for a plea deal.
16.
Luna was also arrested in February 2014, outside the Redding apartment he shared
with Sandra and their daughter. In the apartment, police located a high-capacity
magazine for a Glock, a rifle scope, marijuana, and bags of suspected methamphetamine.
In March 2014, Morfin was arrested in Redding while at work. Police located his
car, which was green.
D. Gang Evidence
Through multiple witnesses, including Jose, the prosecutor introduced gang
evidence relating to WVP, the Sureños and the Mexican Mafia, and linking the groups.
Jose explained that WVP was a Sureño-affiliated gang that identified with the color blue,
the Dallas Cowboys and the number 13, and the number of members varied between 30
and 100, depending on whom one asked. Department of Corrections Special Agent
Rochester testified that the 13th letter of the alphabet is “M,” and the number 13 signifies
M for Mexican Mafia. The number 13 is also represented by three dots or three dots with
two bars, which is the Mayan symbol for the number 13. Among other tattoos, Jose had
three dots tattooed under his left eye, as did Erick; Fernando had the number 13 tattooed
on his stomach; Luna had the numbers 1 and 3 tattooed on the backs of his calves; Morfin
had a WVP tattoo on his back; and Santiago Martinez, a Mexican Mafia associate who is
discussed below, had three dots tattooed under his left eye and three dots and two bars
tattooed on his neck.
Special Agent Rochester and Deputy Goncalves, who was with sheriff
department’s gang task force, testified about gang structure and activities. Rochester told
the jury the Mexican Mafia, a prison gang, has 2,610 validated associates and
167 validated members called “brothers” who are of equal rank. Each validated member
oversees a different territory and that member controls everything that happens within
that territory. Underneath the Mexican Mafia is the Sureño subset, which numbers more
than 10,000. The Sureños in each “family” area engage in criminal activities such as
prostitution, driveby shootings and drug activities, and they pay money, or taxes, to the
17.
Mexican Mafia. Rochester estimated each of the 167 Mexican Mafia members earns
between $40,000 and $50,000 per month in taxes, although the money is dispersed to
family and others on the street to avoid seizure.
Goncalves described primary activities of the Sureños as including vandalism,
burglary, theft, assaults with or without weapons, narcotic sales, firearm sales, and
murder. Goncalves testified that drug sales and firearm sales form the backbone of the
gang’s illegal activities, and the money earned is funneled to different areas of the
organization, including to Mexican Mafia representatives as an “insurance policy for
safety purposes.”
The parties stipulated that Luna and Morfin each committed a predicate offense
within the meaning of section 186.22, subdivision (e): in 2007, Luna, then a juvenile,
committed an unspecified predicate offense and admitted a gang enhancement, and in
2008, Morfin fired a shot at rival gang members and pled guilty to assault by means of
force likely to produce GBI and participation in a criminal street gang. In addition, the
prosecutor introduced evidence that Vera had a juvenile adjudication for possession of a
firearm, in violation of section 25400, subdivision (a)(2); and Romo and Fernando pled
guilty to voluntary manslaughter.
Rochester testified that each prison yard has a mesa, or a table, which is a group of
four or five Sureño gang members who represent the Mexican Mafia and make decisions
for that yard. Goncalves further explained that a mesa is “basically a governing board of
generally five people that are there to carry out … tasks at the direction of … identified
Mexican Mafia members [who have] control over those … yards and/or prisons.”
Rochester opined that when Morfin pressed Jose over setting up a mesa after Jose’s
release from prison, Morfin was “trying to set up a group to make decisions in their area
underneath the Mexican Mafia member.”
Relevant to Luna’s challenge to the admission of his jail calls, Goncalves testified
regarding a wiretap investigation called “Operation Scrapbook” that began in 2016. The
18.
investigation targeted Merced and Stanislaus County Sureño gang members and Mexican
Mafia members. During the investigation, Goncalves learned that a cell phone had been
smuggled into the Merced County Jail. Luna was one of the people using the phone
inside the jail and he communicated with Martinez, who, as a validated Mexican Mafia
associate, outranked Luna and was positioned to give orders. In those calls, Luna and
Martinez discussed Luna “set[ting] up shop” in the Merced County Jail, which Goncalves
testified meant set up to traffic in contraband such as phones and drugs, and they
discussed some resistance by another inmate who was already in charge of the Sureños in
the jail. Luna and Martinez also discussed killing another inmate and using a woman to
smuggle contraband.
II. Defense Case
A. Luna
Detective Sanchez was Luna’s only witness. Sanchez testified that when
Fernando was arrested in February 2014, he was wanted in connection with Francisco’s
murder. In March, Sanchez listened to the recording of Fernando’s and Alma’s
conversation in the back of the patrol car. They talked about getting their stories straight
and saying they were at her mother’s house. Alma also said she threw her phone out
because she did not want police to see photos and text messages. She said her mother
would go look for it, and Sanchez confirmed police never found the phone.
In March, Alma left a voicemail message for Sanchez, telling him that Fernando
wanted to speak with him. When Sanchez saw Fernando at the jail, Fernando stated he
wanted to be a witness against the other suspects in the case: Luna, Morfin, Romo, and
Vera. Fernando stated his understanding was that usually only one person can take the
stand against the other suspects and he wanted to be the one.
Sanchez told Fernando that they found text messages on the phone he shared with
Alma regarding selling an SKS rifle. Sanchez suspected the text could be referring to the
murder weapon because an SKS rifle only takes 7.62 by 39-millimeter caliber bullets and
19.
could have fired the Fiocchi shell casings found at the crime scene. However, Fernando
denied it was the rifle that killed Francisco and stated he was referring to a MAC-10
subsequently confiscated when Danger (Fierro) and Acho (Fierro’s brother) were arrested
on December 26, 2013. Sanchez told Fernando a MAC-10 does not take 7.62 by 39-
millimeter caliber bullets and, therefore, was not the murder weapon.
Sanchez testified he had information from Romo that Fernando fired the shot from
the roof while Fernando said Romo was on the roof.
When Sanchez first questioned J.V., he knew J.V. was associated with WVP and
he had some information J.V. might know something about the murder, but J.V. told
Sanchez he did not know anything. One week later, Sanchez questioned J.V. a second
time and told him authorities had information from an informant that he knew a lot more
than he said he did. Sanchez gave J.V. the Penal Code, pointed out section 182 on
conspiracy, and told him he could be sentenced to 25 years to life for conspiracy to
commit murder. Sanchez then drove J.V. to the jail, although he was not under arrest.
Just prior to reaching the jail, J.V. became cooperative, and he told Sanchez he picked up
Vera and Romo at the murder scene.
On cross-examination, Sanchez testified that Fierro and his brother were arrested
on December 26, 2013, leaving the Block. With them, they had a MAC-10, a Glock
magazine, .40-caliber rounds, and latex gloves with shotgun shells in the fingers similar
to the glove located in Morfin’s apartment. There was a lot of clothing in the car as well,
including uniform shirts with the name Arturo on them.
B. Morfin
Morfin also called Detective Sanchez to testify. Defense counsel questioned
Sanchez about crime in Merced County, tensions between A-Town and WVP, and
investigating gang cases. Counsel elicited testimony that only Morfin’s apartment was
searched after the murder, Morfin’s notice of intent to vacate his apartment as of
December 31, 2013, was dated early November 2013, and even though Fierro was
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arrested three days after the murder and police found items potentially related to the
murder in his car, his apartment was not searched.
Regarding J.V., counsel elicited testimony that when Sanchez told him he could
face 25 years to life, Sanchez did not have any information that J.V. was involved in
committing the murder and instead had information that after the murder, J.V. picked two
people up from the scene and gave them a ride.
The last call to Francisco’s phone noted by Sanchez was from Manuel S., J.V.’s
cousin and an active gang member whose moniker was Trigger. The call lasted
42 seconds, indicating it was answered. Manuel refused to cooperate in the investigation.
Maria R., Morfin’s former girlfriend, testified as a character witness. She and
Morfin were together almost four years and had plans to marry. She lived with him in the
Myrtle Street apartment and they then moved to Redding together, where Morfin was
arrested. She testified she knew he had a past and used to be a gang member, but to her,
he was a good, hardworking person. Although they were busy and she both worked and
went to school, she stated Morfin did not have contact with gang members, she never saw
any weapons, and she never saw him wearing blue clothing or making gang signs. When
Morfin was arrested in 2014, Maria was shocked and thought police were lying because
he was “normal every single day” and she “never once doubted him.”
On cross-examination, Maria identified some items from apartment No. 4 as
theirs, such as the curtains and his wallet, but she said other items, including a chair,
clothing, the gun case, a gun cleaning kit, a box of ammunition and marijuana in the
freezer, did not belong to them. She also said she did not know Fierro, Luna, or
Fernando; and she had not heard that Morfin fired multiple shots at a perceived Norteño
gang member in 2008, or that in jail he was caught with a stabbing instrument and was
involved in a gang fight.
Finally, Officer Cardoza testified that when he interviewed Vanessa at the hospital
following Oscar’s shooting, she told him they were walking down the street to her
21.
boyfriend’s house when her son saw a large, loud, dark colored pickup truck. She said
Oscar got excited when he saw “‘big trucks’” and he alerted her to the truck. Vanessa
heard a pop, Oscar started crying, and she saw blood when she picked him up.
Cardoza also testified that a second shooting occurred close in time, and he
interviewed the victim and the victim’s brother two days later at the hospital. 12 Police
thought it possible the shootings might be related based on a similar vehicle description,
but they did not consider the shootings to be one incident. However, police were unable
to establish a time for either shooting or locate a crime scene for either shooting.
III. Rebuttal
Detective Sanchez testified in rebuttal regarding phone calls among phone
numbers associated with Morfin’s, Fierro’s, and Fernando’s phones. Specifically, he
testified that multiple calls were made between Fierro’s and Morfin’s phones beginning
on December 14, 2013. On the day of Francisco’s murder, there were three incoming
calls to Fierro’s phone from Morfin’s phone: a call at 7:22 p.m., another call two minutes
later that likely went to voicemail, and a third call at 8:20 p.m. that was not answered.
There were also multiple calls between Morfin’s phone and the phone shared by
Fernando and Alma. On the day of Francisco’s murder, there was an incoming call to
Fernando’s and Alma’s phone from Morfin’s phone at 1:22 p.m. and outgoing calls from
Fernando’s and Alma’s phone to Morfin’s phone at 8:35 p.m., 8:47 p.m., 8:49 p.m.,
8:52 p.m., and 9:44 p.m. There was also an outgoing call from Morfin’s phone to
Denise’s phone at 8:36 p.m.
During cross-examination by Morfin’s counsel, Sanchez testified that there were
48 phone calls between Morfin’s phone and Fierro’s phone, and only three of those calls
occurred on the day of Francisco’s murder. Sanchez also agreed that in the month of
12 Morfin’s counsel intended to call the victim of the second shooting and his brother to
testify at trial based on their description of the involved vehicle as a dark green truck, but,
outside the presence of the jury, both invoked their Fifth Amendment rights.
22.
December, the approximately 19 phone calls between Fernando’s and Alma’s phone and
Morfin’s phone occurred in clusters, and the day of Francisco’s murder was one of those
several clusters.
DISCUSSION
I. Luna’s Claims
A. Denial of Motion to Sever Trial
1. Background
Luna was arrested in February 2014 and Morfin was arrested in March 2014.
Initially, Luna and Fernando were charged separately from Morfin. Subsequently, Luna,
Morfin, Fernando, Vera and Romo were jointly charged in connection with Francisco’s
murder. At the time, Morfin was not charged in the murder case with the crimes against
Oscar.
Anticipating that the prosecutor would seek to introduce evidence of Oscar’s
shooting at trial, Luna filed a motion under section 1098 requesting to sever his trial from
that of Morfin’s. Luna argued that the evidence relating to Oscar’s shooting, to which he
had no connection other than shared gang membership, was so prejudicial that it would
deprive him of a fair trial. Luna contended “[t]he wounding of an innocent child by a gun
is an unconscionable act whose admission into evidence in [his] trial would cause serious
prejudice. The shooting of gang members by each other is reprehensible, but the
shooting of a child is unforgivable,” requiring either the exclusion of evidence of Oscar’s
shooting or severance of Luna’s and Morfin’s trials.
Thereafter, the prosecutor opposed Luna’s motion to sever his trial from Morfin’s
and moved to consolidate the pending charges brought separately against Morfin for
Oscar’s shooting with the murder charges against Morfin. (§ 954.) The prosecutor
argued that joinder of the charges against Morfin was proper because they involved
different offenses of the same class under section 954, and that a joint trial of Luna and
Morfin was not unduly prejudicial.
23.
The trial court considered the motions and opposition, granted the prosecutor’s
motion to consolidate the charges against Morfin, and denied Luna’s motion to sever his
trial. The prosecutor thereafter filed an amended information.
On appeal, Luna argues that the trial court erred in denying his severance motion
because joinder of the charges against Morfin for shooting Oscar pursuant to section 954
resulted in prejudice that rose to the level of a due process violation. The People contend
no error occurred. For the reasons set forth below, we conclude the trial court did not
abuse its discretion when it denied Luna’s severance motion and the record does not
support his claim he was deprived of a fair trial.
2. Legal Principles
a. Joint Trials
Joint trials are governed by section 1098, which provides, “When two or more
defendants are jointly charged with any public offense, whether felony or misdemeanor,
they must be tried jointly, unless the court order[s] separate trials. In ordering separate
trials, the court in its discretion may order a separate trial as to one or more defendants,
and a joint trial as to the others, or may order any number of the defendants to be tried at
one trial, and any number of the others at different trials, or may order a separate trial for
each defendant; provided, that where two or more persons can be jointly tried, the fact
that separate accusatory pleadings were filed shall not prevent their joint trial.”
Severance is the exception rather than the rule (People v. Cleveland (2004) 32
Cal.4th 704, 726; accord, People v. Thompson (2016) 1 Cal.5th 1043, 1079 (Thompson)),
but “‘“[t]he court should separate the trial of codefendants ‘in the face of an incriminating
confession, prejudicial association with codefendants, likely confusion resulting from
evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial
a codefendant would give exonerating testimony’”’” (Thompson, supra, at p. 1079;
accord, People v. Gomez (2018) 6 Cal.5th 243, 274 (Gomez)). “Severance may also be
appropriate where ‘“there is a serious risk that a joint trial would compromise a specific
24.
trial right of one of the defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.”’” (Gomez, supra, at p. 274; accord, People v. Souza (2012) 54
Cal.4th 90, 109.)
b. Joinder of Separate Offenses
Regarding joinder of the separate offenses committed by Morfin, section 954
provides, “An accusatory pleading may charge two or more different offenses connected
together in their commission, or different statements of the same offense or two or more
different offenses of the same class of crimes or offenses, under separate counts, and if
two or more accusatory pleadings are filed in such cases in the same court, the court may
order them to be consolidated.…” (Italics added.) “Because it generally promotes
efficiency, joinder of charges is ‘“preferred by the law.”’” (People v. Romero and Self
(2015) 62 Cal.4th 1, 28.) Further, cross-admissibility of evidence is not required.
(§ 954.1; People v. O’Malley (2016) 62 Cal.4th 944, 968.) Because the offenses of
murder and assault with a firearm are “‘assaultive crimes against the person,’” the
statutory requirements for joinder of Morfin’s separate crimes were met (People v. Earle
(2009) 172 Cal.App.4th 372, 417), and Luna does not argue otherwise.
However, a trial court may nevertheless err by failing to sever claims that meet the
statutory requirements for joinder. As articulated by the California Supreme Court, “[w]e
first consider whether evidence of each of the offenses would be cross-admissible in
‘hypothetical separate trials.’ [Citation.] If the evidence is not cross-admissible, we then
consider ‘whether the benefits of joinder were sufficiently substantial to outweigh the
possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration
of the evidence of defendant’s guilt of each set of offenses.’ [Citation.] In making this
assessment, ‘we consider three additional factors, any of which—combined with our
earlier determination of absence of cross-admissibility—might establish an abuse of the
trial court’s discretion: (1) whether some of the charges are particularly likely to inflame
the jury against the defendant; (2) whether a weak case has been joined with a strong case
25.
or another weak case so that the totality of the evidence may alter the outcome as to some
or all of the charges; or (3) whether one of the charges (but not another) is a capital
offense, or the joinder of the charges converts the matter into a capital case. [Citations.]
We then balance the potential for prejudice to the defendant from a joint trial against the
countervailing benefits to the state.’ [Citation.] [¶] On the other hand, if the evidence is
cross-admissible, ‘that factor alone is normally sufficient to dispel any suggestion of
prejudice and to justify a trial court’s refusal to sever properly joined charges.’” (People
v. Armstrong (2016) 1 Cal.5th 432, 456; accord, People v. O’Malley, supra, 62 Cal.4th at
p. 968.)
3. Standard of Review
“We review a trial court’s denial of a severance motion for abuse of discretion,
based on the facts at the time of the trial court’s ruling. [Citation.] ‘Even if a trial court
abuses its discretion in failing to grant severance, reversal is required only upon a
showing that, to a reasonable probability, the defendant would have received a more
favorable result in a separate trial.’” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 819; accord, Thompson, supra, 1 Cal.5th at p. 1079.) Conversely, “‘“even if a trial
court’s ruling on a motion to sever is correct at the time it was made, a reviewing court
still must determine whether, in the end, the joinder of counts or defendants for trial
resulted in gross unfairness depriving the defendant of due process of law. [Citations.]”’
[Citation.] Defendants bear the burden of establishing that the trial was grossly unfair
and denied them due process of law, and ‘a judgment will be reversed on this ground
only if it is “reasonably probable that the jury was influenced [by the joinder] in its
verdict of guilt.”’” (People v. Daveggio and Michaud, supra, at p. 821; accord,
Thompson, supra, at p. 1079.)
4. Analysis
In Calderon, cited by Luna in support of his claim, the defendant and his
codefendant were jointly charged with premeditated attempted murder. The trial court
26.
thereafter granted the prosecutor’s motion to consolidate the case with a separate case
pending against the codefendant for a murder and an attempted murder that occurred
during a separate incident approximately three weeks earlier. (Calderon v. Superior
Court (2001) 87 Cal.App.4th 933, 935–936 (Calderon).) The Court of Appeal concluded
that in cases involving a joint trial of codefendants where crimes from separate episodes
are also charged, “the issues are closer to those encountered under section 954 (joinder of
counts)” (id. at p. 939), and, therefore, the appellate court relied on the factors relevant to
joinder of counts under section 954 to assess the trial court’s denial of the severance
motion. The parties in this case do the same.
Relying on Williams v. Superior Court (1984) 36 Cal.3d 441 (Williams),
superseded by statute on another ground as stated in Alcala v. Superior Court (2008) 43
Cal.4th 1229, 1205, footnote 19, and Calderon, Luna argues that in light of the limited
cross-admissibility of the evidence, the inflammatory nature of shooting a child, and the
relatively weaker evidence in the murder case, the trial court erred in denying his motion
to sever his trial from Morfin’s. Further, the error was not harmless beyond a reasonable
doubt and he was deprived of his right to a fair trial. We review each in turn and find
them unpersuasive.13
a. Cross-admissibility of Evidence
In Williams, which was before the court on a writ of mandate, the California
Supreme Court concluded that the trial court erred when it denied the defendant’s motion
to sever the separate charges against him, which stemmed from different events; and the
court granted the writ and directed the trial court to grant the motion for separate trials.
(Williams, supra, 36 Cal.3d at p. 454.) The defendant, a gang member, was charged with
murder and attempted murder stemming from a shooting that occurred in an area
frequented by both his gang and a rival gang. He was placed at the scene, but there was
13 Because this is not a capital case, we do not analyze the fourth factor.
27.
no direct evidence he was the shooter, and the victims were not gang members, although
they were friends with members of the rival gang. In the second case, the defendant was
charged in connection with the murder of a boy, who was not a known gang member,
standing on the street. One witness identified the defendant as the driver and said the boy
was shot from the driver’s side, but neither she nor the other witness was certain the
driver was the shooter.
On review, the high court concluded that there was no cross-admissibility of
evidence between the separate shootings. (Williams, supra, 36 Cal.3d at p. 450.) Identity
was the only theory under which the evidence was arguably cross-admissible (id. at
p 449), and the court explained, “[I]t is readily apparent that evidence of each shooting
incident would not be admissible to prove identity in the respective trial of the other
under Evidence Code section 1101, subdivision (b), since the two incidents do not bear
the requisite similarity to each other. The two shootings certainly do not possess ‘“a
sufficiently high degree of common features … where they warrant the inference that if
the defendant committed the other acts he committed the act charged.”’ [Citations.]
Indeed, there is very little similarity between the two incidents except for the inference
that they both may have been gang-related. The circumstances of the incidents differ in
virtually every regard—the location, the time of day, the number of people involved, and
the method of attack. In addition, there is no evidence that the same weapon was used in
the fatal assaults, and it certainly could not be fairly claimed that the two episodes reveal
a common design or plan.” (Id. at p. 450.) This left only shared gang membership and
while the court declined to consider the standards governing admissibility of gang
evidence generally or the admissibility of gang evidence in that case specifically, it stated
that factor “might very well mitigate against admissibility of one offense in the trial of
the other, since it is arguably of limited probative value while creating a significant
danger of unnecessary prejudice.” (Ibid. & fn. 8.)
28.
In Calderon, also before the reviewing court on a pretrial writ, the Court of Appeal
found the trial court erred when it granted the prosecutor’s motion to consolidate the two
cases pending against the defendant’s codefendant. (Calderon, supra, 87 Cal.App.4th at
pp. 935–936.) The court stated that evidence from the earlier shooting allegedly
committed by the defendant’s codefendant was admissible against the defendant only to
the extent that both the defendant and his codefendant were active members of the same
gang and both criminal cases included gang enhancement allegations. (Id. at pp. 939–
940.) However, evidence from the earlier shooting was not necessary to prove the gang
allegation attached to the later shooting, and the court concluded that evidence from the
earlier shooting was unduly prejudicial. (Id. at p. 941.)
Relying on Williams and Calderon, Luna maintains that the evidence in Oscar’s
shooting was cross-admissible in the murder of Francisco only as to gang issues and that
commonality alone did not support joinder because the prosecutor did not need the gang
evidence from Oscar’s case to prove the identity of Francisco’s shooter.
As an initial matter, we observe that Williams was decided almost 40 years ago
and prior to the 1988 enactment of section 186.20 et seq. (the California Street Terrorism
Enforcement and Prevention Act). In a subsequent case, the California Supreme Court
explained, “In cases not involving the gang enhancement, we have held that evidence of
gang membership is potentially prejudicial and should not be admitted if its probative
value is minimal. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 904–905.) But
evidence of gang membership is often relevant to, and admissible regarding, the charged
offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like—can help prove identity, motive, modus operandi, specific intent,
means of applying force or fear, or other issues pertinent to guilt of the charged crime.”
29.
(People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)14 Therefore, we do not find the
decision in Williams helpful to Luna.
“Cross-admissibility is not … a precondition to joinder of charges,” and, therefore,
“‘“[it] is not the sine qua non of joint trials”’” (People v. O’Malley, supra, 62 Cal.4th at
p. 968). “While the presence of such evidence ‘“is normally sufficient to dispel any
suggestion of prejudice and to justify a trial court’s refusal to sever properly joined
charges”’ [citation], the absence of cross-admissible evidence does not bar joinder.”
(Ibid.; accord, People v. Armstrong, supra, 1 Cal.5th at p. 456.)
Here, gang enhancement allegations were attached to the charged crimes and,
therefore, some of the gang evidence was cross-admissible to prove the elements of the
gang statute. Moreover, notwithstanding Luna’s contrary position, evidence from
Oscar’s shooting was clearly relevant to motive. As such, the evidence was cross-
admissible under Evidence Code section 1101, subdivision (b). The prosecution
theorized that Francisco’s murder was motivated by a rift between younger members of
WVP, led by Morfin and Luna, and older members of WVP, including Francisco and
Jose. At the preliminary hearing, Jose testified that there was bad blood between Morfin
and himself prior to Oscar’s shooting; and Morfin glorified prison life and putting in
work for the gang while Jose neither viewed imprisonment as a source of pride nor sent
others out looking for trouble. After Oscar was shot, Vanessa told Jose that Art or
Arthur, whom he knew to be Morfin, shot their son.
Although this evidence was ultimately not introduced at trial due to Romo’s
refusal to testify, at the preliminary hearing, Detective Sanchez related that Romo said on
the night of Francisco’s murder, Morfin told the group “he was already … ‘fucked’”
14 The Legislature recently amended section 186.22 and added section 1109, which
concerns the bifurcation of substantive gang offenses and gang enhancements. (Assem. Bill
No. 333 (2021-2022 Reg. Sess.) ch. 699, § 4, p. 8, § 5, pp. 11–12.) Those changes are effective
January 1, 2022.
30.
because he had shot Jose’s son. (People v. Daveggio and Michaud, supra, 4 Cal.5th at
p. 819 [ruling evaluated based on facts at the time].) Luna then called around trying to
get Francisco’s number and once Luna reached Francisco, he requested to see Francisco
regarding an issue with Romo and Vera. Francisco agreed and he was gunned down
when he arrived at the apartment complex.
While Luna was not involved in Oscar’s shooting, as he points out, the shooting
was probative of the motive underlying Francisco’s shooting only four days later. Given
the existing rift, a reasonable trier of fact could conclude that Morfin’s act of shooting
and wounding Oscar was the tipping point: Morfin knew there would be consequences
for shooting Oscar and his group had nothing to lose by making a bold move to assert
control over the gang.
Unlike Williams and Calderon, the separate crimes in this case did not involve
mere shared gang membership, and the prosecutor did not plan to use the earlier shooting
only to prove the gang enhancement charged in Francisco’s shooting. (Williams, supra,
36 Cal.3d at p. 450; Calderon, supra, 87 Cal.App.4th at pp. 940–941.) Rather, as we
discuss in more detail when we address Luna’s challenge to his murder conviction, the
prosecutor relied on the theory that the shootings were connected and that the earlier
shooting by Morfin was highly probative of the motive for the group’s murder of
Francisco only four days later.
b. Inflammatory Nature of Charges
Next, Luna argues that the highly inflammatory shooting of a small child was so
prejudicial that it deprived him of a fair trial. We agree that society views both gang
crimes and crimes committed against children with repugnance. However, “the
animating concern underlying this factor is not merely whether evidence from one
offense is repulsive, because repulsion alone does not necessarily engender undue
prejudice. [Citation.] Rather, the issue is ‘whether “‘strong evidence of a lesser but
31.
inflammatory crime might be used to bolster a weak prosecution case’ on another
crime.”’” (People v. Simon (2016) 1 Cal.5th 98, 124.)
In this case, it was clear Luna was not involved in the shooting of Oscar; Oscar,
very fortunately, was neither killed nor gravely wounded; and Oscar was not the intended
target. Further, although terrible, the crime was not more inflammatory than the
premeditated murder of Francisco by ambush. Under these circumstances, the joinder of
the charges against Morfin arising from Oscar’s shooting were not “unusually likely to
inflame the jury against [Luna.]” (People v. Landry (2016) 2 Cal.5th 52, 78.)
c. Strength of Cases
Finally, we disagree that the case against Luna for murdering Francisco was
notably weak compared to the case against Morfin for shooting Oscar. “The core
prejudice concern arising in connection with this issue is that jurors may aggregate
evidence and convict on weak charges that might not merit conviction in separate trials.”
(People v. Simon, supra, 1 Cal.5th at p. 127.) Although lengthy, the trial in this case did
not involve complex facts that might have resulted in the jury confusing the evidence and
issues between the separate crimes of Oscar’s shooting and Francisco’s murder.
Luna contends that the case against Morfin for shooting Oscar was stronger
because Vanessa identified Morfin to police as Oscar’s shooter while the “evidence
showed [only] that he ‘may have made’ a call to Francisco’s phone on the evening in
question,” and although he was linked to the shooting by Romo and Fernando, “their
credibility was suspect because … each had a motive to shift blame to others.” This was
not a case built on a tenuous identification of involved participants by strangers, however.
Rather, the involved parties knew one another well. Sanchez testified at the preliminary
hearing that Jose told him Luna called Francisco that night and the two were going to
meet; and, as discussed, Romo told Sanchez that Luna called Francisco, lured Francisco
to the apartment complex, and, along with others, armed himself with a gun, a .357-
caliber revolver specifically.
32.
Based on the foregoing, we reject Luna’s claim that the trial court abused its
discretion when it denied his severance motion. We also reject his claim that,
irrespective of a proper exercise of discretion, the ruling resulted in “a gross unfairness”
that violated his right to due process and a fair trial. (Thompson, supra, 1 Cal.5th at
p. 1079.)
B. Admission of Francisco’s Statements to Jose
1. Francisco’s Plan to Meet Luna
a. Background
At the preliminary hearing, Jose testified that Francisco received a phone call on
the night of his death and then called Jose. Francisco seemed “bothered” and said,
“‘They called me and said if I got a problem with Dark[]y.’” 15 Jose identified the caller
as Luna. Although the trial court sustained Luna’s counsel’s objection, the testimony
was later elicited during cross-examination by Vera’s counsel. Jose testified that
Francisco did not say whom he was going to meet, but he later stated he could not recall
if he told Detective Sanchez that Francisco said he was going to meet Luna. However,
Jose said he was truthful in his interview and his memory was clearer the night of the
murder. Subsequently, Sanchez testified that Jose told him Francisco was going to meet
the caller, Luna.
During motions in limine, Luna’s counsel acknowledged that Francisco’s
statement to Jose could be admitted as a statement of intent by Francisco and a prior
inconsistent statement by Jose, but she argued that the statement was untrustworthy
because Jose testified his brother did not say whom he was going to meet. Morfin’s
counsel joined in the objection.
The court held a hearing at which Jose testified that Francisco said he received a
call from Luna, but did not say he was going to meet Luna. (Evid. Code, § 402.) After
15 Darky is Vera’s nickname.
33.
the hearing, Luna’s counsel conceded past recollection recorded and prior inconsistent
statement were valid grounds for admission of Jose’s statement to Detective Sanchez, but
she argued the statement was untrustworthy because Jose was distraught over Francisco’s
death.
The trial court then ruled that Francisco’s statement he received a call from Luna
and was going to meet Luna was admissible to explain the conduct of Francisco, and
Jose’s statement to Detective Sanchez was admissible as a past recollection recorded or a
prior inconsistent statement. Later, the trial court narrowed the ruling, concluding
Francisco’s statement to Jose that Luna called him was inadmissible hearsay, but his
statement to Jose that he was going to meet Luna was admissible through Detective
Sanchez as a statement of Francisco’s intent and a prior inconsistent statement by Jose.
On appeal, Luna concedes, as he did in the trial court, that Francisco’s statement
was admissible under Evidence Code section 1250. However, joined by Morfin, he
challenges the admission of Jose’s statement to Detective Sanchez on the grounds that it
did not meet the requirements for admission as either a past recollection recorded or a
prior inconsistent statement. 16 He also claims Jose’s statement should have been
excluded as untrustworthy because it “has all the earmarks of Detective Sanchez’s
aggressive fabrication.” The People contend Luna only preserved the claim that the
16 In briefing, Luna describes Francisco’s statement to Jose as triple hearsay, with Detective
Sanchez’s police report comprising the first level. Luna does not challenge admissibility of the
police report, but we observe that neither the parties nor the trial court anticipated admitting the
report. Rather, because Jose testified at the preliminary hearing and the Evidence Code
section 402 hearing that Francisco did not say he was going to meet Luna, but Sanchez wrote in
his report that Jose stated Francisco said he was going to meet Luna, it was anticipated Jose’s
statement would come in through Sanchez as a prior inconsistent statement. Therefore, the issue
concerns two rather than three levels of hearsay. (People v. Anderson (2018) 5 Cal.5th 372, 403
[what a witness told an investigator the defendant said is double hearsay, admissible through the
investigator as a prior inconsistent statement of the witness and as an admission by the
defendant].)
34.
statement was untrustworthy for review. Further, they contend his claim fails on the
merits and any error in admission was harmless.
In response, Luna argues his claim is not forfeited because his objection to the
evidence as untrustworthy undermines admission under any exception to the hearsay rule.
We reject Luna’s and Morfin’s claim of error on the merits, as discussed next.
Therefore, we do not reach the issue of forfeiture. (People v. McDaniel (2021) 12
Cal.5th 97, 129.)
b. Legal Principles
“Hearsay is an out-of-court statement that is offered for the truth of the matter
asserted, and is generally inadmissible.” (People v. McCurdy (2014) 59 Cal.4th 1063,
1108, citing Evid. Code, § 1200; accord, People v. Sanchez (2016) 63 Cal.4th 665, 674.)
“[M]ultiple hearsay is admissible for its truth only if each hearsay layer separately meets
the requirements of a hearsay exception.” (People v. Arias (1996) 13 Cal.4th 92, 149,
citing Evid. Code, §§ 1200, 1201; accord, People v. Anderson, supra, 5 Cal.5th at
p. 403.)
The applicable standard of review is well established. “[A] trial court has broad
discretion to determine whether a party has established the foundational requirements for
a hearsay exception (People v. Martinez (2000) 22 Cal.4th 106, 120) and ‘[a] ruling on
the admissibility of evidence implies whatever finding of fact is prerequisite thereto .…’
(Evid. Code § 402, subd. (c).) We review the trial court’s conclusions regarding
foundational facts for substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226,
236.) We review the trial court’s ultimate ruling for an abuse of discretion (People v.
Hovarter (2008) 44 Cal.4th 983, 1007–1008; People v. Martinez, supra, at p. 120),
reversing only if ‘“the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.”’ (People v.
Brown (2003) 31 Cal.4th 518, 534.)” (People v. DeHoyos (2013) 57 Cal.4th 79, 132;
35.
accord, People v. Caro (2019) 7 Cal.5th 463, 503; People v. Jackson (2016) 1 Cal.5th
269, 320–321.)
c. Analysis
1) Past Recollection Recorded
“Evidence Code section 1237 permits evidence of a witness’s past statement ‘if
the statement would have been admissible if made by him while testifying, the statement
concerns a matter as to which the witness has insufficient present recollection to enable
him to testify fully and accurately, and the statement is contained in a writing which: [¶]
(1) [w]as made at a time when the fact recorded in the writing actually occurred or was
fresh in the witness’[s] memory; [¶] (2) [w]as made … (ii) by some other person for the
purpose of recording the witness’[s] statement at the time it was made; [¶] (3) [i]s offered
after the witness testifies that the statement he made was a true statement of such fact;
and [¶] (4) [i]s offered after the writing is authenticated as an accurate record of the
statement.’ (Evid. Code, § 1237, subd. (a).)” (People v. Cowan (2010) 50 Cal.4th 401,
465 (Cowan); accord, People v. Sanchez (2019) 7 Cal.5th 14, 41 (Sanchez).)
Relying on People v. Simmons (1981) 123 Cal.App.3d 677 (Simmons), Luna
argues that Jose’s statement was not admissible as a past recollection recorded because he
was unable to testify that he made the statement or that it was true. In Simmons,
however, the witness had no memory of making a statement to police due to amnesia and
could not and did not attest he told the truth at the time. (Id. at pp. 679, 682.)
Subsequently, in Sanchez, the California Supreme Court distinguished the circumstances
in Simmons from those in which a witness does not recall making a specific statement,
but recalls making a statement and attests to its truthfulness. (Sanchez, supra, 7 Cal.5th
at p. 41 [child’s testimony “that he remembered talking with the police and, critically, he
remembered that he told them the truth” sufficient under Evid. Code, § 1237]; Cowan,
supra, 50 Cal.4th at pp. 466–467 [no error under Evid. Code, § 1237 in admitting
testimony by witness whose memory “was ‘jumbled’ and ‘scrambled’” by drug use and
36.
who was delusional at times, where witness testified he was truthful with detective to best
of his ability].)
In this case, Jose did not recall Francisco’s statement that he was going to meet
Luna and did not recall telling Sanchez that Francisco made the statement. However,
Jose did recall giving a statement to Sanchez, and he testified that his memory was
clearer then and that he told Sanchez the truth at the time. These circumstances are
analogous to those in Sanchez and distinguishable from those in Simmons; therefore,
Sanchez controls and admission on this ground was proper. (Sanchez, supra, 7 Cal.5th at
p. 41.)
2) Prior Inconsistent Statement
“Evidence of a statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with his testimony at the hearing and is
offered in compliance with Section 770” (Evid. Code, § 1235), which in turn requires
“[t]he witness was so examined while testifying as to give him an opportunity to explain
or to deny the statement; or [¶] [t]he witness has not been excused from giving further
testimony in the action” (id., § 770, subds. (a)–(b)). “A statement is inconsistent for this
purpose if it has ‘“a tendency to contradict or disprove the [witness’s trial] testimony or
any inference to be deduced from it.”’” (Cowan, supra, 50 Cal.4th at p. 502, quoting
People v. Spencer (1969) 71 Cal.2d 933, 942.) “Further, ‘“‘[i]nconsistency in effect,
rather than contradiction in express terms, is the test for admitting a witness’[s] prior
statement .…’”’” (Cowan, supra, at p. 502, quoting People v. Hovarter, supra, 44
Cal.4th at p. 1008; accord, People v. Thomas (2017) 15 Cal.App.5th 1063, 1075–1076
[where child molestation victim did not remember her prior statement, trial court properly
admitted detective’s testimony that she told him about certain acts committed against her
because the statements were “sufficiently inconsistent in effect to qualify as a prior
inconsistent statement”].)
37.
Luna asserts that Jose’s statement was not admissible under this section because
Jose did not remember making the statement and the statement was not audio recorded.
However, at the Evidence Code section 402 hearing, Jose testified that Francisco did not
tell him that he was planning to meet Luna and it was anticipated that he would so testify
during the prosecution’s case-in-chief. Jose’s prior statement to Sanchez was
inconsistent with this testimony, and there is no requirement the prior statement be
recorded. We reject Luna’s contrary position.
3) Trustworthiness
Finally, Luna claims that Jose’s statement to Detective Sanchez is suspect because
it was not recorded, Sanchez lied to Vanessa, and other prosecution witnesses—J.V.,
A.V., Erick, and Denise—felt threatened, intimidated, or pressured by Sanchez. Notably,
Luna cites no legal authority supporting this argument.
We recognize that Evidence Code section 1252, which applies to statements of
mental or physical health under Evidence Code sections 1250, 1251, and 1253, provides
“[e]vidence of a statement is inadmissible under this article if the statement was made
under circumstances such as to indicate its lack of trustworthiness.” However, Luna
concedes that Francisco’s statement was properly admitted under Evidence Code section
1250, and as to Sanchez’s credibility, the trustworthiness requirement under Evidence
Code section 1252 applies “‘to the statement made by the hearsay declarant … not to the
testimony of the witness who relates the hearsay statement to the trier of fact.’” (People
v. Riccardi (2012) 54 Cal.4th 758, 821, disapproved on another ground by People v.
Rangel (2016) 62 Cal.4th 1192, 1216.)
The California Supreme Court has observed that “‘[n]either the hearsay rule nor its
exceptions are concerned with the credibility of witnesses who testify directly to the
jury.’” (People v. Rangel, supra, 62 Cal.4th at p. 1219.) Further, “[t]rustworthiness is
not an element of the hearsay exception for prior inconsistent statements (Evid. Code,
§ 1235) but, like most kinds of evidence, a matter for the jury to judge.” (People v.
38.
Anderson, supra, 5 Cal.5th at p. 404.) The jury had before it evidence of Sanchez’s
various investigatory methods and was aware Jose’s relevant statement was not audio
recorded; and assessment of Sanchez’s and Jose’s credibility with respect to this and
other issues rested with the jury. (People v. Hovarter, supra, 44 Cal.4th at pp. 995–996;
accord, People v. Brown (2014) 59 Cal.4th 86, 105.)
Having found no error in the admission of Jose’s statement that Francisco said he
was going to meet Luna, Luna fails to persuade us he was otherwise entitled to exclusion
of the evidence because Sanchez was untrustworthy. In the absence of error under state
law, Luna’s due process claim fails (People v. Merriman (2014) 60 Cal.4th 1, 67), and
given proper admission under state law, we do not reach his prejudice argument.
2. Sixth Amendment Violation
a. Legal Principles
Next, Luna claims Francisco’s statement to Jose that he was going to meet Luna
was testimonial hearsay and was admitted in violation of the Sixth Amendment. 17 This
claim, too, lacks merit.
The confrontation clause of “the Sixth Amendment prohibits the admission of a
witness’s ‘testimonial’ out-of-court statements offered for their truth unless the witness is
unavailable and the defendant had a prior opportunity for cross-examination.” (Gomez,
supra, 6 Cal.5th at p. 297, citing Crawford v. Washington (2004) 541 U.S. 36, 59–60
(Crawford).) “‘Throughout its evolution of the Crawford doctrine, the high court has
offered various formulations of what makes a statement testimonial but has yet to provide
a definition of that term of art upon which a majority of justices agree.’” (Gomez, supra,
at p. 297, quoting People v. Sanchez, supra, 63 Cal.4th at p. 687.) “Nevertheless, ‘we
17 Luna also argues that Francisco’s statement Luna called him was inadmissible under the
Sixth Amendment. The trial court excluded that statement, however. The subsequent violation
of the court’s in limine ruling, relevant to Luna’s mistrial motion, is addressed in part I.B.3. of
the Discussion.
39.
have discerned two requirements. First, “the out-of-court statement must have been made
with some degree of formality or solemnity.” [Citation.] Second, the primary purpose of
the statement must “pertain[] … in some fashion to a criminal prosecution.”
[Citations.]’” (Gomez, supra, at p. 297, quoting People v. Leon (2015) 61 Cal.4th 569,
603.) “More specifically, the primary purpose test asks whether the statements at issue
‘are given in the course of an interrogation or other conversation whose “‘primary
purpose … is to establish or prove past events potentially relevant to later criminal
prosecution.’”’” (Gomez, supra, at p. 297, quoting People v. Rangel, supra, 62 Cal.4th
at p. 1214.) “In its most recent application of the primary purpose test, the high court
cautioned that ‘[s]tatements made to someone who is not principally charged with
uncovering and prosecuting criminal behavior are significantly less likely to be
testimonial than statements given to law enforcement officers.’” (Gomez, supra, at
pp. 297–298, quoting Ohio v. Clark (2015) 576 U.S. 237, 249 [135 S.Ct. 2173, 2182].)
b. Analysis
As Francisco was deceased and Luna did not have a prior opportunity to cross-
examine him, the issue is whether Francisco’s statement to Jose that he was going to meet
Luna was testimonial. We easily conclude it was not.
Based on a comment made by the prosecutor during motions in limine regarding
statements in the police report, Luna argues that Francisco’s statement was in the police
report and that the primary purpose of the phone call to Jose “was to create evidence to
use in a prosecution for murder.” However, Luna has not cited to any case that found a
statement testimonial under these or similar circumstances.
Jose, not Francisco, gave a statement to police, after the murder. The phone call
between Francisco and Jose was a casual conversation between brothers, and it preceded
the crime in this case. (People v. Sanchez, supra, 63 Cal.4th at p. 689 [“Testimonial
statements are those made primarily to memorialize facts relating to past criminal
activity, which could be used like trial testimony.”].) There is simply no evidence in the
40.
record to support an argument that Francisco thought he was about to be murdered or
otherwise victimized and he called his brother for the primary purpose of creating
evidence for later use in a trial for crimes committed against him. Francisco was
bothered by the phone call he received, but there was no history of bad blood between
Francisco and Luna and no indication that Francisco feared for his life or feared injury
that night. This is borne out by Francisco’s decision to go alone to meet Luna at the
Block that night rather than either wait for Jose to join him or avoid the situation
altogether. Francisco’s lack of concern is underscored by the fact his gun remained
tucked in his waistband and was not at the ready in hand.
Under these circumstances, the most plausible explanation is that Francisco called
Jose simply to warn him that some sort of trouble might be brewing having to do with
Vera, but Francisco did not understand what it was about. Because the phone
conversation between Francisco and Jose was not testimonial in nature, its admission did
not violate the confrontation clause, and in the absence of error, we do not proceed to
Luna’s claim of prejudice.
3. Mistrial Motion
a. Procedural Background
As previously set forth, the trial court excluded as hearsay the evidence that
Francisco told Jose the caller was Luna. Subsequently, Judge McCabe substituted in for
the trial judge, Judge Bacciarini, for one day. (§ 1053.) On that day, the issue was
discussed outside the presence of the jury but with Jose present, and he was admonished
not to testify that Francisco received a call from Luna. Outside of Jose’s presence, the
parties agreed that Jose would be asked if Francisco said he was going to meet anyone,
and, based on Jose’s previous testimony, it was anticipated that Jose would respond,
“‘No.’”
41.
During Jose’s subsequent direct examination, the prosecutor broached the subject
of the call Francisco made to Jose at approximately 6:52 p.m. on the night of his murder.
The relevant testimony is as follows:
“[PROSECUTOR:] Did [Francisco] tell you he had just received a
call from someone, and he was going to go meet that person who called
him?
“[JOSE:] Correct.
“[PROSECUTOR:] Who did he say he was going to meet?
“[JOSE:] He said he was going to meet Lazy—well, he didn’t—on
the phone call when he called he just—you know, he told me, ‘Hey, I got a
phone call.’ [¶] And he said, you know, ‘I don’t know what they’re
tripping on.’ He says, ‘They’re talking about Darky’ He said—
“[LUNA’S COUNSEL]: I object as hearsay as to the subject of the
phone call.
“THE COURT: Sustained.
“[PROSECUTOR:] Yeah. Did he sound bothered or upset?
“[JOSE:] Yes, he did.
“[PROSECUTOR:] And did he say—you told me—it was your
testimony that he was not going to meet the caller?
“[JOSE:] Correct. He told me he was going to wait at Turf Liquor.
“[PROSECUTOR:] Okay. Do you recall talking to Detective
Sanchez the day after the shooting on December the 24th?
“[JOSE:] I don’t remember too much of the days, but I do
remember talking to him. I don’t know if I talked to him that night and
then the next day, I think.
“[PROSECUTOR:] You recall talking to him on the scene that
night?
“[JOSE:] Yeah. Yes, I do. I didn’t know it was—I didn’t know
who he was at the time.
42.
“[PROSECUTOR:] This man seated right here (indicating).
“[JOSE:] Yes. That night was the first night I recognized—or I was
really familiar with his face.
“[PROSECUTOR:] Do you remember talking to him shortly after
that as well?
“[JOSE:] Yes.
“[PROSECUTOR:] Was the conversation with your brother fresher
in your mind at that time than it is now?
“[JOSE:] Yeah. It’s been a while.
“[PROSECUTOR:] Do you feel like you remembered it better then
within a day or so of the incident?
“[JOSE:] Yeah, you could say.
“[PROSECUTOR:] Did you tell the truth to Detective Sanchez as
best you could?
“[JOSE:] Yeah, 100 percent. You know, yeah, I didn’t lie to him or
nothing. Everything I—everything I said was true. I didn’t—at that time, I
mean, it was just—everything in my world just came crashing in. I
didn’t—you know, I didn’t even have time to try—if I was going to lie, it
wasn’t even enough time to think of one.
“[PROSECUTOR:] Did you tell him at 6:52 p.m. your brother told
you that—
“[MORFIN’S COUNSEL]: Objection. There’s not been any—
what’s the relevance of this of what he told him?
“THE COURT: Let’s hear the full question. [¶] Please don’t
answer it, and then once I hear the full question, reserve your right to object
again.
“[PROSECUTOR:] Now, you testified [Francisco] called you at
approximately 6:52 p.m.; is that correct?
“[JOSE:] Yes.
[“PROSECUTOR:] In that call did he tell you that he got a call
from Lazy and agreed to go meet Lazy during that—
43.
“[LUNA’S COUNSEL]: Objection. Hearsay.
“THE COURT: Sustained.
“[MORFIN’S COUNSEL]: Your Honor—
“THE COURT: Sustained.
“[MORFIN’S COUNSEL]: — move to strike, and we need to go—
“THE COURT: Granted.
“[MORFIN’S COUNSEL]: Well, I think we should have a
conversation about this out of the presence of the jury.
“[PROSECUTOR]: Under Evidence Code 1250 there’s a statement
where if he said somebody says, ‘I’m going to go meet somebody,’ that’s
an admissible hearsay exception.
“THE COURT: Re-ask it.
“[PROSECUTOR:] Did you tell Detective Sanchez that [Francisco]
told you on the phone that he got a call from Lazy and agreed to go meet
Lazy?
“[LUNA’S COUNSEL]: I renew my objection that that calls for
hearsay.
“THE COURT: Counsel, let’s have a chambers conference on this.”
In chambers, Luna’s counsel, joined by Morfin’s counsel, moved for a mistrial
based on the prejudice resulting from Jose’s elicited testimony that Francisco received a
call from Luna. Luna’s counsel pointed out that the issue had been argued repeatedly
over the years and there was an agreement that Jose’s statement to Sanchez that Francisco
said he was going to meet Luna would be admissible as a prior inconsistent statement, but
the evidence that Francisco identified Luna as the caller was inadmissible hearsay.
Luna’s counsel acknowledged Fernando might inculpate Luna when he testified, but
argued there was little evidence so far linking Luna to the crime and neither an
admonition nor a curative instruction would suffice to cure the “irreparable prejudice”
arising from the “very thin veneer of …whisper[ed]” testimony inculpating Luna.
44.
The prosecutor responded that in addition to the evidence that Francisco was going
to meet Luna, admissible as a prior inconsistent statement by Jose, he anticipated Romo
was going to testify that Luna made the phone call to Francisco. The prosecutor
explained that he tried to be vague in his questioning of Jose, but Jose became confused,
and, as a result, his testimony was inconsistent with that he gave both at the preliminary
hearing and at the Evidence Code section 402 hearing. He concluded that because the
jury heard evidence that was going to come in at trial, there were no grounds for a
mistrial.
Luna’s and Morfin’s counsel responded that the prosecutor violated the court’s
specific in limine rulings, which had been extensively litigated, and testimony from Jose
that Francisco said Luna called would have greater weight than it would coming from
other witnesses. Further, while Romo might testify that Luna made the call, there was
another prosecution witness who said someone else made the call.
With the assent of the parties, Judge McCabe continued the matter to the next day
so that Judge Bacciarini could rule on the mistrial motion given his greater familiarity
with the proceedings in the case. The next day, Judge Bacciarini, having reviewed the
transcript, denied the mistrial motion. He found that the court’s in limine ruling was
clearly violated, but was unpersuaded that the evidence would be accorded great weight
simply because it came in through Jose. Since the evidence that Francisco received a call
and was going to meet Lazy was going to be admitted through Sanchez, he concluded it
was sufficient to strike the testimony and admonish the jury. He warned the parties,
however, that if something like that happened again, he would declare a mistrial.
On appeal, Luna, joined by Morfin, claims this was error and the trial court should
have granted a mistrial.
b. Legal Standard
“A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of
receiving a fair trial have been irreparably damaged’”’ (People v. Ayala (2000) 23
45.
Cal.4th 225, 282), that is, if it is ‘apprised of prejudice that it judges incurable by
admonition or instruction’ (People v. Haskett (1982) 30 Cal.3d 841, 854). ‘Whether a
particular incident is incurably prejudicial is by its nature a speculative matter, and the
trial court is vested with considerable discretion in ruling on mistrial motions.’ (Ibid.)
Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of
discretion. (See People v. Valdez (2004) 32 Cal.4th 73, 128.)” (People v. Avila (2006)
38 Cal.4th 491, 573; accord, People v. Harris (2013) 57 Cal.4th 804, 848.)
c. Analysis
As the parties and the trial court below discussed, in the early morning hours
following Francisco’s murder, Jose told Sanchez that Francisco called and said he was
going to meet Luna. However, Jose testified at the preliminary hearing and at the
Evidence Code section 402 hearing that Francisco did not say he was going to meet Luna.
Therefore, to set up the admission of Jose’s statement to Sanchez as a prior inconsistent
statement, the prosecutor was tasked with eliciting testimony from Jose that Francisco
was not planning to meet Luna or did not say he was planning to meet Luna while taking
care to avoid eliciting evidence that the caller was Luna.
Ultimately, as the court found, the prosecutor’s questioning of Jose violated the in
limine ruling because his question identified the caller as the person Francisco was going
to meet and this confused Jose, who contradicted his prior testimony by stating that
Francisco said he was going to meet Luna. Jose then immediately backtracked. The
prosecutor, however, repeated his error in two follow-up questions that identified Luna as
the caller.
After denying the mistrial motion, the trial court admonished Jose again; warned
the parties to avoid the verboten testimony; and, after the jury returned, struck the
questions and answers objected to by the defense concerning phone calls Jose received
46.
from Francisco. 18 When later instructing the jury, the court reiterated, “If I ordered
testimony stricken from the record, you must disregard it and must not consider that
testimony for any purpose.”
The trial court had broad discretion in ruling on the mistrial motion and we do not
agree it abused that discretion in denying the motion in this instance. The exchange
between the prosecutor and Jose was brief, and, at that juncture, it was anticipated that
the jury would hear evidence that Francisco told Jose he received a call and was going to
meet Luna. It was also anticipated that other prosecution witnesses might identify Luna
as the caller, and, as the trial court recognized, the jury was likely going to surmise Luna
was the caller anyway.
The testimony was stricken, the jury was admonished to disregard it, and the jury
was later instructed again to disregard testimony that was stricken. We presume the
jurors followed the admonishment and instruction. (People v. Molano (2019) 7 Cal.5th
620, 676; People v. Avila, supra, 38 Cal.4th at p. 573.) Furthermore, as anticipated, the
jury later heard, through Detective Sanchez, that Francisco told Jose he was going to
meet Luna, and Fernando testified that Luna spoke to Francisco on the phone. These
circumstances do not support a conclusion that Luna’s chance of receiving a fair trial was
irreparably damaged by the isolated exchange between the prosecutor and Jose, and we
reject the claim of error.
C. Admission of Methamphetamine and Jail-call Evidence
1. Procedural Background
18 The jury was admonished, “Before we continue with the direct examination of [Jose],
ladies and gentlemen, there was a series of questions asked by the prosecution of [Jose]
yesterday about some phone calls he may have received from [Francisco], and there were
responses to that which were objected to by the defense. I’m going to order the questions and
answers to those questions stricken from the record. You’re not to consider them, the answers
you heard yesterday, for any purpose whatsoever. [¶] And we talked about that at the beginning
of the trial. When I strike an answer, it’s to be disregarded and not considered in any way.”
47.
Prior to trial, Luna’s counsel moved to suppress the evidence of Luna’s jail calls
with Martinez, obtained during the Operation Scrapbook wiretap investigation into gang
activity. (§ 1538.5.) In the event the suppression motion was denied and relevant to
Luna’s appellate claim, counsel also moved to exclude evidence of the jail calls as
irrelevant and unduly prejudicial. Additionally, counsel moved, on those same grounds,
to exclude evidence that when police searched Luna’s Redding apartment, officers found
packages of suspected methamphetamine in close proximity to his infant daughter, which
led to her placement with Child Protective Services.
The prosecutor argued that evidence of the drugs was relevant to show the
existence of a criminal street gang, drug sales were a primary activity of the gang, and
Luna was a gang participant. As well, the prosecutor argued the jail calls were relevant
to show gang structure and primary activities of the gang. Luna’s counsel maintained the
prosecutor had “a fair amount of evidence” of Luna’s gang association, including
association with gang members and tattoos, and the drug and wiretap evidence was
cumulative and more prejudicial than probative. In addition, she argued the wiretap
evidence was unduly time consuming.
The trial court denied the suppression motion and the motions to exclude the drug
and wiretap evidence. However, after confirming child endangerment was not an
enumerated offense under section 186.22, the court excluded mention of Luna’s infant
daughter and limited the wiretapped phone calls to 30 minutes.
On appeal, Luna claims the trial court abused its direction when it admitted
evidence of the methamphetamine found in his apartment and evidence of the wiretapped
phone calls. Luna argues the evidence was irrelevant to the issue of his role in
Francisco’s death and, given the introduction of other gang evidence, including evidence
on gang structure through Agent Rochester and Deputy Goncalves, it was unnecessary.
Luna characterizes the evidence as inadmissible propensity evidence under state law and
48.
claims it deprived him of a fundamentally fair trial in violation of his federal
constitutional rights. We disagree.
2. Evidence Code Section 352
Under California law, evidence is relevant if it has “any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of the
action” (Evid. Code, § 210), and all relevant evidence is admissible except as otherwise
provided by statute (Evid. Code, § 351). At issue here, Evidence Code section 352
provides, “The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.”
However, “‘“[p]rejudice” as contemplated by [Evidence Code] section 352 is not
so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not
prejudicial, as that term is used in a section 352 context, merely because it undermines
the opponent’s position or shores up that of the proponent. The ability to do so is what
makes evidence relevant. The code speaks in terms of undue prejudice. Unless the
dangers of undue prejudice, confusion, or time consumption “‘substantially outweigh’”
the probative value of relevant evidence, a section 352 objection should fail. [Citation.]
“‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues. In applying section 352, “prejudicial” is not
synonymous with “damaging.”’ [Citation.]” [Citation.] [¶] The prejudice that
section 352 “‘is designed to avoid is not the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the
statute uses the word in its etymological sense of “prejudging” a person or cause on the
basis of extraneous factors. [Citation.]’ [Citation.]” [Citation.] In other words, evidence
should be excluded as unduly prejudicial when it is of such nature as to inflame the
49.
emotions of the jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of the jurors’
emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of
the substantial likelihood the jury will use it for an illegitimate purpose.’” (People v.
Doolin (2009) 45 Cal.4th 390, 438–439; accord, People v. Bell (2019) 7 Cal.5th 70, 105;
People v. Tran (2011) 51 Cal.4th 1040, 1048.)
3. Standard of Review
On appeal, we presume the trial court’s evidentiary ruling is correct and defendant
bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644,
666; People v. Anthony (2019) 32 Cal.App.5th 1102, 1139–1140.) “A trial court has
broad discretion to admit or exclude evidence,” and we review its ruling for abuse of
discretion. (People v. Fayed (2020) 9 Cal.5th 147, 189–190.)
4. Analysis
Luna’s relevance argument focuses narrowly on his direct involvement in
Francisco’s murder, but that was not the only trial issue. “[A] defendant who commits a
felony in furtherance of criminal street gang activity is subject to increased punishment”
(People v. Fuentes (2016) 1 Cal.5th 218, 223), and there was a gang allegation attached
to the murder charge against Luna. This required the prosecutor to prove, beyond a
reasonable doubt, that Francisco’s murder was “(1) ‘committed for the benefit of, at the
direction of, or in association with any criminal street gang,’ and (2) ‘with the specific
intent to promote, further, or assist in any criminal conduct by gang members.’” (People
v. Rivera (2019) 7 Cal.5th 306, 331.) Relevant to that determination, the prosecutor had
to prove the existence of a criminal street gang, which “means any ongoing organization,
association, or group of three or more persons, whether formal or informal, having as one
of its primary activities the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a
common name or common identifying sign or symbol, and whose members individually
50.
or collectively engage in, or have engaged in, a pattern of criminal gang activity.”
(§ 186.22, subd. (f).)
In addition to satisfying the elements of the gang enhancement, the gang evidence
in this case, including the level of Luna’s involvement, was relevant to the motive for
Francisco’s murder. Thus, Luna’s argument that the evidence was nothing more than
improper propensity evidence is unpersuasive.
The evidence of the methamphetamine was limited in nature. Sergeant Soldado
testified that in Luna’s Redding apartment, police found a plastic bag with “several
individual baggies packaged with methamphetamine” in the living room, along with a
backpack containing a bag of methamphetamine in the bedroom. After the court
sustained Luna’s counsel’s objection based on lack of foundation for the conclusion the
substance was methamphetamine, the prosecutor asked several questions regarding
Soldado’s training in identifying methamphetamine. Soldado then testified the substance
appeared to be methamphetamine, and the prosecutor introduced one photograph of
individually bagged, suspected methamphetamine and one photograph of a digital gram
scale located in the apartment. Soldado also testified to factors he relied on to distinguish
narcotics for personal use from narcotics for sale and, based on the packaging, the
quantity, and the presence of a scale, he opined that the methamphetamine seized from
Luna’s apartment was possessed for sale.
Soldado’s testimony on the subject was brief; the evidence of the
methamphetamine was directly relevant to the gang’s primary activities, which included
drug sales, and to Luna’s involvement in gang activities; and it is clear from the record
that the prosecutor introduced the evidence for that purpose. Accordingly, we find no
error in the trial court’s admission of the evidence.
We reach the same conclusion with respect to the jail calls between Luna and
Martinez obtained during Operation Scrapbook. The prosecutor represented that
Operation Scrapbook netted “months’ worth of calls in this case,” but by the time of the
51.
hearing on the motions in limine, the prosecution had narrowed the evidence to six calls
amounting to approximately 75 minutes, with plans to further edit the calls down to no
more than 30 minutes. As stated, the trial court thereafter imposed a 30-minute limit on
the calls.
Agent Rochester testified briefly regarding gangs in prison, the structure of the
Mexican Mafia and the Sureño subsets at street level, how gangs earn and funnel money,
and how cell phones are used to communicate from inside prisons. Rochester also
identified Martinez’s voice from the wiretapped calls and testified Martinez was a
validated Mexican Mafia associate.
Deputy Goncalves was directly involved in three major wiretap investigations.
Two targeted the Nuestra Familia prison gang and Merced County-based Norteños, and
the third, Operation Scrapbook, targeted the Mexican Mafia and Merced County-based
Sureños. Goncalves testified that assaults, murder, and drug sales were among the
primary activities of Sureños, which included the WVP and A-Town subsets, and, after
the calls were played, Goncalves explained Martinez and Luna were discussing “‘setting
up shop,’” which referred to trafficking contraband such as cell phones and narcotics; a
power struggle between Luna and Juan Gonzalez for control within the jail; and
funneling money to Martinez. As well, Martinez and Luna discussed killing an inmate
whom Goncalves identified as a former high-ranking member of a Sureño subset who
was previously assaulted in jail, and discussed a woman whom Goncalves identified as
used by gang members to smuggle drugs into the jail.
This evidence was highly probative of gang structure and primary activities, both
relevant to proving the gang enhancement, and it was probative of Luna’s deep
engagement in gang activities. The prosecution is not required to “forgo the use of
relevant, persuasive evidence to prove an element of a crime because the element might
also be established through other evidence,” and “cannot be compelled to ‘“present its
52.
case in the sanitized fashion suggested by the defense.”’” (People v. Tran, supra, 51
Cal.4th at p. 1049.)
Thus, Luna was not entitled to a presentation of gang evidence stripped to its
minimum. (People v. Tran, supra, 51 Cal.4th at p. 1049.) This was not a case where the
other gang evidence was so substantial that the challenged evidence had only minimal
probative value (People v. Coneal (2019) 41 Cal.App.5th 951, 967–968), or where the
prosecutor was toeing the line of “‘over-prov[ing]’” its case (People v. Williams (2009)
170 Cal.App.4th 587, 610). Nor did the prosecutor belabor the drug or jail-call evidence
during closing argument. Under these circumstances, Luna’s claim that the trial court
abused its discretion in admitting the calls is unconvincing.
D. Substantial Evidence Challenge to Murder Conviction
Finally, Luna claims his murder conviction is not supported by substantial
evidence that he either killed Francisco or aided and abetted his murder. We disagree.
1. Standard of Review
“The Due Process Clause of the Fourteenth Amendment denies States the power to
deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt
every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265,
citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by
substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On
appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).) “The
record must disclose substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (Zamudio, supra, at p. 357.)
53.
“In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.” (Zamudio, supra, 43 Cal.4th at
p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of the
defendant’s guilt .…’” (Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support”’ the jury’s verdict” (Zamudio, supra, at
p. 357), but “speculation, supposition and suspicion are patently insufficient to support an
inference of fact” (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People
v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259,
1268).
2. Analysis
The jury in this case was instructed on three theories of liability for Francisco’s
murder: direct commission, aiding and abetting, and uncharged conspiracy. However,
the evidence was consistent with the fatal shot coming from the roof, and Fernando
testified the shooter was Romo while Sanchez had information that Romo identified
Fernando as the shooter. The prosecutor conceded that given these circumstances, there
was little evidence Luna was the direct perpetrator, so the prosecution theory focused on
aiding and abetting or conspiracy.
Aiding and abetting and uncharged conspiracy are both forms of derivative
liability (People v. Gentile (2020) 10 Cal.5th 830, 843; People v. Hajek and Vo (2014) 58
Cal.4th 1144, 1200, abrogated on another ground by People v. Rangel, supra, 62 Cal.4th
at p. 1216), and “‘as long as each juror is convinced beyond a reasonable doubt that [the]
defendant is guilty of murder as that offense is defined by statute, it need not decide
unanimously by which theory he is guilty’” (People v. Scully (2021) 11 Cal.5th 542, 598;
accord, People v. Chhoun (2021) 11 Cal.5th 1, 41).
54.
Liability based on aiding and abetting requires the defendant “have knowledge of
the direct perpetrator’s unlawful purpose; have the intent or purpose of committing,
encouraging, or facilitating the commission of the direct perpetrator’s offense; and by act
or advice aid, promote, encourage, or instigate the commission of that offense.” (In re
White (2020) 9 Cal.5th 455, 464, citing Nguyen, supra, 61 Cal.4th at p. 1054.) Liability
based on conspiracy is sufficient “‘“if [the evidence] supports an inference that the
parties positively or tacitly came to a mutual understanding to commit a crime.
[Citation.] The existence of a conspiracy may be inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and during the alleged
conspiracy.”’” (People v. Maciel (2013) 57 Cal.4th 482, 515–516; accord, People v.
Jurado (2006) 38 Cal.4th 72, 120.)
Luna argues that the following evidence is insufficient to support his conviction:
mere shared gang membership, his presence at the Block that night, his text message to
his girlfriend hours after the murder that he was “in some shit,” Fernando’s testimony
that Luna armed himself with a .40-caliber gun and the presence of a .40-caliber
magazine in Luna’s Redding apartment, and evidence the group armed itself and took
lookout positions. Luna also points out Fernando testified there was no plan to kill
Francisco and stated Vera and Romo killed Francisco, and he contends there was no
motive for him to kill Francisco.
However, Luna’s argument requires we consider each piece of evidence
individually and isolated from the rest, which is contrary to the applicable standard of
review. (People v. Medina (2009) 46 Cal.4th 913, 919.) Notably, Luna cites to no legal
authority supporting his position that the evidence in the record, viewed collectively, fell
short of supporting his murder conviction.
“Although motive is normally not an element of any crime that the prosecutor
must prove, ‘evidence of motive makes the crime understandable and renders the
inferences regarding [the] defendant’s intent more reasonable.’” (People v. Riccardi,
55.
supra, 54 Cal.4th at p. 815; accord, People v. Smith (2005) 37 Cal.4th 733, 740–741.) In
this case, nothing suggested personal problems between Luna and Francisco or Jose prior
to the night of the crime, but Luna was a member of Morfin’s group and the evidence
showed Morfin had ongoing conflict with Jose, did not like Jose or Francisco, and was
trying to turn the younger members against them. Some months prior to the shootings,
Morfin mentioned Francisco specifically while talking to Fierro about “tak[ing] some
homies out,” and Jose had already physically fought and bested Morfin three times when
Morfin inadvertently wounded Jose’s son during a driveby shooting. The jury could have
reasonably inferred, as the prosecutor’s argument intimated, that Oscar’s shooting
brought tensions to a head for Morfin, who would expect some consequences. As stated,
Luna was part of the younger group led by Morfin and there was evidence that on the
night of the murder, Morfin and Luna were both angry when Romo and Vera said Jose
and Francisco threatened them with a gun and told them the people at the Block were no
good.
Luna was placed at the scene of the murder through Fernando’s testimony, a text
sent from Denise’s phone, and Francisco’s statement to Jose that he was going to meet
Lazy. As Luna argues in part, “[n]either mere presence at the scene of a crime, nor the
failure to take steps to prevent a crime, is alone enough to establish that a person is an
aider and abettor.” (People v. Abelino (2021) 62 Cal.App.5th 563, 578.) However,
“[s]uch evidence may … be considered together with other evidence in determining that a
person is an aider and abettor.” (Ibid.) Here, as previously discussed, there is evidence
of motive and evidence that Luna lured Francisco to the location. Once Francisco agreed
to come, Luna, Morfin, Vera, Romo, Fernando, and Ruben armed themselves with guns.
Morfin, Luna, Vera, Romo, and Ruben then positioned themselves outside at lookout
points and when Francisco hopped the backed fence, multiple shots were fired at him,
with the fatal bullet striking him from behind.
56.
Six hours later, Luna texted his girlfriend to pick him up halfway between
Redding and Winton, telling her not to ask but he was “in some shit” and was going to go
away for a while. Finally, when Luna was arrested months later, police located a
magazine consistent with the gun Fernando said Luna grabbed the night of the murder.
Viewing the record as a whole, the jury was well-entitled to infer that in luring
Francisco to the Block that evening, arming themselves with guns, taking up positions in
the yard and on the roof, and then ambushing Francisco with gunfire after he jumped the
fence, the group, which included Luna, intended to kill. The absence of evidence that
Luna and the others expressly agreed to kill Francisco or that Luna fired the fatal shot
does not undermine Luna’s conviction. Substantial evidence supports the jury’s
determination that Luna committed murder, and we reject his contrary claim.
II. Morfin’s Claims
A. Sixth Amendment Violation
1. Procedural Background
Detective Sanchez testified during redirect examination that at the time he
questioned Vanessa, he was aware there was information that Morfin had admitted to
other gang members he shot Oscar. Morfin claims this testimony related multiple layers
of hearsay not subject to an exception, its admission violated his rights under the Sixth
Amendment, and the resulting prejudice affected all three counts against him, requiring
reversal.
In support of his claim of error, Morfin cites to arguments made in his motion for
a new trial, filed after he was convicted and argued at the sentencing hearing. However,
Morfin does not advance an appellate claim based on erroneous denial of his new trial
motion and, therefore, as the People assert, the focus is on the trial court’s ruling at the
time it was made. 19
19 In briefing, Morfin mentions Aranda/Bruton, which he raised in the trial court in the
context of his new trial motion. (Bruton v. United States (1968) 391 U.S. 123 (Bruton); People
57.
The relevant testimony is as follows:
During trial, Vanessa conceded the audio excerpt played from her interview
sounded like her voice, but she stated she did not remember the conversation she had
with detectives. She testified that she did not tell detectives Oscar’s shooting was gang
related, she did not recall telling them she saw Oscar’s shooter, and she did not know
Morfin. She testified that it was detectives who told her Morfin admitted he shot Oscar.
She conceded her signature was on the photo lineup, but stated she did not remember it,
could not tell if those were her initials on it, and did not remember identifying Morfin.
On cross-examination, Morfin’s counsel questioned Vanessa about how she knew
of Morfin’s arrest, eliciting a reiteration of her testimony that detectives told her he
confessed. Counsel then asked the following questions:
“[MORFIN’S COUNSEL:] Okay. You—you have a vivid memory
of them telling you that Arturo Morfin confessed?
“[VANESSA:] “That’s what they told me.
“[MORFIN’S COUNSEL:] Yeah. And that was right at the
beginning of the conversation that you had with them?
“[VANESSA:] Yes.
“[MORFIN’S COUNSEL:] Yes?
“[VANESSA:]: Yes.
v. Aranda (1965) 63 Cal.2d 518 (Aranda).) However, as stated, Morfin does not advance a claim
of error based on denial of his new trial motion and he does not advance a claim of
Aranda/Bruton error. (See People v. Brown, supra, 31 Cal.4th at p. 537, italics omitted [“The
Aranda/Bruton rule addresses the situation in which ‘an out-of court confession of one defendant
… incriminates not only that defendant but another defendant jointly charged [and tried].’”].) As
we interpret Morfin’s appellate argument, he mentions these issues to show they were raised
below and, therefore, his Sixth Amendment claim should not be deemed forfeited. Although the
People do contend Morfin’s Sixth Amendment claim is forfeited based on his failure to object on
Sixth Amendment grounds during trial and any objection raised in the new trial motion was
untimely (People v. Redd (2010) 48 Cal.4th 691, 730), because we conclude the trial court did
not err in admitting the evidence for a nonhearsay purpose, we need not resolve the forfeiture
issue (People v. McDaniel, supra, 12 Cal.5th at p. 129).
58.
“[MORFIN’S COUNSEL:] I’m sure before that day you were
already pretty frustrated and angry about what had happened to Oscar?
“[VANESSA:] Of course.
“[MORFIN’S COUNSEL:] Yeah. And when you heard that my
client had confessed, that was equally frustrating to you, or did it make you
angry at him?
“[VANESSA:] I mean, I don’t like him.
“[MORFIN’S COUNSEL:] Right. Because the detectives told you
he confessed?
“[VANESSA:] Yes.
“[MORFIN’S COUNSEL:] And what if I told you the detective lied
to you when they told you?
“[VANESSA:] I pretty much doubt that.
“[MORFIN’S COUNSEL:] You doubt that they would lie to you?
“[VANESSA:] Well, I mean, why would they?
“[MORFIN’S COUNSEL:] That’s a good question. [¶] So if I told
you no one has ever confessed to the shooting of your son, that would be a
surprise?
“[PROSECUTOR:] Objection. Calls for speculation.
“THE COURT: Overruled.
“[VANESSA]: I don’t understand this.
“[MORFIN’S COUNSEL:] Would that be a surprise to you?
“[VANESSA:] I’m—I mean, yeah. I guess.
“[MORFIN’S COUNSEL:] You look pretty upset about that.
“[VANESSA:] I’m upset.
“[MORFIN’S COUNSEL:] Yeah. You said on the stand earlier that
after the detectives told you that [Morfin] had confessed, that you wanted to
do whatever you could to help them put him away.
59.
“[VANESSA:] I said they should do whatever they need to do and
put him away, yeah.
“[MORFIN’S COUNSEL:] Okay. Because it seems like to you
maybe that would even be enough, that if my client had confessed, that that
should be enough to put him away?
“[VANESSA:] Yeah.”
A portion of Vanessa’s recorded interview was subsequently played for the jury.
In the interview, Sanchez told Vanessa that one of the people arrested for Francisco’s
murder confessed to shooting Oscar, but Sanchez did not identify the person as Morfin or
anyone else. Later in the interview, Vanessa selected a photo in the lineup presented and
identified the individual as “Arthur.”
Erick testified after Vanessa and then Sanchez testified. During Morfin’s cross-
examination of Sanchez, trial counsel questioned him regarding his interview of Vanessa.
In relevant part, counsel asked Sanchez, “Arturo Morfin never told you anything about a
shooting of Oscar …?” Sanchez responded, “That’s correct.” Morfin’s counsel then
asked, “He never confessed to this at all?” Sanchez replied, “He didn’t.”
On redirect examination, the prosecutor asked clarifying questions of Sanchez:
“[PROSECUTOR:] Detective Sanchez, you said that Arturo Morfin
never confessed. Do you mean he never confessed to you in an interview?
“[SANCHEZ:] That’s exactly what I meant.
“[PROSECUTOR:] Okay. Do you know if he confessed to anyone
else to shooting Oscar?
“[SANCHEZ:] I personally—
“[MORFIN’S COUNSEL]: Objection. Hearsay.
“THE COURT: I think she’s asking not the content of it but whether
he’s aware of that being done, so overruled.
“[SANCHEZ]: I was aware that he had spoken to other gang
members about it, not to me personally.
60.
“[PROSECUTOR:] So at the point that you went over to interview
Vanessa Garcia, it was your understanding that Arturo Morfin had already
confessed to other people when you—he had already confessed to other
people?
“[SANCHEZ:] Yes.”
2. Analysis
Morfin claims the testimony regarding his confession was admitted for the truth of
the matter asserted and assuming his statement qualifies as an admission or a statement
against interest, the person to whom he allegedly made that statement did not testify.
(Evid. Code, §§ 1200, 1220, 1230.) Therefore, he argues, admission of the evidence
violated his right to confront witnesses. We are not persuaded.
Sanchez’s credibility as the lead detective who interviewed key prosecution
witnesses, including Jose, Vanessa, J.V., and Fernando, was one of the areas of focus at
trial. Morfin’s counsel attempted to seed doubt around Vanessa’s identification of
Morfin as Oscar’s shooter and Sanchez’s credibility by drawing attention to Vanessa’s
testimony that she was fed the information Morfin was the shooter, asking Vanessa about
how she would feel about being lied to by detectives, and eliciting Sanchez’s testimony
that Morfin did not confess to him. On redirect examination, the prosecutor rehabilitated
Sanchez’s credibility by clarifying that when he questioned Vanessa and sought her
identification of the shooter, he was not lying and had information Morfin had admitted
the shooting to other gang members.
The trial court’s ruling reflects that it admitted the testimony for a nonhearsay
purpose. (People v. Montes (2014) 58 Cal.4th 809, 863; People v. Perez (2017) 18
Cal.App.5th 598, 621.) As previously stated, on appeal, we presume the trial court’s
evidentiary ruling is correct and the defendant bears the burden of demonstrating error.
(People v. Giordano, supra, 42 Cal.4th at p. 666; People v. Anthony, supra, 32
Cal.App.5th at pp. 1139–1140.)
61.
In an effort to show the testimony was not properly admitted for a nonhearsay
purpose, Morfin contends that “the theory the defense opened the door is flawed because
the focus of the questioning was that if the detective was providing false information to a
witness, that fact could cause the witness to provide false information in return.” The
record, however, belies this narrow view of the defense’s examination of Vanessa and
Sanchez.
We conclude Morfin has not met his burden of demonstrating the trial court
abused its discretion in admitting the evidence for a nonhearsay purpose. (People v.
McKinnon (2011) 52 Cal.4th 610, 656 [testimony regarding street gossip admissible for
nonhearsay purpose of showing the defendant heard the gossip and it motivated him to
commit killing]; People v. Edwards (2013) 57 Cal.4th 658, 733 [sergeant’s challenged
testimony relating to scientific testing admissible for nonhearsay purpose of showing why
he did not take further investigatory steps].) This forecloses Morfin’s constitutional
claim. (People v. Anderson, supra, 5 Cal.5th at p. 405 [“‘[T]here are no confrontation
clause restrictions on the introduction of out-of-court statements for nonhearsay
purposes.’”].)
B. Sentencing Issues
1. Senate Bill No. 620
Effective January 1, 2018, Senate Bill No. 620 amended sections 12022.5 and
12022.53. Pursuant to those amendments, “[t]he court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section.…” (§§ 12022.5, subd. (c), 12022.53,
subd. (h).)
Morfin and Luna were sentenced on February 9, 2018, after the effective date of
Senate Bill No. 620. Neither the trial court nor counsel mentioned Senate Bill No. 620 or
the existence of newly acquired discretion to strike firearm enhancements. On this basis,
Morfin, joined by Luna, argues that the silent record indicates the trial court was unaware
62.
of the scope of its sentencing discretion, necessitating remand to allow the court to
exercise discretion concerning imposition of the firearm enhancement. We disagree.
“‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, we have held
that the appropriate remedy is to remand for resentencing unless the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391; accord, People v. Flores (2020) 9 Cal.5th 371, 431–432; People v. Yanaga (2020)
58 Cal.App.5th 619, 625.) However, “[i]n the absence of evidence to the contrary, we
presume that the court ‘knows and applies the correct statutory and case law’” (People v.
Thomas (2011) 52 Cal.4th 336, 361), and “‘“error must be affirmatively shown”’”
(People v. Giordano, supra, 42 Cal.4th at p. 666; see Cal. Rules of Court,
rule 4.406(b)(8) [statement of reason generally required if relief granted under § 1385]).
Senate Bill No. 620 became effective almost six weeks before Morfin and Luna
were sentenced, and nothing in the record reflects the trial court was unaware of the
scope of its sentencing discretion. We may not presume error on a silent record, as
Morfin acknowledges, and, therefore, Morfin and Luna are not entitled to remand under
Senate Bill No 620.20
2. Imposition of Firearm Enhancement on Count 1
Next, Morfin, joined by Luna, argues that imposition of an additional 25 years to
life under section 12022.53 on count 1 constitutes improper multiple punishment for the
20 As a practical matter, Morfin’s request for remand under Senate Bill No. 620 is rendered
moot given his entitlement to remand under Senate Bill No. 1393 and the sentencing error on
count 2 requiring correction, discussed post.
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same criminal act, in violation of the double jeopardy clause. Morfin acknowledges that
his claim is foreclosed under California Supreme Court precedent and that those
decisions are binding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) However, he raises the issue to preserve it for later review. (People v. Jaramillo
(1993) 20 Cal.App.4th 196, 198–199.) We reject the claim, as follows.
“The double jeopardy clauses of the Fifth Amendment to the United States
Constitution and article I, section 15, of the California Constitution provide that a person
may not be twice placed ‘in jeopardy’ for the ‘same offense,’” and, relevant here,
“‘protects against multiple punishment for the same offense.’” (People v. Anderson
(2009) 47 Cal.4th 92, 103–104.) Morfin and Luna acknowledge that “[c]umulative
punishment may be imposed under two statutes if the Legislature has authorized such
punishment,” but they urge that “section 12022.53, subdivision (d), should not be
interpreted as a legislative exception to … section 654 in murder cases because it is not a
legislative determination that there should be additional punishment for the firearm.”
“‘[T]he [Double Jeopardy] Clause protects only against the imposition of multiple
criminal punishments for the same offense … [citations] … and then only when such
occurs in successive proceedings, [citation].’” (People v. Sloan (2007) 42 Cal.4th 110,
121.) The claim advanced here by Morfin and Luna pertains to an enhancement, rather
than an offense, found true beyond a reasonable doubt in a unitary trial; neither the
double jeopardy clause nor the concerns underlying Apprendi,21 also cited by Morfin and
Luna, are applicable. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130; People v.
Izaguirre, supra, 42 Cal.4th at p. 134; People v. Sloan, supra, at pp. 121–123.) To the
21 Apprendi v. New Jersey (2000) 530 U.S. 466, 490 held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Thus, under
Apprendi, the trier of fact must have found the firearm enhancement true beyond a reasonable
doubt. (People v. Izaguirre (2007) 42 Cal.4th 126, 134; People v. Sloan, supra, 42 Cal.4th at
pp. 122-123.) It did so.
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contrary, “[f]ederal law, like California statutory law, clearly recognizes that cumulative
punishment may be imposed under two statutes, even where they proscribe the same
conduct, if the Legislature has specifically authorized cumulative punishment” (People v.
Sloan, supra, at p. 121), and as discussed next, the Legislature provided for the addition
of a sentence enhancement if a firearm is used in the commission of certain enumerated
felonies, including murder (§ 12022.53, subd. (d)). 22
Under section 654, subdivision (a), “[a]n 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 provision.…”23 Section 654 may apply, by
default, to sentence enhancements (People v. Ahmed (2011) 53 Cal.4th 156, 165), and
“when applied to multiple enhancements for a single crime, section 654 bars multiple
punishment for the same aspect of a criminal act” (id. at p. 164). Notably, “[i]f
section 654 barred any additional punishment for a single criminal act, then no
enhancement at all would be permitted, a result obviously inconsistent with the function
of sentence enhancements.” (Ibid.)
However, as stated, section 654 applies only by default and “[o]ften the sentencing
statutes themselves will supply the answer whether multiple enhancements can be
imposed.” (People v. Ahmed, supra, 53 Cal.4th at p. 163.) “When this is the situation,
22 The Legislature recently amended section 1385. (Sen. Bill No. 81 (2021-2022 Reg.
Sess.) ch. 721, § 1, pp. 1–3 (Senate Bill No. 81 or Sen. Bill No. 81).) Effective January 1, 2022,
and applicable to sentencings occurring after the effective date, section 1385 provides that
“[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the
furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any
initiative statute.” (§ 1385, subd. (c)(1), (7), italics added, as amended by Sen. Bill No. 81.)
23 As amended by Assembly Bill No. 518 and effective January 1, 2022, section 654,
subdivision (a), provides, “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall the act or
omission be punished under more than one provision. An acquittal or conviction and sentence
under any one bars a prosecution for the same act or omission under any other.”
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recourse to section 654 will be unnecessary because a specific statute prevails over a
more general one relating to the same subject. [Citation.] The court should simply apply
the answer found in the specific statutes and not consider the more general section 654.
[¶] Only if the specific statutes do not provide the answer should the court turn to
section 654.” (Ibid.)
Here, section 12022.53 controls. “[S]ection 12022.53 was enacted to ensure that
defendants who use a gun remain in prison for the longest time possible” (People v.
Gonzalez, supra, 43 Cal.4th at p. 1129), and “the Legislature made clear that it intended
to create a sentencing scheme unfettered by section 654,” choosing “to limit
enhancements based on the crimes committed rather than an analysis of individual acts as
called for in section 654” (People v. Palacios (2007) 41 Cal.4th 720, 732). Although the
trial court had the discretion to strike the firearm enhancement in the interest of justice
(§ 12022.53, subd. (h)), the statute authorized the imposition of an additional,
consecutive sentence of 25 years to life for murder where the personal and intentional
discharge of a firearm proximately caused death (§ 12022.53, subds. (a)(1), (d)). 24
Therefore, as Morfin and Luna concede, their claim of improper double punishment is
foreclosed under the law.
3. Senate Bill No. 1393
Next, effective January 1, 2019, Senate Bill No. 1393 amended former
sections 667, subdivision (a)(1), and 1385, subdivision (b), to grant trial courts discretion
to strike prior serious felony conviction enhancements. Morfin seeks remand to allow the
trial court to exercise its discretion under Senate Bill No. 1393, and if the court declines
to strike the enhancement, he requests his sentence be corrected to reflect five years
rather than the 10 years imposed on count 2, discussed post. The People concede Morfin
24 The enhancement applies to principals in the commission of an offense where “[t]he
person violated subdivision (b) of Section 186.22,” and “[a]ny principal in the offense committed
any act specified in subdivision (b), (c), or (d).” (§ 12022.53, subd. (e)(1)(A), (B).)
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is entitled to remand under Senate Bill No. 1393 and to correction of the enhancement
term should the court decline to strike the enhancement.
At the time Morfin was sentenced, imposition of the prior serious felony
conviction enhancement was mandatory. Senate Bill No. 1393 applies retroactively to
this case (People v. Stamps (2020) 9 Cal.5th 685, 699), and nothing in the record suggests
remand would be futile (People v. Flores, supra, 9 Cal.5th at p. 432). Therefore, Morfin
is entitled to remand so the trial court may determine whether to strike the prior serious
felony conviction enhancement. (§ 1385.)25
4. Other Sentencing Issues
Finally, Morfin and the People agree that on count 2, the trial court improperly
imposed 10 years for the prior serious felony conviction enhancement under section 667,
subdivision (a)(1), rather than five years. Additionally, we observe several other issues
not raised by the parties on review or in the trial court. Errors that result in an
unauthorized sentence “are reviewable ‘regardless of whether an objection or argument
was raised in the trial and/or reviewing court.’” (People v. Smith (2001) 24 Cal.4th 849,
852; accord, People v. Mendez (2019) 7 Cal.5th 680, 716.) Accordingly, on remand
pursuant to Senate Bill No. 1393, the trial court shall address, as is necessary, the
following errors.
We start first with a sentencing error not raised by the parties because correction
of the error is required on remand. On count 2, the jury convicted Morfin of shooting at
an occupied vehicle, in violation of section 246, and found true the firearm enhancement
under section 12022.53, subdivision (d), and the gang enhancement under section 186.22,
subdivision (b)(4). The trial court sentenced Morfin as follows: the upper term of seven
years under section 246, doubled to 14 years for the prior strike conviction; 25 years to
25 As discussed next, Morfin must be resentenced on count 2. We again acknowledge
Senate Bill No. 81, effective January 1, 2022, but express no view on its effect, as those issues
should be considered in the first instance by the trial court and the parties on remand.
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life for the firearm enhancement under section 12022.53, subdivision (d); 15 years to life
for the gang enhancement under section 186.22, subdivision (b)(4)(B); and five years for
the prior serous felony conviction enhancement under section 667, subdivision (a). The
court then summarized the sentence as a determinate term of 24 years and an
indeterminate term of 65 years.
Section 186.22, subdivision (b)(4), is an alternate penalty provision rather than an
enhancement added to the base term, and application of the penalty provision was
triggered by Morfin’s conviction for violating section 246 and the jury’s gang allegation
finding. (People v. Jones (2009) 47 Cal.4th 566, 575–576.) Therefore, the trial court
erred in sentencing Morfin under both section 246 and section 186.22, subdivision
(b)(4)(B). On remand, Morfin’s sentence on count 2 must be recalculated in accordance
with the alternate penalty provision under section 186.22, subdivision (b)(4). (People v.
Jones, supra, at pp. 575–578; People v. Sok (2010) 181 Cal.App.4th 88, 96–99.)
Next, at the time of sentencing, the trial court lacked the discretion to strike the
prior serious felony conviction enhancement under section 667, subdivision (a)(1). The
court added the five-year enhancement to the determinate terms imposed on count 2 and
on count 3. Additionally, on count 2, the court described the determinate portion of the
term as 24 years, although it is unclear if the court misspoke or if, as the parties suggest,
it doubled the enhancement to 10 years. As to determinate terms, which are governed by
section 1170.1, the prior serious felony conviction enhancement is not added to each
count but is “‘instead … added just once as the final step in computing the total
sentence’” (People v. Sasser (2015) 61 Cal.4th 1, 16), and it is not doubled (People v.
Sok, supra, 181 Cal.App.4th at pp. 93–94). Indeterminate terms are not governed by
section 1170.1, and the enhancement is added separately to each indeterminate term.
(People v. Williams (2004) 34 Cal.4th 397, 404–405; People v. Misa (2006) 140
Cal.App.4th 837, 845–847.) Thus, at the time of sentencing, the court erred in its
imposition of the prior serious felony conviction enhancements. However, the trial court
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must resentence Morfin on count 2 after remittitur issues in this case, which is unlikely to
occur prior to the effective date of Senate Bill No. 81 on January 1, 2022. We leave the
effect on Morfin’s sentence from the changes to section 1385, or any other relevant
change the parties may elect to raise, for the trial court and the parties to consider in the
first instance.
DISPOSITION
Luna’s judgment is affirmed.
As to Morfin, the trial court’s prior prison term enhancement finding is stricken in
accordance with Senate Bill No. 136, and this matter is remanded under Senate Bill
No. 1393 and for resentencing on count 2, as addressed in parts II.B.3. and 4. of the
Discussion. Following resentencing, the trial court shall forward an amended abstract of
judgment to the appropriate authorities. Morfin’s judgment is otherwise affirmed.
MEEHAN, J.
WE CONCUR:
PEÑA, ACTING P. J.
DeSANTOS, J.
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