In re C.G. CA5 ( 2021 )

Filed 12/14/21 In re C.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
In re C.G., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F082527
Plaintiff and Respondent, (Super. Ct. No. 17JQ0046A)
v.
OPINION
C.G.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
Moran Law Firm, Amanda K. Moran and Janay D. Kinder for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Minor C.G. appeals from an order of the juvenile court in proceedings under
Welfare and Institutions Code section 602 adjudging him to be a ward of the court. After
the contested jurisdictional hearing, the juvenile court found C.G. had committed a
willful, deliberate and premediated murder (Pen. Code, § 187, subd. (a))1 of W., another
minor, and found true an allegation that C.G. committed the murder while engaged in a
robbery (§ 190.2, subd. (a)(17)(A)). The court found not true a special allegation the
murder was committed for financial gain (§ 190.2, subd. (a)(1)). At a dispositional
hearing, the juvenile court ordered C.G. be adjudged a ward of the juvenile court and that
he be committed to the Department of Corrections and Rehabilitation, Division of
Juvenile Facilities (DJF), for life up to age 25.
C.G. challenges the juvenile court’s findings and dispositional order and argues
there was no substantial evidence that (1) he committed the murder; (2) the murder was
willful, deliberate and premeditated; or (3) that he committed the murder during the
course of a robbery. C.G. also claims the prosecution failed to timely disclose evidence
in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Finally, C.G. argues his
counsel rendered prejudicially ineffective assistance by failing to investigate and by
failing to call an expert witness. As explained below, we reject C.G.’s claims and affirm
the juvenile court’s findings and dispositional order.
FACTUAL SUMMARY
I. Procedural Background
On July 10, 2018, a juvenile wardship petition was filed alleging that on May 10,
2017, C.G. committed first degree premediated murder. The petition also alleged the
murder was committed for financial gain (§ 190.2, subd. (a)(1)), and was committed
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
during the course of a robbery (id., subd. (a)(17)(A)). The prosecution sought to have the
case transferred to adult court, but the motion to transfer was denied. 2
A contested jurisdictional hearing took place in February 2021. On February 23,
2021, after hearing closing arguments, the juvenile court found C.G. had committed
premediated murder, and found true the allegation the murder was committed during the
course of a robbery. The court found not true the allegation the murder was committed
for financial gain.
A dispositional hearing was held on March 9, 2021, and the juvenile court
committed C.G. to the DJF for a life term without parole with a maximum period of
confinement up to age 25.
II. Juvenile Court Jurisdictional Hearing
A contested jurisdictional hearing took place between February 8 and February 11,
2021. The prosecution presented numerous witnesses, and C.G. testified on his own
behalf.
A. W.’s Murder
The victim’s mother, S., testified she, her three children (W., O. and R.), her niece,
and her father Jackie were living in an upstairs, four-bedroom apartment at the time of
her son W.’s murder. S. awoke that morning around 6:30 to 7:00 a.m., and W. was home
at that time; she saw him get ready for the day along with the other children even though
he was suspended from school. She took the three younger children to school between
7:00 and 7:30 a.m., and arrived back home between 8:30 and 9:00 a.m. When she got
back, W. was still at home, and no one was with him. W.’s friend C.G. showed up about
2 Kings County Probation Department filed a notice of probation violations alleging C.G.
had been involved in two gang-related assaults while confined at the Kings County Juvenile
Detention Facility. The probation violation matters trailed the wardship petition and one was
eventually voluntarily dismissed.
3.
an hour or two later, although she was uncertain exactly when he arrived. She saw W.
and C.G. outside near her parked cars, and W. was cleaning out one of the cars.
W. and C.G. had met at a skate park when S. and her children moved to the area in
2014. She thought they were good friends. However, S. knew she was going to have a
problem with C.G. when he brought a kid to her house who wanted to fight W. over a
girl. At a different time, C.G. had been involved in a fight where W. jumped in to help
him. S. knew that W. was involved in selling marijuana; W. was getting in trouble at
school because he was smoking marijuana, and he said he was selling the product for
someone else.
At the time of his death, W. was being electronically monitored by the county
probation department, and there was an electronic box near the door to the apartment that
would light up when W.’s ankle monitor was in the proper range. When W. would go out
of the allowed range, the lights on the box would turn off. He could not go to the local
Heritage Park without the monitor indicating he was out of range, but he could go to the
basketball courts at the apartment complex. W. would sometimes go to the park to hang
out with his friends.
S. watched television and did laundry until it was time to pick up the kids from
school. S.’s father, Jackie, also lived in the house, and he was in his room while S. was
home. S. left to pick up the children between 12:30 and 12:45 p.m. As she came down
the stairs from the apartment to her car, S. saw W. and C.G. outside. W. had on his
peach-colored backpack. S. told W. to go up to the apartment and lock the door until she
came back. She wanted him to lock the door because W. and C.G. were involved in
“gang stuff,” and they had been involved in fights. The apartment had a deadbolt lock,
and S. was in the habit of keeping it locked. As S. drove away, she saw W. go upstairs
while C.G. was standing at the bottom of the stairs. She did not see W. go inside the
apartment because she was already driving away.
4.
After S. picked up the children from school, she ran some errands and returned to
the home about 3:00 p.m. The door to the apartment was locked, and when they went
inside, it was quiet. The dogs were in their kennel, and when she looked at W.’s monitor
by the door, it indicated W. was home. S. did not look for W. because she figured he was
in his bedroom where he normally was, so she went back to her bedroom. S.’s younger
son O. shared a room with W., and when O. went back into his room, he found W. They
had only been home a few minutes when S. heard O. screaming, and so she walked to his
bedroom. The bedroom was not messed up, but W. was lying on his bed with his eyes
open, not saying anything. She moved W.’s shirt and saw three or four stab wounds
around his belly. S. immediately called 911 and gave the phone to O. so he could talk to
the emergency dispatcher while S. started cardiopulmonary resuscitation (CPR). She and
O. performed CPR on W. for what seemed “like [an] eternity,” and then an officer
arrived.
Detective Oswaldo Maldonado was dispatched to the apartment on a priority call.
He went to a second-floor apartment, and found a young Black male on the sidewalk near
the parking lot who appeared to be crying and distraught. Maldonado did not get a
chance to speak with him as he ran to the apartment, went inside, and located the victim
in a bedroom at the end of a long hallway. Inside the room, he found S. performing CPR
on the victim.
The victim, W., was lying on his back; Maldonado took over CPR and another
officer who arrived just after Maldonado, assisted. There was a lot of blood coming from
the victim’s abdomen, and Maldonado saw three distinct puncture wounds, about an inch
or two wide. Maldonado performed CPR until emergency medical services (EMS)
personnel arrived and took over. Maldonado found S. to get a statement. S. was on her
phone when Maldonado approached her, and he overheard her saying W. had been
stabbed and that she had dragged him off the bed to perform CPR.
5.
Jackie testified he was living at S.’s apartment, and he was there the day W. was
stabbed. He thought C.G. and W. were friends, but he did not know how long they had
known each other. C.G. would come to the apartment quite a bit, but the dogs they had
were not familiar with C.G. and so they would bark when he was in the apartment.
Jackie knew W. sold marijuana and that he smoked it—but Jackie did not know how long
that had been going on.
On the morning of the murder, Jackie showered after he woke up sometime that
morning, but he could not recall the time. He may have had a couple of beers the night
before. He thought W. was at home, but Jackie did not check for sure. When Jackie got
out of the shower, the dogs were making noise. When he got dressed, he did not hear
anything. Jackie came out of his room after getting dressed because he heard the dogs
again. Jackie then saw C.G. standing by the front door, which was open about a foot.
Jackie remembered C.G. had on a white shirt and white tennis shoes, but he was not
paying close attention to C.G.’s clothing. Jackie asked C.G. why he was there and
indicated C.G. was not supposed to be in the apartment. C.G. told him that W. and
Brian—another of W.’s acquaintances—were at Heritage Park, and Norteño gang
members were trying to jump W. C.G. wanted Jackie to hurry to the park because W.
needed help. Jackie went back to his room and grabbed his sunglasses and his hat, and he
and C.G. left the apartment. Jackie locked the door, and he was certain he did because he
asked C.G. to make sure it was locked. C.G. ran back up the stairs and jiggled the door
handle, and then they took off toward the park. C.G. then told Jackie that he needed to
run home and change his clothes and that C.G. would catch up. Jackie wondered why he
needed to change, but he kept going because he was afraid W. was in trouble.
It took Jackie about 5 or 10 minutes to walk to the park, but no one was there
when he arrived. He estimated he was at the park anywhere from 45 minutes to two
hours, but C.G. never showed up and Jackie never saw W. or any commotion. Jackie
walked to a nearby store to buy a beer and cigarettes, and then walked back to the park.
6.
He saw an ambulance and a firetruck go by when he was back at the park. A friend of
Jackie’s showed up in a car, and told Jackie to come with her because something had
happened to W.
Jesse, a neighbor in the complex who lived across from W., testified C.G. was
always with W., and they appeared to be friends. C.G. lived in the same complex as
Jesse and W. Jesse was aware of W.’s trouble with other individuals in the area—Jesse
described W. as a “rowdy kid” who was always outside “being loud.” Other kids would
come by and “talk crap to him, and he would talk back pretty much,” but Jesse never saw
a physical altercation.
Jesse would take his children to school in the morning routinely, and he would
often see W. and C.G. playing basketball at the apartment complex’s basketball courts.
On the morning of W.’s death, he heard the basketball bouncing, and when Jesse looked
up, he saw them playing at about 7:30 a.m., and at 8:00 a.m. when Jesse returned, they
were still in the area. Although he heard the basketball bouncing after he went into his
apartment, he did not hear any other noises like fighting or arguing. Jesse saw W. and
C.G. walking toward W.’s apartment around 12:30 p.m. Nothing Jesse saw gave him a
bad feeling. Jesse remembered C.G. was wearing dark clothing.
Brian, a friend of W., testified that he knew W. through Jackie, and Brian would
drive W. to pick up marijuana in Hanford so that W. could sell it. Brian knew that W.
had Xanax, but he was uncertain if W. was also selling the Xanax. W. had mentioned to
Brian that he was having problems with the Norteño gang, and W. always seemed on
guard. Once in a while, Brian and W. would smoke marijuana together, but they never
used Xanax together. W. had an ankle monitor, although Brian did not know why.
According to Brian, W. would have to get permission from his probation officer if they
wanted to go to the park, and he had witnessed W. calling his probation officer on prior
occasions. Brian was unsure, however, whether W. had to call the probation officer if he
left the house.
7.
W. carried marijuana around in a baggie, which he would then place in a bag with
a draw string. About two days before W.’s death, they had driven around together and
were dealing marijuana, which Brian had helped W. obtain—Brian estimated W. had
about one or two ounces that day. Brian knew C.G. as one of the friends W. used to hang
out with, and C.G. would buy drugs from W. Brian could not identify C.G. in court. On
the morning of W.’s death, Brian called W., and W. said he needed to shower and would
call Brian back. W. did not say he was with anyone.
B. Police Investigation
Detective Matthew Smith was called out to S.’s apartment after the murder, and
arrived about 4:30 p.m. He was able to walk through the apartment at that time, and he
saw numerous areas where there appeared to be blood. He saw what appeared to be a lot
of blood in the bedroom; the bed was unmade and there was clothing on the bottom bunk.
There was also an open pocketknife on the bottom bunk, which S. later confirmed was
W.’s personal pocketknife. S. recalled the knife was next to W. in the bed when she
found him. Smith did not recall any blood on the blade of that knife, and he could not
remember any fingerprint hits off the knife, although it was submitted for testing. Smith
eventually went to the hospital and talked to W.’s family, and then he worked on search
warrants.
1. Smith’s First Interview with C.G. on May 10, 2017
Smith knew C.G. was a potential witness after talking with Jackie and S., and
Smith arranged to speak with C.G. that evening (May 10) around 7:00 p.m. C.G. came to
the station for the interview with his mother. Smith advised C.G. that W. was dead and
that C.G. was the last one seen with W. He told C.G. he wanted a statement to figure out
what happened; C.G. was upset, tearing up, and pounding the table with his fists.
C.G. said that after W.’s mother left, he and W. had gone to Heritage Park and met
up with Brian and someone else named Fero. They smoked marijuana and took Xanax.
C.G. said he and W. walked back to the apartment complex where they both lived, but at
8.
the entrance to the complex a white Expedition came up behind them. C.G. and W. ran
toward the complex and the vehicle chased them. C.G. said he and W. split up, and
individuals exited the Expedition and chased them both. C.G. went to his apartment and
jumped the fence to his back patio. He stayed in the back patio area for about 20 minutes
while he texted W. C.G. wanted to know if W. was okay.
C.G. then described that he went to W.’s apartment door and knocked to check
and see if W. was okay because W. had never returned C.G.’s texts. C.G. was in the
room with Jackie and said that he needed to get his charger. When Smith confronted
C.G. at this point in the interview about the timeframe and when C.G. had seen Jackie,
C.G. took a few seconds to try to remember; C.G.’s mother interrupted and advised Smith
that C.G. was under the influence of Xanax, and he was not thinking clearly. Smith
stopped the interview at that point. Smith never noticed any injuries on C.G.’s hands.
2. Smith’s Continued Investigation
After concluding the interview with C.G., Smith started canvassing the area
around the apartment and searching for video surveillance to follow up on C.G.’s story
about the white Expedition and the chase. C.G.’s mother had also mentioned she had
seen a white Expedition in the area in the past. Smith timed the walk between the
apartment and Heritage Park as taking 14 minutes. It took Smith seven minutes to walk
from the park to a Quick & EZ store that Jackie reported he walked to from the park.
Smith then followed up with Jackie about Jackie’s statement he had caught C.G. in the
apartment that afternoon. Jackie gave Smith a receipt from the Quick & EZ for the
purchases he made there that day.
Smith was able to serve a search warrant for the apartment that night around
midnight. They collected bedding from W.’s room, and once that was removed, they
found a peach-colored backpack directly under the bed. The backpack was unzipped and
empty, and there was a green leafy substance on the inside of the backpack that appeared
to Smith to be marijuana. No NIK (narcotics identification kit) test was performed on
9.
that, however, because it smelled like marijuana and it was limited to a small amount of
residue. Smith did not feel a NIK test was necessary.
There were three cell phones directly off to the side of the bed, and the officers
seized two of them. W.’s mother told them W. used only two phones, and the third
phone had a cracked screen. They also took clothing from the bed, including a black
sweatshirt, and they cut out a section of the carpet where W. was pulled to the ground for
CPR. Smith remembered a large amount of blood on the floor of the bedroom and on the
bed; there were handprints all over the wall and the area where they were working on W.
Smith did not recall seeing any footprints. They took latent prints from everything and
sent them out. There was no blood spatter on the wall; it seemed concentrated, not
splattered. They found a SpongeBob backpack, 3 which they photographed.
Smith served a search warrant at C.G.’s apartment six days later. Smith did not
remember taking anything from C.G.’s residence; he never found a knife. They went
through C.G.’s clothing and the bedroom he shared with his brother, but there was
nothing of interest to the investigation. Smith also interviewed Fero about a week after
the murder and asked him when he had last seen W. Fero, who Smith knows to have
mental health issues, said he had seen W. about three days before at Heritage Park in the
late afternoon, but this would have been impossible because three days earlier W. had
already been killed. Smith also never found a white Expedition.
An extraction of C.G.’s phones was also performed, and Smith obtained a warrant
for C.G.’s Facebook information. There was a conversation between C.G. and A.C. that
started around midnight on the morning before the stabbing and went until about
3:00 a.m. Another conversation occurred between the two around 9:00 a.m. on the
morning of the murder, which was about a deal for belts—two belts for $700. Then there
3 SpongeBob is a cartoon character. The reference to the SpongeBob backpack is to
distinguish it from the peach backpack also found in W.’s room. S. testified W. carried clothing
in the SpongeBob backpack.
10.
was another conversation that started around 2:00 p.m. andcontinued until about
3:00 p.m. in which C.G. offered a zip for the belts. A zip usually refers to about an ounce
of marijuana. They did not agree on that amount, and then there was discussion of an
upgrade to a pound of marijuana in exchange for the belts, and there was an agreement to
that amount. At 2:19 p.m., C.G.’s phone sent a picture to A.C.’s phone of a sandwich-
sized bag of marijuana. That photo has background elements that are very similar to the
backyard patio area where C.G. resides. The last message from C.G. to W.’s phone
occurred just before 4:00 p.m.
Smith also investigated W.’s Facebook and Snapchat accounts. The information
from the Snapchat warrant showed W.’s account sent a message to a user on May 10,
2017, at 12:53 p.m.
3. Quick & EZ Confirmation Evidence
Officer Cody Rogers testified Smith asked him to check on surveillance video
from the Quick & EZ on the day of the murder, which Rogers did. Rogers made contact
with the store manager and asked to review the surveillance video. He confirmed Jackie
was at the store at the time Jackie told Smith he had gone there. Smith had given Rogers
a receipt Jackie had provided to Smith. When Rogers viewed the surveillance video, he
saw Jackie on the video, whom he recognized from reviewing a police database. Rogers
noticed the timestamp on the video was incorrect by about an hour and 15 minutes. The
manager knew about the timestamp delay on the surveillance video.
The Quick & EZ store manager testified Jackie would come to the store often,
although not every day. The manager provided surveillance video to officers when they
requested it. He confirmed there was a time delay on the surveillance video clock of
more than an hour.
4. Smith’s Second and Third Interviews of C.G.
Smith conducted a second interview with C.G. on May 13, 2017, in the early
afternoon at the police department headquarters. C.G. said he had ditched school on the
11.
day of the murder and got a ride from Randy about 11:30 a.m.; Randy and C.G. went to
W.’s house, and they all smoked marijuana, and then Randy left. Then C.G. and W. went
to Heritage Park. C.G. said Fero was there, and later in the interview C.G. also said
Brian was there. C.G. said W. had two ounces of marijuana on him, as well as 10 to 12
Xanax pills. C.G. told Smith he was aware W. was selling drugs. Smith told C.G. and
his mother that they had recovered W.’s backpack and cell phones, but there were no
drugs in the backpacks. C.G.’s mother said it was the peach-colored backpack that W.
carried his drugs in, and C.G. confirmed that was correct. When Smith tried to confirm
when C.G. and W. went to the park that day, C.G. said he and Randy went to the
apartment at 11:30 a.m., and as soon as S. left, they went to the park.
Smith also asked C.G. about his encounter with Jackie. C.G. initially said the door
to W.’s apartment was locked, and Jackie came to the door and they talked there. C.G.
also said he was knocking at the door and the wind blew it open; C.G. was entering the
apartment and Jackie came out of his room. Then, C.G. said he went inside the apartment
to retrieve a belt and saw Jackie. C.G. gave a fourth version that he had entered the
apartment because the wind blew the door open and he took a couple of steps into the
living room before Jackie stopped him.
C.G. said the front door to the apartment was locked right before he saw Jackie,
but then said it was unlocked. Smith testified the call log on W.’s phone showed that
between 1:00 p.m. and 1:08 p.m., C.G. left messages such as “[t]he Nortes are by your
apartment” and “[t]hey chased me with knives,” but there were no responses from W.’s
phone.
Smith interviewed C.G. a third time on July 6, 2018, after C.G. had been arrested.
C.G. denied that Fero or Brian were at Heritage Park when he and W. walked over. C.G.
denied entering W.’s apartment at any time. C.G. said he knocked, Jackie answered the
door, C.G. explained the situation, and they started walking to the park. C.G. said he
excused himself to get a knife from his apartment.
12.
C. Forensic Evidence Collected at the Scene
A criminalist testified about how the crime scene was documented, and how
various items found at the scene were tested. She went to the apartment on May 17,
2017, and documented the scene through photographs and searched for biological
fluids—specifically, blood. Several spots throughout the bedroom contained blood, and
it was collected and submitted to the lab for DNA analysis. They collected a five-
millimeter square swab—about the size of a pencil eraser—from the carpet near the
television. She did not know how long the stain had been there. She analyzed the blood
from the carpet square against the DNA samples they had obtained from the victim and
the suspect. That sample did not match the victim, but the suspect could not be excluded
as a contributor of the DNA. The DNA was analyzed to determine how rare it was that it
matched C.G.’s sample. The profile from the DNA sample found in the carpet swab
would be expected to occur in 1 in 12 nonillion randomly unrelated African-Americans; 1
in 14 nonillion Caucasians; or 1 in 2.4 nonillion Hispanics. 4 The criminalist testified
finding a match to that DNA sample would be like finding a needle in a haystack. No
other DNA sample in the room matched the sample from the carpet swab.
D. Autopsy
A medical examiner testified he performed W.’s autopsy in 2017. He observed a
total of five stab wounds: three stab wounds were clustered around the abdomen, a fourth
stab wound was located in the neck, and a fifth was found in the left upper chest. The
puncture wounds were classic almond shape, which is frequently seen in a stab wound.
There was also a laceration at the root of the thumb on W.’s left hand, which was
consistent with a defensive wound. The cause of death was bleeding due to the sharp-
force trauma wounds to the abdomen. The examiner opined that although it was possible
it took up to 60 minutes for W.’s heart to stop after he was stabbed, it more likely took
4 One nonillion is 1 followed by 30 zeros.
13.
only a few minutes. A toxicology examination was also performed, which was positive
for Alprazolam and alpha metabolite, and it was positive for a nonpsychoactive
metabolite of THC. Alprazolam is commonly referred to as Xanax, which is a sedative
hypnotic drug that is prescribed frequently to treat anxiety. THC refers to marijuana.
Based on the levels in W.’s system, the Xanax would have caused him to be under
the influence to some extent, but it was in the “low toxic range” and far from being in the
fatal range. The THC had no psychoactive component to it; its presence simply meant
that W. had smoked marijuana at some point in the past.
E. Other Testimony
1. W.’s Ankle Monitor
W.’s probation officer (PO) testified that she was supervising W. at the time of his
death; he was waiting for an adjudication, and he was required to wear an ankle monitor.
The range of his monitor was 150 feet. If W. went outside that 150-foot range, the
monitor would send an alert. If W. wanted to go outside the range, he would have to call
her office and ask for permission. Around the time of his death, the PO remembered he
had called to say he wanted to go to the basketball court, which she gave him permission
to do.
The PO explained the report from the monitor that tracked W.’s movements, but it
was not a document she created—it was generated automatically through a tracking
system. She did not have access to generate the reports, and she could not manipulate the
data. On May 10, 2017, there was an unauthorized leave (outside of range) at 9:41 a.m.,
and an unauthorized entry (inside of range) at 12:00 p.m., and a final unauthorized leave
at 3:51 p.m. He may have had permission to leave at those times, but she did not
remember a call or message from either W. or his mother.
2. C.G.’s Belt Negotiations With A.C.
A.C. testified he was friends with C.G., and had a conversation with C.G. around
May 10, 2017, about high-end luxury belts that A.C. had. They talked about it at school,
14.
and then they were texting about what A.C. wanted for the belts. C.G. offered marijuana
in exchange for the belts. They were communicating through Snapchat, and C.G. sent a
photo of marijuana. A.C. testified he was “shocked” because he did not really buy that
much at the time, so he told C.G. that was more marijuana than he really needed. A.C.
indicated all he really wanted was money for the belts. They had also messaged some on
Facebook, but not too much. They continued to message for a few minutes, and then
C.G. showed up at A.C.’s house sometime when it was dark outside and after the
photograph had been sent. C.G. did not have any marijuana with him. C.G. was trying to
get the belts, saying he would bring back money, but A.C. did not want to give him the
belts so A.C. told him to leave.
3. C.G.’s Marijuana Sale After the Murder
B.L. is a cousin of W., who saw W. the day before the murder. B.L., W., C.G. and
B.L.’s cousin Randy were all in a car together. W. and C.G. were in the backseat, while
B.L. was in the front. W. handed a dark brown-colored backpack to B.L., and B.L. saw
that it contained three or four ounces of marijuana and some green pills. The marijuana
was in two baggies—one smaller and one larger. B.L. returned the backpack to W., and
they just continued talking about school. B.L. knew that W. sold drugs; W. had told him
that C.G. was a “homie,” that W. had taken C.G. under his wing, and would give him
some weed to sell and get his own money.
B.L saw C.G. at school about three or four days after the murder. C.G. was with
someone named Sisco. C.G. had what looked like white tissue paper wrapped around the
knuckles of his right hand. B.L. confronted C.G. about some pills and weed that B.L.
thought had belonged to W. C.G. said he already had those items—the items were his.
B.L. was certain those were W.’s drugs, however, because a good friend of B.L.’s
(Breeza) bought marijuana from C.G. just after the murder, and when Breeza showed the
marijuana to B.L., he recognized it as the distinctive type of marijuana W. sold. This was
why B.L. confronted C.G.
15.
B.L. testified he is very familiar with the different strains of marijuana, and W. has
provided him with marijuana in the past. The marijuana he had seen W. with the day
before was brown and a specific type. When Breeza showed B.L. what she had
purchased from C.G., it was the exact same brown color and smell as the marijuana B.L.
saw in W.’s backpack the day before the murder. The marijuana that W. sold was
distinctive and unusual.
B.L. also testified he knew W. had problems with gang members—W. was a self-
proclaimed Blood gang member, and he got into physical altercations with Northerners a
lot. When they had been together the day before the murder, though, W. had not
mentioned any conflicts with gang members. W. never told B.L. that Northerners were
trying to kill him, W. said only it was going to be a problem if they caught him.
III. Defense Case
C.G. testified in his own defense. C.G. met W. when W. moved to the apartment
complex in 2014 or 2015. They were close friends, and they did everything together,
including selling drugs. They each had their own portion of marijuana they sold—they
had separate connections for obtaining it, and sometimes they stole it. They had stolen
marijuana together about three or four days before W.’s death. W. had told C.G. he did
not like his old connection anymore, that the connection—someone named Alex—had
done W. “dirty or something” and that W. wanted to rob him. C.G. agreed to participate,
and they were able to steal about 1.5 pounds of marijuana and about 20 Xanax pills.
They had gone to Alex’s residence in Hanford and went inside through a window while
he was gone. C.G. had never met Alex before. Alex knew they had stolen the marijuana,
and he made threats against C.G. and W. C.G. never reported Alex’s threats to the
police.
On May 10, 2017, C.G.’s mom dropped him off at school, but he ditched around
noon. He was wearing a black sweater with a “P” on the left side, tan cargo pants, and
black shoes. He went to W.’s apartment and hung out on the stairs; then they walked to
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Heritage Park. He and W. had used drugs before and while they were at Heritage Park.
They smoked when they were in the car with Randy, and they took pills.
At the park, W. was waiting for Brian, but Brian never showed up. After about
25 minutes, they walked back to the apartment. As they drew near the apartments, they
saw a white Expedition. C.G. already knew who it was, and he and W. knew they did not
have any protection, so they took off running and the Expedition chased them. They split
up during the chase; C.G. went to his apartment, and W. went toward his. C.G. hid on his
back patio for 10 or 15 minutes and started texting W.
When C.G. did not get any responses from W., he ran to W.’s apartment and
knocked two times. The door opened a bit, Jackie opened it the rest of the way and asked
what C.G. was doing. C.G. told him he was looking for W. and Jackie said W. was at the
park and that was where Jackie was going. C.G. offered to go with him, and then Jackie
came outside, locked the door, and they proceeded to the park. C.G. told Jackie he had to
get something and that he would catch up with Jackie. He never told Jackie he was going
to change his clothes, nor did he change clothes. He went back to his apartment to get a
knife. However, after C.G. came out of his house, Jackie was gone. C.G. did not want to
go to the park by himself, so he went back into his apartment. His mother’s ex-boyfriend
took him to his cousin’s house in Hanford, and he ended up taking the knife with him
because he thought he was in danger, and he left it there. While he was in Hanford, he
got a call about W. and that the police were at his apartment. C.G. broke down crying, he
started smoking and drinking, and did not remember what happened after that.
He did remember going to the police station that evening after his mom picked
him up in Hanford. His blood got in W.’s room because a couple of days before the
stabbing, C.G. was fidgeting with a belt to make an extra hole in it, and he cut his hand
doing that.
C.G. identified the two people in the Expedition who were chasing him and W. as
J.Z. and M.B. He had pointed them out to Smith during an interview. He messaged A.C.
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later that night about the marijuana. C.G. lied to A.C. about having a full pound of
marijuana, but he thought he could rob A.C. for the belts. C.G. admitted he had gone to
A.C.’s house to try to get the belts, but A.C. would not give them to him. C.G. admitted
the photograph of the baggie of marijuana was the one he had sent to A.C., and that he
sent that picture to A.C. after the Expedition had chased him. C.G. testified he was under
the influence at that time, so he did not really know what was going on. C.G. denied that
W. kept all the money from his marijuana sales and denied that W. was the only one with
the product. C.G. maintained W. had the same type of marijuana that C.G. had.
C.G. testified he never changed his clothes the day of the murder; he had on the
same clothes he went to school in when he was interviewed that evening by Smith. C.G.
denied that he killed W. On cross-examination, C.G. testified he did not remember
during his interviews with Smith whether he said J.Z. and M.B. were not the men in the
white Expedition who chased him.
IV. Juvenile Court’s Findings and Dispositional Order
At the conclusion of the jurisdictional hearing, the juvenile court found true the
allegation that C.G. committed premeditated first degree murder. The court also found
true the allegation C.G. committed the murder during the course of a robbery. The court
found not true the special allegation the murder was committed for financial gain.
The trial court offered the following discussion of the facts and findings:
“In my opinion the pertinent time period regarding the murder of
[W.] was between 12:00 p.m. to 3:30 p.m. on May 10th, 2017. This is
important because somewhere between 12:00 and 12:30 p.m. [W.] was
alive and he was murdered before—before 3:30 p.m. [¶] [W.] was seen by
his mother going up the stairs to their apartment when she was leaving to
go pick up her kids in Visalia from school. Prior to leaving she told [W.] to
stay in the apartment, make sure the door was locked.
“Also at this time the minor, [C.G.], was with the victim. And the
mother left the area prior to seeing her son actually going into the
apartment. [¶] [Jackie] testified that when he woke up that day he took a
shower, he didn’t see or hear anything. He then heard the dogs barking and
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went to check why they were barking, and that is when he saw [C.G.] in the
apartment getting ready to leave. [¶] [C.G.] told Jackie that [W.] was at
the park with Brian and there was some sort of altercation that was going to
take place. Then Jackie and [C.G.] left to go to the park.
“On the way to the park [C.G.] told Jackie he needed to go change
his clothes and he would meet up with him later. [¶] Jackie stayed at the
park waiting for [W.] or [C.G.] … to come back. And he also went to the
local Quick & EZ to purchase some liquor, the receipt time was 2:03 p.m.
[¶] The logical reason for luring Jackie away from the apartment was that
[C.G.] had just murdered [W.] and wanted to distance himself from that
apartment and the murder of [W.]
“From the electronic monitoring system that [W.] was wearing we
know that [W.] stayed in that apartment from 12 noon to 3:40 p.m., and he
was taken from his home by the ambulance. So [C.G.] was with [W.] at
12:00, [W.] was alive at that time. [¶] Further, when [S.] saw her son
around 12:00, he never went out of range from that monitor. In other
words, [W.] did not go to Heritage Park with [C.G.] If he had, he would
have been out of range and the EMS would have reflected this. [¶] [W.]
was not chased by people in a white Expedition, as claimed by [C.G.] [¶]
[W.] did not go and smoke weed with [C.G.] prior to going to the park nor
at the park. Not only does the EMS confirm this, but the autopsy showed
that [W.] only had the metabolite for cannabis in his system and was not
under the influence.
“Further evidence of [C.G.]’s guilt in this case is the fact that his
blood was located in the room of [W.] [¶] [A.C.] and [C.G.]’s testimony
provides the motive for the killing of [W.]; [C.G.] wanted to purchase
and/or trade and/or rob [A.C.] of some very expensive belts.
“On May 10th, the day [W.] was murdered, [C.G.] was in
communication with [A.C.] as early as 3:00 that morning. [A.C] testified
that [C.G.] offered him a pound of marijuana to trade for the belts. [C.G.]
testified at trial that he never had the additional half pound of marijuana, in
fact, [C.G.] testified that he didn’t have the additional half pound and that
his plan was to rob [A.C.] with a knife.
“The significance of the cell phone communications demonstrates a
strong desire of [C.G.] to get that belt. In fact, [C.G.] testified on that date,
after [W.] was killed, [C.G.] called [A.C.] later that night to again try and
sell him a large amount of marijuana and obtain the belt. He also went to
[A.C.]’s home that night after the murder to ask for the belt again. He tried
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to get [A.C.] to give him the belt and would pay him later. [A.C] had to tell
[C.G.] to leave because he didn’t think [C.G.] was going to.
“[C.G.] further testified that he had a knife and was going to use that
knife to rob [A.C.] At the time that [C.G.] went to [A.C.]’s home he
already knew that his best friend had been murdered and this did not stop
him from pursuing this obsession he had with the belt. [¶] Further, we
know that [C.G.] had [W.]’s marijuana because he sold some of it to a
person named Breez[a]. [C.G.] admits that he sold the marijuana to
Breez[a]. This marijuana had a particular characteristic, one that [B.L.]
testified to that he even gave a name to because it was a type that [W.] was
known for selling.
“[C.G.] testified to an implausible scenario as to how he ended up
with the same type of marijuana that [W.] sold; he testified that he and [W.]
robbed his dealer because [W.] was mad at him, and as a result the drug
dealer was threatening both boys. However, when question[ed] further in
detail it wasn’t a robbery, it was a burglary at night where they went
undetected through a window to obtain the marijuana. At least this is what
[C.G.] testified to. And I find that story just a story, an untruth.
“The Court will make the following findings: The Court does find
true, as to Count 1, a violation of … Section 187, in that [C.G.] did
unlawfully and with malice aforethought murder [W.], a human being.
“The Court also finds that the murder was committed willfully and
deliberate and with premeditation within the meaning of the … Section—
[¶] … [¶] The Court finds not true the special allegation pursuant to …
Section 190.2[, subdivision ](a), murder for financial gain. In order for this
allegation to apply[,] the death must be a consideration for or a central
prerequisite to the financial gain sought by the defendant and was typically
arising from murder for hire, murder for inheritance or murder for
insurance.
“The Court does find true the special allegation pursuant to …
Section 190.2[, subdivision ](a)(17), murder in the commission of a
robbery.”
At the March 9, 2021, dispositional hearing, the juvenile court ordered C.G. be
committed to DJF for a life term without parole, with a maximum period of confinement
up to age 25.
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DISCUSSION
I. Substantial Evidence Supports the Juvenile Court’s Findings
C.G. argues there is no substantial evidence that he committed the murder; that the
murder was willful, deliberate and premediated; or that the murder was committed during
the course of a robbery.
A. Standard of Review
“Our review of the minor[’s] substantial evidence claim is governed by the same
standard applicable to adult criminal cases.” (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
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.) “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.” (People v. Zamudio (2008) 43 Cal.4th 327, 357).
“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 [trier
of fact] could reasonably have deduced from the evidence.” (People v. Zamudio, supra,43 Cal.4th at p. 357.) “‘[I]t is the [factfinder], not the appellate court which must be
convinced of the defendant’s guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at
pp. 1055–1056.)
“‘“[O]ur role on appeal is a limited one.” [Citation.] Under the substantial
evidence rule, we must presume in support of the judgment the existence of every fact
that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus,
if the circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant reversal of the judgment. [Citation.]’” (In re V.V.,
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supra, 51 Cal.4th at p. 1026.) “A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support”’ the [factfinder’s] verdict.” (People v. Zamudio, supra, 43 Cal.4th
at p. 357.)
B. Substantial Evidence Links C.G. to the Crimes
C.G.’s core contention is that there is no substantial evidence linking him to any
crime against W. C.G. claims all the evidence connecting him to the crime was merely
circumstantial, and more than one set of reasonable inferences could be drawn from that
evidence—i.e., the circumstantial evidence did not prove C.G.’s guilt beyond a
reasonable doubt.
For example, C.G. argues there was no direct evidence connecting him to the
stabbing, Jackie did not report seeing any blood on C.G., and no murder weapon was ever
found. From these facts, C.G. maintains, the juvenile court should have more reasonably
concluded C.G.’s presence in the home around the time of the murder was merely
coincidence, and Jackie’s failure to notice any blood on C.G. or any marijuana in his
hands pointed away from a conclusion C.G. was the perpetrator. Moreover, C.G. points
out, he was not near the bedroom when Jackie discovered him at the apartment, he was
by the door. According to C.G., the marijuana C.G. later sold to Breeza was actually part
of a stash C.G. and W. shared after having stolen it from W.’s supplier, which undercut
any contrary finding C.G. had stolen W.’s marijuana. Finally, C.G. asserts, the motive
proposed by the government makes no sense—C.G. and W. were best friends and they
did everything together, so there is no reason to believe C.G. killed his best friend over
some belts.
These arguments, however, misapprehend the substantial evidence review
standard on appeal. “‘“Although it is the duty of the [factfinder] to acquit a defendant if
it finds that circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the [factfinder], not the appellate
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court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If
the circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”’” (People v.
Abilez (2007) 41 Cal.4th 472, 504.) Thus, the fact that the juvenile court could have
credited different testimony and drawn other inferences from it is not a basis for reversal
on appeal.
The substantial evidence standard requires us to view the evidence in the light
most favorable to the juvenile court’s findings and draw all reasonable inferences in
support of them. When viewing the evidence through that lens, as we must, we conclude
substantial evidence supports the juvenile court’s conclusion C.G. was the person who
stabbed W., causing his death.
While the evidence pointing to C.G. as the perpetrator was largely, if not wholly,
circumstantial, the evidence’s character as circumstantial does not make it insubstantial
nor does it render inferences drawn from it speculative. (People v. Abilez, supra, 41
Cal.4th at p. 504 [“‘“‘Circumstantial evidence may be sufficient to connect a defendant
with the crime and to prove his guilt beyond a reasonable doubt.’”’”]; see People v.
Bloom (1989) 48 Cal.3d 1194, 1208 [“circumstantial evidence is as sufficient as direct
evidence to support a conviction”].)
Based on Jackie’s and S.’s testimony, W.’s ankle monitor data, cell phone
extraction data, and blood found in W.’s room that matched C.G., it could be reasonably
inferred C.G. was not only in the apartment at the time of the murder, but he had been in
W.’s room. S. saw W. alive and with C.G. downstairs from the apartment at about 12:30
to 12:45 p.m. when she went to pick up the kids from school. Upon hearing the dogs
barking and discovering C.G. in the apartment after S. left, Jackie testified he locked up
the apartment and left (which C.G. also corroborated in his testimony). Both S. and
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Jackie testified there was no issue with the apartment lock, and S. testified the only other
entrance to the apartment was locked at all times.
W.’s ankle monitor indicated he never left the 150-foot range of the apartment
after noon. W.’s last phone data showed an outgoing message at 12:53 p.m., and he
never responded to any of C.G. messages that were sent at and after 1:00 p.m. Thus, it
was reasonable to infer the stabbing occurred between the time S. left the apartment
around 12:30 p.m. and the time Jackie left the apartment. Beyond C.G.’s presence in the
apartment at the time of the murder, a small amount of C.G.’s blood was discovered on
the carpet in W.’s room.
When C.G. was confronted by Jackie, he told Jackie that W. was in trouble at the
park. But, instead of going with Jackie to the park, C.G. decided to go home. When
Jackie got to the park, no one was there and C.G. never showed up. Together with his
appearance in the apartment, his blood in W.’s room, and W.’s ankle monitor data, C.G.’s
story about W. being in trouble at the park could be reasonably considered a way for C.G.
to get Jackie out of the apartment and distance himself from the apartment before W. was
discovered, especially since C.G. never showed up at the park after parting company with
Jackie.
It could also be reasonably inferred Jackie left the apartment about 1:00 p.m.
Jackie testified he walked from the apartment to the park—a walk that Smith timed to
take about 15 minutes. Jackie estimated he was at the park for about 45 minutes; he then
walked to the Quick & EZ (a seven-minute walk when Smith timed it) and made a
purchase for which a receipt was timestamped at 2:03 p.m. The store’s video
surveillance captured Jackie’s presence in the store at that time. For all of that to occur
by 2:03 p.m., Jackie had to have left the residence around 1:00 p.m. or shortly thereafter.
From this evidence it was also reasonable to infer no one accessed the locked apartment
until S. returned to the apartment, which was still locked, about 3:00 p.m. and found W.
24.
Beginning at 1:00 p.m. to about 1:08 p.m., C.G. sent multiple messages to W.’s
phone saying C.G. had been chased by gang members with knives and that the Norteños
were by W.’s apartment, to which W. never responded. C.G. told Smith he started
sending W. text messages right after they had been chased. Yet, C.G.’s story was
implausible given the timing of the text messages to W. According to C.G., he and W.
had walked to the park, smoked marijuana, walked back to the apartments, and were
chased by the men in the white Expedition all between the time S. left the house about
12:30 p.m. and when C.G. sent the text messages at 1:00 p.m. By itself, walking to and
from the park would have taken about a half hour. Beyond that, W.’s ankle monitor data
showed W. was within the 150-foot range of the apartment at all times after 12:00 noon,
indicating he never went to the park after his mother left the apartment.
Moreover, C.G.’s statement to Smith that he and W. were chased by men in a
white Expedition could not be corroborated by Smith’s investigation, and a neighbor who
was home said he never heard or saw anything unusual between the time he heard the
boys playing basketball and when emergency and police personnel responded to the
scene. Not only were these conflicts highly damaging to C.G.’s credibility, a reasonable
inference could be drawn from the totality of the evidence that C.G. sent the text
messages from 1:00 to 1:08 p.m. to W. to manufacture other suspects and create some
type of alibi for himself after he had been seen by Jackie. (See People v. Becker (1951)
106 Cal.App.2d 208, 219–220 [the defendant’s systematic preparation of sham evidence,
along with other evidence, supported reasonable inference the defendant committed the
murder].)
Coupled with C.G.’s presence at the apartment during the time window when the
murder took place, there was also strong evidence of C.G.’s motive to commit the murder
to steal W.’s marijuana. The evidence showed that W. was a marijuana dealer, and he
always kept his marijuana in a dark or peach-colored backpack. The day before the
murder, W. was seen carrying three to four ounces of marijuana in his backpack along
25.
with Xanax pills. When W.’s backpack was found in his room after his death the next
day, the backpack was empty and only marijuana residue remained. Meanwhile, C.G.
had been trying to obtain expensive belts from A.C. since the early morning hours on the
day of W.’s murder. Around 2:00 p.m. that afternoon, right after the murder, C.G.
offered for the first time to trade a large amount of marijuana for the belts. C.G. sent
A.C. a picture of a bag of marijuana, which he admitted sending during his testimony,
and that photograph showed background elements of C.G.’s apartment patio. Later that
night, after W.’s death, C.G. went to A.C.’s house to obtain the belts, but A.C. balked and
told C.G. to go home.
Then, a couple of days after the murder, B.L.’s friend Breeza purchased marijuana
from C.G. that smelled and looked exactly like W.’s marijuana—which was distinctive
both in color and odor. Crediting B.L.’s testimony, there was sufficient evidence for the
juvenile court to infer C.G. had W.’s marijuana after the murder; that he obtained it by
taking the marijuana from W.’s backpack after killing him; and when C.G. was unable to
use it to make a deal for the belts, he decided to sell it. That C.G. and W. were best
friends was something the juvenile court could consider in weighing the evidence, but it
did not undercut an inference C.G. was motivated to kill W. to obtain the means to get the
belts. (People v. Pensinger (1991) 52 Cal.3d 1210, 1238 [“the incomprehensibility of the
motive does not mean that the [factfinder] could not reasonably infer that the defendant
entertained and acted on it”].) Further, the juvenile court was entitled to discredit C.G.’s
testimony that he and W. stole marijuana from W.’s supplier a few days before the
murder, which W. and C.G. purportedly shared.
W. suffered five stab wounds—two in his neck and chest, and three fatal stab
wounds to his abdomen. An open pocketknife was found next to W. on his bed, which S.
identified as W.’s, but Smith saw no blood on it and Smith did not recall the results of the
forensic testing performed on the knife. Ultimately, the murder weapon was never
obtained by police. Nevertheless, C.G. admitted owning a knife; he testified he went
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back to his apartment to get it after talking to Jackie about going to the park. He also
testified he took that knife to his cousin’s house that afternoon because he thought he was
in danger, but inexplicably he left it there. That knife was never found among his things
when his bedroom was searched by police. This evidence supported a reasonable
inference C.G. dumped the knife at his cousin’s house after the murder because he knew
it tied him to W.’s stabbing.
Smith reported seeing a lot of blood in W.’s bedroom after W. was taken to the
hospital around 3:40 p.m. He said it was not splattered on the walls, but it seemed to
have pooled in places, and blood was found on many items, including in the bed, on the
floor, and on various items in the room. There were also handprints on the wall. Yet,
when Jackie saw C.G. in the apartment around 1:00 p.m., Jackie testified he did not
remember seeing any blood on C.G., but acknowledged he was not looking too closely at
his clothing. C.G. contends given the amount of blood at the scene, that Jackie did not
observe any blood on C.G. indicated he did not stab W. However, testimony from S. and
the first responding officer indicated that W. was moved from his bed to the floor so CPR
could be administered—four different people were in the room providing CPR (S., O.,
and then two police officers) before an unknown number of EMS personnel responded to
the bedroom, taking over the CPR efforts and transporting W. to the hospital. Together,
these facts permitted a reasonable inference that the blood tracked around W.’s bedroom
was most likely related to the life-saving attempts made by several people after the
stabbing and not from the commission of the crime itself.
C.G. argues People v. Morris (1988) 46 Cal.3d 1 (Morris), disapproved on another
ground by In re Sassounian (1995) 9 Cal.4th 535, 543, 545 and footnotes 5 and 6,
illustrates how the inferences that purportedly support the juvenile court’s determination,
such as those outlined above, are nothing more than speculation. In Morris, the victim
(Maxwell) was killed in a public bathhouse while wearing only socks and shoes.
(Morris, supra, at p. 20.) Someone who looked like the defendant later presented a credit
27.
card that had Maxwell’s friend’s name on it, but the card was not collected and the
defendant was not definitively identified. The defendant told a friend that he had been
“making money off ‘dates’ with homosexuals” and that he had killed one, although he
gave no reason for the killing except that “‘he had to kill one.’” (Id. at p. 11.) For
purposes of the robbery conviction and the robbery-murder special circumstance finding,
the court concluded there was nothing in the evidence from which the jury could infer the
defendant deprived the victim of personal property in his possession by force or fear—
there was no evidence from which to draw an inference that the taking occurred either
before or during the shooting, that the taking was from the person of the victim, or that
the taking was accomplished by force or fear. (Id. at p. 20.)
The People correctly point out there is little utility in comparing other cases to
evaluate the substantiality of evidence since each case turns on its own facts. (People v.
Thomas (1992) 2 Cal.4th 489, 516.) Morris presented a very different set of facts from
this case, and the court upheld the murder conviction against the defendant in that case.
Even viewing Morris as simply illustrative of the difference between drawing reasonable
inferences from evidence and mere speculation, as C.G. urges in his reply brief, it
changes nothing here. 5 The evidence from which reasonable inferences could have been
drawn to support the juvenile court’s determination are outlined above in detail—the
reasonable inferences that could be drawn from that evidence were not speculative. And,
a reasonable trier of fact could have concluded those inferences were the only reasonable
ones to draw—i.e., they proved beyond a reasonable doubt that C.G. murdered W.
C.G. contends the police could have investigated more thoroughly in several
regards, but that line of argument is irrelevant to a claim of insubstantial evidence. To
the extent those claims and theories could have cast doubt upon the prosecution’s case or
5 In his reply brief, C.G. maintains his citation to Morris in his opening brief was for the
limited purpose of defining a reasonable inference. C.G. does, however, draw extensive factual
comparisons between Morris and this case, which we discuss post.
28.
evidence, it was for the factfinder to assess and assign whatever weight or determination
of credibility it wished. We do not substitute our evaluation of the evidence for that of
the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)6
The juvenile court’s conclusion that C.G. murdered W. was supported by
substantial evidence.
C. Substantial Evidence of Premeditation and Deliberation
C.G. also contends there was no substantial evidence of premeditation and
deliberation, and the first degree murder finding is therefore unsupported and must be
reversed.
1. Applicable Legal Standard
An intentional killing “that is premeditated and deliberated is murder of the first
degree.” (People v. Cortez (1998) 18 Cal.4th 1223, 1232.) “‘An intentional killing is
premeditated and deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse.’” (People v. Pearson (2013) 56
Cal.4th 393, 443.) “The very definition of ‘premeditation’ encompasses the idea that a
defendant thought about or considered the act beforehand.” (Ibid.) “‘“‘[D]eliberate’
means ‘formed or arrived at or determined upon as a result of careful thought and
weighing of considerations for and against the proposed course of action.’ [Citation.]”
6 The factual statement in C.G.’s opening brief presents argument about how the facts
should be viewed and construed in favor of C.G., including matters of Jackie’s and S.’s
credibility and the purported shortcomings of law enforcement’s investigation. Factual
presentations that attempt to reargue on appeal those factual issues decided adversely at the trial
level are contrary to “established precepts of appellate review” and are “doomed to fail.”
(Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398–399 [explaining why rearguing facts
decided adversely to the appellant at the trial level is irrelevant to determining whether
substantial evidence exists to support the factfinder’s findings].) The opening brief also
references facts as collected in probation reports, but many of those facts, including prior
statements by Jackie, were never admitted as evidence or used for impeachment during the
jurisdictional hearing. To determine the substantiality of evidence, an appellate court does not
reweigh evidence or assess credibility on appeal, nor does it entertain “facts” not offered as
evidence to the factfinder. (People v. Zamudio, supra, 43 Cal.4th at p. 357.)
29.
[Citation.] “The process of premeditation and deliberation does not require any extended
period of time. ‘The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly .…’ [Citations.]” [Citation.]’” (People v. Houston
(2012) 54 Cal.4th 1186, 1216.)
“In People v. Anderson (1968) 70 Cal.2d 15, 26–27 [(Anderson)], [the Supreme]
[C]ourt reviewed earlier decisions and developed guidelines to aid reviewing courts in
assessing the sufficiency of evidence to sustain findings of premeditation and
deliberation. [Citation.] [The court] described three categories of evidence recurring in
those cases: planning, motive, and manner of killing.” (People v. Halvorsen (2007) 42
Cal.4th 379, 419–420.) Anderson explained that first degree murder convictions are
typically upheld when there is evidence of all three categories of evidence, or at least
extremely strong evidence of planning activity, or evidence of motive with either
evidence of planning activity or evidence that the manner of killing indicated a
preconceived design to kill. (Anderson, supra, at p. 27.) “[H]owever, ‘[u]nreflective
reliance on Anderson for a definition of premeditation is inappropriate.’” (People v.
Koontz, supra, 27 Cal.4th at p. 1081; accord, People v. Casares (2016) 62 Cal.4th 808,
824, disapproved on another ground by People v. Dalton (2019) 7 Cal.5th 166, 214.)
The California Supreme Court recently reiterated, “In the years since Anderson,
‘“we have emphasized that its guidelines are descriptive and neither normative nor
exhaustive, and … reviewing courts need not accord them any particular weight.”’
[Citation.] Anderson provides ‘a framework to aid in appellate review,’ but it does not
‘define the elements of first degree murder or alter the substantive law of murder in any
way.’” (People v. Morales (2020) 10 Cal.5th 76, 89, quoting People v. Rivera (2019) 7
Cal.5th 306, 324 & People v. Perez (1992) 2 Cal.4th 1117, 1125; accord, People v.
Casares, supra, 62 Cal.4th at p. 824; People v. Halvorsen, supra, 42 Cal.4th at p. 420.)
30.
Yet, the verdict may not stand if based only on “‘“fanciful theories and
unreasonable inferences [or] resort to imagination or suspicion.” [Citation.]’ [Citation.]
‘Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and
does not constitute proof.’” (People v. Anderson, supra, 70 Cal.2d at p. 24.)
2. Analysis
There was substantial evidence the killing was willful, deliberate and premediated.
There was ample evidence of motive. The evidence showed C.G. was up half the night
before the murder messaging with A.C. to get belts; they texted again at 9:00 a.m., and
A.C. offered two belts for $700. Within about two hours of that conversation, C.G.
skipped school to find his marijuana-dealing friend, W., who had product that could be
traded (or sold) for the belts C.G. wanted. By about 1:00 p.m., W. was stabbed and C.G.
was discovered in W.’s apartment. By 2:00 p.m., having misdirected Jackie to the park to
help W., and sending messages to W.’s phone to manufacture an alibi and some other
suspects for W.’s murder, C.G. started messaging with A.C. again for the belts. This
time, however, C.G. wanted to trade marijuana for the belts and included a picture of
marijuana in the messages. The two negotiated for nearly an hour and around 3:00 p.m.
settled on a pound of marijuana in trade for the belts. After being informed of W.’s death
that afternoon, and undergoing an interview with police around 7:00 p.m., C.G. again
started pursuing the belts by going over to A.C.’s house that night. A.C. decided he only
wanted money for the belts and reneged on the trade. A reasonable trier of fact could
conclude C.G. desired the belts before he got to W.’s apartment that day, strongly
suggesting he deliberated about killing W. to obtain the marijuana to acquire the belts at
some point either before or during his time with W.
The manner of the killing, in concert with the strong evidence of motive, also
supports a finding that the killing was a product of preexisting thought and reflection
rather than unconsidered or rash impulse. The fact W. was stabbed five times and that
the abdominal stab wounds were clustered together indicates the killing was intentional,
31.
but this manner of killing does not, by itself, demonstrate a preconceived design to kill.
(See People v. Alcala (1984) 36 Cal.3d 604, 626 [“Absent other evidence, a brutal
manner of killing is as consistent with a sudden, random ‘explosion’ of violence as with
calculated murder.”], abrogated by statute on another ground as recognized in People v.
Falsetta (1999) 21 Cal.4th 903, 911; People v. Nazeri (2010) 187 Cal.App.4th 1101,
1118 [Observing that, ironically, “[t]he more genteel the form of dispatch, the more
readily premeditation may be inferred. Vicious brutal knifings … tend to fall on the
opposite side of the spectrum from, say, the administration of arsenic in a guest’s tea.”].)
However, there was more about the manner of killing than its brutality and the
clear indication that death was the intended result. There was no evidence suggestive of a
struggle. S. testified the room was not torn up when she found W. Jackie was in the
apartment after S. left, but never heard anything like a fight or an argument. The medical
examiner found only one small defensive wound on W.’s left thumb. Together, this
evidence suggests the multiple stab wounds were not the product of a sudden, random
explosion of violence or heated argument, but of an intentional killing according to a
preconceived design to take the victim’s life in a particular way. (People v. Hawkins
(1995) 10 Cal.4th 920, 956 [sufficient evidence of premeditation and deliberation where
there was “little if any evidence of struggle … that might lend support to the hypothesis
that the murder occurred on impulse or in a rage”], abrogated on another ground in
People v. Lasko (2000) 23 Cal.4th 101, 110.)
There was some evidence of planning, albeit not strong evidence. The timeframe
of the killing, between negotiations over the belt, created an inference that C.G., at a
minimum, went to W. to obtain resources for the trade. There was also a reasonable basis
to infer that C.G. brought the murder weapon with him to W.’s apartment. The knife that
killed W. was not discovered at the scene—W.’s own pocketknife was out on the bed
next to him, but it did not have blood on it. C.G. admitted he had a knife and that he had
taken it to his cousin’s that afternoon and left it there. C.G. also had seen S. leave, and
32.
there was no evidence to show C.G. knew Jackie was still in the apartment after S. left.
The fact the murder occurred almost right after S. left, in the privacy of a back bedroom
of an apartment C.G. had reason to believe was empty, is indicative of some calculation
and reflection rather than rash unconsidered actions.
Taken together, this evidence was sufficiently strong to permit a trier of fact to
conclude beyond a reasonable doubt that C.G. committed the murder willfully and with
deliberation and premeditation
D. Robbery-murder Special Circumstance Finding
The juvenile court found true the special circumstance allegation that the murder
was committed during the course of a robbery under section 190, subdivision (a)(17)(A).
In his reply brief, C.G. focuses on other inferences the juvenile court could have drawn
from the evidence to argue there was insufficient evidence to support the robbery-murder
special circumstance finding. 7
To establish the truth of the robbery-murder special circumstance, the prosecution
had to prove “[t]he murder was committed while the defendant was engaged in … the
commission of, … [⁋] … [r]obbery in violation of Section 211 or 212.5.” (§ 190.2,
subd. (a)(17)(A).) Robbery is defined as “the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211.) Thus, there were two necessary
prerequisites: substantial evidence of the robbery, and substantial evidence the murder
was committed during the commission of the robbery. (Morris, supra, 46 Cal.3d at
p. 19.) The robbery must not “merely be incidental” to the commission of the murder.
(People v. Marshall (1997) 15 Cal.4th 1, 41.)
7 To the extent C.G. claimed there was insufficient evidence to support the robbery-murder
special circumstance allegation in his opening brief, it was limited to an assertion there was no
substantial evidence linking him to any crime at all.
33.
There was substantial evidence of both prerequisites here. There was evidence to
infer W. was in possession of a significant amount of marijuana on the day of the murder
and that C.G. took it at the time of the murder. Multiple witnesses, including C.G.,
testified W. was a marijuana dealer. Brian testified that a few days before the murder, he
took W. to get product from his marijuana supplier in Hanford. The day before the
murder, B.L. testified he saw about three to four ounces of marijuana in W.’s backpack
while they were riding in a car together. Just before 1:00 p.m. on the day of the murder,
S. saw W. outside wearing his peach-colored backpack in which W. was known to keep
his marijuana—suggesting the backpack was not empty because W. had not left it in his
room.
There was also strong evidence of C.G.’s driving motivation to steal W.’s
marijuana. From midnight to about 3:00 a.m. on the morning of the murder, C.G. was
messaging with A.C. about obtaining some expensive belts. The messaging continued at
9:00 a.m. when A.C. indicated he wanted $700 for the belts. About two hours later, C.G.
skipped school and sought out W. at his apartment. Two witnesses saw C.G. and W.
together right before the murder, including S. who saw them together when she left the
house between 12:30 and 12:45 p.m.
The evidence indicated the murder occurred around 1:00 p.m., and C.G. was seen
in the apartment around 1:00 p.m. by Jackie. By 2:00 p.m., C.G. was messaging A.C.
again about the belts, this time offering marijuana as a trade. C.G. sent A.C. a
photograph of marijuana in a bag, and they agreed on a pound of marijuana for the
belts—a deal that ultimately fell through. Meanwhile, W. was found in his bedroom, and
his backpack where he normally kept his marijuana was empty. B.L. testified his friend
Breeza purchased marijuana from C.G. a few days after the murder that was the
distinctive type of marijuana that W. sold. C.G. admitted he sold Breeza marijuana.
Taken together, a reasonable trier of fact could conclude from this evidence C.G.
intended to rob W. of his marijuana before or during the murder, took W.’s marijuana
34.
from his backpack, ultimately murdering W. during the commission of that robbery.
(People v. Carrington (2009) 47 Cal.4th 145, 187 [“‘[W]hen one kills another and takes
substantial property from the victim, it is ordinarily reasonable to presume the killing was
for purposes of robbery.’”].)
C.G. asserts Jackie never saw him with anything in his hands when Jackie found
C.G. inside the apartment around 1:00 p.m.; thus, C.G. maintains, that evidence militates
a conclusion C.G. never took W.’s marijuana. However, that did not eliminate the
possibility C.G. had marijuana somewhere on his person when Jackie saw him. The
evidence C.G. tried to trade marijuana for the belts right after the murder in combination
with W.’s empty backpack was circumstantial evidence from which it could be inferred
C.G. had taken W.’s marijuana. When C.G. was discovered selling the same type of
marijuana as W. always had a few days after the murder, that too was circumstantial
evidence from which to reasonably infer C.G. took the marijuana from W.’s backpack at
the time of the murder. Although no one actually witnessed C.G. take W.’s marijuana at
the time of the murder, there was substantial evidence from which the factfinder could
reasonably conclude C.G. did so.
C.G. argues there was evidence he and W. would steal drugs together from other
people, including from W.’s supplier a few days before the murder; thus, there was no
basis to infer the marijuana C.G. had after the murder was the marijuana from W.’s
backpack. The juvenile court, however, was not required to accept C.G.’s testimony that
he and W. stole marijuana from W.’s supplier—and it expressly did not do so. (People v.
Hamlin (2009) 170 Cal.App.4th 1412, 1463 [“‘A trier of fact may accept such witnesses
as he wishes and reject others .…’”].) Additionally, Brian testified he was the one who
helped W. obtain his marijuana supply, and had driven W. to his supplier just a couple of
days before the murder. Brian also testified C.G. purchased marijuana from W. on prior
occasions, which C.G. would have had no reason to do if he too were involved in selling
his own supply of marijuana, as C.G. claimed. The juvenile court was entitled to reject
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C.G.’s testimony and his counsel’s argument that C.G. had the same type of marijuana as
W. after the murder because they had shared the marijuana stolen from W.’s supplier.
(Id. at pp. 1463–1464 [“‘[T]he testimony of a witness which has been rejected by the trier
of fact cannot be credited on appeal unless, in view of the whole record, it is clear,
positive, and of such a nature that it cannot rationally be disbelieved.’”].)
We disagree with C.G.’s assertion the evidence supporting the robbery-murder
special circumstance finding is like that in Morris, where the court found lacking the
robbery and robbery-murder special circumstance evidence. Materially distinguishable
from this case, there was no evidence in Morris that robbery was a motive for the killing,
and there was no evidence anything of value had been taken from the victim at the time
of the murder, let alone by force or fear. (Morris, supra, 46 Cal.3d at p. 20.) A credit
card linked to the victim was presented to a sales associate by someone who only looked
like the defendant—the defendant was not actually identified as having the card. (Id. at
pp. 11 & 20.) Moreover, the credit card had not been used for the two-month period
between when the victim acquired it and when the victim was killed, so there was no
evidence to infer when the victim had it last, unlike here where W. was seen with
marijuana and pills the day before the murder. Without any evidence the defendant
intended to rob the victim in Morris, there could have been any number of ways to
speculate about how and why the defendant may have ended up with the card. (Id. at
pp. 11 & 20.) Here, also unlike Morris, C.G. was connected to W.’s marijuana after the
murder by B.L.’s testimony and his own admission he sold marijuana to Breeza; there
was physical evidence tying C.G. to the crime scene; and there was circumstantial
evidence of C.G.’s strong motive to steal W.’s marijuana to make a deal with A.C.
In sum, there was substantial evidence to support the juvenile court’s finding the
robbery-murder special circumstance allegation was true.
36.
E. Voluntary Intoxication
In his reply brief, C.G. argues his testimony that he was under the influence of
Xanax and marijuana undercuts the specific intent necessary to commit first degree
murder or formulate the specific intent to steal prior to or during the murder for purposes
of the robbery-murder special circumstance finding. Not only is this argument forfeited
by C.G.’s failure to raise it in the opening brief, it is also without merit. 8
“Evidence of voluntary intoxication is admissible solely on the issue of whether or
not the defendant formed a required specific intent, or, when charged with murder,
whether the defendant premediated, deliberated, or harbored express malice
aforethought.” (§ 29.4, subd. (b).) Aside from the first degree murder allegation here,
robbery is also a specific intent crime to which the defense of voluntary intoxication may
apply. (People v. Page (1980) 104 Cal.App.3d 569, 575.) A voluntary intoxication
defense requires evidence of the defendant’s voluntary intoxication and evidence the
intoxication affected the defendant’s actual formation of specific intent. (People v.
Williams (1997) 16 Cal.4th 635, 677.)
The juvenile court was not obligated to accept C.G.’s testimony that he ingested
Xanax and marijuana when he was with W. Moreover, other evidence supported a
reasonable inference that even if C.G. had ingested those substances around the time of
the murder and robbery, he did not lack the ability to formulate the specific intent
necessary to commit those crimes. The evidence demonstrated C.G. was capable of
coming up with an on-the-spot story about W. being in trouble at the park when C.G. was
confronted by Jackie in the apartment; he was able to send messages to W.’s phone in an
8 The issue of C.G.’s purported intoxication was mentioned in the opening brief only in
relationship to C.G.’s argument his counsel should have called an expert to explain the effects of
Xanax. There was no argument related to a voluntary intoxication defense. “‘[P]oints raised in
the reply brief for the first time will not be considered, unless good reason is shown for failure to
present them before.’” (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335,
fn. 8.)
37.
attempt to create an alibi and/or other suspects; he continued to negotiate a purchase of
the belts with A.C.; he managed to get a ride to his cousin’s house; and he remembered to
bring his knife and leave it there. A trier of fact could reasonably conclude any voluntary
intoxication did not negate C.G.’s ability to formulate the specific intent necessary to
steal W.’s property and murder W. with premeditation and deliberation. (See People v.
Mendoza (1998) 18 Cal.4th 1114, 1134 [evidence of voluntary intoxication, even where
legally relevant, may be factually unconvincing; the factfinder is entitled to reject a
voluntary intoxication claim].)
II. Brady Violation Claim
C.G. claims there was evidence of a bloody footprint located in W.’s bedroom,
which was cut out and removed from the scene by law enforcement personnel, that was
never released to the defense in time to be used at trial. C.G. asserts this timely
disclosure failure violated his constitutional rights pursuant to Brady, supra, 373 U.S. 83.
The Fourteenth Amendment’s due process clause creates a duty upon the
prosecution to disclose evidence to a criminal defendant when the evidence is both
favorable to the defendant and material as to guilt or punishment. In Brady, the United
States Supreme Court held that “the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
(Brady, supra, 373 U.S. at p. 87.)
“The [United States Supreme C]ourt has since held that the duty to disclose such
evidence exists even though there has been no request by the accused [citation], that the
duty encompasses impeachment evidence as well as exculpatory evidence [citation], and
that the duty extends even to evidence known only to police investigators and not to the
prosecutor [citation]. Such evidence is material ‘“if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
been different.”’ [Citation.] In order to comply with Brady, therefore, ‘the individual
38.
prosecutor has a duty to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.’” (People v. Salazar (2005) 35
Cal.4th 1031, 1042.)
As such, to establish a Brady violation, “the defendant must prove that the
prosecution suppressed evidence, the evidence was favorable to the defense, and the
evidence was material.” (United States v. Erickson (10th Cir. 2009) 561 F.3d 1150, 1163
(Erickson).) The Brady disclosure requirement applies to juvenile delinquency
proceedings as well as criminal proceedings. (J.E. v. Superior Court (2014) 223
Cal.App.4th 1329, 1335, citing Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 806, fn. 5.)
We review a Brady claim de novo but give great weight to the trial court’s factual
findings when supported by substantial evidence. (Erickson, supra, at p. 1163.)
To support his Brady claim, C.G. cites a letter submitted to the juvenile court after
the contested jurisdictional hearing by someone named Isabel V., who apparently
observed the trial. The letter comments that the prosecution “failed to notify and release
the ‘Bloody boot print’ discovered in the bedroom of [W.] They failed to release this
information to the defense on time for the defense to use.”
Isabel’s posthearing letter does not establish evidence was withheld by the
prosecution. It is not even clear what Isabel’s letter is based upon, such as a photograph,
a document, or some other evidence admitted at trial. When asked if there were shoe or
bootprints discovered in W.’s bedroom, Smith testified he did not remember any. The
criminalist who collected evidence from the bedroom did not testify about any shoe or
bootprints, and the record on appeal contains no photograph of such a bootprint. The
letter’s reference to a bootprint collected by police is entirely unsubstantiated.
Notably, defense counsel never objected to any evidence as undisclosed or having
been disclosed untimely. C.G. points to no evidence (a document, a photograph, a police
report, a lab report, etc.) that the prosecution actually failed to disclose or disclosed
untimely. “A Brady claim fails if the existence of favorable evidence is merely
39.
suspected.” (Erickson, supra, 561 F.3d at p. 1163; accord, United States v. Warren (7th
Cir. 2006) 454 F.3d 752, 759 [“[The defendant] is simply unable to point to any specific
evidence, exculpatory or otherwise, withheld by the government. Without that, his Brady
claim fails to get off the ground.”].) C.G.’s citation to Isabel’s letter, which, in turn,
references a bootprint, is insufficient to support a Brady claim.
Beyond this, there were four people in W.’s bedroom before EMS ever arrived—
S., W.’s brother O., and two responding officers—who all assisted with CPR. Then, an
unknown number of EMS personnel took over CPR at the scene and transported W. to
the hospital. The crime scene was necessarily disturbed before it was documented by
Smith or crime scene investigators, so the existence of a bootprint—even assuming there
was such a print—can hardly be tied solely to an assailant. Reference to a bootprint by
someone who observed the jurisdictional hearing is insufficient to establish the existence
of such evidence or its materiality. There is no evidence of a Brady violation.
III. Ineffective Assistance of Counsel Claims
C.G. contends that his counsel was ineffective in failing to properly investigate the
case and in failing to retain and call an expert witness to testify about various issues. The
due process right to effective assistance of counsel extends to minors in juvenile
proceedings. (See, e.g., Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 857.)
To establish ineffective assistance of counsel, the appellant must first demonstrate
that counsel’s performance was deficient—that it “fell below an objective standard of
reasonableness” under “prevailing professional norms,” and that it caused prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); accord, People v.
Ledesma (1987) 43 Cal.3d 171, 215.)
Appellate courts “must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case” (Strickland, supra, 466 U.S. at p. 690), applying a
“context-dependent consideration of the challenged conduct as seen ‘from counsel’s
perspective at the time [of that conduct.]’” (Wiggins v. Smith (2003) 539 U.S. 510, 523.)
40.
“[A] reviewing court defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable professional assistance.”
(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
As explained in Mai, “[i]t is particularly difficult to prevail on an appellate claim
of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked for a reason and failed
to provide one, or (3) there simply could be no satisfactory explanation.” (Mai, supra, 57
Cal.4th at p. 1009.)
A. Failure to Investigate Claims
C.G. asserts a variety of failures to investigate by his counsel: (1) the failure to
obtain the clothing C.G. was wearing at the time of the stabbing and have it tested for
blood or DNA; (2) the failure to investigate Alex and the marijuana that W. and C.G.
purportedly stole from him a few days before the murder; (3) the failure to investigate
Jackie, including Jackie’s criminal background; (4) the failure to investigate or call the
men C.G. identified who were purportedly chasing him and W. in the white Expedition
on the morning of the murder; (5) the failure to investigate the threats made against C.G.;
(6) the failure to investigate the belt on which C.G. testified he cut his hand while carving
a new notch in it; (7) the failure to investigate the photograph of marijuana offered at
trial; and (8) the failure to investigate whether C.G. jumped into a neighbor’s patio to
hide after being chased by the men in the white Expedition.
The People dispute there was any showing of deficient performance by defense
counsel, but even assuming there was, C.G. has not established any presumed failure was
prejudicial.
1. No Failure to Investigate Established
Other than his unsupported assertions, C.G. offers no evidence his counsel actually
failed to investigate any of the matters C.G. articulates. There is no declaration or
41.
testimony from counsel about what was or was not investigated. Moreover, there is no
basis to infer the lack of evidence presented on these issues indicates the underlying
investigative efforts were inadequate. (See People v. Williams (1988) 44 Cal.3d 883, 933
[basing assertion of counsel’s failure to investigate on the record’s lack of investigative
activity “establishes neither an actual failure to investigate nor a basis for concluding that
evidence supportive … was not offered as a result of counsel’s failure to discover it”].)
On this record, we have no basis to conclude the matters identified by C.G. were
inadequately investigated by his counsel.
2. The Record Does Not Negate the Possibility of a Legitimate
Tactical Purpose and No Prejudice is Established
Even assuming trial counsel did not investigate any of the matters C.G. articulates,
the record does not negate the possibility of legitimate tactical reasons why counsel might
have elected not to do so. (See People v. Arredondo (2019) 8 Cal.5th 694, 711 [reversal
for ineffective assistance of counsel warranted on direct appeal only if there was no
rational tactical purpose for the challenged act or omission, counsel was asked and failed
to provide a reason, or there could be no satisfactory explanation].) We consider the
various investigative issues C.G. identifies.
Forensic Evidence and Blood Spatter
C.G. asserts his counsel failed to obtain and perform any testing on the clothing
and shoes C.G. was wearing on the day of the murder. C.G.’s contention is premised on
the notion that testing would have revealed no blood on these clothing items and, thus,
would have been evidence C.G. was not the assailant.
As the People point out, C.G. was not arrested until a year after the murder, so
even if his counsel could have tested the clothing C.G. identified he had been wearing on
the day of the murder, the probative value of any testing would have been miniscule, at
best. Assuming no blood was found on the clothing, this would hardly be persuasively
exculpatory given the passage of time. Moreover, the clothing was not collected by
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police investigators. Whatever clothing could have been produced for testing would have
been selected by C.G. based only on his assertion those were the clothes he was wearing.
The decision to forego testing C.G.’s clothing under these circumstances could
have been a reasonable decision about resource allocation given the unlikelihood of
discovering probative evidence. (See In re Thomas (2006) 37 Cal.4th 1249, 1264, fn. 4
[pointing out decision to curtail investigation in an area based on improbability of finding
evidence is not necessarily ineffective assistance; “Courts must be careful not to second-
guess resource allocation; it is for counsel to decide what leads are or are not worth
exploring.”].) For the same reason, C.G. has not established he suffered any prejudice as
a result of not testing his clothing for evidence.
Purported Burglary of Alex’s Apartment
C.G. testified W. had been upset with his supplier, Alex, and W. wanted C.G. to
help him steal marijuana from Alex. According to C.G., a few days before the murder he
and W. went to Hanford, broke into Alex’s apartment and stole marijuana. Afterwards,
C.G. testified, Alex threatened C.G. and W. The juvenile court rejected C.G.’s testimony
that he and W. stole marijuana from Alex days before the murder. On appeal, C.G.
asserts that had his counsel investigated Alex and the burglary, there would have been
evidence that corroborated C.G.’s testimony about how he had the same marijuana as W.
after the murder.
Assuming Alex could have been located and would have been willing to testify
about possessing marijuana that was purportedly stolen from his apartment around
May 10, 2017, his testimony would not have established that W. and C.G. shared what
they took, or that C.G. had not taken the marijuana from W.’s backpack, which was
found empty after the murder. Defense counsel could have reasonably elected not to
expend resources on this avenue of investigation given the extremely limited probative
value of any evidence potentially discovered. (Rompilla v. Beard (2005) 545 U.S. 374,
383 [duty to investigate “does not force defense lawyers to scour the globe on the off
43.
chance something will turn up; reasonably diligent counsel may draw a line when they
have good reason to think further investigation would be a waste”].) Moreover, C.G. has
not established any prejudice since this evidence does not create a reasonable probability
of a more favorable outcome. (Strickland, supra, 466 U.S. at pp. 692–693; People v.
Ledesma, supra, 43 Cal.3d at pp. 217–218.)
Jackie as a Potential Third Party Culprit
C.G. maintains his defense counsel never investigated Jackie as a possible third
party culprit even though he was in the apartment around the time of the murder. C.G.
argues inconsistencies in Jackie’s testimony indicated he was not being forthright.
Specifically, C.G. notes Jackie testified he did not wear glasses, but then Jackie testified
that, right before he went to the park, he “went back to the room, got [his] shades and
[his] glasses, [his] glasses, [his] hat, and took off down to the park.”
As the People contend, defense counsel may have reasonably concluded he would
lose credibility with the court if he asserted in closing argument that Jackie’s testimony
about wearing glasses was inconsistent and suggested Jackie was culpable for the crime,
especially in the absence of any evidence actually linking Jackie to the crime. Jackie’s
testimony about going back to his room for “glasses” may have been an effort to
articulate what he meant by “shades.” This purported inconsistency had no meaningful
bearing on Jackie’s credibility or whether he had anything to do with the murder.
C.G. also asserts that Jackie showered close to the murder from which it could be
inferred he was showering off blood, Jackie did not work so he had motive to commit the
murder (ostensibly for money from the marijuana), and documents outside the record
indicate someone with Jackie’s name has a prior 1996 conviction under section 273a,
subdivision (b), for causing willful harm or injury to a child. C.G. contends these were
all things that should have been investigated prior to the jurisdictional hearing and could
have been used to raise reasonable doubt about C.G.’s guilt.
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The ability to investigate Jackie’s room and shower for blood more than a year
after the murder, when C.G. was arrested, is highly questionable at best. And, even if it
were somehow possible to perform such testing, defense counsel could have reasonably
determined the likelihood of obtaining reliable and admissible evidence given the passage
of time was so small as to not warrant the resources. The mere fact that Jackie may have
had an opportunity or a motive to commit the crime would not likely have been
admissible as evidence of third party culpability in the absence of other evidence linking
him to the crime. (People v. Prince (2007) 40 Cal.4th 1179, 1242 [evidence of mere
motive or opportunity to commit the crime in another person, without more, is
insufficient to raise reasonable doubt about a defendant’s guilt—there must be evidence
linking the third person to the actual perpetration of the crime].) As such, counsel could
have concluded any investigation about Jackie, in the absence of any indication he was
involved in the murder, was not likely to bear admissible or probative evidence.
Persons from the White Expedition
C.G. testified he recognized the men from the white Expedition who chased him
and W. shortly before W. was killed. He claimed not to remember whether he explicitly
told Smith during an interview these were not the men who chased him. On appeal, C.G.
complains that defense counsel did not investigate these men or call either of them as
witnesses to testify about whether there were any issues between them and W.
There is no evidence these witnesses were identified to counsel, that counsel
unreasonably failed to investigate, or that these men would have been willing to testify
beneficially to C.G. In fact, C.G.’s cross-examination suggested he had denied to Smith
these men were involved in the chase. Defense counsel may have reasonably concluded
further investigation into these men would be fruitless. Defense counsel’s decision not to
call these men as witnesses could have been a matter of legitimate trial tactics, up to and
including that these witnesses might not have offered testimony favorable to C.G.
(People v. Carrasco (2014) 59 Cal.4th 924, 989.)
45.
C.G.’s Mother’s Report of Threats Against C.G.
C.G. testified during cross-examination that he did not tell his mother’s former
boyfriend that he had been threatened and chased or ask him to call the police. C.G. also
testified he took a knife with him to his cousin’s house because he thought he was in
danger. C.G. testified on redirect examination that he had never reported to the police
any of the times he had been jumped by people with guns and knives or got into fights.
On appeal, C.G. asserts, his mother had made past reports about threats against C.G.,
defense counsel was informed of these reported threats, but he never investigated them.
There is no evidence defense counsel had information about reported threats
against C.G. that counsel failed to investigate—this is merely C.G.’s unsupported
assertion. In any event, it is unclear how this would have helped the defense case. The
central question the prosecutor posed about reporting to the police related to C.G. being
chased by men in the white Expedition on the day of the murder and whether C.G.
authentically believed he was in danger at that time. The core credibility challenge to
C.G. with respect to that incident, however, was not centered on his failure to report it,
but on Smith’s inability to corroborate any of it upon investigation and the implausibility
of the timing. Whether C.G.’s mother reported different threats against C.G. on different
occasions did not materially bear on the credibility of C.G.’s story he was chased on this
particular occasion. On this record, there is no basis to conclude defense counsel’s
failure to offer any evidence of reported threats against C.G. establishes a failure to
investigate. Moreover, given the attenuated value of such evidence, there is no
reasonable probability this evidence would have produced a more favorable outcome for
C.G. at the hearing, thus no prejudice has been shown.
Failure to Investigate the Belt
C.G. testified that a couple of days before the murder, he used a knife from W.’s
kitchen to carve an extra hole in his belt so it would fit properly. C.G. argues his counsel
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never investigated or obtained this belt, despite that it would have substantiated C.G.’s
testimony about why his blood was found in W.’s room.
The belt, like the clothing C.G. was purportedly wearing on the day of the murder,
would have been produced by C.G., as it was not something the police collected during
their search of C.G.’s bedroom. Even assuming defense counsel did not investigate or
take measures to obtain the belt, counsel may have reasonably determined that presenting
a belt that had a hole hand-carved in it would not establish when or where that hole was
created, and it would do absolutely nothing to substantiate or corroborate C.G.’s story.
On this record, there is no evidence of deficient performance nor, assuming a deficient
performance, any resulting prejudice.
Digital Photo of the Marijuana
C.G. asserts his counsel did not object to the photograph of the marijuana sent
from C.G. to A.C., nor was there any investigation by defense counsel about the time and
date the photograph was taken (as opposed to when it was sent). C.G. claims “[i]t is
understood these photos were stock photos from an internet search.” C.G. contends an
investigation of the photographs could have revealed they were taken on a different time
and date.
Smith testified he extracted the data from C.G.’s cell phones. Based on that
extraction data, Smith testified that at 2:19 p.m. on the day of the murder, C.G.’s phone
sent a picture to A.C.’s phone of a bag of marijuana. That photograph was admitted as
People’s exhibit No. 13. Smith testified that photograph had background elements that
were very similar to the backyard patio area of C.G.’s residence. C.G. admitted he sent
A.C. the photograph of marijuana identified as People’s exhibit No. 13. A.C. testified
C.G. sent him a photograph of marijuana, but testified the picture of the marijuana in
People’s exhibit No. 13 was not the one he received from C.G.
C.G. cites no evidence the photograph admitted as People’s exhibit No. 13 was not
properly authenticated. Defense counsel objected to admission of the photograph in
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People’s exhibit No. 13 on the ground of hearsay, but there was no foundational
challenge.
As far as defense counsel’s purported failure to investigate the phone extraction
data obtained by police, there is no evidence what defense counsel did or did not do.
C.G. fails to point to evidence showing the marijuana photograph was “stock,” ostensibly
meaning a photograph C.G. did not create himself. Moreover, it is entirely unclear what
further investigation of the photograph would have revealed, or what reason there was to
believe the data obtained from the phone extraction did not accurately show the creation
date of the photo. Counsel may have reasonably concluded there was no legitimate
reason to investigate the phone data extraction process, the time or date stamp on that
photograph, or a foundational basis to object to the photograph when offered at the
hearing.
C.G.’s Back Patio
C.G. argues he had taken Xanax and smoked marijuana before the time of the
murder, so defense counsel should have investigated whether C.G. jumped into the wrong
back patio when he was being chased by the men in the white Expedition.
The record reveals nothing about what counsel did or did not do with respect to
investigating this or any other issue. There could be any number of legitimate reasons
why defense counsel offered no evidence on this issue, including that canvassing all of
the neighbors more than a year after the murder bore no fruitful evidence that C.G.
jumped onto their patio on May 10, 2017. Even assuming there was such evidence that
counsel unreasonably failed to obtain, its probative value was extremely limited given the
other extensive problems with C.G.’s story of being chased by men in a white
Expedition, including that the timing of that chase was extremely implausible, it could
not be corroborated upon police investigation, and it was in conflict with W.’s ankle
monitor data. No deficient performance by counsel is established, nor has prejudice been
demonstrated.
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B. Failure to Call An Expert Witness
C.G. argues his counsel rendered ineffective assistance by failing to obtain an
expert witness to offer testimony about several matters related to the blood evidence at
the scene and the effects of the Xanax C.G. claimed he ingested around the time of the
murder.
There is no evidence defense counsel actually failed to seek an expert witness on
these issues—there is no testimony or other evidence that shows what counsel did or did
not do in preparing the case. Counsel may very well have consulted with an expert—
C.G. is merely speculating that counsel did not because no expert was called to testify.
(See People v. Williams, supra, 44 Cal.3d at p. 933 [basing assertion of counsel’s failure
to investigate on the record’s lack of investigative activity “establishes neither an actual
failure to investigate nor a basis for concluding that evidence supportive … was not
offered as a result of counsel’s failure to discover it”].)
Without evidence that counsel unreasonably failed to seek out an expert, the
decision not to call an expert is generally a matter of trial tactics. (People v. Bolin (1998)
18 Cal.4th 297, 334 [“Whether to call certain witnesses is [generally] a matter of trial
tactics, unless the decision results from unreasonable failure to investigate.”].) One
possible and reasonable explanation for counsel’s failure to call an expert to testify could
have been counsel’s inability to find an expert who could provide favorable testimony
regarding the blood evidence or the Xanax.
As to the Xanax and its effects, there was no evidence outside C.G.’s own
testimony about the amount of Xanax he actually ingested for an expert to offer opinions
about. Moreover, counsel may have considered focusing on the Xanax use through
49.
expert testimony to be counterproductive to the defense case, particularly considering
concessions that might have been obtained from any expert on cross-examination.9
Finally, even assuming for the sake of argument that counsel’s conduct fell below
professional standards in not retaining and calling an expert witness on these topics, C.G.
does not show what testimony an expert would have offered. To affirmatively
demonstrate that counsel rendered ineffective assistance by failing to call an expert
witness, defendant must identify “‘exculpatory or impeachment evidence that counsel
could have revealed by … [examination of defense experts] … that would have produced
a more favorable result at trial. [¶] … Such claims must be supported by declarations or
other proffered testimony establishing both the substance of the omitted evidence and its
likelihood for exonerating the accused.’” (People v. Bolin, supra, 18 Cal.4th at p. 334.)
Under these circumstances, C.G. has not established defense counsel was ineffective or
that any assumed deficient performance in failing to retain and call an expert was
prejudicial.
DISPOSITION
The juvenile court’s findings and dispositional order are affirmed.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
DeSANTOS, J.
9 Xanax-use testimony by an expert could have risked cementing or further underpinning
the prosecution’s theory of motive—that C.G. senselessly killed his best friend for marijuana to
buy a belt.
50.