People v. Martinez CA5 ( 2023 )

Filed 3/20/23 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079274
Plaintiff and Respondent,
(Super. Ct. No. 16CMS2699)
v.
SERGIO MATHEW MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Louis F.
Bissig* and Donna L. Tarter, Judges.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A.
Hokans, Timothy L. O’Hair, Henry J. Valle, and Dina Petrushenko, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
* Retired judge of the Kings Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Sergio Mathew Martinez, who was a minor at the time of the charged
offenses, was tried in adult criminal court for the first degree murder of Sergio Cabral
(§ 187, count 1) with related special circumstance allegations (§ 190.2, subd. (a)(21),
(22)) and gang and firearm enhancements (§ 186.22, subd. (b); §§ 12022.5, subd. (a),
12022.53, subds. (b), (c), (d)). He was also charged with three counts of attempted,
deliberate, and premeditated murder (§§ 664, 187, subd. (a); counts 2, 3, and 4) with
related firearm (§ 12022.53, subds. (b), (c)) and gang allegations (§ 186.22, subd. (b)).
(Further undesignated statutory references are to the Penal Code.) At the close of the
People’s case-in-chief, the court granted a defense motion for a directed verdict on counts
2 and 3.
The jury convicted defendant of first degree murder (count 1) and found the
related enhancements and special circumstance allegations true. It acquitted defendant of
count 4. Defendant moved for a new trial based on alleged juror misconduct. The court
denied the motion. Defendant filed a motion for reconsideration of his new trial motion
based on juror misconduct, attaching a juror affidavit. The court denied the motion and
proceeded to sentencing.
On appeal, defendant raises multiple issues: (1) his right to a public trial was
violated when his sister was excluded from the trial; (2) there was prejudicial juror
misconduct; (3) the court erred in taking judicial notice of a witness’s statements from the
preliminary hearing; (4) the court improperly denied defendant’s motion for continuance;
(5) the court prejudicially erred in admitting a rap video into evidence; (6) the jury was
not properly instructed with regard to considering defendant’s youth in assessing the
application of self-defense; (7) the prosecutor committed prejudicial misconduct; (8) the
cumulative effect of the errors was prejudicial; (9) the special circumstances are
unconstitutional; and (10) the matter should be remanded for the trial court to exercise its
discretion regarding whether to impose a lesser firearm enhancement. In supplemental
2.
briefing, defendant asserts the gang enhancement and gang special circumstance should
be vacated pursuant to Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill
333). He further contends, at resentencing, changes to section 1385 resulting from the
enactment of Senate Bill No. 81 (2021–2022) (Senate Bill 81) should apply. Finally, he
argues he is entitled to a conditional reversal and remand for the juvenile court to conduct
a new transfer hearing based on the modifications to the law enacted by the recent
passage of Assembly Bill No. 2361 (2021–2022 Reg. Sess.) (Assembly Bill 2361). The
People disagree with all of defendant’s contentions, except they agree a conditional
reversal and remand is required based on the passage of Assembly Bill 2361.
We reverse the gang enhancement and gang-murder special circumstance,
conditionally reverse the remainder of the judgment, and remand to the juvenile court for
a new transfer hearing and for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with the murder of Sergio Cabral, multiple counts of
attempted murder, and multiple enhancements and special circumstances after he
admitted to committing a shooting that resulted in Cabral’s death.
Procedural history
Though defendant was a minor, the prosecutor initially filed defendant’s case
directly in adult criminal court. After Proposition 57 passed, the matter was transferred
back to juvenile court and a transfer hearing was held. At the transfer hearing, the court
found “the overall circumstances support a transfer of this case to adult court.”
Accordingly, defendant was transferred from juvenile court to adult criminal court
where he was charged with the first degree murder of Cabral (§ 187; count 1)1 together
with related special circumstance allegations (§ 190.2, subd. (a)(21), (22)) and gang and
firearm enhancements (§§ 186.22, subd. (b), 12022.5, subd. (a), 12022.53, subds. (b), (c),
1 There were separate allegations that that the murder was premeditated and that the
murder was committed by means of discharging a firearm from a motor vehicle. (§ 189.)
3.
(d)). He was also charged with three counts of attempted, deliberate, and premeditated
murder (§ 664, 187, subd. (a); counts 2 (related to Manuel Cabral), 3 (related to Miguel
Rosales), and 4 (related to Ramon Perez) with related firearm (§ 12022.53, subds. (b),
(c)) and gang allegations (§ 186.22, subd. (b)).
Prosecution evidence
Shooting and death of Sergio Cabral
On August 20, 2016, Sergio Cabral was shot at an intersection in Avenal; he died
as a result of the gunshot wounds. Ramon Perez was with Cabral when Cabral was shot.
At the time, Perez and Cabral were walking in the intersection of Corcoran and Lassen;
Miguel Rosales and Cabral’s brother Manuel Cabral (Manuel) were walking with them
and were about “two car lengths” away.
According to Perez, it was a normal day, “[n]othing out of the ordinary.” They
were walking “from the store”; at some point, they thought they saw someone they knew
in a gray car, but they were mistaken. As they approached the intersection, a car pulled
up at the same time. Perez and Cabral did not pay attention to the car, though Perez
testified he thought it was the car they had seen earlier.
Perez and Cabral crossed the intersection and stepped up on the curb as the car
stopped at a stop sign at the four-way stop. Perez and Cabral “were kind of towards the
back end of the car” and “there was no interaction between nobody.” Perez could not see
in the car at all.
“[S]hooting started coming from the car.” Perez and Cabral “took off.” Cabral
“staggered a little behind,” then Perez saw Cabral fall. Perez did not see Cabral get hit;
but he “just knew.” Perez “took off … across the street …running.” He “wanted to go
get help and then come back.”
Perez testified the shooter was shooting at him and Cabral, not the whole group as
they were never in the same spot at one time. Rather, the other two “were so far ahead,”
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a “good distance” away; it was “mostly just [Perez] and [Cabral].” Perez felt the first
shot was meant for him because he “was right there.”
Perez never heard Cabral say anything to anyone in the car and he did not see
Cabral make a gesture toward anybody in the car. He also did not see Cabral with any
type of weapon or reaching for one. Perez denied doing anything to threaten anyone in
the car.
G.M. testified Cabral was her boyfriend at the time he was shot. That day, G.M.
was in her house talking to Cabral on the phone when G.M. heard gunshots in her
window.2 The phone was silent. A few seconds later, G.M. “heard someone scream that
they shot him.” G.M. said, “hello”; Cabral did not respond. G.M. ran outside. She saw
Cabral face down on the ground. She approached him and tried to talk to him; he did not
respond. G.M. turned Cabral’s body over and his eyes were closed; one was really
swollen, and he had some blood on his nose. G.M. put pressure on the side of Cabral’s
head where he was bleeding. She did not see a gun on or near his body.
G.M. testified Cabral did not seem angry when she was speaking to him on the
phone. They were having a normal conversation; G.M. asked Cabral where he was going
because they were supposed to meet up. She testified Cabral had an “A” tattoo on the
back of his left hand, a “V” on one shin, and an “L” on the other shin. He also had an
“A” tattooed on the back of his ear. The prosecution’s gang expert, Officer Leopoldo
Segura, testified the letters “AVL” stand for “Avenal Varrio Lomas,” which is a Norteño
criminal subset in Avenal. He explained Cabral was identified by law enforcement as a
criminal street gang member.
A.R. heard the shooting; she had just walked into her mother’s house on Corcoran.
A.R. heard approximately three gunshots, a pause for a few seconds, and then
approximately two more gunshots. A.R. looked outside the window and saw a gray car
2 Notably, Perez testified Cabral did not take or make any phone calls at the intersection.
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driving off “really fast.” The prosecutor presented A.R. with a photograph of a car that
A.R. testified was the exact style and color of the car she saw driving away.
S.B. also heard “quite a few” gunshots and then went outside. When S.B. got
outside, she saw a man lying on his back and people screaming. The man was choking
on his blood and struggling to breathe. S.B. rolled him onto his side to try to prevent him
from choking on his blood; she did not know the man.
The pathologist who conducted an autopsy of Cabral’s body observed five bullet
holes, including an entrance wound through Cabral’s ear and an exit wound through his
forehead, an entrance wound a little below Cabral’s armpit and the related exit wound,
and an entrance gunshot wound on Cabral’s right lower back with no exit wound; the
slug was recovered from Cabral’s pelvis. The pathologist testified, even though three
bullets hit Cabral, the cause of Cabral’s death was the single gunshot wound to the head.
Christian Martinez’s Testimony and Previous Statements
Christian Martinez (Christian), defendant’s brother, testified he and his other
brother (Zachary) were in the car with defendant on the day of the shooting. Christian
was in the backseat and Zachary was driving. About 20 to 30 minutes before the
shooting, they pulled up at a stop sign in front of a liquor store. A group of four or five
Northerners were coming out of the liquor store; they were “right next to the car,” “steps
away.” The group included Manuel and Cabral.
The Northerners were “throwing up” gang signs at defendant and were “‘talking
shit to him’”; they were surrounding the car on defendant’s side. Cabral was “the main
one that started everything,” “[h]e was standing in front of everybody.” “One of the
Northerners threw up a gang sign that was AVL,” which is a known Norteño gang in
Avenal. Christian testified he saw one of the Northerners lift up his shirt, symbolizing he
had a gun or knife. Christian saw a “white guy with curly hair” flash a chrome gun, but
he did not pull it out. The interaction lasted approximately two to three minutes.
Christian believed the interaction went on for that long because the Northerners did not
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like defendant. Defendant did not respond; “he was just laughing.” Christian thought
defendant “was pretty upset” and that he “felt threatened when they told him stuff,” but
no one actually threatened defendant.
According to Christian, they ignored the Northerners and left to fill gas. Then,
they “went for a little cruise around Avenal” and spotted the group of Northerners again
walking across the street. Christian testified, as their car stopped at an intersection, the
group “literally just surrounded the car. They … didn’t take the crosswalk or anything,
they just came towards us.” Manuel “was the main one” saying things, mostly to
defendant, and he was “the first guy that came up … throwing up his gang signs.” There
was another individual next to Manuel, and then Cabral and another male were towards
the back of the car. When Manuel was finished, he went to the back. The group was
“throwing up [gang signs for] AVL” with their hands. Christian did not see any of the
individuals touch or try to hurt defendant.
At some point, Christian heard multiple shots fired; he ducked because he thought
someone was shooting at them. Christian suddenly saw defendant shooting. The group
of four was walking in front of defendant when defendant fired .
At trial, Christian testified “yes” when he was asked if he saw any of the four men
at Corcoran and Lassen with any kind of a weapon. He admitted it was the first time he
had mentioned that anyone besides defendant had a gun. And he was presented with his
preliminary hearing testimony in which he denied seeing any of the four individuals at
the intersection of Corcoran and Lassen with a gun.
Christian later testified he did not remember if defendant “really did it or if it was
someone else.” He denied seeing anyone get hit. He testified he just “stayed down”; he
was “shocked” and “scared.” At some point, Christian looked back and no one was on
the ground, but then he looked back again and someone was on the ground .
Christian recalled being interviewed by Investigator Alfred Rivera and Officer
Segura on the day of the shooting. Investigator Rivera stated Christian reported that he
7.
and his brothers were stopped at a stop sign outside of the liquor store when four
individuals approached throwing or flashing gang signs. Investigator Rivera testified
Christian never told him about a chrome handgun and, in fact, Christian did not “bring
anything up about anyone having a gun.” Christian also did not tell Investigator Rivera
“anything that would provoke this” attack. Christian told Investigator Rivera the
individuals made gestures at the liquor store half an hour before the shooting; but
Christian said they did not make any gestures right before the shooting. Investigator
Rivera noted he did ask Christian specifically if, at the liquor store, any of the individuals
walking across the street had any weapons.
Subsequent Investigation
Officer Chad Medeiros, Sergeant Edmonson, and Officer David Tapia responded
to a call over dispatch at 15:48 hours regarding a male who was shot and lying in the
roadway in Avenal. When Officer Medeiros arrived on the scene, he recognized the
person on the ground as Cabral. Cabral was not moving or making any noise, and he had
what appeared to be bullet holes in his forehead and lower chest area. Officer Medeiros
saw multiple people with Cabral as he approached. He recognized two of the people
from prior contacts as G.M. and Manuel, Cabral’s brother. Officer Medeiros identified a
photograph of the scene taken from his body camera that was introduced into evidence.
He noticed Cabral had a tattoos of “V and L” on his shins.
Cabral was searched and everything was emptied out of his pockets; no firearm
was located. Officer Medeiros searched for shell casings at the scene but did not find
any. He observed a wall on the east side of the street where the shooting occurred that
appeared to have a bullet hole in it. The windshield of a vehicle on the street also
appeared to have been possibly struck by a bullet.
Jason Bietz was an investigator for the Kings County District Attorney’s Office
and was involved in the investigation of the shooting. Bietz was tasked with searching
for a silver Chevy Malibu and eventually located one at approximately 7:00 p.m. heading
8.
in the opposite direction. Bietz was in an unmarked law enforcement car. He made a U-
turn to follow the Malibu and noticed it was passing other cars at a high rate of speed.
Bietz contacted the police department, confirmed the license plate number of the car he
was following matched that of the suspect vehicle, and requested additional marked law
enforcement units intercept the Chevy Malibu and conduct an investigative traffic stop.
Additional units arrived and pulled over the Chevy Malibu.
Officer Medeiros learned the police had located a silver or gray Chevy Malibu on
State Highway 269 in Avenal, within approximately 10 miles of where Cabral’s body
was found. Officer Medeiros assisted with detaining the people that were in the car;
defendant was in the backseat on the passenger side. Officer Medeiros located an
unloaded ProMag gun magazine, also known as a clip, on the rear seat inside the car.
The prosecution introduced photographs of the car and the car’s interior. Officer
Medeiros also located a silver iPhone and a Samsung from inside the car. Officer Tapia
located a pistol near State Highway 269 “within the same location where the traffic stop
[of the Chevy Malibu] was conducted.”
An officer transported defendant to the jail and retrieved his clothes and booked
them into evidence. Defendant told the deputy doing the booking form that he was a
Southern gang member, specifically a member of TLS.
After collecting evidence from the car, Officer Medeiros returned to the scene of
the shooting and then the Avenal Police Department where he was informed “they were
in the process of writing a search warrant for [defendant’s] residence.” Officer Medeiros
went to defendant’s home and searched defendant’s dresser. He found “a loaded .357
Magnum round” and an expended “shell casing of a .38 Special.”
The prosecution’s gang expert, Officer Segura, was a detective at the time of the
investigation. He contacted defendant at the police department approximately three to
four hours after the shooting. Defendant had a “blue bandana on his person.” Segura
explained, “[r]egardless of whether they are Norteno gang members or Sureño gang
9.
members, blue or red bandanas is [sic] something that is often found on a gang member’s
person and that is … use[d] … to represent the color” of the gang of which the person is a
member. He explained wearing or “flashing” a blue bandana would tell “other rival gang
members or the general public that they are members of the Sureño gang.” The police
also recovered from defendant’s “person,” a piece of paper listing the “13 Bonds,” which
are the rules for Sureño gang members.
Segura interviewed defendant and the prosecutor introduced an audio recording of
the interview at trial. Defendant confessed during the interview that he committed the
shooting.
Defendant told Segura he first saw Cabral at Rice’s Liquor Store in Avenal.
Defendant then went to get gas at Amigos Gas Station, which is in Sureño territory that
Sureños claim “as their own.” Defendant then saw Cabral again at the intersection of
Corcoran and Lassen, where defendant shot and killed him before leaving. Defendant
reported the “people who were walking were demonstrating as if they were carrying
some type of weapon,” meaning they were reaching into their pockets as if they had a
weapon. “In the past [defendant] had had several firearms pulled out on him; however,
the people who pulled a firearm … out at him did not pull the trigger, and in this case
[defendant said] … he had to … prove to the rival gang members that he is willing to pull
the trigger,” meaning he was willing to shoot people.
Segura explained defendant was stopped in a silver Chevy Malibu approximately
four or five miles away from the location of the shooting. Segura opined, often times,
firearms used in a specific crime will “be either traded or disposed of to conceal the
evidentiary value … that particular firearm has.”
An officer swabbed defendant’s hands for gunshot residue immediately after
defendant’s interview with Officer Segura. A senior criminalist from the Department of
Justice Bureau of Forensic Science explained at trial the results from the gunshot residue
samples taken from defendant. From the gunshot residue “stubs,” she “identified one
10.
characteristic gunshot residue particle on one of the hand samples, and … three particles
that are consistent with gunshot residue on the hand samples.” A particle classified as
“characteristic gunshot residue” contains all three elements typically seen in conventional
ammunition primers—lead, barium, and antimony. When only two of these elements are
present, the particle is deemed to be “consistent with gunshot residue, which basically
means it’s probably gunshot residue, but there is a remote possibility that it could be from
something else in the physical world.” She explained, typically after four to six hours,
there is very little gunshot residue left on the hands.
Vicente Guerrero, a latent print analyst, testified he examined latent prints taken
from the magazine “related to the case.” He compared the latent prints with defendant’s
palm prints and identified the latent prints as defendant’s left palm; “they matched.”
The prosecution also introduced images of a Facebook message exchange obtained
from a search pursuant to a warrant of defendant’s Facebook account. The message
recipient’s name was “PorosTownBEactive.” In one message, defendant stated, in
relevant part, “‘I’m trying to trade my 357 for something else any of your homey’s down
to trade.’” Investigator Rivera testified a .357 Magnum handgun is commonly referred to
in subculture as a 357. PorosTownBEactive responded, “‘Does the 357 work’” and
“‘send a pic g.’” Defendant responded, “‘Yeah it works g and look,’” with a photograph
of a gun. PorosTownBEactive then said, “‘wud u trade it for a nine,’” and “‘I got 2 clips
with it right now g,’” sending a picture of a gun resembling the gun defendant reportedly
threw from the Chevy Malibu before he was arrested on August 20, 2016. Defendant
responded, “‘Yeah I’m down to trade it would kind of strap is that.’”
PorosTownBEactive wrote back, “‘Its a high point c9,’” and sent an address in
Porterville. Defendant replied he was on his way and stated his gun was “automatic.”
The messages were exchanged on the afternoon of August 20, 2016.
An investigator for the district attorney’s office, Chris Jackson, obtained and
reviewed surveillance footage from a house on the corner of Lassen and Corcoran from
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August 20, 2016. Jackson testified the timestamp in the video was approximately an hour
off. The prosecutor introduced an excerpt of the surveillance video into evidence.
Jackson explained at timestamp 6:45:59 p.m., individuals can be seen walking towards
the location where Cabral’s body was later found. At timestamp 6:47:20, Jackson
explained a silver Chevy Malibu can be seen behind a light pole (“kind of obscured”)
coming from south all the way north until it was out of view completely; Jackson
explained the car was coming from the location where Cabral was found.
Jackson also explained the Avenal Police Department provided him an iPhone
with photographs on it and Jackson verified the dates the photographs were taken. One
photograph was a picture of defendant standing in a room holding a Ruger Security-Six
.357 Magnum revolver; the file was created on the day of the shooting with a timestamp
of 1534 hours (3:34 p.m.). Jackson also found a second photograph depicting defendant
with the same firearm in his waistband; the file was created at the same time as the other
photograph file. Jackson explained, the pictured firearm would not eject a bullet casing,
the casing would stay inside the revolver. Officer Jackson extracted other content from
the iPhone and saved it on a compact disc.
Jessica Winn with the Department of Justice Bureau of Forensic Services analyzed
two bullets or projectiles and two cartridge cases (the remnant of a round fired from a
gun) in this case. She analyzed their class characteristics and entered the information into
a database that generated a report of possible firearms that fired them. The bullets and
cartridge cases were consistent with revolver rounds fired by a Ruger, Smith and Wesson,
Taurus, Herbert, or an off brand Herbert and Schmidt. Winn opined the gun pictured in
the photograph defendant sent in the Facebook exchange was consistent with a Ruger
revolver.
As part of the investigation into the August 20, 2016, shooting, law enforcement
collected surveillance footage from the driveway of defendant’s home that the
prosecution introduced at trial. Investigator Rivera testified the footage was taken on
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August 4, 2016, and it depicts “two subjects on the far side of the video that kind of go
across the screen” and “three subjects in the driveway” of defendant’s residence. Rivera
identified defendant, Christian, and David Villanueva running across the screen in the
footage. He explained, “[T]here’s some gestures made across from the two people
crossing the street as well as the three people in the driveway. And at one point they …
engage in a physical altercation.”
Investigator Rivera testified he was also involved in the investigation of another
incident that occurred the day before the shooting of Cabral. He personally saw bullets
recovered from the area where police were dispatched. One victim reported gunfire hit
the victim’s house. Rivera explained David Villanueva was a person of interest in
connection with the incident.
Gang Evidence
In 2015, Officer Segura was an investigator in the Kings County Gang Task Force
assigned to Avenal. The task force conducted gang intervention and suppression and
researched suspected gang members to present that information in court. Officer Segura
had testified as a gang expert approximately five times regarding the “Avenal Varrios
Lomas, AVL, which is the Norteno criminal street gang subset in the City of Avenal
along with the Tiny Locos Sureños, TLS, criminal street gang subset for the Sureños.”
Officer Segura explained, in Avenal, you most commonly see members of the
Norteño and Sureño gangs. He explained the two gangs did not get along and, based on
the gang subculture, they are rivals. Officer Segura testified Tiny Locos Sureños is a
common Sureño subset found in Avenal that was associated with the larger Sureño gang
related to the Mexican Mafia. It had “at least 30” members. He explained all the subsets
worked together in conjunction with other gangs under the Sureño umbrella. The Tiny
Locos Sureños associated with the color blue; all Sureños use the color blue. The
following signs or symbols are commonly associated with the Tiny Locos Sureños: the
letters “TLS,” the word “Sur,” “S-U-R,” “South Side,” the number 13, the Roman
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numeral for the number 13 “XIII,” and “X3.” Officer Segura testified the primary
activities of the Tiny Locos Sureños “are burglaries, robberies, assaults with deadly
weapons, possession of drugs for sales, auto theft, even murder.” AVL, or Avenal Varrio
Lomas, is a subset of the Norteño criminal street gang in Avenal and a rival of TLS.
Officer Segura explained: “‘[P]utting in work’ in the gang means earning your
place within the gang through actions that specifically benefit that gang itself, whether
it’s monetary actions, selling drugs, or burglarizing residences, or whether it’s
committing crimes against the enemy and instilling enough fear and intimidation in the
rivals to where often times [sic] the rivals won’t even retaliate against them because of
that severity of the crime.” He opined, “[K]illing a rival gang member would probably
be the … most prestigious … action that a gang member can commit, because they are
eliminating a rival, therefore, the rival gang has less active members within the gang.”
Additionally, “within the gang subculture, they are often expected to, what gang
members call, ‘take flight,’ which pretty much means if they see a rival gang member,
you are supposed to attack that rival gang member on sight.” “[T]he reason for that
expectation is because they expect each gang member to act and to prove their worthiness
to be part of a specific gang by certain actions, such as taking flight on a rival.” He
discussed the importance of respect in gang culture and explained signs of disrespect
could include “a stare down or flashing rival gang signs, verbal words, or even letters if a
rival gang member is vocalizing, for example, AVL, that is a sign of disrespect.” Officer
Segura also explained the concept of “snitching in gang culture.” He explained, even if a
gang member kills a rival gang member and a rival gang member witnesses it, he still is
not allowed to snitch. “[H]is own gang will essentially push him out of the gang and
discipline him for cooperating with law enforcement.”
The prosecution introduced photographs of defendant that showed a “TLS” tattoo
on defendant’s right upper arm and three dots tattooed on the left outer web of
defendant’s hand. Officer Segura testified “TLS” is a sign or symbol of the Tiny Locos
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Sureños and it is common for members of Tiny Locos Sureños to get “TLS” tattooed on
their bodies. They also introduced a photograph of defendant with a gun in his waistband
and making a hand sign associated with “TLS.”
Officer Segura reviewed the contents of a phone recovered from the Chevy Malibu
in which defendant was stopped, including several videos on the phone. The prosecution
presented a video from the phone of defendant burning a red bandana. Officer Segura
opined the video was significant because, “respect is a huge aspect of the gang
subculture, and with the defendant burning a red bandana that is the defendant directly—
it’s a manner of which the defendant is telling Nortenos that he is disrespecting them by
essentially burning the—the red bandana or the color red, the color the Norteno criminal
street gang represents.”
There was also a photograph on the phone of “three possible males displaying
gang signs, one of which has a blue bandana on his head, a blue bandana … concealing
his face, and … what appears to be a revolver in his right hand.” The “subject’s left hand
… is displaying what appears to be the letter T.” “The second subject is in the back
wearing a ball cap concealing his face with a blue bandana, and with his right hand …
displaying the letter W.” “And then the third subject is wearing a blue ball cap, a blue
bandana concealing his face, a number 19 sports jersey, and with his right hand he is
demonstrating a number 1 and with the left hand is demonstrating a number 3.” Officer
Segura testified he recognized defendant as one of the individuals pictured. He also
found it significant the photograph was on defendant’s phone, noting “it is very common
especially in gang investigations for gang members to pose in gang photographs
essentially showing off firearms, money, drugs, the gang lifestyle.” It “goes to prove that
members of a particular gang in this instance TLS do possess firearms, and it’s
essentially a … warning to not only the general public, law enforcement, but the rival
gang members … if you challenge TLS this is what you will face.”
15.
Officer Nate Estrada testified he contacted defendant on September 19, 2014.
Defendant was wearing a hat with the letter “A” on it, a blue shirt, blue jeans, and had a
cross tattoo on his right hand; he was with Noe Duran and Juan Contreras. Defendant
stated he was “associated with TLS.” Officer Randall Doherty testified he contacted
defendant on November 21, 2014. Defendant was wearing a blue hooded sweater, blue
jeans, and white tennis shoes. Officer Segura testified these contacts were significant in
determining defendant is affiliated with a gang in that defendant was wearing blue, the
color worn by Sureño gang members.
Officer Segura also personally contacted defendant in June 2015 with Raul
Ramirez and Rafael Flores, who Officer Segura knew to be TLS members based on their
prior admissions, their tattoos, and their clothing. Officer Segura testified, during this
contact with defendant, defendant admitted he grew up around Sureños and he liked the
lifestyle. Defendant admitted to Officer Segura “that he was walked in to the gang.”
Rafael Flores and Raul Ramirez began exchanging TLS Sureño gang signs at each other
and when Officer Segura asked if they were active, they laughed and said, “‘we’re active
as fuck.’”
Officer Segura contacted defendant again on February 4, 2016, after a school
resource officer contacted the police about a physical fight in progress outside the high
school. Defendant told Officer Segura he was involved “in a physical altercation with
two male juveniles” who made gestures at him “like a neck slice,” a sign of disrespect.
Officer Segura explained, “[i]n the gang subculture as a gang member you are required to
react to any type of disrespect, especially from rival gang members.”
Officer Segura also testified, in the surveillance footage taken from defendant’s
home, numerous gang signs were displayed. In the video, defendant lifted his shirt to
show the TLS tattoo on his arm to the people with whom he was fighting. At one point,
defendant kneeled down and appeared to be demonstrating a “T,” which is a sign or
symbol of the Tiny Locos Sureños. Defendant also lifted the front of his shirt and made a
16.
motion towards the other two people “demonstrating he had a gun in his hand, and he
pointed it at them.” Officer Segura testified, in conducting an investigation into that
incident, they were able to identify the other two people involved in the confrontation as
AVL Norteño gang members.
The prosecutor posed Officer Segura with the following hypothetical scenario:
“I want you to assume that an admitted member of TLS is at Rice’s
Liquor in Avenal. While he’s at the store a group of Nortenos are near him,
I don’t know how near them, but they are flashing gang signs of some type,
they are disrespecting him. This caused the TLS member to feel
disrespected.
“The TLS member then drove around town with his two brothers,
and they got gas. 20 to 30 minutes after that initial interaction, the member
of TLS drove up to a stop sign, saw the individuals that disrespected him
crossing the street, and open fire [sic] at them. The … statement from the
member of TLS was that he saw them talking shit so he whipped it out and
shot six times.
“The TLS member admitted he knew the men were Northerners and
was shooting from the passenger seat of the vehicle, and assume he had the
intent to kill the group. Then the TLS member left Avenal went to
Porterville and … exchanged that gun for a completely different gun.
[¶] …¶
“One of the group of Nortenos died. He was shot twice from behind,
a bullet entering his ear and exiting his forehead killing him.”
Officer Segura opined the crime in the hypothetical would benefit the Tiny Locos
Sureños. “The fact that a rival gang member disrespected that TLS gang member, that
called for immediate retaliation of some sort, whether a physical assault or something
else. That would benefit the gang due to the fact that that goes to show rival gang
members that TLS gang members will not be disrespected, and that will … not be
tolerated and there will be repercussions for any form of disrespect.” “[I]n essence it will
instill fear and intimidation in the rival gang members because they will be afraid to
disrespect Tiny Locos Surenos.” He explained, the crime would “immediately accelerate
the reputation of [the] TLS gang member [who fired] … for the mere fact that a rival
17.
gang member was murdered.” When posed with additional facts that the murder was
committed in broad daylight in a residential neighborhood, Officer Segura stated such
circumstances “would make things even better for that gang member because it shows
that … particular gang member is not afraid of any repercussions toward law
enforcement. He’s … proving to the fellow gang members that he is willing to go the
extra mile to commit this type of crime in broad daylight in a residential neighborhood.”
The fact the victim was unarmed and not trying to hurt the TLS member showed “that
TLS gang members are relentless and really aren’t concerned whether or not their …
rivals are armed or not. They are … required to attack a rival on sight, so he is
essentially just doing … his part of being a gang member.” The crime “would accelerate
the reputation [of the whole TLS gang] because there is one less rival out there who is a
threat to not only the gang itself but individual gang members, and in essence it’s one less
soldier the rival has.”
Officer Segura noted, based on his experience, Rice’s Liquor is in known Norteño
territory and, in the hypothetical, the TLS member was willing to go there, hold his
ground, and eventually retaliate for being disrespected there. He opined the crime
furthered the activities of TLS in that the crime was “so heinous” that “it would likely
instill enough fear and intimidation in the general public” that “they may be afraid to
cooperate with [law enforcement] out of fear of retaliation from TLS gang members.”
The crime also made it easier for TLS to commit more crimes in the future in that it
discourages citizen witnesses who witness a TLS gang member crime from cooperating
with law enforcement out of fear of being killed.
Officer Segura also opined the hypothetical would be active participation in
TLS—“[b]ecause this TLS gang member … was disrespected by a rival Norteno gang
member, … he is expected to retaliate because if he does not, that shows weakness and
weakness is not tolerated in the gang subculture. Therefore, … that gang member
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shooting the rival in retaliation for the disrespect is direct active participation from the
gang … he’s essentially punishing him for what he did, disrespecting him.”
Evidence of Predicate Offenses
Officer Abraham Avila testified he personally investigated an assault committed
by Cesar Tadeo and Juan Flores on February 29, 2016, and he arrested Tadeo in
connection with the incident. Notably, the court sustained objections to Officer Avila’s
testimony that Tadeo and Flores were both involved in the assault on a rival gang
member and that both of them admitted they were associates or members of the Southern
gang. Avila stated Tadeo informed him he “hung out” with Tiny Locos Sureños. The
prosecution presented a certified packet related to Tadeo’s wardship petition showing he
was adjudicated for a violation of section 245, subdivision (a)(4) with a gang
enhancement. The prosecution also submitted Flores’s juvenile wardship petition
showing he was adjudicated for a violation of section 245, subdivision (a)(4) with a gang
enhancement.
At trial, Tadeo denied being a current or former member of the Tiny Locos
Sureños. He also stated he was not aware of being put on probation for a February 29,
2016, assault with force likely to cause great bodily injury on a person with the initials
J.C. Tadeo also stated he was not aware he admitted a gang enhancement under section
186.22, subdivision (b).
Officer Tapia testified he contacted Tadeo on January 23, 2016. Tadeo was with
Josiah Arballo outside of a high school. Tadeo had a dirk or dagger, which is a knife,
concealed on his person and he was wearing blue clothing at the time. Officer Tapia
asked Tadeo about his gang affiliation and Tadeo stated he was not a Southern gang
member, but he armed himself with the knife for protection from Northern gang
members. Officer Rivera testified he contacted Tadeo in January 2016; Tadeo had the
letters “TLS” written in blue ink on his left arm and the letter “X” and the number “3”
written in blue ink in between his left thumb and index finger. Officer Avila contacted
19.
Tadeo on September 26, 2015. Officer Avila noticed “Tiny Locos Surenos” written on
the railing of a balcony at Tadeo’s home.
Officer Segura testified it was significant that Tiny Locos Surenos was written on
Tadeo’s balcony because Tadeo was “displaying that he is an active participant in a
gang.” He testified it was also significant the home had “fuck the police” displayed
because gang subsets “rival the police who enforce the laws that the gangs violate.” It
was also significant Tadeo was contacted at a school campus armed with a knife, which
“goes to show that TLS gang members arm themselves.” Additionally, Tadeo’s
admission to Officer Tapia that he had a knife for protection against his rivals “tells me
that he is an active participant in the Tiny Locos Surenos criminal street gang.” He
explained AVL is the Norteño criminal street gang subset in Avenal, and they are rivals
of TLS.
Officer Avila testified he went to Juan Carlos Flores’s home on September 26,
2016. Officer Avila saw “Sur 13” and “Varrio Tiny Locos” written on the entertainment
center in Flores’s room. Officer Rivera also contacted Flores in May 2015 and found
“various writings” in Flores’s bedroom that said “X3,” S-U-R, “‘the blue life,’” and
“TLS.” The letters “TLS” were also on a small cabinet in Flores’s room; also found was
a razor attached to a pen. In September 2015, Rivera contacted Flores again; Flores was
wearing blue shoes and had a mail opener in his pocket that had been sharpened to be a
double-sided blade.
Officer Segura testified, as an expert on TLS, it was significant that Flores had
gang writings in his room. He explained “[t]he fact that gang writings are found in an
individual’s personal property or on their personal property … tells me that that person is
displaying to others that he is … an active participant in a criminal street gang. In this
case …, that individual is saying he is an active participant in TLS.” He also testified
Flores’s blue shoes were significant because blue is a sign or symbol used by the Tiny
Locos Sureños. The word “Sur” is also a sign or symbol of the Tiny Locos Sureños.
20.
Officer Segura opined Flores was a member of the Tiny Locos Sureños criminal street
gang based on Flores’s “contacts, his admission to being armed with various types of
weapons, the graffiti found on his personal property, along with writings found in his
possession.”
The prosecution also introduced a photograph of defendant with an individual
named Alfredo Ayala. Investigator Rivera testified he had investigated Ayala for prior
gang-involved shootings and other drug-related offenses. He noted Ayala had a “TLS”
tattoo across his chest. Officer Segura testified Ayala also has a tattoo of “NK,” which
means “Norteno killer,” on his face.
Officer Segura was involved in an investigation that resulted in Ayala being
convicted of attempted murder with a firearm. The prosecution admitted a certified
information and abstract of judgment evidencing Ayala pleaded no contest to attempted
murder and possession of a controlled substance with a loaded firearm with a gun
enhancement in 2018 based on conduct alleged to have occurred on or about
September 22, 2016. Officer Segura opined that Ayala is a member of Tiny Locos
Sureños based on his contacts with him, the people with whom he was “in concert with
during those contacts,” Ayala’s admission, his tattoos, and the clothing and colors he
often wears. He also opined that assault with force likely to cause great bodily injury and
attempted murder (a shooting) are primary activities of the Tiny Locos Sureños.
Directed Verdict Granted on Counts 2 and 3
After the People rested, defense counsel moved for a directed verdict with regard
to counts 2 and 3, which alleged attempted, deliberate, and premeditated murder (§ 664,
subd. (a), 187, subd. (a)) of Manuel Cabral and Miguel Rosales, respectively. The
defense asserted a reasonable jury could not find guilt beyond a reasonable doubt for
these two charges.
21.
The court granted the motion. It found the evidence insufficient for a reasonable
jury to find beyond a reasonable doubt that defendant committed attempted murder as to
those individuals named in counts 2 and 3.
Defense Evidence
Defendant testified on his own behalf regarding the August 20, 2016, incident.
Defendant testified, that day, he and his brothers Zachary and Christian were driving;
defendant was in the front passenger seat of the car. They stopped at a stop sign across
the street from the liquor store. Defendant saw a group of four or five Northerners
crossing the street from the liquor store. The group came up to the car and started
taunting defendant. “[T]hey were kind of … surrounding the car” where defendant was
located on the passenger side. The group was “throwing up gang signs,” “looking at the
car, getting near it.” Defendant testified it “kind of looked like one of them lifted up their
shirt,” which scared defendant. “It looked like … he had something like a weapon or
something.” Defendant explained, when someone lifts up their shirt, it “shows that they
have a gun.” The other individuals were throwing gang signs. Defendant and his
brothers drove off and went to the gas station to get gas. Then, they drove to a friend’s
house to pick him up, but he took too long so they left. So, they started driving around
town.
At some point, defendant and his brothers “met up with the same people” as they
were driving on Corcoran. As defendant’s car stopped at a stop sign, the group was
taunting him again. Defendant testified he “got scared because they were doing the same
things,” taunting him, throwing up their gang signs, trying to come up to the car, and
“showing that they had—it kind of looked like they had weapons, … [s]howing that they
had weapons” by lifting up their shirt. Defendant saw a chrome gun and it made him
afraid. He later stated Cabral was the person he saw with the chrome gun; Cabral lifted
his shirt and “he had [the gun] right … on his waistband.” Defendant felt he “was in
danger. Because you know when a gang member shows a gun sometimes they use it.”
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“And when you are with your family, you know, you can’t take that risk when you are a
gang member and you have your family next to you.” Defendant testified he “could have
been” in immediate danger and that he knew he “was in danger”; he “didn’t know if any
of the other people there had a gun.” He explained, “Flashing a gun at me, coming up to
my car, of course … they were trying to harm us.”
Defendant admitted he fired four, five, or maybe six shots in the group’s direction.
He denied he was angry when he shot; instead, he testified he was “scared.” He was not
aiming for anyone specifically; he “was just shooting to scare them away.” Defendant
testified he was trying to defend his family; he thought these men were going to kill him.
He explained, “After all the things I have been through with them, gang members
pointing guns at me, of course I’m going to be scared.” He stated he shot Cabral three
times because he was defending himself.
Defendant admitted on cross-examination that it would be important to tell the
police he was defending himself, but he did not tell that to the police. He stated he was
an active member of the gang TLS and there were “repercussions for snitching.”
However, he “snitched” to the police on himself, noting “there’s nothing against that
when you are an active gang member.” He thought it was okay to tell the police he
thought the individual walking had a gun, but not that he actually had a gun.
Defendant admitted he got rid of the gun after the shooting but stated he “already
had intentions to get rid of the gun.” He wanted to trade the gun for another one because
he “felt like it.” He testified the messages regarding the gun occurred hours before the
murder. He explained he always had a gun on him for protection; he denied it was in
case he saw a Northerner. He further testified that he got rid of another gun when he
came back to Avenal because he did not want the police to find it.
Defendant denied the shooting furthered the activities of the Sureños, stating it
“had really nothing to do with my gang life. [M]y self-defense had nothing to do with it,
23.
so it didn’t really support the gang at all.” He testified, “Even though I was an active
gang member it was self-defense.”
Verdict
The jury convicted defendant of the first degree murder of Sergio Cabral (count 1)
and found true that the murder was intentional and perpetrated by means of discharging a
firearm from a motor vehicle intentionally at another person and persons outside the
vehicle with the intent to inflict death, within the meaning of section 190.2, subdivision
(a)(21) and that the murder was carried out to further the activities of the criminal street
gang within the meaning of section 190.2, subdivision (a)(22). The jury also found true
allegations count 1 was committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)), that defendant personally used a firearm during its commission within the
meaning of sections 12022.5, subdivision (a), and 12022.53, subdivision (b), that
defendant personally and intentionally discharged a firearm within the meaning of section
12022.53, subdivisions (c), and that defendant personally and intentionally discharged a
firearm that proximately caused death within the meaning of section 12022.53,
subdivision (d).
The jury found defendant not guilty of attempted murder as to Ramon Perez, count
4, and acquitted defendant of the related lesser included offenses as to that count.
Sentencing
Before sentencing defendant, the court noted it reviewed Miller v. Alabama (2012)
567 U.S. 460 and considered “the distinction between children and adults, and the fact
that they are constitutionally different in that, number one, children have a lack of
maturity, and an undeveloped sense of responsibility leading to recklessness and
impulsivity, and risk taking.” “Two, children are more vulnerable to negative and outside
pressure. They have limited control over their own environment, and lack the ability to
extricate themselves [from] crime producing influences.” “And three, the child’s
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character is not well formed. Their traits are less fixed, and less likely to be evidence of
irretrievable depravity.”
The court concluded, “Based on the defendant’s limited intellectual functioning,
his lack of criminal record, the fact that he did obtain a GED while in custody, he
proclaims himself to be a dropout. The fact that his mother failed to follow through with
his counseling and CVRC services, which were factors outside of his control, the Court
will not be imposing life without the possibility of parole.”
Instead, the court sentenced defendant to 25 years to life as to count 1 for the
violation of section 187, subdivision (a) with the enhancements pursuant to sections
186.22, subdivision (b)(5), and section 190.2, subdivision (a). The court struck the
section 12022.5 enhancement and imposed an additional 25 years to life for the section
12022.53, subdivision (d) enhancement, for a total aggregate term of 50 years to life.
The court noted, it considered that it had discretion to strike the firearm enhancement.
However, “at 50 years to life [defendant] is still of a young age, he can still get out of
custody if he behaves himself well in state prison. So the 50 years to life in the Court’s
opinion does not equate to life without the possibility of parole.”
DISCUSSION
I. Defendant’s Right to a Public Trial Was Not Violated
Defendant first argues the court erred in excluding his sister from the trial without
considering the requisite factors, thereby violating defendant’s right to a public trial. We
disagree.
A. Relevant Background
On the second day of trial, the court took a recess before which it admonished the
jury “not to talk about the case or about any of the people or any subject involved in it
with anyone, including the—.” The court was interrupted by a loud noise and indicated it
would “take care of that.” After the jury left the courtroom the following discussion took
place:
25.
“[THE COURT:] … Two of the spectators that were seated behind
[defendant], I believe one is [defendant’s] mother. Correct?
“THE DEFENDANT: No.
“[DEFENSE COUNSEL]: No, no.
“THE COURT: Okay. Not even close.
“[PROSECUTOR ]: Is that the aunt?
“THE DEFENDANT: My mom’s aunt.
“THE COURT: Your mom’s—okay. Your mother’s aunt. [¶] And
then there was another younger person.
“THE DEFENDANT: My little sister.
“THE COURT: That’s your little sister? [¶] All right. I believe it’s
your little sister that rushed out of the courtroom, slammed the door against
the hallway causing a very loud noise, and then it was your aunt that then
said it wasn’t her. So I’m assuming it was your sister, she’ll be precluded
from coming back into this courtroom.
“I will talk to her and see if—I may change my mind, but right now
she’s not to come into the courtroom because of that disruption. That was
in front of the jury.”
Later, the court again noted there was “a little disturbance … right before we took
a break. [Defendant’s] … little sister left the courtroom.” The court admonished, “she is
not to come into the court” “until she talks to me.” A voice (not attributed to a particular
individual in the transcript) responded, “Okay.” Defendant stated, “I’m sorry about that,
ma’am.” The court responded, “She needs to learn to calm down,” and then engaged in
the following exchange with defendant’s sister:
“THE COURT: … Ma’am, what is your name? What is your name?
“VOICE NUMBER TWO: Destiny.
“THE COURT: Destiny, do you want to stay in this courtroom and
watch this trial?
“VOICE NUMBER TWO: Um not really, I’d rather stay out.
26.
“THE COURT: Good. You are ordered to stay out then. Thank you.
“VOICE NUMBER TWO: All right.
“THE COURT: All right. So now you know who she is, if she comes
in escort her outside.”
B. Standard of Review and Applicable Law
“Every person charged with a criminal offense has a constitutional right to a
public trial, that is a trial which is open to the general public at all times.”3 (People v.
Woodward, supra, 4 Cal.4th at p. 382; see U.S. Const., amends. VI, XIV; Cal. Const. art.
I, § 15; see also Pen. Code § 686, subd. 1.) “The Sixth Amendment public trial guarantee
creates a ‘presumption of openness’ that can be rebutted only by a showing that exclusion
of the public was necessary to protect some ‘higher value,’ such as the defendant’s right
to a fair trial, or the government’s interest in preserving the confidentiality of the
proceedings.” (People v. Woodward, supra, at p. 383; accord, Waller v. Georgia (1984)
467 U.S. 39, 44–45 (Waller).) “Such circumstances will be rare, however, and the
balance of interests must be struck with special care.” (Waller, supra, at p. 45.)
However, “both the defendant’s and the public’s right may be subjected to reasonable
restrictions that are necessary or convenient to the orderly procedure of trial, and the trial
court retains broad discretion to control courtroom proceedings in a manner directed
toward promoting the safety of witnesses.” (People v. Pena (2012) 207 Cal.App.4th 944,
949; People v. Esquibel (2008) 166 Cal.App.4th 539, 552.)
C. Analysis
Defendant argues, in Waller, supra, 467 U.S. 39, the Supreme Court identified
four requirements that must be satisfied before public access to a criminal proceeding
may be denied: (1) there must be “an overriding interest that is likely to be prejudiced” if
3 “Because a defendant’s state constitutional public trial right appears to be coextensive
with the federal guarantee [citation], further general references to the ‘public trial right’ or
‘public trial guarantee’ are intended to include both the state and federal constitutional
provisions.” (People v. Woodward (1992) 4 Cal.4th 376, 381.)
27.
the proceeding is left open; (2) the closure must be “no broader than necessary” to protect
that interest; (3) the trial court “must consider reasonable alternatives to closing the
proceeding”; and (4) the trial court must articulate the interest being protected and make
specific findings sufficient for a reviewing court to determine whether the closure was
proper. He asserts the court did not “attempt to, or satisfy a single Waller-factor before
permanently prohibiting Destiny from attending [defendant’s] trial.” He argues the
“courtroom closure—banning Destiny from ever returning to her brother’s trial—was
manifestly overbroad”; the court failed to consider any alternatives to banning her from
attending the trial; and the court did not state a justification for excluding Destiny or
identify an “overriding interest” that was likely to be prejudiced if she was not excluded.
Defendant also asserts, that Destiny “wanted” to be excluded did not warrant the “court’s
drastic response,” in part, because “Destiny could have not meant what she said, she
could have changed her mind, or she could have made the choice not to attend the trial.”
We disagree with defendant’s contentions.
First, defendant has forfeited his argument by failing to object below. “‘A
defendant “may, by his own acts or acquiescence, waive his right [to a public trial] and
thereby preclude any subsequent challenge by him of an order excluding the public.
Unlike the jury trial right which requires an express personal waiver [citation], the
constitutional guarantee of a public trial may be waived by acquiescence of the defendant
in an order of exclusion.” [Citations.]’” (People v. Virgil (2011) 51 Cal.4th 1210, 1237;
accord, People v. Catlin (2001) 26 Cal.4th 81, 161.) And here, defense counsel did not
object to the court’s order excluding defendant’s sister from the remainder of trial on the
ground the order violated defendant’s right to a public trial; thus, his claim is forfeited.
(See People v. Gonzales (2012) 54 Cal.4th 1234, 1292, fn. 27 [“Defendant did not assert
his right to a public trial below, so the trial court had no occasion to consider it. That
claim of error was forfeited”]; People v. Catlin, supra, at p. 161 [defendant’s failure to
28.
object that proceedings violated his right to a public trial “constitutes a waiver of the
claim on appeal”].)
Irrespective, defendant’s claim fails on its merits. “[T]he issue whether an
accused has been denied his constitutional right to a public trial cannot be determined in
the abstract, but must be determined by reference to the facts of the particular case.”
(People v. Esquibel, supra, 166 Cal.App.4th at p. 553.)
Considering the particular facts of the instant case, we cannot conclude
defendant’s right to a public trial was violated. Here, the court was admonishing the jury
when it was interrupted by a loud noise. The court explained defendant’s sister caused a
“disruption” and stated she would be precluded from coming back into the courtroom as a
result. However, the court then revised this statement, crafting a more limited remedy,
advising that defendant’s sister would need to speak to the court before being allowed to
return. Thus, the court did not initially ban defendant’s sister from attending the
remainder of the trial, but rather pursued an alternative measure—the court advised that
she was to speak with the court before being allowed to attend. However, when
defendant’s sister appeared before the court, she indicated she did not want to be present.
Accordingly, in light of the disruption she caused and her representation that she did not
want to be there, the court ordered her to be excluded.
We cannot conclude the court’s order excluding defendant’s sister under these
circumstances violated defendant’s right to a public trial. Rather, the court appropriately
considered the need for a fair and orderly trial and imposed a narrow and tailored remedy
in light of the disruption caused by defendant’s sister and her express statement that she
did not want to be present. (See People v. Holloway (2004) 33 Cal.4th 96, 148 [“The
temporary exclusion of a single spectator, intended to prevent potentially disruptive
displays, did not constitute a cognizable deprivation of the public trial right”]; accord,
People v. Woodward, supra, 4 Cal.4th at p. 385 [“Trial courts possess broad power to
control their courtrooms and maintain order and security”]; see also People v. Virgil,
29.
supra, 51 Cal.4th at p. 1237 [“We have … held that even a partial or temporary exclusion
of the public from certain proceedings, if justified, imposes no more than a de minimus
restriction on the constitutional right to a public trial”].)
In Waller, the trial court granted the prosecution’s request to close a lengthy
suppression hearing, over the defendant’s objection that the closure violated his Sixth
Amendment right to a public trial. (Waller, supra, 467 U.S. at pp. 41–43.) The United
States Supreme Court considered “the extent to which a hearing on a motion to suppress
evidence may be closed to the public over the objection of the defendant consistently with
the Sixth and Fourteenth Amendment right to a public trial.” (Id. at pp. 40–41, italics
added.) In considering the issue, the Waller court restated the “applicable rules”: “‘The
presumption of openness may be overcome only by an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored to
serve that interest. The interest is to be articulated along with findings specific enough
that a reviewing court can determine whether the closure order was properly entered.’”
(Id. at p. 45.) The Waller court held the defendant’s right to a public trial was violated by
the court’s closing of the seven-day suppression hearing to the public. (Id. at p. 48.) The
court reasoned “the State’s proffer was not specific as to whose privacy interests might be
infringed, how they would be infringed, what portions of the tapes might infringe them,
and what portion of the evidence consisted of tapes [from wiretapped phone calls]. As a
result, the trial court’s findings were broad and general, and did not purport to justify
closure of the entire hearing.” (Ibid.) The trial court did not consider alternatives to
immediate closure of the entire hearing, such as closing only those parts of the hearing
that jeopardized the interests advanced. (Id. at pp. 48–49.) And the closure was “far
more extensive than necessary” in that the wiretap call tapes, the basis for the closure,
only lasted two and a half hours of the seven-day hearing and “few of them mentioned or
involved parties not then before the court.” (Id. at p. 49.)
30.
Waller is inapposite. Initially, the conditional exclusion of a single disruptive
spectator who indicated her desire not to attend trial—at issue here—is markedly
different from the preemptive closure of the entire courtroom to all the public based on a
limited privacy concern that was at issue in Waller. (See People v. Woodward, supra, 4
Cal.4th at pp. 384–385 [concluding temporary closure of courtroom to new spectators
during closing argument did not violate defendant’s right to a public trial and cited cases,
including Waller, were inapposite, reasoning in part, “[u]nlike the situation in the public
exclusion cases relied on by defendant, the courtroom was never cleared to remove all
spectators for a significant period”]; see also People v. Kocontes (2022) 86 Cal.App.5th
787, 876 [“Courts have drawn a distinction between complete closures and partial
closures”].) Additionally, Waller sets forth the procedures and findings necessary to
close a court proceeding over “the objection[] of the accused.” (See Waller, supra, 467
U.S. at p. 47 [holding, under the 6th Amend., any closure of a suppression hearing “over
the objections of the accused” must meet articulated tests].) And as discussed, here,
defendant did not object to the exclusion of his sister from the trial on any basis,
including on the grounds that the exclusion violated his right to a public trial.
Furthermore, the exclusion of defendant’s sister from the courtroom under the
circumstances here did not implicate any of the rationales underlying the right to a public
trial, particularly considering defendant’s sister’s representation that she did not even
want to attend. “‘“‘The requirement of a public trial is for the benefit of the accused; that
the public may see he is fairly dealt with and not unjustly condemned, and that the
presence of interested spectators may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions….’”’ [Citations.] [¶] In addition
to ensuring that judge and prosecutor carry out their duties responsibly, a public trial
encourages witnesses to come forward and discourages perjury.” (Waller, supra, 467
U.S. at p. 46, fn. omitted; see People v. Woodward, supra, 4 Cal.4th at p. 385.)
Defendant’s sister’s exclusion from the courtroom under the circumstances in this case
31.
did not affect any of these goals. Rather, under the particular facts of this case, we cannot
conclude defendant’s right to a public trial was violated. (See People v. Bui (2010) 183
Cal.App.4th 675, 682 [noting “[t]he California Supreme Court has recognized … that not
every closure of a trial or exclusion of certain spectators, rises to the level of a
constitutional violation, and certain exclusions or closures are so ‘de minimus’ that they
do not violate a defendant’s constitutional public trial rights”]; accord, People v.
Woodward, supra, at p. 385 [temporary closure of courtroom to new spectators during
closing arguments did not implicate factors underlying public trial right]; see generally
Braun v. Powell (7th Cir. 2000) 227 F.3d 908, 919 [concluding permanent exclusion of
single spectator from trial “on the apparently mistaken belief that such an exclusion
would enhance, not detract, from the integrity of the proceedings, does not implicate the
policy concerns that inform the Sixth Amendment’s right to an open trial”].)
We reject defendant’s first contention.
II. Juror Misconduct
Defendant next asserts the verdict must be reversed because there was prejudicial
juror misconduct. He argues “[o]verwhelming evidence establishes Juror #1 committed
numerous types of serious misconduct,” and the presumption of prejudice was not
rebutted. We reject defendant’s contention.
A. Relevant Factual Background
1. Inquiry of Juror No. 1
At the beginning of the third day of trial, outside of the jury’s presence, the court
reported “a juror contacted my bailiff and stated she was familiar with your witness,
[prosecutor],” referring to Ramon Perez who was also the named target of the attempted
murder count charged in count 4. The court stated, according to the juror, Perez is “the
stepson of her sister, which makes him a stepnephew.” The court told counsel it was
going to call in the juror “and see if that’s going to affect her ability to deliberate.”
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Neither counsel objected. The following exchange then took place between the court and
the juror:
“[THE COURT:] {Juror No. [1]}, did you contact my bailiff
yesterday?
“JUROR NO. [1]: Yes, I did.
“THE COURT: Okay. And it was regarding the—your relationship
with Ramon–
“JUROR NO. [1]: Perez.
“THE COURT: —Perez?
“JUROR NO. [1]: Yes, ma’am.
“THE COURT: Okay. It’s my understanding that Mr. Ramon Perez
would be considered your step-nephew sort of?
“JUROR NO. [1]: Kind of, yeah. It’s my sister’s stepson.
“THE COURT: Okay.
“JUROR NO. [1]: Correct.
“THE COURT: All right. So how well do you know Ramon Perez?
“JUROR NO. [1]: I haven’t seen him in over a year and a half. I
know he has children, and I know his wife just got her LVN and works at a
school. That’s all I know.
“THE COURT: All right. And before this year and a half, prior to the
year and a half since you have seen Mr. Perez, did you have a lot of contact
with him?
“JUROR NO. [1]: No.
“THE COURT: How often would you see Mr. Perez prior to this year
and a half where you didn’t see him?
“JUROR NO. [1]: Maybe once.
“THE COURT: One time in—
“JUROR NO. [1]: Yeah.
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“THE COURT: In—
“JUROR NO. [1]: I don’t see him at all. I mean—
“THE COURT: Okay. So you recognized him but you don’t really—
“JUROR NO. [1]: Yes.
“THE COURT: It sounds like you don’t really have a relationship
with him.
“JUROR NO. [1]: I don’t. But when I saw his face yesterday that’s
why I was concerned—
“THE COURT: Sure.
“JUROR NO. [1]: —and I wanted you to know.
“THE COURT: Well, I appreciate that. You did what you were
supposed to do.
“So because the—the question is now that we know, would your
relationship with Mr. Perez affect your ability to be fair and impartial in
this case?
“JUROR NO. [1]: I believe I can.
“THE COURT: You believe you can? Okay.
“JUROR NO. [1]: Okay.
“THE COURT: Would your relationship with Mr. Perez affect your
deliberations in any way?
“JUROR NO. [1]: No.
“THE COURT: All right. Have you talked about your relationship
with Mr. Perez with any of the other jurors?
“JUROR NO. [1]: No.
“THE COURT: Okay. I’m going to ask that you continue not to
discuss that issue with the other jurors. And I’m going to ask you to go
back and join the other jurors okay? And I need to talk with the attorneys.”
Juror No. 1 left the courtroom and the court asked counsel for their positions on
the matter. Defense counsel made a motion to remove Juror No. 1 for cause. The court
34.
asked if, by doing so, defense counsel was agreeing to move forward with 11 jurors.
Defense counsel disagreed and asked for a mistrial. The prosecutor argued, “[I]t seems
like [Juror No. 1] can unequivocally state that she can be fair, this sounds like a very
distant relative.” He emphasized that Juror No. 1 “was certain that this would not affect
her in any way.” Defense counsel noted for the record, “[H]ad we known of [Juror No.
1’s] relationship to a potential witness, … we certainly would have made a motion at the
time of voir dire to strike her for cause, and … if that had been denied, we would have
used one of our peremptories.”
The court denied defense counsel’s request for a mistrial. The court reasoned,
“This juror has very little contact with Mr. Ramon Perez, prior to a year and a half ago
she had one contact with him and recently very little contact, and said that that
relationship would not affect her ability or would not affect her deliberation, that she
could be fair and impartial. So the Court will deny the request.”
Later that day, the court recalled Juror No. 1 to ask her about her relationship with
her sister “to see if it’s a close relationship.” The court noted there are “a lot of cases that
seem to indicate if there’s a close relationship there may be a problem.” Defense counsel
noted for the record that Juror No. 1’s relationship related to a witness who was also the
person named in count 4. The court then asked Juror No. 1 additional questions about her
relationship to her sister and ability to serve as a fair and impartial juror:
“THE COURT: Do you have a close relationship with [your sister,
Ramon Perez’s stepmother]?
“JUROR NO. [1]: She recently moved back from New Mexico so I
have seen her maybe five times in the last four months.
“THE COURT: Okay. Do you consider that to be a close
relationship?
“JUROR NO. [1]: For me and my sister?
“THE COURT: Sure.
“JUROR NO. [1]: Yeah, we’re close.
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“THE COURT: Okay.
“JUROR NO. [1]: Yeah.
“THE COURT: And would your relationship with your sister affect
your ability to be fair and impartial in this case, realizing that Ramon Perez
is a named victim in this case. Do you understand that?
“JUROR NO. [1]: You want to know if it’s going to affect my
relationship?
“THE COURT: No, I want to know if it’s going to affect your ability
in this case to render a verdict—
“JUROR NO. [1]: Definitely not, no.
“THE COURT: Okay. So you actually have interrupted me, which is
fine—
“JUROR NO. [1]: I’m sorry.
“THE COURT: No, that’s just because it sounds to me like you have a
strong conviction—
“JUROR NO. [1]: Yes.
“THE COURT: —that you would not let the relationship with your
sister and your relationship with Ramon Perez impact your decision.
Correct?
“JUROR NO. [1]: Correct, ma’am.
“THE COURT: In other words, and—if the People have not proved
their case beyond a reasonable doubt, you would be able to find [defendant]
not guilty; is that correct?
“JUROR NO. [1]: Correct.
“THE COURT: And if the District Attorney were to prove beyond a
reasonable doubt the charges, you would be able to convict [defendant]; is
that correct?
“JUROR NO. [1]: Correct, ma’am.
“THE COURT: And, again, there’s nothing about the relationship
with Mr. Perez, your sister’s stepson—
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“JUROR NO. [1]: Stepson.
“THE COURT: —and your sister and that family that would affect
your ability to be fair and impartial?
“JUROR NO. [1]: Yes.
“THE COURT: Is that correct?
“JUROR NO. [1]: Correct.
“THE COURT: Okay. Thank you, ma’am.”
Defense counsel renewed his motion for a mistrial, stating, “I don’t believe,
despite her reassurances, that she can be fair given the relationship and given the fact that
this individual is a named victim in the Information. …I believe it will be impossible for
her to be fair despite what she may say.”
The court denied the motion for a mistrial. It stated it would “take [Juror 1]’s
statement at face value that she can be fair. Not only did she say she can be fair, but she
is—she seems to have quite a conviction that she can be fair.”
Throughout the trial and before deliberations, the court repeatedly admonished the
jury that “you are not to talk about the case or about any of the people or any subject
involved in it with anyone, including the other jurors, and you are not to make up your
mind about the verdict or any issues until after you have discussed the case with the other
jurors during deliberations.”
2. Disclosure of Juror Information and Motion for New Trial
After the trial was over, defense counsel moved to continue a subsequent hearing,
stating “[a]dditional time is needed to prepare and file a motion for a new trial based on
Juror Misconduct and for motions to be made for release of juror identifying
information.” (Boldface and underscoring omitted.) The motion explained, “After the
trial one of the Jurors … in the Jury trial for [defendant’s] case came forward to report
that Juror #1 reportedly failed to follow the Judge[’]s order not to discuss the case prior to
deliberation, and informed other Jurors that she had formed opinions about the evidence[]
37.
prior to deliberation, and that she did not participate in deliberations with an open mind
and prejudged the case prior to deliberating.” (Boldface and underscoring omitted.) In
an attached declaration, defense counsel averred that a juror provided his office with
information regarding juror misconduct and he needed additional time to properly
investigate the statements, to file a motion to disclose juror identifying information for
the remaining jurors, and to prepare a motion for new trial. Defense counsel also filed a
motion for disclosure of juror identifying information.
The People opposed both motions. In their opposition to the motion for disclosure
of juror identifying information, the People argued the alleged misconduct “appears to be
extremely minor, and solely the opinion of one juror.” They asserted the reporting juror
informed the district attorney’s office’s investigator that the “‘discussion’ before
deliberation was just a comment by juror #1 ‘He’s stupid, isn’t he?’” and the reporting
juror “personally believed that juror #1 had already made up her mind.” The People
attached the investigator’s report to their opposition.
In the report, the investigator recounted his conversation with the reporting juror,
noting the juror told the defense investigator “Juror #1 was related to one of the witnesses
and she had said, ‘He’s stupid, isn’t he?’ referring to the defendant.” The reporting juror
stated he “reached out to the defendant’s family via facebook a couple days after the trial
because he did not feel the defendant got a 100% fair trial based on the fact one of the
jurors was related to one of the witnesses.” The juror also reported, “Juror #1 brought up
the familial relationship during the trial and the Judge decided to keep her on the jury.”
“When asked if there was anything else that led him to believe the defendant did not get a
fair trial,” the juror “mentioned Juror #1 talking down about the defendant and he felt she
had already made up her mind.” The juror “specifically said this was his opinion and not
based on anything else.”
The court granted defendant’s motion for a continuance and his motion to disclose
juror identifying information despite the People’s opposition to both. The court
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concluded there was a “sufficient showing to support a reasonable belief that juror
misconduct has occurred.” Accordingly, the court granted defense counsel’s request and
set a hearing in accordance with Code of Procedure section 237. The court set a date for
jurors to object to the disclosure of their information. Approximately two months later,
the court held a hearing regarding the disclosure of juror identification information. The
court noted it had received seven responses objecting to the release of information. The
court ordered the release of identifying information for the remaining jurors.
3. Motion for New Trial Proceedings
Defendant filed a motion for new trial based, in part, on alleged juror misconduct,
attaching the district attorney investigator’s report regarding his conversation with the
reporting juror. The People opposed the motion. The People attached to their opposition
a report from the district attorney investigator, who contacted the jurors whose contact
information was provided, and a declaration from the prosecutor that the investigator
provided the report regarding his conversations with the jurors whose contact information
was disclosed. According to the report, three jurors agreed to speak to the investigator,
and all denied witnessing any inappropriate behavior by any other juror that suggested
defendant did not receive a fair trial. The record does not reflect defendant objected to
the trial court’s consideration of the investigator’s report.
The court then held a joint hearing on defendant’s motion for new trial and
explained that the motion was based on alleged juror misconduct. Specifically, there was
an allegation by Juror No. 9 that defendant did not get a fair trial based on Juror No. 1’s
comment that defendant was stupid. Juror No. 9 “felt that [Juror No. 1] had already made
up her mind.” The court noted, both sides investigated the issue, and “this allegation was
not corroborated by any other jurors that were interviewed.”
The court denied the motion for new trial explaining its reasoning:
“The facts that the Court is relying on in making this ruling consists
of the declarations and the investigation attached to the motions. For the
purpose of the motion the Court will assume that [Juror No. 1] did in fact
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make that statement. However, it is unclear when that statement was made,
either predeliberation or during deliberation. The allegation that [Juror
No. 1] did not participate in deliberation with an open mind is not
supported by the evidence. Any statement by [Juror No. 9] regarding this
issue consists of his feelings and speculation and his opinion, and is not
admissible.
“Further when questioned [Juror No. 1] stated she could be fair, and
in fact acquitted the defendant on the attempted murder regarding the
witness that she had a relationship with. The Court does find that there is
insufficient evidence to conclude that there are [sic] juror misconduct.
“Assuming for the sake of argument that the juror made the
statement predeliberation, which could be construed as misconduct for
failing to follow the Court’s order not to discuss the case prior to
deliberation, prejudice would then be presumed. This presumption is
rebutted by sufficient evidence of the defendant’s guilt as follows:
“The recorded statement made by the defendant, photograph of the
defendant holding the murder weapon, the defendant wearing the same
clothes when arrested. The defendant was identified in court as the shooter
by other witnesses.. And most importantly the defendant took the stand and
admitted he was the shooter. These facts negate any presumption of
prejudice, and therefore the motion for new trial is denied.”
Before sentencing, the defense filed a motion for reconsideration of the motion for
new trial. Defense counsel explained to the court that “it is basically the same motion”;
however, it includes a sworn declaration of Juror No. 9 under penalty of perjury. The
motion also included an attached declaration by defense counsel in which he stated , at the
hearing on the motion for new trial, he “had a witness that was available to testify
regarding juror misconduct” but, before the hearing, the presiding judge “indicated that
she did not wish to question the witness because the substance of his testimony had been
thoroughly covered in the moving papers by both the Defense and the Prosecution.” He
asserted, because the witness’s statements were not admitted as evidence at trial or in an
affidavit, they were not part of the record. Accordingly, he averred, the affidavit from the
juror attached to the motion for reconsideration provided new factual information
necessary to preserve the record and to provide grounds for a new trial. The court denied
the motion for reconsideration.
40.
B. Standard of Review and Applicable Law
“We review independently the trial court’s denial of a new trial motion based on
alleged juror misconduct. [Citation.] However, we will ‘“accept the trial court’s
credibility determinations and findings on questions of historical fact if supported by
substantial evidence.”’” (People v. Gamache (2010) 48 Cal.4th 347, 396.) “Under
California law, if a juror’s partiality would have constituted grounds for a challenge for
cause during jury selection, or for discharge during trial, but the juror’s concealment of
such a state of mind is not discovered until after trial and verdict, the juror’s actual bias
constitutes misconduct that warrants a new trial under … section 1181, subdivision 3.
[Citations.]” (People v. Nesler (1997) 16 Cal.4th 561, 581.)
Jurors may not “converse among themselves … on any subject connected with the
trial” or “form or express any opinion about the case until the cause is finally submitted
to them.” (§ 1122, subds. (a)(1), (b).) A violation of the court’s instructions constitutes
misconduct. (See People v. Lavender (2014) 60 Cal.4th 679, 687.) “‘“Misconduct by a
juror … usually raises a rebuttable ‘presumption’ of prejudice.”’” (People v. Loker
(2008) 44 Cal.4th 691, 746–747.) “[W]e determine whether an individual verdict must
be reversed for jury misconduct by applying a substantial likelihood test. That is, the
‘presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire
record in the particular case, including the nature of the misconduct or other event, and
the surrounding circumstances, indicates there is no reasonable probability of prejudice,
i.e., no substantial likelihood that one or more jurors were actually biased against the
defendant.’” (In re Boyette (2013) 56 Cal.4th 866, 889–890.)
“‘Whether prejudice arose from juror misconduct … is a mixed question of law
and fact subject to an appellate court’s independent determination.’ … However, ‘[w]e
accept the trial court’s credibility determinations and findings on questions of historical
fact if supported by substantial evidence.’” (People v. Danks (2004) 32 Cal.4th 269,
303–304; accord, People v. Lavender, supra, 60 Cal.4th at p. 687 [we review
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“independently the question whether prejudice from juror misconduct has been
rebutted”]; People v. Leonard (2007) 40 Cal.4th 1370, 1425 [similar].)
C. Analysis
Defendant contends the court “did not correctly analyze the issues related to Juror
#1’s misconduct nor did it apply the correct standard when it found the presumption of
prejudice had been rebutted.” He asserts the court correctly found Juror No. 1 committed
misconduct by discussing the case or parties prior to deliberations in saying, “‘He’s
stupid isn’t he,’” referring to defendant, and that prejudice was presumed. However, he
argues, in denying his motion for new trial, the court failed to address or “consider …
that Juror #1’s statement itself also constituted misconduct” because it evinced that Juror
No. 1 had an “actual bias and antipathy” toward defendant. He asserts Juror No. 1’s
comment reflects she had prejudged the case prior to deliberations. Defendant also
alleges Juror No. 1 committed misconduct by revealing her relationship to Ramon Perez,
directly contrary to the court’s order. Relatedly, defendant contends Juror No. 1 “should
not have been allowed to remain on the jury given her close relationship with her sister,
Perez’s step-mother.” He argues the court “manifestly applied the wrong test of
prejudice” in concluding the presumption of prejudice had been rebutted. He contends
the court erred in considering the strength of the evidence of defendant’s guilt and the
jury’s acquittal of defendant of count 4 in concluding the presumption of prejudice was
rebutted. He further asserts “[d]enial of the right to an unbiased jury is structural error.”
The People respond, in part, that we should accept the trial court’s factual finding
that there was no showing of misconduct. They assert the evidence presented in favor of
defendant’s initial motion for new trial was “limited to a statement filtered through two
layers of hearsay: Defense counsel heard from Juror 9 that Juror 9 heard Juror 1 say
something inappropriate at some point in time.” They concede the prosecution presented
a similar report based on multiple layers of hearsay and note, by the time of the actual
hearing on the motion, “the prosecution presented a supplemental narrative based on
42.
interviews with three jurors who said that they heard nothing inappropriate.” They argue,
the court found no misconduct had occurred and the court was within its “discretion to
reject hearsay in making its factual findings, especially when three other jurors made
statements contrary to the ones made by Juror 9.” As to the motion for reconsideration,
the People assert the evidence was not credited by the fact finder, and we should defer to
that determination. Alternatively, they assert the alleged instance of misconduct
regarding Juror No. 1’s statement was not inherently indicative of bias that would
substantially influence Juror No. 1, nor did it give rise to a substantial likelihood of actual
bias. Finally, they argue, even if the “trial court incorrectly pointed to the strength of the
evidence as a factor that rendered any error nonprejudicial,” reversal is not required
because the trial court’s decision was correct, though the reason stated was wrong. For
the reasons that follow, we reject defendant’s contention that the verdict must be reversed
based upon prejudicial juror misconduct.
Here, there were two alleged instances of misconduct: (1) a statement made by
Juror No. 1 referring to defendant as “stupid,” and (2) Juror No. 1’s alleged disclosure of
her connection to Perez, a witness and named victim in count 4.4 The parties dispute
whether the trial court found the alleged conduct to have actually occurred.
Contrary to the parties’ contentions, the record before us does not reflect the court
made a factual finding as to whether the alleged instances of misconduct were true.
Rather, the court, stated, “For the purpose of the motion the Court will assume that [Juror
No. 1] did in fact make that statement [referring to defendant as ‘stupid’]. However, it is
4 On appeal, both parties point out, but do not directly challenge, the opposing party’s
reliance—both, in support of the motion for new trial and the opposition thereto—upon evidence
comprising hearsay—namely, Investigator Jason Bietz’s unsworn reports discussing his
investigation into the alleged misconduct. Notably, neither party objected to the admission or
consideration of the reports below, and the court discusses the information in the reports in
assessing both the claim of juror misconduct and response thereto. Accordingly , to the extent the
parties’ discussion of such evidence on appeal could be construed as a challenge to its
admissibility, we conclude any claim of error regarding the trial court’s improper use of such
evidence is forfeited. (See Evid. Code § 353, subd. (a).)
43.
unclear when that statement was made, either predeliberation or during deliberation.”
(Italics added.) Assuming, as the trial court did, arguendo, that Juror No. 1 made the
comment that defendant was “stupid,” we further agree with the trial court that, if such a
statement was made prior to deliberations, it was in violation of the court’s order that no
juror should express any opinion on any subject connected with the trial until the matter
was finally submitted to the jury and, thus, misconduct. (See People v. Sandoval (2015)
62 Cal.4th 394, 437 [comments violating trial court’s instruction not to discuss case
before deliberations constitute misconduct]; see also § 1122].)
However, after conducting an independent review of the record, based upon the
nature of the alleged misconduct, we conclude the presumption of prejudice has been
rebutted because there is no substantial likelihood that Juror No. 1, or any other juror,
was actually biased against defendant. (See In re Boyette, supra, 56 Cal.4th at p. 890.)
Accordingly, even if the trial court erred in considering the strength of the evidence
inculpating defendant in weighing whether the presumption of prejudice was rebutted , the
alleged juror misconduct does not require reversal. (See In re Carpenter (1995) 9 Cal.4th
634, 654 [noting “the test for determining whether juror misconduct likely resulted in
actual bias is ‘different from, and indeed less tolerant than,’ normal harmless error
analysis, for if it appears substantially likely that a juror is actually biased , we must set
aside the verdict, no matter how convinced we might be that an unbiased jury would have
reached the same verdict”].)
In so concluding, we disagree with defendant’s contention the alleged statement
by Juror No. 1 in which she referred to defendant as “stupid,” in and of itself, evinced a
substantial likelihood that Juror No. 1 was “actually biased” against defendant. “What
constitutes ‘actual bias’ of a juror varies according to the circumstances of the case.”
(People v. Nesler, supra, 16 Cal.4th at p. 580.) “[A]ctual bias supporting an attack on the
verdict is similar to actual bias warranting a juror’s disqualification.” (Id. at p. 581.)
“Either party may challenge an individual juror for ‘an actual bias.’ (Code Civ. Proc.,
44.
§ 227, subd. (d).) ‘Actual bias’ in this context is defined as ‘the existence of a state of
mind on the part of the juror in reference to the case, or to any of the parties, which will
prevent the juror from acting with entire impartiality, and without prejudice to the
substantial rights of the any party.’” (People v. Nesler, at p. 580.)
Here, no evidence was given as to when the alleged remark was made during trial
or in what context. And we cannot conclude this single stray remark establishes Juror
No. 1 prejudged the case or was predisposed to convict defendant regardless of the
evidence presented. Rather, the alleged statement in and of itself does not establish Juror
No. 1 was actually biased, nor was it a clear opinion of guilt before all of the evidence
was presented. It would be sheer speculation for us to conclude the alleged statement
established a substantial likelihood that Juror No. 1 was actually biased against
defendant. There was also no evidence any other juror was influenced by the alleged
statement. On this record, we conclude the presumption of prejudice was rebutted under
the circumstances; that is, there is no substantial likelihood that one or more jurors were
actually biased against defendant. (See People v. Sandoval, supra, 62 Cal.4th at p. 437
[presumption of prejudice was rebutted where alternate juror’s predeliberation statement,
expressing disbelief jury appeared split, was brief and isolated, only heard by one other
juror, and was not repeated]; see generally People v. Avila (2006) 38 Cal.4th 491, 605
[assuming juror made statements “disparaging defense counsel, the trial court, and the
criminal justice system, in violation of the court’s admonition not to discuss any subject
connected with the trial,” whether statements were made “was not a material issue in the
case” because they “had no bearing on the matter pending before the jury, that is
defendant’s guilt or innocence”]; People v. Allen and Johnson (2011) 53 Cal.4th 60, 73
[juror’s statement during deliberations that “‘[w]hen the prosecution rested, she didn’t
have a case,’” was subject to interpretation; it was not an “‘unadorned statement’” that
juror had conclusively prejudged the case or that established he had ignored further
evidence, argument, instructions, or the views of other jurors].)
45.
People v. Weatherton (2014) 59 Cal.4th 589, on which defendant relies, is
distinguishable. In Weatherton, a juror repeatedly discussed the case with fellow jurors
prior to deliberations, conveying to them his belief that the defendant was guilty, and
advocating for a verdict of guilt long before the prosecution had finished its presentation
of evidence and the defense had an opportunity to call that evidence into question. (Id. at
pp. 596–600.) As early as the first day of trial, the juror indicated to other jurors that
“‘there was no denying’” a prosecution witness’s testimony, and that he believed her
testimony was dispositive on guilt. (Id. at pp. 596, 599–600.) Both before and during
deliberations, the juror expressed the view that the defendant deserved the death penalty,
further suggesting he had made up his mind regarding the defendant’s guilt. (Id. at pp.
593, 599–600.) “Given the nature, scope, and frequency” of the juror’s misconduct, the
Weatherton court concluded the People had not rebutted the presumption of prejudice and
reversal was required. (Id. at p. 600.) In so holding, the court noted “‘we must set aside
the verdict, no matter how convinced we might be that an unbiased jury would have
reached the same verdict, because a biased adjudicator is one of the few structural trial
defects that compel reversal without application of a harmless error standard.
[Citation.]’” (Ibid.)
The alleged misconduct here is distinguishable from the substantial evidence of
rampant misconduct present in Weatherton. The alleged misconduct in this case was
neither prolonged nor repeated. As discussed, there is no evidence as to the context in
which the alleged single stray remark by Juror No. 1 was made. And the statement, on its
own, does not establish Juror No. 1 prejudged the case or that any other jurors evinced
actual bias against defendant. Accordingly, Weatherton is inapposite. (See People v.
Merriman (2014) 60 Cal.4th 1, 101 [juror’s statement to deputy predicting death would
be imposed while case was pending did not show substantial likelihood any juror was
actually biased against defendant; concluding “the evidence of prejudgment in the present
46.
matter is far different from, and significantly less than, the circumstances that required
reversal of the judgment for juror misconduct in People v. Weatherton”].)
Defendant further contends it was misconduct for Juror No. 1 to reveal her
relationship to Perez to other jurors. First, we note, even if we were to assume Juror
No. 1 did in fact tell the other jurors about the nature of her relationship to Perez, there is
no evidence in the record as to when this occurred—before deliberations, during
deliberations, or after deliberations. Accordingly, there is no evidence Juror No. 1 was
trying to influence the other jurors’ opinions about any issue in the case “or that the
information was of the kind that was likely to exert such an influence.” (In re Bolden
(2009) 46 Cal.4th 216, 228.) Thus, we cannot conclude Juror No. 1’s alleged disclosure
of her relationship to Perez was prejudicial juror misconduct, nor did it establish Juror
No. 1 was biased against defendant. (See ibid. [juror’s disclosure to fellow juror
regarding relationship to defendant’s roommate was not prejudicial misconduct].)
And we defer to the trial court’s factual finding that Juror No. 1 could be fair and
impartial despite her relationship to Perez, which we conclude is supported by substantial
evidence. Juror No. 1 explained she had no relationship with Perez; she had not seen him
in a year and a half and had probably only seen him once before that; and she repeatedly
asserted, unequivocally, that she could fairly and impartially serve as a juror
notwithstanding her relationship with her sister and connection to Perez. (Cf. People v.
Romero (2017) 14 Cal.App.5th 774, 781–782 [court erred in allowing juror to remain on
panel where juror had been victim’s teacher three years prior, “apparently had frequent
personal interaction with the victim,” “admitted a favorable impression of the victim,”
and juror stated she did not “think” her favorable relationship with victim would affect
how she perceived evidence and participated in deliberations].) Accordingly, we accept
the trial court’s credibility determination regarding Juror No. 1’s assertion she believed
she could be fair and impartial. (See generally People v. Zaragoza (2016) 1 Cal.5th 21,
59 [“The trial court, which was able to observe the juror’s tone and demeanor, conducted
47.
an inquiry adequate to determine that Juror No. 8 could be impartial and would be
unaffected by the coincidence that the victim’s brother, who was not a witness in the
case, worked at the juror’s place of employment”].) And we conclude the juror’s
responses to the court’s inquiry into her relationship to Perez and her affirmation that the
relationship would not affect the juror’s deliberations, further rebuts any potential issue
of juror bias or misconduct.
For all these reasons, we reject defendant’s contention there was prejudicial juror
misconduct and that the court erred in denying defendant’s motion for new trial on that
basis.
III. Judicial Notice of Preliminary Hearing Testimony
Defendant next argues the trial court prejudicially erred in taking judicial notice of
an excerpt of Christian’s testimony from the preliminary hearing. We reject defendant’s
contention.
A. Relevant Factual Background
At trial, the following exchange took place with defendant’s brother, Christian,
regarding whether he saw any of the four men from the liquor store with a gun at
Corcoran and Lassen:
“Q. Do you remember telling the Court that you didn’t see any of
the men at Corcoran and Lassen, the four men from the liquor store, you
didn’t see any of them with a gun?
“A. I don’t remember. I don’t remember.
“Q. Did you see any of the men at Corcoran and Lassen from the
liquor store with any kind of a weapon?
“A. Yes.
“Q. Okay. But you testified that you did not?
“A. Well, I don’t remember, I don’t know.
“[PROSECUTOR ]: Okay. I’m going to ask to approach the witness.
48.
“THE COURT: Go ahead.
“[DEFENSE COUNSEL]: May I—
“[PROSECUTOR ]: For the record, I’m looking at page 31 of the
preliminary hearing transcript.
“Q. Now I’m going to ask you to read this silently while I read this
aloud to you.
“My question was ‘Did you see anyone at Corcoran and Lassen with
a gun?’ Your response was ‘no.’
“Was that your testimony?
“A. Yes, it says on the paper. I don’t remember. But on the paper it
says, yes, I said ‘no.’”
Later that day, the prosecutor asked the court to take judicial notice of the question
and answer from Christian’s preliminary hearing testimony:
“[PROSECUTOR ]: I have never asked this specifically, and if I’m not
allowed to do this then please tell me no.
“But there was a question from the preliminary hearing that was
inconsistent—the answer was inconsistent with something he said in court.
Would the Court allow me just to take judicial notice of one question and
one answer from Christian Martinez’s—as a prior testimony?
“THE COURT: What was the question and what was the answer?
“[PROSECUTOR ]: I said ‘Did you see anyone at Corcoran and Lassen
with a gun?’ And he answered ‘no.’
“I believe that he gave a lot of I don’t knows or there might have
been a gun, so I just think it would clarify, and it’s just that one question
and answer.
“THE COURT: Are you saying that he—he testified today that
somebody had a gun?
“[PROSECUTOR ]: He was kind of all over the place.
“THE COURT: No, I understand. But—
“[PROSECUTOR ]: I thought he had said at various times that he
thought they had a gun.
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“THE COURT: Well, thinking they have a gun and seeing a gun are
different.
“[PROSECUTOR ]: Right. This answer is so unequivocal, it seems to
me that it would not take up much of the Court’s time, and it would resolve
the issue—
“THE COURT: Well, it doesn’t matter—well I understand that it’s
not going to take time. I’m just trying to determine if it’s an inconsistent
statement.
“[PROSECUTOR ]: Would the Court like me to direct the Court to the
passage of the prelim or give the Court my transcript?
“THE COURT: I would like to see it. Have you shown it to Mr.—
“[DEFENSE COUNSEL]: I have seen it, your Honor. I’m familiar
with what—
“THE COURT: Okay. Let me take a look at it.
“And you are saying that he testified to that?
“[PROSECUTOR ]: That is from the preliminary hearing transcript in
this case. And what he said in this trial, I believe, was—was a lot of I don’t
know and speculation about whether they did or did not have a gun.”
The court stated it needed “to review the transcripts of his testimony to see if it’s
inconsistent.” Defense counsel objected to the prosecutor reading into the record the
referenced passage of the transcript of the preliminary hearing.
The court overruled the objection and held, “[i]t seems to be proper
impeachment.” Accordingly, the court permitted the prosecutor to read the following
passage from Christian’s preliminary hearing testimony into the record:
“‘Q. But at Corcoran and Lassen did you see the gun?’
“Christian Martinez: [¶] ‘A. No.’
“‘Q. Okay. Because none of the men had a gun there?’
“‘A. (Nods affirmatively.)’
“‘Q. Is that correct?’ [¶] … [¶]
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“‘Q. I’m asking him did anyone at the Corcoran and Lassen have a
gun?’
“The Court then says:
“‘Did you see? He doesn’t know whether they actually had one or
not.’
“And then [the prosecutor] said:
“‘Q. Did you see anyone at Corcoran and Lassen with a gun?’
“Christian Martinez: [¶] ‘A. No.’”
In closing argument, the prosecutor stated, in part, “We heard that even as far back
as the preliminary hearing, Christian Martinez came to court and said there was no gun,
there was no gun at Corcoran and Lassen. We heard that the Court took judicial notice of
that.”
B. Standard of Review and Applicable Law
“‘Judicial notice is the recognition and acceptance by the court, for use by the trier
of fact or by the court, of the existence of a matter of law or fact that is relevant to an
issue in the action without requiring formal proof of the matter.’” (Lockley v. Law Office
of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Evidence
Code section 452, subdivision (d) provides, in relevant part, that judicial notice may be
taken of the records of “any court of this state.”
C. Analysis
Defendant challenges the court’s decision to take judicial notice of Christian’s
referenced testimony from the preliminary hearing, asserting “by taking judicial notice of
a disputed fact of consequence to the action, the court directed a verdict against
[defendant] on a significant element, violating his rights to due process, fundamental
fairness, a jury trial and the presumption of innocence.” He contends the prosecutor’s
reliance on this “judicially-endorsed fact” to argue the jury should reject defendant’s plea
of self-defense lightened the prosecution’s burden of proof. We disagree.
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Here, the court’s action of taking judicial notice of Christian’s prior inconsistent
statement from his preliminary hearing testimony to establish its existence rather than its
truth was proper,5 and doing so did not establish the truth of Christian’s prior statement.
(See People v. Jennings (2010) 50 Cal.4th 616, 684, fn. 34 [noting, even if court “could
take judicial notice of the existence, content, and authenticity of … secondary materials,
doing so would not establish the truth of critical factual matters asserted therein”];
accord, People v. Castillo (2010) 49 Cal.4th 145, 157 [“Although we could take judicial
notice of the existence, content, and authenticity of such letters, doing so would not
establish the truth of critical factual matters asserted in those documents” (fn. omitted)];
see also Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063–1064
[“‘[T]he taking of judicial notice of the official acts of a governmental entity does not in
and of itself require acceptance of the truth of factual matters which might be deduced
therefrom, since in many instances what is being noticed, and thereby established, is no
more than the existence of such acts and not, without supporting evidence, what might
factually be associated with or flow therefrom’”], overruled on other grounds by In re
Tobacco Cases II (2007) 41 Cal.4th 1257, 1262.) Notably, the prosecutor did not ask the
court to take judicial notice of the referenced exchange from the preliminary hearing
transcript for the purpose of establishing the truth of the statements made therein. And
the court did not state, nor was the jury instructed, that the court’s decision to take
judicial notice of such testimony established the truth of the disputed factual matter
discussed therein.
And, contrary to defendant’s contention, the prosecutor did not assert the disputed
fact was resolved by the court’s taking of judicial notice of Christian’s prior inconsistent
5 See People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 766–767 [“A
witness’s out-of-court statement ‘is not made inadmissible by the hearsay rule if the statement is
inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code]
Section 770’”]; accord, Evid. Code, § 1235; see also Evid. Code, § 452, subd. (d) [court may
take judicial notice of a court record].)
52.
testimony. Indeed, when questioning defendant on cross-examination, the prosecutor
noted Christian testified previously that he did not see anyone at Corcoran and Lassen
with a gun, but then Christian testified in court that he saw someone with a chrome gun
before the shooting. Accordingly, the prosecutor did not insinuate or tell the jury this
disputed fact was resolved by the court’s taking of judicial notice of the preliminary
hearing testimony but rather highlighted the inconsistency in Christian’s statements.
Thus, we cannot conclude the court’s taking judicial notice of the existence of such
testimony amounted to it resolving a disputed fact and lightening the prosecution’s
burden of proof. Rather, nothing in the record establishes the court erred in taking
judicial notice of this testimony.
IV. Denial of Motion for Continuance
Defendant next asserts the court prejudicially erred in refusing to grant him a
continuance to secure the attendance of the doctor who evaluated him during the
competency proceedings before trial. We disagree.
A. Relevant Procedural Background
On August 8, 2018, defense counsel filed a motion to continue the trial to permit
the defense to call Dr. Luis H. Velosa, who was out of the country until September 17,
2018. In an attached declaration, defense counsel averred that Dr. Velosa was “a
necessary and material witness for potential defenses as well as providing mitigating facts
should the Defendant ultimately be found guilty.” He stated he served a subpoena on
Dr. Velosa to testify at trial on August 6, 2018, but Dr. Velosa’s office informed him
Dr. Velosa was out of the country until September 17, 2018. He attached a letter from
Dr. Velosa’s office clerk stating Dr. Velosa “will not be available for court appointed
evaluations from June 15, 2018 to September 17, 2018. He will be out of the Country
during this time.”
53.
The court held a hearing on the motion at which the prosecutor orally opposed the
motion.6 The prosecutor argued Dr. Velosa was not relevant or material to the matter as
he “is an expert who only evaluated the defendant for competency, and he found the
defendant competent.” The prosecutor asserted the motion seemed “to be a tactic to try
to continue the case.”
Defense counsel responded that his office subpoenaed Dr. Velosa and believed
“his testimony would be relevant in the context that [Dr. Velosa] interviewed [defendant]
as part of a competency evaluation … [and] while he did find [defendant] competent to
stand trial, he found … [defendant] has developmental issues and other issued [sic] such
as ADHD.” Defense counsel stated he sought to call Dr. Velosa as a witness regarding
defendant’s “ability to form the mental—” The court then asked if defense counsel had
spoken to the doctor. Defense counsel responded he had Dr. Velosa’s report from the
mental competency hearing and his “statement” and had tried to subpoena him, but the
subpoena could not be delivered.
The court denied the motion to continue, concluding there was “an exceedingly
weak showing” of good cause that was “[c]ertainly not sufficient to warrant continuing
the trial.” The court stated, “The analysis [Dr. Velosa] was doing was directed toward
trial competence, which is a very narrow and specific determination. His charge from
this Court was not to do a full blown psychiatric workup on the defendant, and there is no
evidence that he did such a workup.” The court further noted there was no effort to
subpoena Dr. Velosa until August 6th, though the trial had been set for months.
After the court denied the motion, the parties confirmed they were ready to
proceed with trial. Trial began the following Monday.
6 The hearing was held on Friday, August 17, 2018 and defendant’s jury trial began the
following Monday, August 20, 2018.
54.
B. Standard of Review and Applicable Law
A continuance may only be granted for good cause, and trial courts have broad
discretion to determine whether good cause exists. (§ 1050, subd. (e); People v.
Alexander (2010) 49 Cal.4th 846, 934.) “When a continuance is sought to secure the
attendance of a witness, the defendant must establish ‘he had exercised due diligence to
secure the witness’s attendance, that the witness’s expected testimony was material and
not cumulative, that the testimony could be obtained within a reasonable time, and that
the facts to which the witness would testify could not otherwise be proven.’” (People v.
Jenkins (2000) 22 Cal.4th 900, 1037; accord, People v. Wilson (2005) 36 Cal.4th 309,
352.) “The court considers “‘not only the benefit which the moving party anticipates but
also the likelihood that such benefit will result, the burden on other witnesses, jurors and
the court and, above all, whether substantial justice will be accomplished or defeated by a
granting of the motion.”’” (Jenkins, at p. 1037.)
We review an order denying a motion to continue for an abuse of discretion.
(People v. Mungia (2008) 44 Cal.4th 1101, 1118.) The party challenging a ruling on a
continuance bears the burden of establishing an abuse of that discretion. (People v.
Beames (2007) 40 Cal.4th 907, 920; People v. Strozier (1993) 20 Cal.App.4th 55, 60;
People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) “Under this state law standard,
discretion is abused only when the court exceeds the bounds of reason, all circumstances
being considered.” (People v. Beames, supra, at p. 920.) In determining whether the
denial was so arbitrary as to violate due process, we look to the circumstances of each
case, particularly the reasons presented to the court at the time the request was denied.
(People v. Courts (1985) 37 Cal.3d 784, 791; Jeffers, supra, at p. 850.)
C. Analysis
Defendant asserts all of the circumstances were present to establish good cause to
procure the presence of Dr. Velosa. He asserts defense counsel reasonably subpoenaed
Dr. Velosa 17 days before trial, and the court erred in focusing on when the subpoena
was served. Defendant contends, regardless, Dr. Velosa was unavailable and “his
55.
unavailability was not counsel’s fault.” He contends Dr. Velosa’s testimony regarding
defendant’s “mental condition” would “aid the jury in deciding whether [defendant]
actually formed the mental state(s) required to commit the charged crimes.” He also
argues such testimony was “important to sentencing” because the sentencing court was
entitled to consider the “‘“mitigating qualities of youth.”’”
We cannot conclude the trial court abused its broad discretion in denying
defendant’s motion for a continuance. Here, defendant failed to establish the materiality
of Dr. Velosa’s testimony or provide an offer of proof as to what exculpatory testimony
he might offer. Put differently, the defense did not explain what facts Dr. Velosa would
testify to that were “necessary” and “material” to the defense. Rather, counsel simply
made conclusory statements that the anticipated testimony was “material” and
“necessary.” But, as the court noted, Dr. Velosa conducted a limited evaluation of
defendant’s competence to stand trial. The critical focus of a competency inquiry is upon
defendant’s present capacity to understand the nature of the criminal proceedings and
rationally assist counsel in the conduct of a defense, not his past mental state associated
with the commission of the offense. (See People v. Hayes (1999) 21 Cal.4th 1211, 1281.)
While in his brief defendant states Dr. Velosa’s report “provides insight into what he
would have testified to at trial,” as discussed, Dr. Velosa’s report related to defendant’s
competency to stand trial. Defendant’s contention that “Dr. Velosa would have testified
as to how [defendant]’s diagnosed conditions may have affected his mental state” on the
date of the offense is speculative and not grounded in any basis in the record. (See In re
Ernesto H. (2004) 125 Cal.App.4th 298, 316 [“A continuance may properly be denied
when the request is based on allegedly new evidence of speculative value”].) Rather, on
the record before us, we cannot conclude defendant has met his burden of establishing the
court abused its discretion in concluding Dr. Velosa’s anticipated testimony would be of
limited apparent utility and, thus, defendant did not establish good cause for a
continuance. (See People v. Reed (2018) 4 Cal.5th 989, 1005 [court did not abuse its
56.
discretion in denying request for continuance to procure witness’s attendance where
continuance would have been of “limited apparent utility”]; accord, People v. Riggs
(2008) 44 Cal.4th 248, 297 [court did not abuse its discretion in denying request for
continuance to secure attendance of three witnesses whose “testimony was immaterial, as
it was speculative at best”]; see also People v. Jenkins, supra, 22 Cal.4th at p. 1038
[“court was within its discretion in refusing to grant a continuance, because defendant
had not demonstrated that a continuance would be useful in producing specific relevant
mitigating evidence within a reasonable time”]; People v. Beeler (1995) 9 Cal.4th 953,
1003–1004 [continuance properly denied when defendant’s request was based upon new
evidence of speculative value], abrogated on another ground as stated in People v.
Edwards (2013) 57 Cal.4th 658, 704–705.) And, for the same reasons, we cannot
conclude defendant has established a reasonable probability he would have obtained a
more favorable verdict had the continuance been granted. (People v. Panah (2005) 35
Cal.4th 395, 423 [“‘In the absence of a showing of an abuse of discretion and prejudice to
the defendant, a denial of a motion for a continuance does not require reversal of a
conviction’”].)
In addition, though defendant argues Dr. Velosa was available to testify in
September, the evidence before the court did not establish a finite date as to Dr. Velosa’s
expected availability to appear at defendant’s trial. Rather, defense counsel merely
presented the court with information regarding when Dr. Velosa would return to the
country, rather than a specific date when Dr. Velosa would be available to testify.
Defense counsel also did not represent he had spoken to Dr. Velosa.
Defendant’s reliance on People v. Shane (2004) 115 Cal.App.4th 196 is
misplaced. In Shane, the court held the trial court did not abuse its discretion in granting
the prosecution a continuance after they attempted to serve a key witness—the arresting
officer in a misdemeanor case alleging traffic violations, including driving under the
influence of alcohol—four days before the initial trial date and learned he was
57.
unavailable. (Id. at pp. 203–205.) In so holding, the Shane court rejected the defendant’s
proposed rule that the prosecution should be required to serve a subpoena on a peace
officer who is a material witness as soon as the trial date is set to show good cause for a
continuance based on the officer’s unavailability. (Id. at p. 204.) The court held,
“because a finding of good cause is by its nature fact intensive, it would be entirely
arbitrary for us to require as a matter of law that a witness’s availability be determined no
later than a fixed number of days before the trial date for good cause to be shown.” (Id.
at p. 205.)
Here, the court concluded defendant had not established good cause for a
continuance based primarily on an insufficient showing by defendant of the materiality of
Dr. Velosa’s testimony, which was not at issue in Shane where the missing witness was a
key witness—the arresting officer in a case in which the defendant was charged, in part,
with driving under the influence of alcohol. As discussed, we cannot conclude the court
abused its discretion in denying the requested continuance on that basis. Furthermore,
the consideration of whether due diligence was exercised is fact-specific. This was a
murder occurring in August 2016 and had been pending for approximately two years.
There were multiple witnesses and, aside from this request to procure Dr. Velosa’s
attendance, the parties otherwise announced they were ready to proceed with trial. Given
the particular circumstances of this case, we cannot conclude the court erred in
concluding substantial justice would not be served by granting a continuance. (See
People v. Beames, supra, 40 Cal.4th at pp. 920–921 [“an order denying a continuance is
seldom successfully attacked”; “discretion is abused only when the court exceeds the
bounds of reason, all circumstances being considered”].)
V. Admission of Rap Video into Evidence
Defendant next argues the court abused its discretion in admitting at trial a video
recording of him rapping.
58.
A. Relevant Factual Background
Gang expert Officer Segura testified rap music is part of gang culture. He
explained, “within the gang subculture, depending what gang it is, there is [sic] Hispanic
gangs, black gangs, there’s numerous types of gangs, along with the clothing and colors
and symbols they use to represent the gang, there is also music, which each gang uses to
either challenge rival gang members or to tell even the general public personal war stories
or just ideas and philosophy of the gang life.”
Officer Segura testified he found on the cellular phone recovered from the Chevy
Malibu numerous rap videos and audio recordings of defendant rapping. Segura
explained, “there’s a lot of content in each rap or song. The content of the songs is
‘staying strapped’ for lack of better … words, he’s … always armed. He talks about
disrespecting chaps, which is a slang term to disrespect the Norteno gang members. He
talks about some of his homies or comrades, friends who are also part of the gang. And
he also talks a little bit about some experiences that he may or may not have experienced
in his life in those songs.”
The prosecution introduced a recording from the cellular phone seized during the
investigation. Defense counsel objected to the recording “as to foundation and also
cumulative and undue consumption of time.” The prosecutor advised the court the
recording was a little over a minute long and the court reviewed a transcript of the
recording. The court asked the prosecutor if he knew when it was “actually recorded in
relation to the events in this case.” The prosecutor responded “there is context in the
recording where he talks about an incident that … law enforcement did investigate.”
Officer Segura then discussed an incident occurring within months of the charged
incident during which defendant’s residence was vandalized; one of the windows was
shot with a BB or pellet gun.
The court then asked the prosecutor about the relevance of the recording. The
prosecutor responded, “[H]e talks about shooting at rival gang members, he shows
knowledge of the primary activities of the gang. I think this would also go to malice
59.
aforethought, willful, deliberate, and premeditated. That he’s thought about these crimes
before he committed them, he’s specifically calling out the same people that he killed in
advance.” The court then asked how the prosecutor knew Sergio Cabral was involved in
the vandalism. The prosecutor responded:
“No, not that, that he’s calling out rival gang members. We have
heard that Mr. Cabral was AVL, that’s the rival as we heard of TLS. So
this is a message to not just Sergio Cabral, but all the members of the AVL,
I think it’s showing his malice well before he even shot.
“And I could go on about the other things that this also proves. It
goes to every aspect of the gang enhancement. I have to prove knowledge
and that these are the primary activities of the gang—”
The court noted such evidence appeared to “be more relevant to that area: The
gang, culture of the gang, lifestyle of the gang, mentality.” Defense counsel argued,
while such evidence “may be relevant, it’s unduly prejudicial given the context.”
Defense counsel asked whether there were several other recordings. The prosecutor
stated there were three in total; the shortest was a minute long and the longest was three
minutes.
The court reviewed the recordings and held it would allow the prosecutor to play
the first recording. The court declined to permit two more recordings reasoning “[u]nder
[Evidence Code section] 352 it’s going to be cumulative, they seem to be the same
nature, and you can refer to them that there are others that are similar to the one that [the
prosecutor was] going to be playing.” The prosecutor specified one of the three
recordings he wanted to use. The court directed the prosecutor to lay a proper foundation
and the court would allow it.
Accordingly, the prosecution introduced a video recording in which defendant can
be heard rapping, but he does not appear visually; rather, the screen is black or dark
during the recording. The People also presented the jury with a transcript of the lyrics.
The court advised the jury the transcript was not evidence but was to aid them in helping
understand what was being played.
60.
Officer Segura explained the exhibit “is an instrumental song playing in the
background, and there are some lyrics to the line of a subject by the name … or moniker
of Grumpy, he starts rapping about events that occurred in his life along with other
contents in regard to the gang lifestyle and killing people, that kind of stuff.” He stated
Grumpy is defendant’s moniker or nickname. Segura testified the word “chap” in the
lyrics is “a derogatory term in the gang subculture referred to by the rivals of the Norteno
criminal street gang.” He explained the lyric “‘I’m gonna aim right, put some
motherfucker six feet deep’” meant defendant “is going to have somebody buried six feet
underground.” And “‘ready to check a fuckin’ chap on the low key’” meant to silently or
secretively put someone who disrespects him “in check.” The phrase “‘Smashing on
chaps’” in the lyrics referred to “assaulting or killing Nortenos.” And the word “clack” in
the phrase “‘Ready to clack … a fuckin’ chap’” is describing the sound of a gunshot.
There was also a lyric, “‘we’re gonna kill a chap,’” that Officer Segura testified meant
“[h]e’s going to kill a Norteno.”
Defendant admitted it was his voice in the recording and , when asked if he talked
about killing a chap in the recordings, defendant testified, “It’s just little kid stuff, I was
16 years old.”
In closing argument, the prosecutor referenced the rap lyrics in discussing
deliberation and intent to kill:
“… And what’s … important to remember in this situation is that
this does not appear to be a decision that was made quickly at all. We
heard from the defendant’s brother Christian that the defendant was
insulted, he was disrespected, there was somewhere between 15 and 30
minutes, a ‘cool off’ period where the defendant did, in fact, ‘cool off,’
where he calmed down, where he left the … liquor store, went to the gas
station, according to the defendant tried to pick up a friend and then they
just start driving around randomly, just cruising for no discernible reason.
“So, again, intent to kill, the same thing. Deliberate, did he weigh
the choices knowing the consequences? We know he was armed, we know
that he thought about killing chaps in the past. We heard this music where
he starts talking about killing a chap, and we heard this was part of—
61.
something that was on his mind that he had thought about this type of act
before he even chose to—to commit a murder. We note that he had the gun,
that it was loaded ready to go, that he’s driving around, he’s looking for a
person with a gun, all of that shows that he weighed the choices, even if it
was a terrible choice, knowing the consequences.
“And then finally did he decide to kill before he acted? And, again,
we’re told that a cold, calculated decision to kill can be reached quickly.
This is a cold, calculated decision. I would submit to you that when he had
that gun and he started looking for these people, he had already
premeditated, he had already made his decision.
“But if you don’t believe that, when he first pulled the gun out and
pulled the trigger, think about that, you are taking out a gun, and you are
going to end a human’s life, and then he decided to shoot five more times.
Every single click of the revolver showed premeditation, showed that he
decided to kill before he acted. When he aimed for the head and pulled the
trigger. So that’s one theory of first degree murder.” (Italics added.)
The prosecutor also mentioned the rap music when discussing evidence defendant
was an active participant in a gang, and he argued, in “that rap music, [defendant] is
referencing all the crimes that the gang members commit. He is talking about killing
chaps and—so that’s been proven.”
The court admonished the jury it could “consider evidence of gang activity only
for the … limited purpose of deciding whether:
“The defendant acted with the intent, purpose, and knowledge that
are required to prove the gang related crimes and enhancements and special
allegations charged; or the defendant had a motive to commit the crimes
charged; or the defendant actually believed in the need to defend himself;
or the defendant acted in the heat of passion.
“You may also consider this evidence when you evaluate the
credibility or believability of a witness, and when you consider the facts
and information relied on by an expert witness in reaching his or her
opinion.
“You may not consider this evidence for any other purpose. You
may not conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit crimes.”
62.
B. Standard of Review and Applicable Law
Evidence is admissible only if it is relevant. (Evid. Code, § 350.) All relevant
evidence is admissible except as otherwise provided by a statutory or constitutional
exclusionary rule. (See Cal. Const., art. I, § 28, subd. (f)(2); Evid. Code, § 351.)
Relevant evidence is defined as evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) The general test of relevance “‘is whether the evidence tends
“logically, naturally, and by reasonable inference” to establish material facts such as
identity, intent, or motive.’” (People v. Bivert (2011) 52 Cal.4th 96, 116–117.)
A court may exclude evidence “if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.” (Evid. Code, § 352.) A trial court has broad discretion in determining whether
evidence is relevant and whether Evidence Code section 352 precludes its admission.
(People v. Mills (2010) 48 Cal.4th 158, 195; People v. Williams (2008) 43 Cal.4th 584,
634.) We review for an abuse of discretion a trial court’s rulings on the admissibility of
evidence, including those turning on the relevance or probative value of the evidence in
question. (See People v. Lee (2011) 51 Cal.4th 620, 643; People v. Hamilton (2009) 45
Cal.4th 863, 929–930.)
“[S]tate law error in admitting evidence is subject to the traditional Watson
[People v. Watson (1956) 46 Cal.2d 818] test: The reviewing court must ask whether it is
reasonably probable the verdict would have been more favorable to the defendant absent
the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.) Federal due process is
offended only if admission of the irrelevant evidence renders the trial fundamentally
unfair. (Ibid.)
C. Assembly Bill No. 2799
On September 30, 2022, the Governor approved Assembly Bill No. 2799 (2021–
2022 Reg. Sess.) (Assembly Bill 2799) and filed it with the Secretary of State. Assembly
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Bill 2799 expresses the Legislature’s intent to “provide a framework by which courts can
ensure that the use of an accused person’s creative expression will not be used to
introduce stereotypes or activate bias against the defendant, nor as character or propensity
evidence; and to recognize that the use of rap lyrics and other creative expression as
circumstantial evidence of motive or intent is not a sufficient justification to overcome
substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair
prejudice.” (Stats. 2022, ch. 973, § 1, subd. (b).)
To that end, effective January 1, 2023, Assembly Bill 2799 adds section 352.2 to
the Evidence Code, which requires:
“(a) In any criminal proceeding where a party seeks to admit as evidence a
form of creative expression, the court, while balancing the probative value
of that evidence against the substantial danger of undue prejudice under
Section 352, shall consider, in addition to the factors listed in Section 352,
that: (1) the probative value of such expression for its literal truth or as a
truthful narrative is minimal unless that expression is created near in time to
the charged crime or crimes, bears a sufficient level of similarity to the
charged crime or crimes, or includes factual detail not otherwise publicly
available; and (2) undue prejudice includes, but is not limited to, the
possibility that the trier of fact will, in violation of Section 1101, treat the
expression as evidence of the defendant’s propensity for violence or general
criminal disposition as well as the possibility that the evidence will
explicitly or implicitly inject racial bias into the proceedings.”
Evidence Code section 352.2, subdivision (d) provides the admissibility of a form
of creative expression shall be heard in limine and determined by the court, outside the
presence and hearing of the jury, pursuant to Evidence Code section 402, and the court
“shall state on the record its ruling and its reasons therefor.” (Evid. Code, § 352.2, subd.
(d).)
D. Analysis
Defendant argues the trial court should have excluded the video recording of him
rapping pursuant to Evidence Code section 352 as more prejudicial than probative. He
asserts gang evidence poses a “high risk of serious prejudice.” He likens his case to
People v. Coneal (2019) 41 Cal.App.5th 951 (Coneal), in which the appellate court
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concluded the admission of rap videos was an abuse of discretion, but the error was
harmless. He argues, as in Coneal, “this case admitted a plethora of gang evidence”
(boldface omitted) and, when defendant testified, he admitted he was a member of TLS
on the date of the offense. Thus, there was “overwhelming evidence concerning
[defendant’s] participation in the TLS gang” and “[t]he rap lyrics added nothing more of
evidentiary value to the prosecutions’ [sic] case.” Defendant also argues the court should
have excluded evidence about the purported meaning of the rap lyrics because the lyrics
should not have been construed literally. He asserts the prosecutor used the lyrics as
evidence of a pattern of gang activity and defendant’s intent to kill, citing the
prosecutor’s closing argument. In arguing the error in admitting the rap lyrics was
prejudicial, defendant acknowledges some gang evidence was relevant and admissible in
light of the charges. But, he contends, “the rap lyrics went beyond the bounds of the
other gang evidence and was [sic] extremely prejudicial” in that they “were akin to
evidence of a confession.” He argues the lyrics themselves and the manner in which the
prosecutor used them to argue they were “an accurate and reliable manifestation” of
defendant’s thoughts, knowledge, and intent, were “extremely prejudicial” because there
was little other evidence of defendant’s intent to kill. He argues the admission of the rap
lyrics in this case violated his due process rights “because its only true relevance was to
show that he acted in conformity with bad character.” The People respond the rap lyrics
at issue “were highly probative” of defendant’s mental state and to prove defendant’s
involvement with TLS and his knowledge of TLS’s primary activities. They assert the
court here limited the introduction of such evidence, excluding two of the three videos
offered, and no screenshots from the videos were introduced, as in Coneal. They further
respond, defense counsel never objected to the prosecutor’s argument regarding the rap
lyrics, so defendant’s challenge to the related argument is forfeited. They further argue
the lyrics were probative of their literal truth, so an objection was not warranted. Finally,
they assert the rap lyrics were not prejudicial in light of the other evidence inculpating
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defendant, including defendant’s confession to police when he was interviewed. In
supplemental briefing, defendant asserts the rap lyrics were also inadmissible under
newly enacted Evidence Code section 352.2. The People disagree that Assembly Bill
2799 should operate retroactively and assert, regardless, any error in the admission of the
rap lyrics was harmless. We agree with the People that any error in the admission of the
rap lyrics was harmless.
In Coneal, the prosecution introduced multiple rap videos, a rap audio recording,
and multiple screenshots capturing images from the videos at trial. (Coneal, supra, 41
Cal.App.5th at pp. 960–963, 966.) On appeal, the defendant argued the court erred in
admitting five of the videos because they were cumulative and more prejudicial than
probative. (Id. at pp. 965–966.) The Coneal court held the admission of the rap videos
was error because the probative value of the videos was minimal, either because they
were cumulative of other, less prejudicial evidence, or because their probative value
depended on construing the lyrics as literal statements of fact or intent without a
persuasive basis to do so. (Id. at pp. 953, 966–972.) And, the prejudicial nature of the
violent, inflammatory lyrics substantially outweighed their minimal probative value. (Id.
at pp. 953–954, 970–972.) The court explained “the rap videos paint a picture of
appellant and his fellow gang members as eagerly and ruthlessly seeking out and
engaging in violence, with no empathy for their victims. While it may be that this picture
is accurate, it poses a significant danger that the jury will use it as evidence of appellant’s
violent character and criminal propensity in violation of Evidence Code section 1101,
subdivision (a).” (Id. at pp. 970–971, fn. omitted.) The Coneal court noted it did “not
mean to suggest that lyrics are never probative of their literal truth. For example, where
lyrics are written within a reasonable period of time before or after the charged crime and
bear a sufficient level of similarity to the charged crime, their probative value as a
statement of fact is increased.” (Id. at p. 969.) The Coneal court cautioned that “[t]rial
courts should carefully consider whether the potential for prejudice posed by [rap songs
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that promote and glorify violence] outweighs their probative value. In particular, where
the rap lyrics are cumulative of other evidence … or where the probative value rests on
construing the lyrics literally without a persuasive basis to do so, the probative value will
often be ‘substantially outweighed by [the] prejudicial effect.’” (41 Cal.App.5th at pp.
971–972.) However, the court concluded the error in the admission of such evidence was
harmless considering the other evidence of the defendant’s guilt. (Id. at pp. 954, 972–
973.)
Here, the court limited the introduction of the rap recordings to one recording
approximately three minutes long; this is in contrast to Coneal, in which the prosecution
introduced five videos, an audio recording, and multiple screenshots from the videos. We
further acknowledge, to the extent the court admitted the rap recording to evidence gang
culture and defendant’s gang association, such evidence was relevant; but there was also
other probative evidence on these topics. Indeed, defendant himself testified he was a
gang member at the time of the offense. Additionally, by defendant’s own testimony, the
confrontation that escalated to him shooting Cabral involved Cabral’s group throwing
rival gang signs and using slurs. And there was other testimony and evidence regarding
defendant’s gang affiliation: pictures of his gang-related tattoos, a photograph of him
making a gang hand sign, a video of him burning a red bandana—the color representing
the rival Norteño gang—testimony he had a blue bandana and a paper of the 13 Bonds on
his person when he was arrested, and the testimony of other officers who had personal
past interactions with defendant and other gang members, as well as evidence of gang
culture from the prosecution’s gang expert and other witnesses.
Nevertheless, we need not decide whether the court abused its discretion in
admitting such evidence because, even if we were to assume, arguendo, the trial court
erred in admitting this recording, we conclude the error was harmless under the standard
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articulated in People v. Watson, supra, 46 Cal.2d at page 836.7 Put differently, we
cannot conclude it is reasonably probable defendant would have obtained a more
favorable result if the recording had been excluded. (See People v. Young (2019) 7
Cal.5th 905, 931 [“‘When evidence is erroneously admitted, we do not reverse a
conviction unless it is reasonably probable that a result more favorable to the defendant
would have occurred absent the error’”]; People v. Powell (2018) 5 Cal.5th 921, 951
[same].) And we cannot conclude the admission of the rap video amounted to a violation
of defendant’s due process rights, rendering the trial fundamentally unfair. (See People
v. Partida, supra, 37 Cal.4th at p. 439 [“the admission of evidence, even if erroneous
under state law, results in a due process violation only if it makes the trial fundamentally
unfair”].)
In so concluding, we note the evidence in this case against defendant was strong.
Defendant admitted to committing the shooting both after the offense and at trial. His
theory at trial was he acted in self-defense. However, he admitted he did not tell the
police in his interview following the incident that any member of Sergio Cabral’s group
was armed or that he was acting in self-defense. And, while he and Christian both
testified at trial that one of the individuals in Cabral’s group flashed a gun, as discussed,
the prosecution presented previous testimony in which Christian denied any member of
the victim’s group displayed a gun at the intersection where the fatal shooting occurred.
Additionally, there was other evidence of defendant’s intent to kill, premeditation and
deliberation,8 and defendant’s gang affiliation such that we cannot conclude admission of
the rap video prejudiced defendant. The undisputed evidence established defendant fired
multiple shots and the victim was hit with multiple bullets. One of the bullet entry
7 Because we are assuming error, we need not address the parties’ arguments regarding
the retroactivity and application of Assembly Bill 2799 to this case.
8 Additionally, premeditation and deliberation were not necessary to establishing first
degree murder given that defendant could also be convicted of first degree murder under a theory
of discharging a firearm from a motor vehicle. (See § 189, subd. (a).) Indeed, defendant himself
admitted he discharged a firearm from a motor vehicle resulting in Cabral’s death.
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wounds was in Cabral’s lower back, providing evidence he was shot while his back was
turned. There was also evidence of a pause between two sets of shots and a lapse of time
between the initial confrontation at the liquor store and the ultimate shooting. And, while
the lyrics of the rap song reflected a general animosity toward rival gang members, it did
not relate specific facts incriminating defendant in this shooting such that it was “akin to
a confession” as defendant argues.
In light of the strong evidence incriminating defendant and discrediting his self-
defense theory, we cannot conclude the admission of the rap recording prejudiced
defendant. Rather, we conclude any potential error in its admission was harmless. (See
Coneal, supra, 41 Cal.App.5th at pp. 972–973 [error in admitting five rap videos in
violation of Evid. Code, § 352 was harmless where evidence incriminating defendant was
strong]; People v. Jasmin (2008) 167 Cal.App.4th 98, 114 [any error in admitting rap
lyrics focused on guns and violence was harmless in light of “overwhelming evidence
presented at trial”].)
VI. Jury Was Properly Instructed on Self-defense
Defendant next argues the court erred by failing to sua sponte instruct the jury it
should consider defendant’s youth in assessing his claim of self-defense. We disagree.
A. Relevant Factual Background
The court instructed the jury on homicide and self-defense pursuant to CALCRIM
Nos. 500 and 505. As to self-defense, CALCRIM No. 505 instructs the jury, in relevant
part, “When deciding whether the defendant’s belief was reasonable, consider all the
circumstances as they were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have believed.”
The court also instructed the jury on imperfect self-defense in accordance with
CALCRIM No. 571, including, in relevant part, “In evaluating the defendant’s beliefs,
consider all the circumstance [sic] as they were known and appeared to the defendant.”
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Additionally, the court instructed the jury on voluntary manslaughter pursuant to
CALCRIM No. 570, which provides, in relevant part: “It is not enough that the
defendant simply was provoked. The defendant is not allowed to set up his own standard
of conduct. You must decide whether the defendant was provoked and whether the
provocation was sufficient. In deciding whether the provocation was sufficient, consider
whether a person of average disposition in the same situation and knowing the same facts
would have reacted from passion rather than from judgment. [¶] If enough time passed
between provocation and the killing for a person of an average disposition to ‘cool off’
and regain his or her clear reasoning and judgment, then the killing is not reduced to
voluntary manslaughter on this basis.”
Defense counsel did not object to these instructions, request additional
instructions, or ask for any modifications or amplifications to these instructions. Rather
he stated he was “in agreement” with them, and the jury instructions the court gave to the
jury were “proper.” In closing argument, defense counsel asserted defendant was
provoked, and he argued the jury should consider how a reasonable 16 year old in the
situation would react:
“And then would an average person or a reasonable person, excuse me, not
average, would a person of average disposition act rashly without due
deliberation? We are talking about a reasonable person. You also have to
consider the fact, you know, a reasonable person in similar circumstances
and situations. So a reasonable 16 year old in that situation given the
stimulus that he was confronted with, was it reasonable for him to react in
the way that he did? Not whether it was right or wrong, we are still talking
about an unlawful killing, but based on these three factors are they met?
That would serve to reduce the murder to a voluntary manslaughter.”
B. Standard of Review
“‘“It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
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necessary for the jury’s understanding of the case.”’” (People v. Breverman (1998) 19
Cal.4th 142, 154.) A trial court has a duty to instruct sua sponte on particular defenses
“‘“‘if it appears that the defendant is relying on such a defense, or if there is substantial
evidence supportive of such a defense and the defense is not inconsistent with the
defendant’s theory of the case.’”’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1052;
accord, People v. Salas (2006) 37 Cal.4th 967, 982 [trial court has duty to instruct sua
sponte on any affirmative defense “for which the record contains substantial evidence …
unless the defense is inconsistent with the defendant’s theory of the case”].)
“‘“[W]hen a defendant presents evidence to attempt to negate or rebut the
prosecution’s proof of an element of the offense, a defendant is not presenting a special
defense invoking sua sponte instructional duties. While a court may well have a duty to
give a ‘pinpoint’ instruction relating such evidence to the elements of the offense and to
the jury’s duty to acquit if the evidence produces a reasonable doubt, such ‘pinpoint’
instructions … must be given only upon request.”’” (People v. Anderson (2011) 51
Cal.4th 989, 996–997.) This is because a trial court’s obligation to give general
instructions sua sponte does not extend to “pinpoint” instructions or optional paragraphs
of instructions. (See People v. Hughes (2002) 27 Cal.4th 287, 361 [“Even if proper, …
pinpoint instructions ‘are not required to be given sua sponte’”]; People v. Gutierrez
(2009) 45 Cal.4th 789, 824 [defendant is entitled to pinpoint instructions, upon request,
only when appropriate; but such instructions “‘are not required to be given sua sponte’”];
accord, People v. Whalen (2013) 56 Cal.4th 1, 81–82 [“‘A trial court has no sua sponte
duty to revise or improve upon an accurate statement of law without a request from
counsel [citation], and failure to request clarification of an otherwise correct instruction
forfeits the claim of error for purposes of appeal’”], disapproved on other grounds in
People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17; People v. Lawley (2002) 27
Cal.4th 102, 160–161 [court not required to modify standard instruction absent request by
defendant].)
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“‘A party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.’” (People v. Landry (2016) 2 Cal.5th 52,
99–100.) We may nevertheless review a forfeited claim of error if it affected a
defendant’s substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn.
15; accord, People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [failure to object to
instruction waives claim of error “unless the claimed error affected the substantial rights
of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable
the defendant would have obtained a more favorable result in the absence of error”].)
“Ascertaining whether claimed instructional error affected the substantial rights of the
defendant necessarily requires an examination of the merits of the claim—at least to the
extent of ascertaining whether the asserted error would result in prejudice if error it was.”
(People v. Andersen, supra, at p. 1249.)
We review claims of instructional error de novo. (People v. Parker (2022) 13
Cal.5th 1, 66; People v. Rivera (2019) 7 Cal.5th 306, 326.) “‘In assessing a claim of
instructional error or ambiguity, we consider the instructions as a whole to determine
whether there is a reasonable likelihood the jury was misled.’” (People v. Tran (2022) 13
Cal.5th 1169, 1199; accord, People v. Holmes, McClain and Newborn, supra, 12 Cal.5th
at p. 791.) We assume “jurors are intelligent and well able to understand and integrate all
the instructions given.” (People v. Holmes, McClain and Newborn, at p. 791.)
C. Applicable Law
“For [a] killing to be in self-defense, the defendant must actually and reasonably
believe in the need to defend. [Citation.] If the belief subjectively exists but is
objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed
to have acted without malice and cannot be convicted of murder,’ but can be convicted of
manslaughter. [Citation.] To constitute ‘perfect self-defense,’ i.e., to exonerate the
person completely, the belief must also be objectively reasonable. [Citations.] As the
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Legislature has stated, ‘[T]he circumstances must be sufficient to excite the fears of a
reasonable person….’ (… § 198; see also § 197, subds. 2, 3.) Moreover, for either
perfect or imperfect self-defense, the fear must be of imminent harm. ‘Fear of future
harm—no matter how great the fear and no matter how great the likelihood of the harm—
will not suffice. The defendant’s fear must be of imminent danger to life or great bodily
injury.’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.)
“Although the belief in the need to defend must be objectively reasonable, a jury
must consider what ‘would appear to be necessary to a reasonable person in a similar
situation and with similar knowledge….’ (CALJIC No. 5.50.) It judges reasonableness
‘from the point of view of a reasonable person in the position of defendant….’
[Citation.] To do this, it must consider all the ‘“‘facts and circumstances … in
determining whether the defendant acted in a manner in which a reasonable man would
act in protecting his own life or bodily safety.’”’ [Citation.] As we stated long ago, ‘… a
defendant is entitled to have a jury take into consideration all the elements in the case
which might be expected to operate on his mind….’ [Citation.]” (People v. Humphrey,
supra, 13 Cal.4th at pp. 1082–1083.)
D. Analysis
Defendant asserts “[t]he instructions given to [the] jury, holding him to an adult
standard of reasonableness, were erroneous.” He contends his trial “was rendered
fundamentally unfair, depriving him of due process, and the right to a reliable jury
verdict” because the court had a sua sponte duty to instruct the jury to consider
defendant’s youth as a factor in determining whether he subjectively believed in the need
to use deadly force, and whether his belief was objectively reasonable. He asserts, the
lack of such an instruction lessened the prosecution’s burden of proof and prejudiced
him. He relies heavily upon J.D.B. v. North Carolina (2011) 564 U.S. 261, 271–276, in
which the United States Supreme Court held youth is relevant to an objective “custody”
determination in a Miranda v. Arizona (1966) 384 U.S. 436 analysis. He also cites to
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Roper v. Simmons (2005) 543 U.S. 551 and Graham v. Florida (2010) 560 U.S. 48,
arguing these decisions emphasize “the vulnerabilities of juveniles” and support his
argument the jury should have been instructed to consider youth as a factor in considering
perfect and imperfect self-defense. The People disagree with defendant’s contention and
argue the jury was correctly instructed with CALCRIM Nos. 505 and 571 and any
modification or additional instruction required a request from defense counsel, which was
not made. They assert “the jury knew that it should evaluate [defendant’s] actual belief
in the need to use lethal force from his perspective, which necessarily included factors
specific to him, such as his youth.”
In supplemental briefing, defendant cites new legislation to argue “youth has
become a significant factor in many arenas.” He argues, “lawmakers and courts are
recognizing the profound developmental differences between youthful and adult
offenders, and changing laws to afford consideration of youth,” and that research “should
be considered when an adolescent’s state of mind is called into question in situations such
as perfect or imperfect self-defense, where jurors are called upon to view the situation
through the eyes of the defendant.” He notes the passage of Welfare and Institutions
Code section 625.6, which requires minors under 16 (now 17) to be allowed to consult
with counsel before the police conduct a custodial interrogation; Assembly Bill No. 124
(2021–2022 Reg. Sess.), which requires prosecutors to consider whether “[t]he person is
a youth, or was a youth at the time of the commission of the offense” (§ 1016.7) in plea
bargaining and, in conjunction with Senate Bill No. 567 (2021–2022 Reg. Sess.), requires
the imposition of the lower term when certain specified circumstances exist, such as
youth, unless contrary to the interests of justice; Senate Bill No. 383 (2021–2022 Reg.
Sess.), which authorizes, in part, a juvenile court receiving a delinquency case transferred
from another county to determine whether an eligible minor is suitable for deferred entry
of judgment even if the transferring court did not; Assembly Bill No. 624 (2021–2022
Reg. Sess.), which makes an order transferring a minor from juvenile court to adult
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criminal court an appealable order; Senate Bill 81, which requires a court to “afford great
weight” to youth, childhood trauma, and other factors in exercising discretion to strike
enhancements; and the upholding of Senate Bill No. 1391 (2017–2018 Reg. Sess.), which
provides a minor must be at least 16 years old to be tried in adult court. 9
1. Forfeiture
Here, defendant forfeited his claim of instructional error because he failed to
object to the given self-defense instructions or request amplification or modified
instructions below. And the trial court correctly instructed on the applicable general
principles of law.
The self-defense instruction directed the jury to consider “all the circumstances as
they were known to and appeared to the defendant and consider what a reasonable person
in a similar situation with similar knowledge would have believed.” (CALCRIM
No. 505.) The voluntary manslaughter instruction similarly directed the jury to “consider
whether a person of average disposition, in the same situation and knowing the same
facts [as defendant], would have reacted from passion rather than from judgment.”
(CALCRIM No. 570.) Those instructions accurately and completely stated the governing
principles. (See People v. Humphrey, supra, 13 Cal.4th at pp. 1082–1083, 1087; People
v. Jones (2014) 223 Cal.App.4th 995, 999–1001.) Thus, the court had no sua sponte duty
to amplify those instructions with further information not “so closely and openly
connected with the facts before the court as to come within the court’s sua sponte
instructional obligations.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101
[trial court’s failure to inform jury it could consider defendant’s battered woman
syndrome in assessing whether she perceived imminent harm from victim did not fall
9 He also contends, “in the context of youthful offender parole hearings under section
3051,” there has “been a growing consensus that the Legislature should revisit where it has
drawn the line with section 3051, subdivision (h), and reconsider whether a youthful offender
who was sentenced to [life without the possibility of parole] for a crime committed at an age
while cognitive brain development was still ongoing should be afforded the possibility of release
like those under 18 years old at the time of their offense.”
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within court’s sua sponte instruction obligation].) To the extent defendant wanted
additional instructions, he was required to object to the given instructions and request
amplification, which he did not do. (See People v. Jones (2013) 57 Cal.4th 899, 969
[“‘[a] party may not complain on appeal that an instruction correct in law and responsive
to the evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language’”]; People v. Lee, supra, 51 Cal.4th at p. 638 [“[a] trial
court has no sua sponte duty to revise or improve upon an accurate statement of law
without a request from counsel [citation], and failure to request clarification of an
otherwise correct instruction forfeits the claim of error for purposes of appeal”].)
Irrespective, as discussed further below, we conclude defendant’s claim fails on its
merits.
2. Claim of Instructional Error as to Objective Reasonableness of
Belief in Need for Self-defense
First, we reject defendant’s contention that the instructions should have been
modified to inform the jury to consider his youth when considering whether his belief in
the need for self-defense was objectively reasonable. In support of his argument,
defendant relies heavily upon J.D.B. v. North Carolina, supra, 564 U.S. 261, in which the
United States Supreme Court held youth is relevant to an objective “custody”
determination in a Miranda analysis. Specifically, J.D.B. held that, “so long as the
child’s age was known to the officer at the time of police questioning, or would have
been objectively apparent to a reasonable officer, its inclusion in the custody analysis is
consistent with the objective nature of that test.” (J.D.B., supra, at p. 277.) However,
J.D.B. did not discuss, let alone mandate, that any type of jury instruction be given to a
jury. And we have found no other case requiring a court to modify the standard jury
instructions on self-defense and imperfect self-defense to account for a defendant’s age in
assessing the objective reasonableness of a defendant’s belief in the need for self-defense.
Rather, CALCRIM Nos. 505 and 571 correctly state the law, and the trial court had no
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sua sponte duty to modify them as defendant contends. (See People v. Lopez (2011) 199
Cal.App.4th 1297, 1306 [“CALCRIM Nos. 505, 571, and 604 correctly stated the law”].)
Indeed, while the California Supreme Court has approved of the consideration of
evidence of a defendant’s situation and knowledge in considering the objective
reasonableness of his or her beliefs, it has reiterated that the “ultimate question” is what a
reasonable person would have believed. In People v. Humphrey, the California Supreme
Court held the trial court prejudicially erred in instructing the jury it could only consider
evidence related to battered woman’s syndrome in deciding whether the defendant
actually believed she needed to kill in self-defense, but that same evidence could not be
considered or used in evaluating the objective reasonableness requirement for perfect
self-defense.10 (People v. Humphrey, supra, 13 Cal.4th at pp. 1076–1077, 1081, 1086–
1087.) The Humphrey court made clear, however, that even though the jury must
consider a defendant’s situation and knowledge—which makes evidence pertinent to the
defendant’s situation and knowledge relevant—“the ultimate question is whether a
reasonable person, not a reasonable battered woman, would believe in the need to kill to
prevent imminent harm.” (Id. at p. 1087.) In so holding, the court noted it was not
“changing the standard from objective to subjective, or replacing the reasonable ‘person’
standard with a reasonable ‘battered woman’ standard.” (Ibid.) And its decision would
not, “in another context, compel adoption of a ‘“reasonable gang member” standard.’”
(Ibid.)
Citing the instruction in People v. Humphrey as a “model,” defendant contends the
jury should have been instructed, “Evidence regarding [defendant]’s youth has been
introduced in this case. Such evidence may be considered by you for the purpose of
determining whether or not the defendant actually believed it was necessary to kill in
self-defense, a requirement for both perfect and imperfect self-defense, and whether the
10 In Humphrey, the jury convicted defendant of voluntary manslaughter and acquitted her
of murder. (People v. Humphrey, supra, 13 Cal.4th at p. 1082.)
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defendant’s belief was objectively reasonable, taking into consideration the defendant’s
age and perception.” But this is not what Humphrey requires.
Rather, Humphrey establishes that, even if evidence of the defendant’s youth was
admitted, a court does not err in failing to “replac[e] the reasonable ‘person’ standard,”
when instructing on self-defense. (People v. Humphrey, supra, 13 Cal.4th at p. 1087
[reiterating the “ultimate question is whether a reasonable person … would believe in the
need to kill to prevent imminent harm”]; accord, People v. Sotelo- Urena (2016) 4
Cal.App.5th 732, 751–752 [admitting expert testimony regarding dangers associated with
chronic homelessness does not create a “reasonable homeless person” standard]; see
People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [“a reasonable person is not one
who hears voices due to severe mental illness” but a “‘normal person’”].) And, unlike in
Humphrey, the court did not instruct the jury it could not consider defendant’s age or
youth in evaluating his situation and knowledge in considering whether the use of self-
defense was objectively reasonable. Rather, the court instructed the jury, in accordance
with CALCRIM No. 505: “When deciding whether the defendant’s belief was
reasonable, consider all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation with similar
knowledge would have believed.”11 Thus, the instructional error at issue in Humphrey is
not present here. Put differently, defendant’s cited authorities do not support his
contention that the objective standard—how a reasonable person would have perceived
the risk—should have been turned into a subjective one. Rather, Humphrey and Sotelo-
11 Notably, defendant contends the instructions held him to “an adult standard of
reasonableness.” But, as noted, and contrary to defendant’s contention, the instructions told the
jury, in considering the reasonableness of defendant’s actions, to consider “what a reasonable
person in a similar situation with similar knowledge would have believed” (italics added); this is
not the same as telling the jury to consider what a “reasonable adult” would have believed.
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Urena support our rejection of defendant’s contention.12 (See People v. Humphrey,
supra, at p. 1087.)
Defendant relies primarily on authority related to punishment of juvenile offenders
in support of his proposition. (E.g., Graham v. Florida, supra, 560 U.S. 48, Roper v.
Simmons, supra, 543 U.S. 551; Senate Bill 81; Assembly Bill No. 124 (2021–2022 Reg.
Sess.); § 3051.) However, none of these cases or legislative developments purport to
change the elements of an offense, and we have found no case that extends them for that
purpose. Thus, the cited authorities are inapposite.
Irrespective, defendant was not prejudiced by the lack of such an instruction. The
alleged erroneous instruction would only be potentially prejudicial if the jury found
defendant actually believed in the need for self-defense. But here, the jury concluded
beyond a reasonable doubt that defendant did not actually believe in the need for self-
defense because it convicted him of murder, not voluntary manslaughter. Having so
found, the jury was not required to determine whether any such belief was reasonable.
12 Defendant also cites to People v. Mathews (1994) 25 Cal.App.4th 89 (Mathews) in
support of his contention. However, Mathews is also inapposite. In Mathews, an elderly, vision-
and hearing-impaired defendant brandished a shotgun when officers executed a search warrant
on his home. (Id. at p. 94.) The Mathews court held the trial court’s refusal to grant the
defendant’s request for a pinpoint instruction that would have informed the jury that “‘[i]n
considering the self-defense issues, [it] must take into account any sensory impairment the
defendant had in determining how a reasonable person with such disabilities would have acted.’”
(Id. at pp. 98–99.) The Mathews court held the refusal to give the pinpoint instruction was error
because it made “no sense, either in law or logic, to hold appellant to the standard of a reasonable
person with normal eyesight and hearing.” (Id. at p. 99.) The court explained that “[w]hat is
‘apparent’ to a reasonable person who can see and hear is not ‘apparent’ to a person who is blind
and hearing impaired.” (Id. at p. 100.) Accordingly, the Mathews court imported a rule of tort
law and stated, “While the objective reasonable person standard remains, it is the reasonable
person with a similar physical disability.” (Id. at p. 99.)
Here, as discussed, defendant did not request a pinpoint instruction or modification of the
standard jury instructions on self-defense and imperfect self-defense; so the posture of this case
is different from that in Mathews as we are considering whether the court had a sua sponte duty
to provide an additional instruction on the jury’s consideration of youth in evaluating the
objective reasonableness of the belief in the need for self-defense. Furthermore, here, defendant
did not have a physical disability that prevented him from seeing and hearing the circumstances
around him like in Mathews. Thus, the circumstances of this case are distinguishable.
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Thus, even under the more rigorous test to assess prejudice articulated in Chapman v.
California (1967) 386 U.S. 18, we can conclude “beyond a reasonable doubt” that any
alleged error by the trial court in failing to specifically instruct the jury to consider
defendant’s youth in determining the reasonableness of any belief he had in the need to
act in self-defense, “did not contribute to the verdict obtained.” (Id. at p. 24.)
3. Claim of Instructional Error as to Defendant’s Actual Belief in
Need for Self-defense
Furthermore, while we agree defendant’s age could be considered in assessing
what defendant actually believed, we reject defendant’s contention that the trial court was
required to provide a specific instruction on youth in instructing the jury on how to
evaluate whether defendant actually believed in the need to use self-defense. Here, the
jury was instructed, “In evaluating the defendant’s beliefs, consider all the circumstances
as they were known and appeared to the defendant.” (Italics added.) Implicit in this
instruction is a requirement to consider how the situation appeared to defendant given his
age. And none of defendant’s cited authorities stand for the proposition that a trial court
is required to sua sponte instruct the jury further.
Notably, defendant does not argue he was prevented from introducing evidence or
presenting argument regarding the effect of his youth or age on his actual perceived need
for self-defense or the reasonableness of that belief. (Cf. People v. Sotelo- Urena, supra,
4 Cal.App.5th at pp. 745–752 [concluding court abused its discretion in excluding expert
testimony on “why a chronically homeless individual would experience a heightened fear
of aggression” where such evidence was relevant to defendant’s actual belief in need to
use lethal force and it would assist jury in weighing reasonableness of defendant’s belief
of imminent harm].) Indeed, during closing argument, defense counsel expressly drew
attention to defendant’s age, arguing the jury should consider “a reasonable 16 year old in
that situation given the stimulus that he was confronted with, was it reasonable for him to
react in the way that he did?” Thus, defense counsel expressly informed the jurors of
defendant’s age and encouraged them to consider it in evaluating defendant’s belief in the
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need for self-defense. Accordingly, we also conclude beyond a reasonable doubt that a
jury instruction pinpointing defendant’s age as a factor to be considered when
determining whether he actually believed in the need for self-defense would not have
affected the jury’s verdict. (Chapman v. California, supra, 386 U.S. at p. 24.)
VII. Prosecutorial Misconduct
Defendant next argues the prosecutor engaged in prejudicial misconduct during his
rebuttal argument. We disagree.
A. Relevant Background
At the end of his rebuttal argument, the prosecutor argued:
“And we heard that Sergio Cabral was also to some extent a gang
member, that he according to the defendant may have been threatening him
in the past. But that doesn’t mean that [defendant] should not still be held
accountable for what he did. Every life has value, every human being has
value. We don’t know what would have happened if he had survived, what
he could have done with his life. Every single person, whoever they are,
does not deserve this. They do not deserve to be gunned down in front of
their home for their loved one to come outside to have to turn over their
body. It’s—it’s not—it’s not right.
“And what I’m asking is that you hold [defendant] accountable.
That you send a message that we will not allow this type of violence on our
streets in Kings County. That … this is a community that will not tolerate
gang violence, and I would ask that you find him guilty of all counts, thank
you.”
Defense counsel did not object to the referenced argument.
The court instructed the jury: “Remember if either attorney misstates the evidence
or law, you will rely on the evidence as presented in the trial and the law as stated to you
by me.”
B. Standard of Review
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
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fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Mendoza (2007) 42
Cal.4th 686, 700; People v. Farnam (2002) 28 Cal.4th 107, 167.) “The focus of the
inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or
bad faith of the prosecutor.” (People v. Mendoza, supra, at p. 700.) “‘A defendant’s
conviction will not be reversed for prosecutorial misconduct, however, unless it is
reasonably probable that a result more favorable to the defendant would have been
reached without the misconduct.’” (People v. Tully (2012) 54 Cal.4th 952, 1010.)
“‘As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.’” (People v. Hill (1998) 17 Cal.4th 800, 820.) An exception is made if a
timely objection or request for admonition would have been futile, or if an admonition
would not have cured the harm caused by the misconduct. (Ibid.) “The reason for this
rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse
and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of
the jury.’” (People v. Green (1980) 27 Cal.3d 1, 27, overruled on other grounds in
People v. Martinez (1999) 20 Cal.4th 225, 241.)
C. Analysis
Defendant argues the prosecutor committed misconduct “by calling upon the jury
to fill a greater societal goal by finding [defendant] guilty,” depriving defendant of due
process and rendering his trial fundamentally unfair. He asserts, the prosecutor’s
argument “improperly invited the jury to convict” him “‘“in order to protect community
values, preserve civil order, or deter future lawbreaking,”’” and it “was contrary to the
principles set forth in U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149.” He
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contends, if the error was forfeited based on his counsel’s failure to object, his counsel
was ineffective on that basis and reversal is still required.
Initially, defendant’s claim is forfeited because he did not object to the referenced
argument he now challenges on appeal. “‘“As a general rule, a defendant may not
complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the
same ground—the defendant made an assignment of misconduct and requested that the
jury be admonished to disregard the impropriety.”’” (People v. Covarrubias (2016) 1
Cal.5th 838, 894; accord, People v. Valencia (2008) 43 Cal.4th 268, 281; People v.
Samayoa (1997) 15 Cal.4th 795, 841; People v. McDowell (2012) 54 Cal.4th 395, 436.)
Here, defendant acknowledges his counsel did not object to the referenced argument
below. Accordingly, the trial court had no opportunity to rule on the issue. Thus, the
issue is forfeited on appeal. However, because defendant asserts his counsel was
ineffective in failing to object, we proceed to the merits of his claim and also reject it on
that basis.
Here, we cannot conclude the prosecutor’s referenced comments, in context,
amounted to misconduct. It is not misconduct for a prosecutor to reiterate that the jury’s
function is to determine whether the defendant has broken any laws. (See People v.
Covarrubias, supra, 1 Cal.5th at p. 894.) To that end, it was not misconduct for the
prosecutor to tell the jury to hold defendant accountable for his actions. Additionally, the
prosecutor’s statement to the jury “to send a message” regarding what the community
would tolerate also did not amount to misconduct. The referenced comments were made
during the conclusion of the prosecutor’s rebuttal argument, which emphasized the jury
should convict defendant based on the evidence presented in the case. Thus, the
comments, in context, did not divert the jury’s attention away from the facts of the case to
focus on an external societal issue. Rather, the comments permissibly told the jurors they
were tasked with weighing the evidence, considering the charges, and ultimately deciding
whether defendant had violated any laws and rendering its verdict accordingly. (See
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People v. Covarrubias, supra, 1 Cal.5th at pp. 893–895 [no misconduct where prosecutor
told jury its job and “responsibility as jurors is to act as the litmus test, to apply the laws
of our society, and to determine what our community will and will not tolerate”].)
The prosecutor here did not discuss the jury’s ability to alleviate broader societal
problems by rendering a guilty verdict or refer to evidence outside of the record as in the
cases defendant relies upon. In U.S. v. Weatherspoon, supra, 410 F.3d 1142, the Ninth
Circuit Court of Appeals held the prosecutor engaged in misconduct in stating:
“‘Convicting Mr. Weatherspoon is gonna make you comfortable knowing there’s not
convicted felons on the street with loaded handguns, that there’s not convicted felons
carrying around semiautomatic,’” and then repeatedly reiterating this point and stating
“‘finding this man guilty is gonna protect other individuals in this community,’” despite
two admonitions by the court that the prosecutor should confine his arguments to “‘guilt
or not guilt.’” (Id. at p. 1149.) The Weatherspoon court noted, “‘A prosecutor may not
urge jurors to convict a criminal defendant in order to protect community values, preserve
civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is
that the defendant will be convicted for reasons wholly irrelevant to his own guilt or
innocence. Jurors may be persuaded by such appeals to believe that, by convicting a
defendant, they will assist in the solution of some pressing social problem. The
amelioration of society’s woes is far too heavy a burden for the individual criminal
defendant to bear.’” (Ibid.) The Weatherspoon court held the prosecutor’s referenced
argument in that case “encourage[d] the jury to enter a verdict on the basis of emotion
rather than fact.” (Id. at p. 1150; see U.S. v. Polizzi (9th Cir. 1986) 801 F.2d 1543, 1558
[noting it was improper for prosecutor to tell jury it had any obligation other than
weighing evidence, but concluding defendant was not prejudiced]; People v. Gonzales
(2011) 51 Cal.4th 894, 952 [noting prosecutor’s invitations to jury to “take the role of a
protective family for [the] victim were plainly improper” because it asked the jury “to go
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far beyond their role as the arbiters of punishment prescribed by law” in reaching its
penalty decision].)
In contrast, here, the prosecutor’s argument urged the jury to render a guilty
verdict based on the evidence presented in the case. The prosecutor did not argue the
jury should convict defendant to protect community values or preserve civil order or for
reasons wholly irrelevant to defendant’s guilt. (Cf. U.S. v. Weatherspoon, supra, 410
F.3d at p. 1149.) “‘[N]othing prevents the government from appealing to the jurors’
sense of justice, or from connecting the point to the victims in the case.’ [Citations.]
And prosecutors can appeal to jurors’ duty to the community. [Citation.] ‘Unless
calculated to incite the passions and prejudices of the jurors, appeals to the jury to act as
the community conscience are not per se impermissible.’” (U.S. v. Hall (6th Cir. 2020)
979 F.3d 1107, 1122.)
Accordingly, we cannot conclude the prosecutor’s statements here improperly
inflamed the jury’s passions or prejudices. (See United States v. Alloway (6th Cir. 1968)
397 F.2d 105, 113 [no misconduct where prosecutor told jury it was “‘called upon … to
be the world conscience of the community,’” “‘to speak out for the community,’” and
“‘let the John Alloways know that this type of conduct will not be tolerated ’”]; see
generally U.S. v. Solivan (6th Cir. 1991) 937 F.2d 1146, 1152 [“The correlation between
the community interest comments and the wider social-political context to a large extent
controls the determination of whether an appeal is deemed impermissible because it is
calculated to inflame passion and prejudice”].) Rather, none of the challenged remarks
“infect[ed] the trial with such unfairness” so as to make defendant’s conviction a denial
of due process, nor did the prosecutor use “deceptive or reprehensible methods to attempt
to persuade either the trial court or the jury.” (People v. Morales, supra, 25 Cal.4th at p.
44.)
We reject defendant’s contention the prosecutor’s referenced argument constituted
misconduct, and thus do not consider his ineffective assistance of counsel claim.
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VIII. Cumulative Effect of Alleged Errors
Defendant argues there were numerous errors in this case that cumulatively
prejudiced him and rendered his trial “grossly unfair.” He contends this “was a one-sided
trial by a biased jury.” We disagree.
“Under the ‘cumulative error’ doctrine, we reverse the judgment if
there is a ‘reasonable possibility’ that the jury would have reached a result
more favorable to defendant absent a combination of errors. (See People v.
Williams (2009) 170 Cal.App.4th 587, 646; In re Avena (1996) 12 Cal.4th
694, 772, fn. 32 [‘Under the “cumulative error” doctrine, errors that are
individually harmless may nevertheless have a cumulative effect that is
prejudicial.’].) ‘The “litmus test” for cumulative error “is whether
defendant received due process and a fair trial.”’ (People v. Cuccia (2002)
97 Cal.App.4th 785, 795.)” (People v. Poletti (2015) 240 Cal.App.4th
1191, 1216–1217.)
Here, there is no series of prejudicial errors to cumulate. Accordingly, defendant
cannot demonstrate the cumulative effect of the alleged errors resulted in prejudice. (See
In re Reno (2012) 55 Cal.4th 428, 483 [“As noted, claims previously rejected on their
substantive merits—i.e., this court found no legal error—cannot logically be used to
support a cumulative error claim because we have already found there was no error to
cumulate”].)
IX. Constitutionality of Special Circumstance
Defendant also presents a facial challenge to the constitutionality of the drive-by
murder special circumstance, asserting it fails to narrow the class of persons subject to
capital punishment. He asserts his argument “is bolstered by the language used in
Section 189, defining a first degree drive-by murder, when compared to the drive-by
special circumstance.” He contends “once the jury finds a defendant guilty of first degree
drive-by murder, a true finding on the drive-by special circumstance is a foregone
conclusion.” Similarly, defendant argues “there is no distinction between the gang
enhancement and the gang special circumstance sufficient to pass constitutional muster.”
He contends, “If the same conduct that constitutes first degree murder with a gang
enhancement also subjects one to capital punishment, then the special circumstance fails
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to narrow the class of persons subject to capital punishment.” Based on established
precedent, we reject defendant’s contentions; the challenged provisions of section 190.2
do adequately narrow the class of death-eligible defendants.
“To pass constitutional muster, a capital sentencing scheme must ‘genuinely
narrow the class of persons eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to others found guilty of
murder.’ [Citations.] Under the capital sentencing laws of most States, the jury is
required during the sentencing phase to find at least one aggravating circumstance before
it may impose death.[13] [Citations.] By doing so, the jury narrows the class of persons
eligible for the death penalty according to an objective legislative definition. [Citation.]”
(Lowenfield v. Phelps (1988) 484 U.S. 231, 244; accord, Tuilaepa v. California (1994)
512 U.S. 967, 972 [“the trier of fact must convict the defendant of murd er and find one
‘aggravating circumstance’ (or its equivalent) at either the guilt or penalty phase.…
[T]he aggravating circumstances must meet two requirements. First, the circumstance
may not apply to every defendant convicted of a murder; it must apply only to a subclass
of defendants convicted of murder. [Citation.] Second, the aggravating circumstance
may not be unconstitutionally vague”].)
“Under California’s capital sentencing scheme, the special circumstances perform
the narrowing function required by the Eighth Amendment.” (People v. Wilkins (2021)
68 Cal.App.5th 153, 164.) And the California Supreme Court has consistently and
categorically rejected arguments the enumerated list of special circumstances in section
190.2 fails to adequately narrow the class of persons eligible for the death penalty. (See,
e.g., People v. Scully (2021) 11 Cal.5th 542, 610 [“Section 190.2, which sets forth the
special circumstances that render those convicted of murder death eligible, adequately
13 We note, here, as a juvenile offender, defendant was ineligible for the death penalty.
(See Roper v. Simmons, supra, 543 U.S. at pp. 572–573 [adopting categorical rule barring
imposition of death penalty on juvenile offenders under the age of 18, rather than permitting
consideration of mitigating arguments related to youth on a case-by-case basis].)
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narrows the class of those eligible for the death penalty and is not impermissibly broad in
violation of the Eighth and Fourteenth Amendments”]; People v. Reed, supra, 4 Cal.5th
at pp. 1017–1018 [reaffirming “state’s death penalty scheme does not violate the federal
Constitution by failing to sufficiently narrow the class of offenders eligible for the death
penalty”]; People v. Pollock (2004) 32 Cal.4th 1153, 1196 [noting “‘we have held: The
special circumstances listed in section 190.2 adequately narrow the class of murders for
which the death penalty may be imposed”].) It has also expressly held that “first degree
murder liability and special circumstance findings may be based upon common elements
without offending the Eighth Amendment. [Citations.]” (People v. Catlin (2001) 26
Cal.4th 81, 158; accord, Lowenfield v. Phelps, supra, 484 U.S. at p. 246 [“the fact that the
aggravating circumstance duplicated one of the elements of the crime does not make this
[death] sentence constitutionally infirm”]; see People v. Johnson (2016) 62 Cal.4th 600,
636 [Cal. Supreme Court’s previous opinions support the conclusion that even if lying-in-
wait special circumstance were “identical to lying-in-wait first degree murder,” it
nevertheless “would satisfy federal constitutional requirements for death eligibility”].)
Thus, it is not unconstitutional for a special circumstance to duplicate elements of the
offense of which the defendant is convicted. (See People v. Rodriguez (1998) 66
Cal.App.4th 157, 164 [relying upon Lowenfield to conclude defendant’s contention “that
section 190.2(a)(21) contains a constitutional infirmity simply because it duplicates the
elements which defined defendant’s murder as … first degree murder … has already been
decided to have no merit”]; People v. Wilkins, supra, 68 Cal.App.5th at p. 165 [“As our
Supreme Court has made clear, overlapping culpability and special circumstance
elements—even identical ones—do not offend the Eighth Amendment”].)
Accordingly, we reject defendant’s contentions that the challenged special
circumstances are unconstitutional. Rather, because section 190.2, subdivision (a)(21)
and (22) applies only to subclasses of murderers, not to all murderers, there is no merit to
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defendant’s contention that they fail to adequately narrow the class of death-eligible
defendants. (See People v. Beames, supra, 40 Cal.4th at p. 934.)
X. Assembly Bill 333
In supplemental briefing, defendant asserts the gang special circumstance and the
gang enhancement (§ 186.22, subd. (b)(1)(c), (b)(5)) must be reversed based on changes
made to section 186.22 by the enactment of Assembly Bill 333. We agree with defendant
and conclude he is entitled to reversal of the gang enhancement and gang special
circumstance, which the People are entitled to retry under the amended law.
A. Statutory Changes to Section 186.22 and Enactment of Section 1109
While defendant’s appeal was pending, the Legislature enacted Assembly Bill
333, the STEP Forward Act of 2021, which, in part, amends section 186.22 to impose
new substantive and procedural requirements for gang allegations. The legislation went
into effect on January 1, 2022.
First, Assembly Bill 333 amended the definition of a “‘criminal street gang,’”
requiring proof that the gang is an ongoing, organized association or group of three or
more persons, whose members collectively engage in, or have engaged in, a pattern of
criminal activity (§ 186.22, subd. (f)). Next, the law created a stricter requirement for
proof of “‘a pattern of criminal gang activity,’” which is necessary to prove that the group
with which the defendant is associated is indeed a criminal street gang. (See § 186.22,
subds. (e)–(f).) Previously, the prosecution needed to prove only that those associated
with the gang had committed at least two offenses from a list of predicate crimes on
separate occasions within three years of one another. (See former § 186.22, subd. (e).)
Under the newly amended law, the offense with which the defendant is currently charged
cannot be used as one of the two predicate offenses. (§ 186.22, subd. (e)(2).) In addition,
the last of the predicate offenses must have “occurred within three years of the prior
offense and within three years of the date the current offense is alleged to have been
committed.” (§ 186.22, subd. (e)(1).) The predicate offenses must have been committed
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“on separate occasions or by two or more members,” and must have been for the
“common[] benefit[] [of] a criminal street gang,” and “the common benefit from the
offenses is more than reputational.” (Ibid.) Assembly Bill 333 also narrowed the list of
offenses that may be used to establish a pattern of criminal gang activity (compare former
§ 186.22, subd. (e)(1)–(33) with current § 186.22, subd. (e)(1)(A)–(Z)). Additionally, it
defines “to benefit, promote, further, or assist” throughout section 186.22 to mean “to
provide a common benefit to members of a gang where the common benefit is more than
reputational.” (Id., subd. (g).) The legislation notes examples of a common benefit that
are more than reputational “may include, but are not limited to, financial gain or
motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or
silencing of a potential current or previous witness or informant.” (Ibid.)
Finally, Assembly Bill 333 adds section 1109, which requires bifurcation of gang
enhancements charged under section 186.22, subdivision (b) or (d) to be tried separately
from the underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.)
Section 1109 also requires that the substantive offense of active participation in a
criminal street gang (§ 186.22, subd. (a)) be tried separately from all other counts that do
not require gang evidence as an element of the crime (§ 1109, subd. (b)).
B. Defendant Is Entitled to Reversal of His Gang Enhancement
In People v. Tran, supra, 13 Cal.5th 1169, the California Supreme Court held
Assembly Bill 333’s amendments to section 186.22 altering the substantive requirements
necessary to prove the substantive gang offense and gang enhancements operate
retroactively under the rule of In re Estrada (1965) 63 Cal.2d 740. (Tran, supra, at p.
1207.) The Tran court explained, “Estrada ‘stand[s] for the proposition that (i) in the
absence of a contrary indication of legislative intent, (ii) legislation that ameliorates
punishment (iii) applies to all cases that are not yet final as of the legislation’s effective
date.’ [Citation.] Estrada applies to statutory amendments ‘which redefine, to the
benefit of defendants, conduct subject to criminal sanctions.’ [Citation.] Here,
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‘Assembly Bill 333 essentially adds new elements to the substantive offense and
enhancements in section 186.22—for example, by requiring proof that gang members
‘collectively engage’ in a pattern of criminal gang activity, that the predicate offenses
were committed by gang members, that the predicate offenses benefitted the gang, and
that the predicate and underlying offenses provided more than a reputational benefit to
the gang.…’ [Citations.] These changes have the effect of ‘increas[ing] the threshold for
conviction of the section 186.22 offense and the imposition of the enhancement,’ with
obvious benefit to defendants like Tran. [Citation.]’” (People v. Tran, supra, at pp.
1206–1207.) Accordingly, it is undisputed defendant may seek the benefit of Assembly
Bill 333’s amendments to section 186.22.
Due to the changes to section 186.22, defendant asserts he is entitled to reversal of
his gang enhancement (§ 186.22, subd. (b)). He asserts the evidence was insufficient to
prove the predicate offenses under Assembly Bill 333’s new requirements. Specifically,
defendant argues, “[w]hile there was evidence of predicate offenses offered at trial, the
evidence did not establish that they ‘commonly benefited a criminal street gang, and the
common benefit of the offense [was] more than reputational.’” He also contends the
People did not prove the benefit to the gang from the commission of the current offense
was more than reputational. He contends Investigator Segura testified to many ways in
which the crime could benefit a gang, but he testified more than once the benefit to the
gang was reputational. Accordingly, citing People v. Sek (2022) 74 Cal.App.5th 657,
668, in support, he contends we cannot be sure the jury did not rely on reputational
benefit to the gang as its basis for finding the enhancement true. Defendant also asserts
the predicate offense committed by Alfredo Ayala alone does not qualify as a predicate
offense or evidence of a pattern of criminal gang activity under the current statute. The
People disagree with defendant’s contentions, asserting there “is overwhelming evidence
showing that the predicate and current offenses were committed for the ‘common benefit’
such that the jury would have still found true the enhancement(s).” They assert the
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offense involving Cesar Tadeo and Juan Flores related to an assault on a rival gang
member and the current offense involved defendant targeting a rival gang member in
retaliation. Accordingly, they assert the “common benefit to the gang of these crimes is
self-evident from the facts of the crimes themselves” and “[n]o expert testimony was
necessary to explain that attacking a rival gang member, especially in retaliation, would
commonly benefit members of a gang,” so a jury “undoubtedly would have found this
element satisfied under [Assembly Bill] 333.” The People assert the word “collectively”
in the statute means the predicate offenses can be established in two ways: “‘(1) [by
proof that] two different gang members separately committed crimes on two occasions;
or (2) [by proof that] two different gang members committed a crime together on a single
occasion,’” quoting People v. Clark (2022) 81 Cal.App.5th 133, 145, review granted
October 19, 2022, S275746. To that end, they disagree with the contention that
“collectively” means committed by “more than one person.” Accordingly, they contend
the predicate offense involving Ayala qualifies as a predicate offense under the amended
law.
We agree with defendant’s contention that he is entitled to reversal of his section
186.22, subdivision (b) gang enhancement based on the changes to section 186.22. In so
concluding, we first note, in his supplemental opening brief and reply, defendant asserts
there was evidence the predicate offense committed by Flores and Tadeo involved Tadeo
and Flores assaulting a rival gang member.14 However, the record does not support this
conclusion. While defendant cites Officer Avila’s testimony and the juvenile wardship
petitions and related dispositions in support of this contention, the trial court sustained
objections to the referenced portions of Officer Avila’s testimony in which he testified
Tadeo and Flores “assaulted a rival gang member.” Also, neither the wardship petitions
14 In their response brief, the People rely on the statements in defendant’s brief and the
same portions of the record to assert defendant concedes the evidence supports a conclusion the
predicate offense related to Tadeo and Flores involved “assaulting a rival gang member.” They
cite to no other evidence or portion of the record as evidence of this “fact.”
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nor dispositions establish this fact. And there is no other evidence in the record to
support this fact. Rather, the record is devoid of evidence the offense involving Tadeo
and Flores involved them attacking or assaulting a rival gang member. And , while
Officer Segura testified generally about the ways crimes can benefit a gang, there was no
expert testimony regarding how the specific predicate offenses at issue benefitted the
gang in a way that was more than reputational. There was also no evidence regarding the
facts underlying Ayala’s attempted murder conviction or expert testimony about that
crime such that the jury could conclude that offense provided a common benefit to the
Tiny Locos Sureños that was more than reputational. Thus, our review of the record does
not establish a basis from which to conclude the offense involving Tadeo and Flores
and/or the predicate offense involving Ayala benefitted the gang in a way that was more
than reputational.
Accordingly, the evidence presented at trial was insufficient to establish “a pattern
of criminal gang activity” and, thus, a “criminal street gang” as necessary to sustain
defendant’s gang enhancement pursuant to amended section 186.22. (See § 186.22,
subds. (e), (f).) As a result, we need not reach defendant’s further contentions that there
was insufficient evidence that all the predicate offenses were committed “collectively” as
required under the amended law 15 or that the current offense commonly benefited the
15 We note there is a dispute among the courts of appeal on whether an offense committed
by a lone actor can be used as a predicate offense to establish a pattern of criminal gang activity,
and the issue is currently pending in the California Supreme Court in People v. Clark, supra, 81
Cal.App.5th 133, review granted. (Cf. People v. Delgado (2022) 74 Cal.App.5th 1067, 1088–
1089 [“we read the term ‘collectively’ in a commonsense manner to mean what it says—
committed by more than one person, and not, as argued by the People, individually but on a
different day”]; People v. Lopez (2021) 73 Cal.App.5th 327, 344–345 [noting Assembly Bill 333
requires “prosecution to prove collective, not merely individual, engagement in a pattern of
criminal gang activity” and reversing gang-related enhancements and special circumstance
because no evidence was introduced at trial to establish crimes committed by individual gang
members constituted collective criminal activity by the gang]; People v. Clark, supra, at p. 144
[because amended § 186.22 provides “multiple members of the gang must be involved in the
pattern of criminal gang activity, the plain meaning of the phrase ‘the offenses were committed
on separate occasions or by two or more members’ means there are two options for establishing
the requisite pattern: (1) prove two different gang members separately committed crimes on two
93.
Tiny Locos Sureños and the common benefit was more than reputational. 16 (See
§ 186.22, subd. (e)(1); see also People v. Lopez, supra, 73 Cal.App.5th at p. 346
[“Although the People did submit evidence of two predicate offenses that were
committed in the new time frame, the People did not prove that the predicate offenses
commonly benefitted a criminal street gang and that the benefit was more than
reputational”].)
The People are not foreclosed from retrying defendant on the gang enhancement
(§ 186.22, subd. (b)) upon remand under the new requirements of amended section
186.22. Put differently, “‘[b]ecause we do not reverse based on the insufficiency of the
evidence required to prove a violation of the statute as it read at the time of trial, the
double jeopardy clause of the Constitution will not bar a retrial.’” (People v. Sek, supra,
74 Cal.App.5th at p. 669; accord, People v. Figueroa (1993) 20 Cal.App.4th 65, 72
[“Where, as here, evidence is not introduced at trial because the law at that time would
have rendered it irrelevant, the remand to prove that element is proper and the reviewing
court does not treat the issue as one of sufficiency of the evidence”]; see People v. Eagle
(2016) 246 Cal.App.4th 275, 280 [“When a statutory amendment adds an additional
occasions; or (2) prove two different gang members committed a crime together on a single
occasion”].) Notably, in People v. Tran, supra, 13 Cal.5th 1169, the prosecution introduced
felony complaints, guilty pleas, minute orders, and other court documents that showed three
individuals had pleaded guilty to various crimes and that they were members of a criminal street
gang or had committed the crimes for its benefit. (Id. at p. 1205.) On appeal, the People
conceded the evidence failed to establish the gang members “collectively” engaged in a pattern
of criminal gang activity, as required under the amended statute. (Id. at p. 1207.) The Tran
court agreed, concluding “we need not resolve the contours of Assembly Bill 333’s collective
engagement requirement” because “the jury was not presented with any discernible theory as to
how [gang] members ‘collectively engage[d] in’” the requisite predicate crimes (§ 186.22, subd.
(f)). (People v. Tran, supra, at p. 1207.) However, as discussed, we need not discuss this issue
further because we are remanding on other grounds.
16 Based on our conclusion, we also need not address the parties’ discussion of whether
evidence of the assault offense involving Tadeo and Flores amounted to a single offense or two
predicate offenses.
94.
element to an offense, the prosecution must be afforded the opportunity to establish the
additional element upon remand”].)
C. Assembly Bill 333 Requires Reversal of the Gang Special Circumstance
Defendant argues the gang special circumstance must also be reversed because of
the changes enacted by Assembly Bill 333. The People disagree, asserting “[Assembly
Bill] 333’s amendment to section 186.22, subdivisions (e) and (f), appears to be an
unconstitutional amendment to the gang-murder special circumstance created by the
voters via Proposition 21.” We agree with defendant the Assembly Bill 333’s
amendments apply to the section 190.2, subdivision (a)(22) finding and reverse the gang
special circumstance on that basis.
Section 190.2, subdivision (a)(22) was enacted as part of Proposition 21, an
initiative measure adopted by the electorate in the March 2000 primary election. (People
v. Shabazz (2006) 38 Cal.4th 55, 64–65.) Section 190.2, subdivision (a)(22) makes first
degree murder a capital crime if “[t]he defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang, as defined in subdivision (f)
of Section 186.22, and the murder was carried out to further the activities of the criminal
street gang.” (Italics added.)
There is a split of authority on whether applying the changes effectuated by
Assembly Bill 333 to the gang special circumstance amounts to an unconstitutional
amendment to Proposition 21. In People v. Lopez, supra, 73 Cal.App.5th 327, the
Second Appellate District, Division Eight, concluded “Assembly Bill 333’s changes to
section 186.22 affect not only the gang enhancement allegations under that statute but
other statutes that expressly incorporate provisions of section 186.22,” including section
190.2, subdivision (a)(22). (Lopez, at p. 346.) The Lopez court held, because “the
definition of a criminal street gang has been narrowed by Assembly Bill 333 and new
elements added in order to prove a criminal street gang and a pattern of criminal
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activity,” the requirements for proving a gang special circumstance under section 190.2,
subdivision (a)(22) have likewise changed. (73 Cal.App.5th at p. 347.)
In People v. Rojas (2022) 80 Cal.App.5th 542, review granted October 19, 2022,
S275835, a divided panel of our district reached the opposite conclusion. (Id. at pp. 557–
558.) The Rojas majority held that “[b]ecause Assembly Bill 333 ‘takes away’ from the
scope of conduct that Proposition 21 made punishable under section 190.2” (id. at p.
555), “it is unconstitutional to the extent it would amend that initiative” (id. at p. 557).
The Rojas majority relied on the fact that California voters restricted the Legislature’s
ability to amend the provisions of Proposition 21. (Rojas, at p. 555.) The majority
reasoned: “While the Legislature was free to amend Proposition 21 …, it could only do
so with a two-thirds vote in each house. (Voter Information Guide, Primary Elec.
(Mar. 7, 2000) text of Prop. 21, … § 39, p. 131.) Assembly Bill 333 did not comply with
that requirement and therefore cannot amend Proposition 21.” (Rojas, at p. 555.) As a
result, Rojas implies that a special circumstance murder allegation under section 190.2,
subdivision (a)(22) may be proven based on a different, less restrictive definition of a
“criminal street gang” than is found in the current version of section 186.22. (See Rojas,
at p. 558 [holding “Assembly Bill 333 does not alter the scope or effect of section 190.2,
subdivision (a)(22)”].)
In People v. Lee (2022) 81 Cal.App.5th 232, review granted October 19, 2022,
S275449, Division Four of the Second Appellate District concluded Assembly Bill 333
does not unconstitutionally amend section 190.2, subdivision (a)(22). Focusing on the
question of voter intent, the Lee court opined there is “nothing to suggest that the
electorate intended to impose a time-specific incorporation of the term ‘criminal street
gang’ in the gang-murder special-circumstance statute.” (Lee, at p. 245.) Accordingly,
Lee holds “that the term ‘criminal street gang’ as incorporated in the gang-murder
special-circumstance statute was ‘intended to conform at all times’ and ‘remain
permanently parallel’ to section 186.22.” (Ibid., quoting In re Jovan B. (1993) 6 Cal.4th
96.
801, 816 & fn. 10.) The Lee court further reasoned, the voters reenacted section 186.22,
subdivision (f) without substantive change; so “subdivision (f) of section 186.22 cannot
be deemed ‘among the initiative’s statutory provisions’ made immune from legislative
amendment by force of article II, section 10 of the state Constitution.” (Lee, at p. 242.)
“In short, the voters left intact the Legislature’s power to amend the definition of a
criminal street gang in section 186.22, subdivision (f).” (Ibid.) And the Lee court
concluded there was no basis to conclude the voters did not intend to permit any future
amendment to 186.22, subdivision (f) to be incorporated into the gang-murder special
circumstance. (Lee, at p. 242.) Rather, “[i]n enacting Proposition 21, the electorate
clearly knew how to express the intent to freeze a statutory definition,” given the express
time-specific incorporations in other sections; but, it did not include a time-specific
incorporation of section 186.22, subdivision (f) in section 11 of Proposition 21, the
provision supplying the gang-murder special circumstances. (Lee, at pp. 242–243.)
Accordingly, “[t]here is simply no basis to believe that the voters understood they were
precluding future amendments of subdivision (f) of section 186.22 as referred to in the
gang-murder special circumstance, while permitting such future amendments for section
186.22 itself.” (Id. at p. 243.)
Relatedly, in People v. Lopez (2022) 82 Cal.App.5th 1, another panel of our court
held Assembly Bill 333 did not unconstitutionally amend the crime of gang conspiracy
proscribed by section 182.5, which was enacted as part of Proposition 21.17 (Id. at p. 21.)
Like Lee, the Lopez court reasoned, in part, that there was no time-specific provision in
Proposition 21 for section 182.5 as there was for other provisions of the criminal law.
(Lopez, at pp. 23–24.) Accordingly, the Lopez court concluded, “[W]e agree with Lee’s
conclusion that ‘the electorate clearly knew how to express the intent to freeze a statutory
17 “[C]ertain elements of the gang conspiracy offense proscribed by section 182.5 are
defined by incorporation of provisions that were amended by Assembly Bill 333, namely, section
186.22, subdivisions (e) and (f).” (People v. Lopez, supra, 82 Cal.App.5th at p. 18.)
97.
definition,’” and “[t]he absence of such time-specific language in section 182.5 leads to
our rejection of the People’s claim.” (Id. at pp. 24–25.)
Defendant urges us to follow the reasoning in Lee, while the People urge us to
adopt the Rojas court’s view. Because review has been granted in both Rojas and Lee,
this issue has not been decided. We, however, agree with and endorse the reasoning of
Lee. Applying that reasoning here, we conclude the section 190.2, subdivision (a)(22),
special circumstance must also be reversed.
XI. Firearm Enhancement and Fines and Fees
Defendant contends his case should be remanded for resentencing so the trial court
can exercise its discretion to impose a lesser firearm enhancement and so the court can
consider his ability to pay before imposing the restitution fine and various fees.18 , 19
With regard to the firearm enhancement, defendant asserts the jury found true three
firearm enhancements pursuant to section 12022.53, subdivisions (b), (c), and (d) and,
though the court declined to strike the enhancements based on its newfound discretion
under Senate Bill No. 620 (2017–2018 Reg. Sess.), the court did not appear to be aware it
had discretion to impose a different, lesser firearm enhancement. The People disagree
with defendant’s contentions.20
18 Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, he asserts the “record is
devoid of evidence of [his] ability to pay” the $5,000 restitution fine, a $40 court operations fee,
and a $30 court security fee. He asserts “he is entitled to relief, and, because this case should be
remanded for resentencing on another issue, the trial court can readily conduct an ability-to-pay
hearing.”
19 He also contends his counsel was prejudicially ineffective in failing to raise these
issues at sentencing.
20 The People assert the court knew it had discretion to impose a lesser enhancement; it
simply chose not to. They argue, had the court “stricken the subdivision (d) enhancement, it
would have had to decide what to do with the subdivision (c) enhancement; had it also stricken
the subdivision (c) enhancement it would have had to decide what to do with the subdivision (b)
enhancement.” They further contend defendant’s challenge to the restitution fine and certain
fees is forfeited because he failed to raise it below. They further note, because the restitution
fine was set above the statutory minimum, the statute expressly allows for consideration of
ability to pay that fine. Accordingly, defendant was “obligated to challenge the fine on inability
to pay grounds, and nothing in the statute or case law made such an objection futile.” They
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Because we are reversing defendant’s gang enhancement and gang-murder special
circumstance, a new sentencing or disposition hearing will necessarily result.
Accordingly, defendant may raise his remaining claims at resentencing and we need not
discuss them further.
XII. Senate Bill 81
In supplemental briefing, defendant next asserts that at resentencing, he is entitled
to seek the benefit of Senate Bill 81, which amended section 1385 “to specify factors that
the trial court must consider when deciding whether to strike enhancements from a
defendant’s sentence in the interest of justice.” (People v. Sek, supra, 74 Cal.App.5th at
p. 674; see Stats. 2021, ch. 721, § 1.) The People agree that, if remand is required for
another reason, the amendments to section 1385 should apply at a future resentencing
hearing. We, too, agree that Senate Bill 81’s amendments to section 1385 should apply at
resentencing.
As modified by Senate Bill 81, section 1385, subdivision (c) now provides, in part:
“(1) Notwithstanding any other law, the court shall dismiss an
enhancement if it is in the furtherance of justice to do so, except if
dismissal of that enhancement is prohibited by any initiative statute.
“(2) In exercising its discretion under this subdivision, the court shall
consider and afford great weight to evidence offered by the defendant to
prove that any of the mitigating circumstances … are present. Proof of the
presence of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety. ‘Endanger public safety’
means there is a likelihood that the dismissal of the enhancement would
result in physical injury or other serious danger to others.”
The mitigating circumstances courts are to consider and afford great weight to in
considering whether to strike an enhancement include, but are not limited to, whether
“multiple enhancements are alleged in a single case” and “[t]he defendant was a juvenile
contend, even if the issue was not forfeited, defendant is not entitled to an ability to pay hearing
because the restitution fine does not violate either the Eighth Amendment or due process and
defendant should be able to pay the imposed fees from his prison wages.
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when they committed the current offense or any prior offenses, including criminal
convictions and juvenile adjudications, that trigger the enhancement or enhancements
applied in the current case.” (§ 1385.)21 Defendant contends multiple mitigating
circumstances apply to his case.
As the parties acknowledge, section 1385, subdivision (c), as amended by Senate
Bill 81, provides that it shall apply to sentencings occurring after January 1, 2022, the
effective date of Senate Bill 81.22 And the People concede, because defendant will be
resentenced after the effective date of the legislation, Senate Bill 81’s amendments to
section 1385 should apply at the resentencing hearing. We accept the People’s
concession and conclude defendant may seek the benefit of Senate Bill 81 at
resentencing.
XIII. Assembly Bill 2361 Requires a Conditional Reversal and Remand
Welfare and Institutions Code section 707 governs the procedures for transferring
a minor from juvenile court to a court of criminal jurisdiction. Effective January 1, 2023,
Assembly Bill 2361 amends section 707 of the Welfare and Institutions Code, in part, by
increasing the prosecution’s burden to prove that such a transfer is appropriate. Pursuant
to the new legislation, Welfare and Institutions Code section 707, subdivision (a)(3) now
requires the juvenile court to find by “clear and convincing evidence that the minor is not
amenable to rehabilitation while under the jurisdiction of the juvenile court” before
transferring a minor to the jurisdiction of the superior court, and it requires the court to
21 Senate Bill 81 initially codified these provisions under section 1385, subdivision
(c)(3)(B) and (c)(3)(G), respectively, but section 1385 was further amended pursuant to
Assembly Bill No. 200 (2021–2022 Reg. Sess.) (Assembly Bill 200), effective June 30, 2022,
and these provisions were amended to fall under subdivision (c)(2)(B) and (c)(2)(G),
respectively. (Stats. 2022, ch. 58, § 15.)
22 Pursuant to Senate Bill 81, section 1385, subdivision (c)(7) provided: “This
subdivision shall apply to sentencings occurring after the effective date of the act that added this
subdivision.” (Stats. 2021, ch. 721, § 1.) Thereafter, Assembly Bill 200 modified subdivision
(c)(7) of section 1385 to state, “This subdivision shall apply to all sentencing occurring after
January 1, 2022.” (Stats. 2022, ch. 58, § 15.) Because Senate Bill 81 became effective
January 1, 2022, this modification did not result in a substantive change.
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“include the reasons supporting the court’s finding that the minor is not amenable to
rehabilitation while under the jurisdiction of the juvenile court” in an order entered upon
the minutes. (Stats. 2022, ch. 330, § 1, subd. (a)(3).)
Here, defendant’s case was initially filed directly in adult criminal court in August
2016. After Proposition 57 was passed in November 2016, the court granted defendant’s
motion to transfer his case to juvenile court where a contested transfer hearing was held.
Defendant was then transferred to adult court in August 2017 where he was tried and
convicted.
In supplemental briefing, defendant asserts conditional reversal of the judgment
and a remand to the juvenile court is required for a Welfare and Institutions Code section
707 transfer hearing under the new standard in light of Assembly Bill 2361. The People
agree with defendant that Assembly Bill 2361 operates retroactively and a conditional
reversal and remand is necessary for the juvenile court to hold a transfer hearing at which
it applies the new standard. (In re Estrada, supra, 63 Cal.2d at p. 745.)
Like Proposition 57, Assembly Bill 2361 raises the burden of proof for
transferring a juvenile to adult criminal court, among other changes. Thus, Assembly Bill
2361, like Proposition 57, “reduces the possible punishment for a class of persons,
namely juveniles.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.)
Accordingly, we agree with the parties and conclude a conditional reversal of the
judgment and remand to the juvenile court is required. The juvenile court is to conduct a
transfer hearing pursuant to Welfare and Institutions Code section 707, as amended by
Assembly Bill 2361.
DISPOSITION
The gang enhancement and gang-murder special circumstance are reversed. We
also conditionally reverse the remainder of the judgment and remand the matter to the
juvenile court with directions to conduct a new transfer hearing at which Welfare and
Institutions Code section 707, as amended by Assembly Bill 2361, will apply.
101.
If, after conducting the juvenile transfer hearing, the court determines that it would
have transferred the defendant to a court of criminal (adult) jurisdiction then the
judgment shall be reinstated as of that date. (Welf. & Inst. Code, § 707.1, subd. (a).) The
People must elect whether to retry defendant on the gang enhancement and gang-murder
special circumstance. If the People elect not to retry defendant on the gang enhancement
and gang-murder special circumstance, the trial court shall modify the judgment by
striking defendant’s gang enhancement and the gang-murder special circumstance and
shall hold a resentencing hearing.
On the other hand, if the juvenile court finds that it would not have transferred
defendant to a court of criminal (adult) jurisdiction, then it shall treat defendant’s
conviction and enhancements as juvenile adjudications. The People must elect whether
to retry defendant on the gang enhancement and the gang-murder special circumstance.
If the People elect not to retry defendant on the gang enhancement and the gang-murder
special circumstance, the juvenile court shall strike the defendant’s gang enhancement
and the gang-murder special circumstance and shall conduct a disposition hearing.
PEÑA, J.
WE CONCUR:
FRANSON, Acting P. J.
SMITH, J.
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