People v. McMorries CA2/4 ( 2022 )

Filed 3/9/22 P. v. McMorries CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B289194
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA091954)
SHELDON MCMORRIES et al.,
Defendants and Appellants.
APPEAL from a Judgment of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Affirmed as modified
with directions.
Corona & Peabody and Jennifer Peabody, under
appointment by the Court of Appeal, for Defendant and Appellant
Sheldon McMorries.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant David Solorio.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant Ronald Lopez.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Steven E. Mercer and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________
In a 19-count indictment, the prosecution jointly charged
Appellants Sheldon McMorries, David Solorio and Ronald Lopez
with the murder of William “Tiny” Knight and other offenses,
including attempted murder, conspiracy, and extortion.
Appellants were tried jointly before a single jury. The jury found
them guilty of the first-degree murder of Knight and convicted
them as charged on all other counts.
Appellants now challenge the sufficiency of the evidence
supporting a number of their convictions and contend the trial
court erroneously: declined to sever McMorries’ trial, admitted
prejudicial expert testimony on the meaning of gang code,
committed instructional error, and failed to grant their motions
for mistrial. They also request we review the trial court’s in-
camera Pitchess evaluation and correct the abstracts of judgment
to delete certain fines and fees, or remand for a hearing on their
ability to pay the fines and fees pursuant to People v. Duenas
(2019) 30 Cal.App.5th 1157. In supplemental briefs, Appellants
also contend the Senate Bill 775 (2021-2022 Reg. Sess.)
amendments to Penal Code section 1170.95 permit their
challenge to the jury instructions regarding natural and probable
consequences to be raised on direct appeal. Finally, McMorries
requests in a supplemental brief that we strike his five-year
enhancements under section 667.5, subdivision (b). We affirm.
2
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Introduction.
The prosecution contended the three appellants were part
of a Mexican Mafia crew working for Emiliano “Tonito” Lopez, an
inmate incarcerated at Pelican Bay State Prison. Appellant
Lopez, Tonito’s brother, was the crew chief. Solorio was a
“camarada” who served as appellant Lopez’s assistant.
McMorries, along with others, was an enforcer or “tax” collector
who extorted “rent” or “tax” money from gangs operating in areas
controlled by Tonito’s crew and turned the money over to Lopez
and Solorio. Under the direction of Lopez and Solorio, McMorries
shot and killed Knight on July 5, 2010, because Knight, who also
was extorting rent or tax money from gangs on behalf of the crew,
failed to turn the money over to Lopez or Solorio. The prosecution
also contended appellants Lopez and Solorio conspired to have
two county jail inmates, James Arellano and Daniel Bugarin,
killed for breaking Mexican Mafia rules.
Trial evidence consisted primarily of recordings of
intercepted phone calls; audio recordings from body wires worn
by informants; text messages; interpretation by gang experts of
language used in the calls, conversations, and text messages; cell
phone triangulation; surveillance; and McMorries’ confession to
an informant.
After summarizing the information, we summarize the
relevant trial evidence concerning the Mexican Mafia and the
shooting of Knight. Additional facts relevant to particular legal
issues are discussed later in the opinion in connection with our
analysis of those issues. We also defer discussion of facts relating
to the other crimes with which only Solorio and Lopez were
charged (conspiracy to commit murder, the attempted murders of
3
Arellano and Bugarin, and the extortion counts) until later in the
opinion.
B. Information
The second amended information, filed May 22, 2017,
alleged as follows against the three appellants1:
Count Section Offense Date Defendant Victim
1 187 Murder 7/5/10 All William
Knight
2 182/187 Conspiracy to 7/5/10 All William
Commit Murder Knight
3 182/518/ Conspiracy to 6/29/10 All Ovidio
519 Commit to Salazar
Extortion 8/20/11
4 518 Extortion 10/31/10 Lopez Carmelo
to Pizzaro
12/13/10
5 519 Extortion by 9/21/10 Solorio, Vincent
Threat to Lopez Lugo
12/13/50
6 519 Extortion by 11/2/10 Lopez Robert
Threat to Abeyta
12/13/10
7 519 Extortion by 11/2/10 Lopez Alex
Threat to Medrano
12/13/10
8 518 Extortion 11/3/10 Lopez Arnulfo
to Chavez
11/22/10
1 Section references in the following chart, and throughout
this opinion, are to the Penal Code, unless otherwise indicated.
4
9 519 Extortion by 11/7/10 Lopez Jerome
Threat to Saucedo
12/22/10
10 519 Extortion by 12/8/10 Lopez Mario
Threat to Munoz
12/13/10
11 519 Extortion by 12/9/10 Lopez Manuel
Threat to Gomez
12/13/10
12 519 Extortion by 19/2/10 Solorio, Eduardo
Threat to Lopez Gonzalez
8/20/11
13 12021, Felon in 7/11/11 McMorries N/A
subd. Possession
(a)(1)
14 29800, Felon in 4/12/12 Lopez N/A
subd. Possession
(a)(1)
15 H&S Sale/Offer for 4/12/12 Solorio N/A
11379, Sale Controlled
subd. Substance
(a)
16 187/664 Attempted 4/7/10 to Solorio, James
Murder 4/14/12 Lopez Arellano
17 182/187 Conspiracy to 4/7/10 to Solorio, James
Commit Murder 4/14/12 Lopez Arellano
18 664/187 Attempted 1/18/09 Solorio, Daniel
Murder to Lopez Bugarin
2/14/09
19 182/187 Conspiracy to 1/18/09 Solorio, Daniel
Commit Murder to Lopez Bugarin
2/14/09
5
The information further alleged Counts 1 through 12 and
15 through 19 were committed for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)).
C. Overview of the Mexican Mafia.
At trial, Francis Hardiman, a gang expert with the Los
Angeles County Sheriff’s Department, testified about the
Mexican Mafia’s structure and function.
According to Hardiman, the Mexican Mafia, or Eme
(Spanish for the letter M), was first organized in the 1950s in
state prisons. Originally, the Mexican Mafia operated only in
prisons, but beginning in the 1990s, it extended its reach outside
to the County jails and into the streets. The Mexican Mafia sent
paroled members as emissaries to the street gangs to tell them
their criminal activities fell under the Mexican Mafia’s control,
and the gangs would have to pay the Mexican Mafia “taxes” if
they wanted to commit crimes in those areas. Moreover, the
Mexican Mafia would force local street gangs to sell the Mexican
Mafia’s drugs. If taxes were not paid by a street gang, when its
members came to prison, they would be given the “green light”
(ordered killed) by the Mexican Mafia. Also, people who failed to
pay taxes or skimmed taxes collected might have a “green light”
put on them to send a message to other street gang members.
The Mexican Mafia employs a hierarchical structure. The
highest level consists of the 150 to 200 actual “members.” Most of
the members of the Mexican Mafia are serving life terms and rely
on others on the outside to commit crimes for the organization.
Below the members are “camaradas” and “secretaries” who work
directly with the members. The bottom tier level consists of
soldiers (“Surenos,” or “South Siders”). A camaradas, as a second-
6
tier Mexican Mafia associate, works closely with a Mexican Mafia
member.
On a local level, gang members tax individuals in a specific
area under the direction of a crew chief. Collections are made
from those engaging in criminal activity in the neighborhood.
Generally, an incarcerated member would give orders to a
second-tier gang member, who in turn would carry the message
to a crew chief. The crew chief would delegate to his crew.
D. Tonito’s Crew.
As noted above, appellant Lopez is Tonito’s younger brother
and was Tonito’s second in command. McMorries (nicknamed
“Goofy”) had tattoos signifying membership in the Mexican
Mafia, as did Solorio (nicknamed “Blackie”) and Lopez
(nicknamed “Dave”). Solorio and Lopez were camaradas, while
McMorries was a soldier. Tonito’s crew collected taxes at the
beginning of each month.
Lisa Robles was Tonito’s girlfriend. In approximately 2007
she met appellant Lopez. Robles began to collect taxes in Newhall
and sent the money to Lopez. She met Solorio in 2008 through
Tonito, and conveyed messages from Lopez and Solorio to Tonito.
They also spoke about Mexican Mafia business.
Tonito told Solorio that Solorio was a “camarada.” Tonito
gave Solorio the authority to handle problems he had with
someone. “You . . . handle it however you think you need to
handle it, but don’t let nobody know about it. Just deal with it.”
Solorio put Ovidio Salazar (nicknamed “Flaco”) in charge
of collecting taxes in 2009, and Salazar reported to Solorio and
Lopez. Salazar, who had started as a member of the Garden View
Locos gang, collected taxes in Bell Gardens, Pasadena, and the
Harbor area. He delivered the taxes to Lopez. Salazar began
7
working for Lopez in May 2009, after a stay in prison. Sometime
in 2010, Lopez appointed Knight the tax collector for the Harbor
area.
Michael Franco (nicknamed “Boxer”) collected taxes for
Tonito from 2002 to 2007. Franco delivered taxes to and reported
to Lopez. Franco testified at trial that local Hispanic gangs could
agree with the Mexican Mafia to pay taxes, in exchange for which
the local gang could use “13” in its name and expect the Mexican
Mafia to enforce the gang’s right to sell drugs in its territory.
Franco also testified there were rules within the Mexican
Mafia about killing local gang members for not turning over
collected taxes. The “big homie” or top Mexican Mafia member,
would need to authorize any killing and would only do so with the
proper “paperwork,” namely, evidence establishing a rules
violation. In the case of a snitch, the paperwork would include
any type of police report, or a court transcript showing
cooperation with law enforcement.
According to Franco, if taxes were not paid, people could
end up paying a lot of money, or they could lose their car, their
house, or their life. About 90 percent of collectors skimmed, but
few were disciplined. Merely skimming would not warrant severe
punishment. Tonito’s crew did not like to kill people because it
would attract the attention of law enforcement.
E. Local Activities of Mexican Mafia:
Investigation.
A task force consisting of local police agencies and federal
agents from the Department of Homeland Security began
investigating the Mexican Mafia in the Bell Gardens area. In
2006, Detective Dano Neslen of the Bell Gardens Police
Department used informants, surveillance, and recordings of
8
prison phone calls in his investigation. Detectives wiretapped
approximately 16 phones over the course of the investigation. In
gang cases, phones often are switched or “flipped” to evade
detection.
Neslen obtained wiretaps and learned appellants were
working as part of Tonito’s crew. As a result of listening to many
hours of wiretaps, Detective Neslen could identify the appellants’
voices.
Salazar was initially the subject of the wiretaps but later
became an informant.2 Salazar was released from jail in June
2010 and wore a wire when he met with all appellants from
October 18, 2010, to approximately September 19, 2011.
During 2008 through 2010, Detective Neslen listened to
Tonito’s phone calls with Mexican Mafia members. In 2009, he
intercepted voice and text messages on Lopez’s and Solorio’s
phones.
E. Events Leading to the Shooting of Knight.
1. Knight Fails to Turn Over Tax Collections.
The victim William Knight was a tax collector for Tonito. In
2010, Knight was put in charge of tax collecting for the Harbor
area. Knight had not turned over his collections for at least a
month before his July 2010 murder.
Detective Neslen heard conversations between victim
Knight and Solorio regarding taxes. Knight also spoke to
McMorries.
2 Salazar was recruited by Neslen as an informant in 2010
when Salazar had legal problems. Salazar was paid $11,500 for
his work.
9
In May 2010, Solorio told Knight that Salazar was in
custody. Knight and Solorio spoke regarding Knight’s failure to
deliver tax money. To explain the shortfall, Knight informed
Solorio the $2,000 he had collected for the month was taken by
police when he was arrested. Knight planned to pick up three
neighborhoods the next month, and he was going to have each
neighborhood contribute an additional $100 to make up the
shortfall.
2. The Crew Discusses Knight.
In late June 2010, Solorio told Lopez he had not been able
to reach Knight on his phone. A few days later, Knight told
Solorio he had lost his phones. Knight told Solorio that “I got it
still” and “the next one is already coming up,” which referred to
June and July taxes. Solorio told Knight they were “over here
asking for it” and “we’re both asking for it, homie.” Neslen
believed this referred to the late June taxes, and that both
Solorio and Lopez were looking for Knight’s tax collection.
On June 29, 2010, Solorio called Knight and questioned
him about the tax money. Knight responded that he “gotta live
too.” Solorio responded that Knight should consider stepping
down. Knight complained that a lot of people were being arrested,
and he received a visit from “Fox,” who threatened him based on
a drug debt unrelated to the Mexican Mafia. Knight sent a text
message to Solorio telling him he was not stepping down.
According to Neslen, Knight always had an excuse for failing to
turn over the taxes. Neslen believed Knight was not skimming
but simply not turning over the money.
Solorio called Lopez and told him to contact Knight. Lopez
responded that he would call Knight and pick up the taxes.
Solorio gave Lopez Knight’s phone number.
10
Knight called Robles and asked for help because he was in
trouble with Solorio and Lopez. Robles responded that she would
talk to them and try to work out a payment plan. Robles spoke to
Solorio and asked what Knight could do to rectify the situation.
Solorio said Knight was “through” and she should not talk to him
anymore. Robles believed this meant Knight was going to be
killed.
On June 30, McMorries asked whether Knight had turned
over any money. McMorries told Solorio that Knight had been
told over and over to turn over the money but had not done so.
McMorries was aware that Knight had been asking for an extra
$100. According to Neslen, Knight was going against the rules.
Solorio told McMorries to contact people paying taxes to
Knight to let them know there would be a change. Solorio and
McMorries agreed to meet later that day. McMorries told Solorio
he was “more than willing.” Neslen believed that because Solorio
had told McMorries it was a “wrap,” Knight was going to be
killed. Neslen made arrangements to have Knight detained.
On July 1, 2010, McMorries told Solorio that Knight had
called him and asked for money. Lopez and Solorio then spoke on
the phone and Lopez told Solorio they needed to talk about what
McMorries had told him the previous day.
On July 3, 2010, McMorries called Solorio to tell him
“everything’s cool” and that Knight “was confident” he was cool.
Neslen believed this meant that McMorries was trying to make
Knight comfortable so that he could use the element of surprise
to facilitate killing Knight.
Neslen testified that on July 4, 2010, Solorio used the
terminology “that’s a wrap” to describe a “green light” on an
inmate in prison. Several days later, the inmate was stabbed.
11
D. July 5, 2010, Killing of Knight
Early in the afternoon of July 5, 2010, McMorries and
Solorio met at a Carl’s Junior in Monterey Park Officers followed
Solorio to the Carl’s Junior. After Solorio and McMorries left the
Carl’s Junior, officers followed McMorries to his house but
stopped the surveillance because McMorries lived on a cul de sac.
Officers attempted to find Knight.
On July 5, 2010, at 10:19 p.m., police responded to a “shots
fired” call. Knight’s body was found next to his car on 219th
Street in Torrance. Police recovered Knight’s phone and six .45
caliber shell casings from the scene. There were no security
cameras in the area, and no one witnessed the shooting. Knight
died from multiple gunshot wounds.
Knight’s phone contacts contained appellants’ phone
numbers listed under their gang monikers: Solorio (“Black”),
Lopez (“T Bro”) and McMorries (“Disney”). McMorries had called
Knight three times on July 5, at 9:58 p.m., 10:11 p.m., and 10:13
p.m. The last phone call from Knight’s phone was to McMorries.
Shortly after the shooting, McMorries called Solorio several
times, but Solorio did not answer. Finally, at 10:33 p.m., Solorio
answered and McMorries told him “hey, it’s done, dog.” Solorio
responded, “you’re done,” to which McMorries replied, “done.” A
few minutes later, Solorio sent McMorries a text asking, “did
everything go smooth?” and McMorries responded, “yes.” At 10:56
p.m., Solorio sent a text to Lopez telling him to “get rid of the
phone.”
Neslen, who was monitoring these calls and texts in real
time, believed Knight had been murdered. Neslen contacted law
enforcement in the area. Neslen later heard from Detective David
Cortez that Knight was the victim. Neslen and Cortez met and
12
Neslen informed Cortez about the wiretapping. McMorries was
named as a suspect.
E. Investigation into Knight’s Shooting.
Phone records and cell tower triangulation established that
between 9:44 p.m. and 10:13 p.m. on July 5, 2010, McMorries’
phone was near a cell tower close to the scene of Knight’s death.
About ten minutes later, his cell phone connected with towers
closer to McMorries’ home.
On July 6, 2010, McMorries was arrested. During a search
of his home, police found .45 caliber ammunition,
methamphetamine, and a narcotics scale. Salazar called Solorio
for information, saying he had heard gossip. Solorio told Salazar
that McMorries was in the Central Jail in the same module.3
While in jail, Salazar met McMorries in the laundry room.
McMorries confessed to Salazar that he had shot Knight because
Knight was collecting taxes but not turning them over.4
McMorries had killed Knight because Lopez and Solorio had
come to a mutual agreement that Knight had to be killed.
Further, Knight’s girlfriend was a snitch and they had told
Knight to kill her, but he had not done so.
McMorries explained that, on the night of the shooting, he
had set up a meeting with Knight in Knight’s neighborhood.
When he arrived, Knight was leaning against his car texting.
Knight looked up, and McMorries shot him. McMorries took
Knight’s gun and left.
3 Before this time, Salazar had not met McMorries.
4 This conversation was not taped.
13
On August 23, 2010, McMorries and Salazar were placed in
a cell together and their conversation was taped. McMorries and
Salazar discussed Knight’s shooting and the presence of an
unknown “snitch.” McMorries said he was upset because he had
not told anyone about the shooting. McMorries believed someone
was going to “flip” and go into protective custody. McMorries and
Salazar believed Knight’s girlfriend was the snitch. Salazar was
released from jail on October 18, 2010. As part of his plea
agreement, he agreed to wear a wire while continuing to work as
a tax collector for Tonito. Neslen conducted surveillance of
Salazar. After collecting money, Salazar would turn it over to
Lopez or Solorio.
During the time McMorries was in jail, Salazar met with
Lopez and Solorio. They discussed Mexican Mafia business,
including territories and crimes being committed by other gang
members. They also met with other Mexican Mafia members and
discussed business.
Solorio told Salazar that local gangs were complaining
about Knight because he was collecting too often and asking for
too much money. Solorio believed Knight was a drug addict.
Salazar believed Solorio and McMorries had formulated a plan to
kill Knight’s girlfriend but had not decided who would do it.
In late January 2011, Salazar met with Lopez and
discussed Mexican Mafia business. Salazar told Lopez that
during a meeting he had with Robles and Solorio, Robles asked
about Knight and Salazar mentioned he was not with them
anymore. Lopez responded that Robles did not need to know
about Knight and should not be asking about it.
In mid-March 2011, Salazar met with Solorio and Solorio
told him he had been visited by the police who were investigating
14
Knight’s murder. Police told Solorio they believed he had
information about Knight’s killing. Officer Cortez interviewed
Solorio in mid-March 2011 and showed him a pyramid diagram
labelled “Organizational Chart” with lines connecting McMorries
and Knight to Solorio.
Salazar met with Lopez on March 22, 2011 and they spoke
about Solorio’s visit from the police. Salazar said he was going to
tell Solorio to “step back” and Lopez agreed.
At that time, McMorries had been jailed on a parole
violation. McMorries was released in May 2011. On May 20,
2011, Salazar met with Lopez and asked whether he had met
with McMorries. Lopez confirmed he had. Lopez complained
McMorries was “running his mouth” and talking to many people.
On June 28, 2011, Salazar, Solorio, McMorries and other
members of the crew met. McMorries had multiple guns and had
a grenade for sale. He revealed he had a van for disabled people
with multiple compartments where he kept the guns. McMorries
told them he still had Knight’s Glock and that he took the gun
when Knight was killed.
On July 11, 2011, Salazar met with McMorries under the
pretext of buying a gun, but he in fact was attempting to find out
about Knight’s gun. McMorries told him about the police visit to
Solorio’s house and the pyramid. Salazar believed McMorries told
him he had destroyed three .45s, and Salazar interpreted this to
mean that McMorries had gotten rid of Knight’s gun. McMorries
was no longer collecting taxes because he did not want “his name
out there.”
McMorries was arrested again on July 13, 2011, for a
parole violation. On July 20, 2011, Solorio and Lopez discussed
15
McMorries’ arrest. Solorio and Lopez were arrested April 12,
2012.
On September 14, 2014, appellants were being transported
to the Long Beach courthouse together. They encountered a
Mexican Mafia member who was a witness in an arson case and
in protective custody. The witness was acquainted with
McMorries. Appellants asked the witness if he could stab
Salazar. Salazar later learned appellants told the witness they
would take the “green light” off him if he killed Salazar.5
F. Defense Evidence.6
Sandra Gonzalez, the mother of McMorries’ son, testified
that McMorries and Knight were friends and Knight came to
their house often.
On the day of Knight’s shooting, between 6:00 to 7:00 p.m.,
Knight came by Gonzalez’s house looking for McMorries.
McMorries was out at the time, having left at about 1:00 p.m.
that day, but he was there later that evening. They went to
Carson Street between 7:00 and 9:00 p.m. to pick up drugs.
McMorries was home with her at 10:19 p.m.
With respect to the charges that Lopez and Solario
conspired to have two county jail inmates, James Arellano and
Daniel Bugarin, killed, two officers on the jail bus testified they
would have reported any conversation to solicit harm. Santiago
Sencion, one of those who attacked Arellano, denied any
involvement with the Mexican Mafia and testified he slapped
Arellano because Arellano called him a “bitch.”
5 We discuss the attempted murder counts and the extortion
counts in detail later in this opinion.
6 Each defendant put on his own defense.
16
Martin Flores, a gang expert, testified the Mexican Mafia
was originally formed to protect Hispanic prisoners. The Mexican
Mafia is not a “unitary” organization. Thus, not every member
treats their “business” or crew in the same way. “Taxes” are paid
for many reasons. The Mexican Mafia controls every prison in the
state, and taxes ensure that if local gang members go to prison,
they are protected from other prison gangs. In that sense, “taxes”
are not extortion.
G. Verdict and Sentencing.
1. McMorries.
The jury found McMorries guilty of first-degree murder
(Count 1) and guilty of conspiracy to commit murder, conspiracy
to commit extortion, and being a felon in possession of a handgun
(Counts 2, 3 and 13). The jury found true the personal discharge
of a firearm causing death allegations on Counts 1 and 2 and the
allegation that offenses committed in Counts 1, 2 and 3 were
committed for the benefit of a criminal street gang. McMorries
admitted to five prior prison terms (§ 667.5, subd. (b).).
The trial court sentenced McMorries to an aggregate term
of 57 years to life plus 18 years, as follows: (a) on Count 1, 25
years to life, plus 25 years to life for the personal use allegation,
plus five years consecutive for the five prior prison terms; (b) on
Count 3, seven years to life plus five years consecutive for the five
prior prison terms; and (c) on Count 13, the upper term of three
years plus five years consecutive for the five prior prison terms.
The court stayed sentence on Count 2 pursuant to section 654.
17
2. Solorio.
The jury found Solorio guilty of first-degree murder
(Count 1) and nine other charges. The jury found true the firearm
use enhancements (§§ 12022.53, subds. (b), (c) and (d)) on Counts
1 and 2, and the gang enhancements (§ 186.22, subd. (b)(1)) on
Counts 1, 2, 3, 5, 12, 16, 17, 18 and 19.
The trial court sentenced Solorio to an aggregate term of
114 years to life, as follows: (a) on Count 1 (murder), 25 years to
life as a major participant with a consecutive term of 25 years to
life for the gun use enhancement; (b) on Count 2 (conspiracy to
commit murder), the court imposed and stayed, pursuant to
section 654, consecutive terms of 25 years to life; (c) on Count 3
(conspiracy to commit extortion), the court stayed imposition of a
term pursuant to section 654; (d) on Counts 5 and 12 (extortion),
the court imposed a term of seven years to life to be served
consecutively with the term in Count 1, and found Count 12
involved a different victim and Solorio was a major participant in
a serious crime over an extended period; (e) on Count 15
(possession of a controlled substance), the midterm of three years
to be served concurrently with the term in Count 1; (f) on Counts
16 and 18 (attempted murder), the court imposed and stayed
pursuant to section 654 the upper term of nine years and found
the offense in Count 16 involved a separate victim; (g) on Counts
17 and 19 (conspiracy to commit murder), the court imposed a
term of 25 years to life to be served consecutively to Count 1.
3. Lopez.
The jury found Lopez guilty of first-degree murder and 16
other counts and found true the special allegations concerning
firearm use and gang participation.
18
The trial court sentenced Lopez to an aggregate term of 535
years to life, as follows: (a) on Count 1 (murder), a total of 105
years to life, consisting of 25 years to life, tripled under the Three
Strikes Law, plus 25 years for the firearm enhancement, plus five
years for the two prior serious felonies; (b) on Counts 2 and 3, the
court stayed imposition of sentence pursuant to section 654; (c) on
Counts 4 through 12 (extortion), 25 years to life on each count, to
run consecutively, plus a five-year gang enhancement; (d) on
Count 14 (felon in possession), four years to run concurrently;
and (e) Counts 16 and 18 (attempted murder) 25 years to life
tripled, plus a five year gang enhancement.
DISCUSSION7
I. SEVERANCE OF TRIAL
McMorries argues the trial court abused its discretion in
declining to sever his trial from that of his co-defendants Solorio
and Lopez. McMorries asserts his connection to the
otherdefendants and the Mexican Mafia was minimal; he was not
a “member” of the Mexican Mafia, was not charged in or
implicated in any of the other crimes committed by Lopez and
Solorio, was not a target of the four-year investigation into
Tonito’s operation, had nothing to do with the general operations
of the crew under Tonito, had no history of committing crimes for
the benefit of the Mexican Mafia, was only heard on wiretaps
seven times and only between June 30 and July 5, 2010, and
spent most of the two years after Knight’s murder in jail or
7 To the extent applicable, the appellants join in each other’s
arguments.
19
prison. As a result, he contends the trial resulted in a denial of
due process of law that requires reversal. We disagree.
A. Factual Background.
McMorries was charged in four of the 19 counts. He was
charged jointly with Solorio and Lopez in Count 1 (murder),
Count 2 (conspiracy to murder) and Count 3 (conspiracy to
extort), and was charged separately in Count 13 with unlawfully
possessing a firearm. Codefendants Solorio and Lopez, either
jointly or independently with each other, were charged with
extortion (Counts 4-12), felon in possession of a firearm (Count
14), transportation of a controlled substance (Count 15),
attempted murder (Counts 16 and 18), and conspiracy to murder
(Counts 17, 19).
On August 1, 2016, McMorries filed a motion to sever his
case from Solorio and Lopez. He argued that because he was only
charged in four counts of the 19-count amended information, the
evidence to be admitted against Solorio and Lopez related to the
other counts and would be voluminous and prejudicial.
In its opposition filed November 2, 2016, the prosecution
argued the evidence “against the three defendants is inextricably
intertwined,” and the pattern of extortion established in the
counts against codefendants Solorio and Lopez is directly
relevant to all defendants’ liability for conspiracy and murder.
Furthermore, evidence applicable to the counts unrelated to
McMorries would be cross-admissible because it was relevant and
material to the murder and conspiracy charges against him. The
prosecutor argued that statements by Lopez and Solorio to
Salazar “sometimes reference McMorries” and show that they
“were all working in concert,” and the extortion plot explains the
motive for Knight’s murder.
20
At the hearing on the motion, McMorries argued that only
10 to 20 percent of the preliminary hearing evidence related to
him or the charges against him and evidence against the other
defendants, including recorded wiretaps, phone calls and
meetings during which other assassinations and extortion plots
are discussed, would be highly prejudicial.
The trial court noted that its tentative ruling was to deny
severance because the charges dealt with “interrelated events”
and “cross-admissible evidence in the sense that they’re all
connected.” Observing that the charges related to “different parts
of the same criminal enterprise,” the trial court denied the
motion. “Like a sophisticated drug ring or something, there is
going to be different parts and pieces of that criminal enterprise
that don’t always involve all the parties, but they’re part of the
enterprise and you kind of have to take the ride with everybody
else because you’re a part of it. In one piece or another, you’re
part of it. Certainly the allegation with . . . McMorries’s piece or
part are very significant, and it would not make sense to separate
it out. We would be hearing the same witnesses over and over
again. It would be unnecessarily redundant and an unnecessary
use of our time and the jury’s time to separate out these cases.”
Ultimately, the trial court denied the severance motion.
B. Discussion.
Section 1098 provides in relevant part: “When two or more
defendants are jointly charged with any public offense, whether
felony or misdemeanor, they must be tried jointly, unless the
court orders separate trials.” Section 1098 illustrates the
Legislature’s “strong preference for joint trials,” including joint
penalty phase trials. (People v. Winbush (2017) 2 Cal.5th 402,
455; People v. Sanchez (2016) 63 Cal.4th 411, 463–464 (Sanchez).)
21
“Joint trials promote efficiency and help avoid inconsistent
verdicts.” (Ibid.)
“Joint proceedings are not only permissible but are often
preferable” when, as here, the “defendants’ criminal conduct
arises out of a single chain of events. Joint trial may enable a
jury ‘to arrive more reliably at its conclusions regarding the guilt
or innocence of a particular defendant’” and the trial judge “to
assign fairly the respective responsibilities of each defendant in
the sentencing;” plus it conserves judicial resources. (Kansas v.
Carr (2016) 577 U.S. 108, 125; People v. Silveria and Travis
(2020) 10 Cal.5th 195, 242.)
The legislative preference for joint trials is, however,
“subject to a trial court’s broad discretion to order severance.”
(People v. Thompson (2016) 1 Cal.5th 1043, 1079 (Thompson).)
“Factors that may bear on a trial court’s decision to order
separate trials include “‘an incriminating confession, prejudicial
association with codefendants, likely confusion resulting from
evidence on multiple counts, conflicting defenses, or the
possibility that at a separate trial a codefendant would give
exonerating testimony.’” [Citations.] Severance may also be
appropriate where “‘there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants or
prevent the jury from making a reliable judgment about guilt or
innocence.’” [Citations.]” (People v. Gomez (2018) 6 Cal.5th 243,
274.)
In considering a motion to sever, the factors to be evaluated
are: (1) the cross-admissibility of the evidence in separate trials;
(2) whether some of the charges are likely to unusually inflame
the jury against the defendant; (3) whether a weak case has been
joined with a strong case or another weak case so that the total
22
evidence may alter the outcome of some or all of the charges; and
(4) whether one of the charges is a capital offense, or the joinder
of the charges converts the matter into a capital case. (Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1220–1221.)
Prejudicial association justifying severance involves
circumstances where evidence regarding a codefendant might
make it likely the jury would: (1) convict the codefendant; and
(2) convict the defendant based on his relationship with the
codefendant rather than on the separate evidence against the
defendant. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 152.)
Merely trying “crime partners” together is not prejudicial
association. (People v. Cummings (1993) 4 Cal.4th 1233, 1286
[where defendants were “crime partners in several of the
robberies and in the murder, prejudicial association with a
codefendant is not a factor”].)
Whenever defendants are jointly tried, “part of the
prosecution’s case will naturally attempt to establish that the
defendants associated with each other, at least to the extent that
they all participated in the crimes at issue.” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 383.) “That defendants
associated more broadly than their specific involvement in the
alleged crimes may also be directly relevant to establishing their
guilt.” (Ibid.) It is also likely that different defendants
participating together in a crime “will have different levels of
involvement and different personal backgrounds. These
circumstances alone do not compel severance or render a joint
trial grossly unfair. Individuals who choose to commit crimes
together are not generally entitled to shield the true extent of
their association by the expedient of demanding separate trials.”
(Ibid.)
23
“We review a trial court’s denial of a severance motion for
abuse of discretion, based on the facts at the time of the trial
court’s ruling.” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 819.) “To establish an abuse of discretion, defendant[ ] must
demonstrate that the trial court’s decision was so erroneous that
it ‘falls outside the bounds of reason.’ [Citation.] A merely
debatable ruling cannot be deemed an abuse of discretion.”
(People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at
p. 390.) “[E]ven if a trial court acted within its discretion in
denying severance, ‘“the reviewing court may nevertheless
reverse a conviction where, because of the consolidation, a gross
unfairness has occurred such as to deprive the defendant of a fair
trial or due process of law.”’” (Thompson, supra, 1 Cal.5th at p.
1079.)
C. Appellants Were Properly Tried Together
“A ‘classic’ case for joint trial is presented when defendants
are charged with common crimes involving common events and
victims.” (People v. Keenan (1988) 46 Cal.3d 478, 499–500.)
Here, all the offenses arose out of the operations of a gang
that all appellants were involved with. McMorries volunteered to
kill Knight, and his role in the killing of Knight was the most
dramatic evidence presented to the jury. McMorries trapped
Knight and shot him repeatedly when Knight looked up from his
phone. Knight “didn’t have a chance.” Accordingly, there was no
danger that McMorries would have been convicted in counts 1, 2,
3, or 13, based on evidence pertinent to Lopez and Solorio
admitted on the other counts or as a result of “guilt by
association.” Thus, there was no reasonable possibility that the
jury would be confused by the presence of additional counts
against appellants Lopez and Solorio only.
24
Indeed, the evidence of McMorries’ involvement in the
murder of Knight was overwhelming. McMorries was recorded
plotting to kill Knight, affirming that he had done so, and
admitting that he had destroyed the weapon he used in Knight’s
murder. McMorries admitted to Salazar that he had personally
killed Knight as part of a plan agreed upon by all three
appellants.
Further, the evidence on all counts was cross-admissible.
The conduct of the Mexican Mafia as an organization, including
the conduct of Lopez and Solorio, was admissible against
McMorries to establish his motive in the murder of Knight, his
motive in the conspiracy to murder Knight, his motive and role in
the conspiracy to commit extortion, and to prove the truth of the
gang enhancement allegations. (People v. Hardy (1992) 2 Cal.4th
86, 170 [conspiracy charges involving codefendants a basis for
cross-admissibility of evidence]; People v. Vega-Robles (2017) 9
Cal.App.5th 382, 432 [same].)
McMorries’ reliance on People v. Chambers (1964) 231
Cal.App.2d 23 is misplaced. In Chambers, two defendants were
tried together for offenses involving incidents committed
separately against patients in a nursing home. One defendant
owned the nursing home, and the other worked there as a nurse.
Chambers observed that the case involved no “joint or
conspiratorial action” on the part of the defendants. (Id. at p. 26.)
Further, “in the absence of any charge of concerted or
conspiratorial action,” the defendants should not have been tried
together because of overwhelming evidence that the nurse
defendant had engaged in a pattern of long-standing brutality
against patients that did not involve the owner of the facility. (Id.
at p. 29.) Here, in contrast to Chambers, appellants were jointly
25
charged with conspiracy to commit murder and conspiracy to
commit extortion. The evidence showed they worked in concert to
extort and kill.
Finally, the trial court also instructed the jury that it had
to separately determine whether appellants were members of the
charged conspiracies, and that appellants were not liable as co-
conspirators for the acts of their co-defendants that were
committed prior to the time that they joined their conspiracy to
commit extortion. McMorries has failed to establish that the trial
court abused its discretion when it denied his severance motion,
that he would have obtained a more favorable result if he had
been tried by himself on counts 1, 2, 3, or 13, or that joinder
resulted in gross unfairness amounting to a denial of due process.
II. EXPERT TESTIMONY RE GANG CODE
McMorries and Lopez, joined by Solorio, argue that
admission of expert testimony interpreting their slang or “gang
code” improperly invaded the province of the jury, thereby
violating their due process right. The contend a gang expert has
no expertise regarding what a speaker meant by a particular
statement and can only testify how a word or phrase is commonly
used in a gang subculture.
A. Relevant Factual Background.
Over multiple and continuous objections, the prosecution’s
experts, including Neslen, testified to the meaning of defendants’
slang statements in conversations testified to at trial or as
captured by wiretaps, body wires, and texts. In these statements,
the defendants used slang, initials, nicknames, abstruse
language and code words. Neslen testified, “[T]hey have idioms,
which are words or phrases that are very commonly used within
26
the organization that mean something to them.” The gang
members also use initials. The purpose of using this slang or code
is to hide the meaning of the speaker’s words.
(a) Specific Terminology.
At trial, witnesses testified to the meanings of specific
phrases, sometimes revealing a disagreement about what the
phrases mean.
For example, the phrase “hard candy” as used within the
Mexican Mafia, may mean an order to kill. Detective Neslen
testified “my understanding of the term “hard candy,” based on
my training and experience, is that it’s an authorization to kill,”
and “‘hard candy’ is a code word for murder.”
On the other hand, Martin Flores, also a gang expert,
testified that in some instances the phrase could mean to assault
someone. “An individual may be told to give a hard candy, and
somebody may . . . actually [be] killed or maybe a result of [sic]
somebody just getting assaulted. Through my experience in cases,
I have seen where hard candy basically means to make sure they
get stuck, to get hit, to get stabbed.” “I want people to
understand I worked on cases where this term ‘hard candy’ is
being used. . . . [O]n a case in L.A. County, the county jail where
somebody was stabbed. . . . . [A] phone call was made by the
individual to another person, and that person was told to make
sure he gets hard candy.” Although there was a “hard candy”
order out on him, the victim testified the phrase did not
necessarily mean that someone would be killed.
As noted above, “Green light” means that permission had
been given by Mexican Mafia leaders to assault or kill someone.
Both Salazar and Neslen testified to the meaning of this phrase.
27
Detective Neslen testified the phrase “it’s a wrap” was
commonly used by Mexican Mafia to signify that someone needed
to be killed. “There is finality to it, like, ‘hey, it’s over.’” This
might mean that someone violated a rule, “[s]ome rule that he
can’t get out of. He can’t come back into [the] fold.” Neslen had
heard the phrase in the context of murder, like, “hey, we need to
kill that guy.”
In addition, Neslen testified to his opinion regarding what
the defendants meant when they used certain phrases. For
example, Neslen testified that when Flaco said, “I thought that
fool was all good when we had met up with D,” and Solorio
responded “Since that day nothing came through, dog,” they were
referring to money.
(b) Specific Conversations Interpreted.
At trial, Neslen testified to the meaning of language used
in some of the intercepted phone calls.
Neslen testified that when Knight stated “I’ma [sic] pick
up, like three new neighborhoods for next month, homie,” in the
context of tax collection, Knight meant he was going to have
three new street gangs start paying taxes monthly. Knight’s
statement that “I’m going to make every neighborhood kick in an
extra hundred,” according to Neslen meant he was going to
collect $100 more.
Although in other contexts the initial “T” could refer to
Tonito, when Solorio told Lopez that “homeboy called you T”,
“he’s not answering our calls” and “I sent a little squad out there
to try to look for him,” Solorio was referring to “Tiny” Knight
when he used the initial “T.”
On June 29, 2010, in a conversation between Solorio and
Knight, Solorio told Knight “I’m going to need to get that from
28
you, dog, because they’re over here asking for it” and “So you got
that or what?” they were referring to monthly tax money. In
particular, Neslen stated “”Based on my knowledge and
experience of this case, in this call, the word ‘that’ is referring to
the monthly tax money.” Neslen based his conclusion on the
crew’s custom of collecting taxes at the beginning of the month,
and because it was late June at the time of the call, Solorio was
referring to the June collection. Knight told Solorio that “I got it
still” and “the next one is already coming up,” which Neslen
believed referred to June and July taxes. Solorio told Knight that
they were “over here asking for it” and “we’re both asking for it,
homie.” Neslen thought this referred to the late June taxes, and
that both Solorio and Lopez were looking for Knight’s tax
collection.
(c) Defendants’ Objections
During trial, Lopez and the other defendants objected to
the prosecution witness’s interpretation of slang, arguing there
was a significant distinction between expert testimony to the
meaning of slang terms and expert testimony interpreting what a
particular defendant meant when he used such a slang term.
Initially, the trial court disagreed. However, after much of the
testimony had come in, the trial court agreed, concluding the
expert could not testify “this is what the speaker meant” when
such a term was used.
Following the verdict, Lopez filed a new trial motion
arguing the trial court improperly permitted expert testimony to
encompass the defendants’ guilt in the guise of interpreting their
code. The trial court denied the motion.
29
B. Discussion.
Defendants contend the experts’ opinions concerning what
the speakers meant by coded language, as opposed to how such
terms are commonly used in gang subculture, was inadmissible.
They contend the witnesses improperly testified to the
defendants’ intent, and their objections to the testimony should
have been sustained. We review the trial court’s decision to admit
expert testimony for abuse of discretion (People v. Prince (2007)
40 Cal.4th 1179, 1223), and find none here.
While lay witnesses are allowed to testify only about
matters within their personal knowledge (Evid. Code, § 702,
subd. (a)), expert witnesses are given greater latitude. “A person
is qualified to testify as an expert if he has special knowledge,
skill, experience, training, or education sufficient to qualify him
as an expert on the subject to which his testimony relates.” (Evid.
Code, § 720, subd. (a).) An expert may express an opinion on “a
subject that is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.” (Evid. Code,
§ 801, subd. (a).)
However, “an expert has traditionally been precluded from
relating case-specific facts about which the expert has no
independent knowledge. Case-specific facts are those relating to
the particular events and participants alleged to have been
involved in the case being tried. . . . An expert is also allowed to
give an opinion about what those facts may mean. The expert is
generally not permitted, however, to supply case-specific facts
about which he has no personal knowledge.” (People v. Sanchez
(2016) 63 Cal.4th 665, 675–676.)
Although an expert witness may express an opinion that
embraces an ultimate issue to be determined by the trier of fact,
30
provided the expert’s opinion is otherwise admissible (Evid. Code,
§ 805), the expert may not offer an opinion on how the case
should be decided. (People v. Killebrew (2002) 103 Cal.App.4th
644, 651 (Killebrew), disapproved on other grounds in People v.
Vang (2011) 52 Cal.4th 1038, 1047, fn. 3 (Vang).) An expert may
not opine on the defendant’s guilt. (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 77.) “The reason for this rule is not
because guilt is the ultimate issue of fact for the jury, as opinion
testimony often goes to the ultimate issue. [Citations.] Rather,
opinions on guilt or innocence are inadmissible because they are
of no assistance to the trier of fact. To put it another way, the
trier of fact is as competent as the witness to weigh the evidence
and draw a conclusion on the issue of guilt.” (Vang, supra, 52
Cal.4th at p. 1048.)
In People v. Champion (1995) 9 Cal.4th 879, the court
sanctioned the use of expert testimony to explain gang
terminology. The defendants asserted the trial court erred in
permitting a deputy sheriff to explain the meaning of several
words used by defendants during a conversation in a van
transporting them to jail. The defendants reasoned this
testimony was beyond the scope of the deputy’s gang expertise.
Champion disagreed, concluding the deputy had spent years
investigating and associating with juvenile gangs and therefore
the trial court could reasonably determine he was sufficiently
familiar with gang terminology to accurately interpret the words
used by defendants. Champion observed, “[t]he use of an expert
for this purpose is not uncommon” and further that “the meaning
of some of the words used by defendants were ‘sufficiently beyond
common experience that the opinion of an expert would assist the
trier of fact . . . .’ (Evid. Code, § 801, subd. (a).)” (Id. at p. 924.)
31
Nonetheless, appellants rely on Killebrew, where the court
determined certain gang expert opinion testimony was
improperly admitted because the expert “testified to the
subjective knowledge and intent” of certain alleged gang
members by testifying that each of the alleged gang members
knew there was a gun in one of the cars and jointly possessed the
gun with every person in each of the three cars for their mutual
protection. (Killebrew, at p. 658.) However, “Killebrew does not
generally prohibit such testimony; rather, the reviewing court
concluded that in view of the facts and circumstances of that
case, the expert's opinion about the defendant's subjective
knowledge and intent was inadmissible.” (People v. Roberts
(2010) 184 Cal.App.4th 1149, 1194.) Roberts observed that in
Killebrew, the expert’s opinion was the only evidence offered to
establish the elements of the crime. “As such, it was ‘the type of
opinion that did nothing more than inform the jury how [the
expert] believed the case should be decided.’” (Roberts, supra, at
p. 1194.) Without other evidence, the expert opinion may
impermissibly invade the province of the trier of fact. (Ibid.)
Here, the expert testimony assisted the jury and was not
unduly prejudicial. In addition to defining what appeared to be
ordinary phrases (“it’s a wrap,” “green light,” and “hard candy”)
in terms of their gang culture definitions, the experts provided
necessary context for the use of other common words, such as
“that” or “it” which could not be properly understood without
Neslen’s expertise. Such testimony did not cross the line into
being prohibited testimony concerning the defendants’ intent to
commit a crime: Neslen did not testify, for example, that when
Solorio said “it’s a wrap,” Solorio intended to kill Knight. Further,
the witnesses did not testify to the elements of the crime, as
32
prohibited by Killebrew, but interpreted phrases commonly used
by the defendants in connection with the tax collection enterprise
and put the statements in context.
Finally, admission of this evidence did not violate
defendants’ due process rights. Due process is not offended by the
admission of relevant evidence unless it is so prejudicial as to
render the criminal trial fundamentally unfair. (People v.
Jablonski (2006) 37 Cal.4th 774, 805.) In the absence of
fundamental unfairness, the harmless error test of People v.
Watson (1956) 46 Cal.2d 818 (Watson), is used to analyze an
evidentiary error that involves state law. (People v. Partida
(2005) 37 Cal.4th 428, 439.) The question is “whether it is
reasonably probable the verdict would have been more favorable
to the defendant absent the error.” (Ibid.) Here, given the sheer
number of telephone calls the experts testified to and the
structure and operations of the crew, the evidence of defendants’
guilt was considerable apart from the slang interpretations. For
example, McMorries confessed to killing Knight in a taped
conversation, and told Salazar that he had done so after
conferring with Lopez and Solorio and receiving the authorization
from Tonito.
III. HEARSAY STATEMENTS PROVIDE SUBSTANTIAL
EVIDENCE TO SUPPORT LOPEZ’S CONVICTION.
Lopez argues insufficient evidence supports his conviction
for the murder of Knight (Count 1) because the only evidence of
his participation in the killing consists of the uncorroborated
multi-level hearsay statements of accomplices Solorio and
McMorries. As a result, he argues, admission of what he contends
are unreliable statements violated his due process and
33
confrontation rights and section 1111’s requirement of
independent corroboration.
A. Relevant Factual Background.
Salazar learned of the agreement to kill Knight from
McMorries, who heard of it from Solorio.
As noted above, Tonito was at the top of the local Mexican
Mafia hierarchy, while Lopez acted as a camarada or chief of the
crew. Those who violated the Mexican Mafia’s rules could be
killed or otherwise harmed, as Lopez stated, “I’ll [f] you up just to
[f] you up . . . . Because I can do that.” According to Lopez, Tonito
wanted to minimize Lopez’s role within his crew.
Lopez was aware that Knight was not turning over taxes he
had collected. McMorries told Solorio he had discussed Knight
with Lopez. Lopez knew McMorries had volunteered to kill
Knight. After Knight’s killing, McMorries told Salazar in the
jail’s laundry room (in an untaped conversation) that he had done
it pursuant to approval obtained from Lopez and Solorio. Solorio
also stated that Lopez had authorized the killing.
Lopez met with Salazar, who told him McMorries had
stated he killed Knight. Lopez told Salazar he instructed Solorio
to “deal with” Knight’s skimming; “deal with it” meant to kill
Knight. Lopez told Salazar that Robles did not need to know
about the killing.
At trial, Lopez objected to the hearsay statements. The trial
court ruled they were admissible under several hearsay
exceptions, including declaration against penal interest (Evid.
Code, § 1230), statement of co-conspirator (Evid. Code, § 1223),
and party admissions (Evid. Code, § 1220).
34
B. Discussion
1. Lopez’s Conviction Based on the Hearsay
Statements of Nontestifying Accomplices Did Not Violate Due
Process.
Lopez argues that aside from accomplice testimony,
nothing independently connects him to Knight’s murder.
An accomplice is “one who is liable to prosecution for the
identical offense charged against the defendant on trial in the
cause in which the testimony of the accomplice is given.” (§ 1111.)
The testimony of accomplices must be corroborated by “such
other evidence as shall tend to connect the defendant with the
commission of the offense.” (Ibid.) This evidence may not come
from or require “‘aid or assistance’” from, the testimony of other
accomplices or the accomplice himself. (People v. Davis (2005) 36
Cal.4th 510, 543.) Section 1111 reflects the Legislature’s
determination that because accomplice testimony poses
reliability questions, it is, without additional evidence,
insufficient as a matter of law to support a conviction. (People v.
Rodriguez (2018) 4 Cal.5th 1123, 1128; People v. Romero and Self
(2015) 62 Cal.4th 1, 32.)
The corroborating evidence, however, need not substantiate
every fact to which the accomplice testifies. (People v. Davis,
supra, 36 Cal.4th at p. 543; People v. Perez (2018) 4 Cal.5th 421,
452.) The entire conduct of the parties, their relationship, acts,
and behavior may be taken into consideration by the trier of fact
in determining the sufficiency of the corroboration. The evidence
need not independently corroborate every fact to which the
accomplice testifies, and ‘““‘may be circumstantial or slight and
entitled to little consideration when standing alone.’”’” (People v.
Dalton (2019) 7 Cal.5th 166, 246–247.) “‘Corroborating
35
evidence . . . ‘is sufficient if it tends to connect the defendant with
the crime in such a way as to satisfy the jury that the accomplice
is telling the truth.’ [Citation.]’” (People v. Lewis (2001) 26
Cal.4th 334, 370.) ‘
The jury’s determination on the issue of corroboration is
binding on the reviewing court unless the corroborating evidence
should not have been admitted or does not reasonably tend to
connect the defendant with the commission of the crime. (Romero
and Self, supra, 62 Cal.4th at pp. 32–33.)
Here, substantial evidence independently corroborates the
accomplice testimony. Aiders and abettors are liable for first-
degree premeditated murder if the evidence establishes the
defendant aided or encouraged the commission of the murder
with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or
facilitating its commission. (People v. McCoy (2001) 25 Cal.4th
1111, 1117–1118.)
Lopez, in his role as camaradas, had the power to have
people killed for violating the Mexican Mafia rules. As noted
previously, Lopez stated he would “[f] people up” because he
“could do that.” Moreover, he said, even “though I’m a thousand
miles away . . . I [can] reach out and touch you.” Further, there
was evidence that, in the context of Knight’s killing, Lopez knew
Knight was skimming taxes. McMorries told Solorio he had
spoken to Lopez and received approval from Lopez to proceed
with Knight’s killing. McMorries admitted to shooting Knight.
Later, evidencing knowledge of the shooting, Lopez said
McMorries should “shut up” about the killing.
When this accomplice testimony evidence is paired with
non-accomplice testimony, sufficient corroboration exists. For
36
example, non-accomplices Robles and Salazar testified to
Knight’s troubles. Knight called Robles and asked for help
because he was in trouble with Solorio and Lopez. Robles told
Knight she would talk to them and try to work out a payment
plan. Robles spoke to Solorio and asked what Knight could do to
rectify the situation. Solorio said Knight was “through” and she
should not talk to him anymore. In late January 2011, Salazar
met with Lopez and discussed Mexican Mafia business. Salazar
told Lopez that during a meeting he had with Robles and Solorio,
Robles asked about Knight and mentioned he was not with them
anymore.
These facts, when coupled with the accomplice testimony
establish there is substantial evidence Lopez acted to aid and
abet McMorries in the shooting. Independent evidence ““‘need not
corroborate the accomplice as to every fact to which he testifies
but is sufficient if it does not require interpretation and direction
from the testimony of the accomplice yet tends to connect the
defendant with the commission of the offense in such a way as
reasonably may satisfy a jury that the accomplice is telling the
truth. . . .’ [Citations.]”” (People v. Davis (2005) 36 Cal.4th 510,
543.)
2. Multiple Levels of Hearsay.
Lopez argues the trial court erred in concluding statements
at all levels of hearsay qualified for an exception. Rather, he
asserts, Solorio’s statement, when passed from McMorries to
Salazar, constituted multiple levels of hearsay that did not
qualify for the co-conspirator exception and, in any event, those
statements were made after the conspiracy concluded. We
disagree.
37
Hearsay is an out-of-court statement offered for the truth of
its content. (Evid. Code, § 1200, subd. (a).) Hearsay is generally
inadmissible unless it falls under an exception. (Evid. Code,
§ 1200, subd. (b).) “Multiple hearsay, or hearsay-within hearsay,
is admissible only when each level of hearsay ‘meets the
requirements of an exception to the hearsay rule.’” (People v.
Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1010;
People v. Anderson (2018) 5 Cal.5th 372, 403; Evid. Code, § 1201
[“statement within the scope of an exception to the hearsay rule
is not inadmissible on the ground that the evidence of such
statement is hearsay evidence if such hearsay evidence consists
of one or more statements each of which meets the requirements
of an exception to the hearsay rule”].)
Here, the statements of Lopez, McMorries and Solorio
constitute party admissions and are admissible against them as
exceptions to the hearsay rule (Evid. Code, § 1220 [“[e]vidence of
a statement is not made inadmissible by the hearsay rule when
offered against the declarant in an action to which he is a
party]”.) Further, the statements of each appellant are
declarations against interest because they exposed each of the
declarants to penal sanctions. (Evid. Code § 1230.) Each
appellant’s admission would establish his participation in the
conspiracy, and would establish his aiding and abetting of
Knight’s murder.
Lastly, any statements by Lopez that furthered the
conspiracy to murder Knight were admissible. (Evid. Code,
§ 1223.)8 Under the co-conspirator exception to hearsay rule,
8 Evidence Code section 1223 provides, “Evidence of a
statement offered against a party is not made inadmissible by the
38
three preliminary facts must be established for evidence of co-
conspirator's declaration to be admissible: (1) that declarant was
participating in the conspiracy in question at the time of the
declaration; (2) that the declaration furthered or was meant to
further the conspiracy’s objective; and (3) that the party against
whom evidence is offered was, at the time of the declaration,
participating in the conspiracy, or would later participate in it.
(People v. Clark (2016) 63 Cal.4th 522, 562.) Here, even those
statements made after the Knight killing had happened are
admissible because the parties were actively participating in a
conspiracy to further the aims of the Mexican Mafia’s extortion
activities.
3. Due Process/Confrontation Clause.
Lopez argues that his Confrontation Clause and due
process rights were violated by the admission of the hearsay
statements of his co-defendants because the statements were
inherently unreliable. Lopez notes that under the Aranda-Bruton
rule,9 prior to the decision in Crawford, the statements here
would have been inadmissible; further, the distinction between
hearsay rule if: [¶] (a) The statement was made by the declarant
while participating in a conspiracy to commit a crime or civil
wrong and in furtherance of the objective of that conspiracy;
[¶] (b) The statement was made prior to or during the time that
the party was participating in that conspiracy; and [¶] (c) The
evidence is offered either after admission of evidence sufficient to
sustain a finding of the facts specified in subdivisions (a) and (b)
or, in the court’s discretion as to the order of proof, subject to the
admission of such evidence.”
9 Bruton v. United States (1968) 391 U.S. 123; People v.
Aranda (1965) 63 Cal.2d 518.
39
testimonial and non-testimonial statements drawn by Crawford
does not transmute these statements into reliable forms of proof.
Lopez points out that Salazar was a paid informant who later
committed a crime, making his testimony unreliable. He contends
admitting Salazar’s statements was error. We disagree.
In Crawford, the United States Supreme Court held the
Sixth Amendment prohibits the admission of a witness’s
“testimonial” out-of-court statements offered for their truth
unless the witness is unavailable and the defendant had a prior
opportunity for cross-examination. (Crawford v. Washington
(2004) 541 U.S. 36, 59–60, fn. 9.) Under previous United States
Supreme Court precedent, the admission of hearsay did not
violate the right to confrontation if it bore “adequate ‘indicia of
reliability.’” Reliability was inferred without more in a case
where the evidence fell within “a firmly-rooted hearsay exception.
In other cases, the evidence must be excluded, at least absent a
showing of particularized guarantees of trustworthiness.” (Ohio
v. Roberts (1980) 448 U.S. 56, 66.)
Crawford overturned the Roberts rule. Crawford clarified
that a mere showing of hearsay reliability was insufficient to
satisfy the confrontation clause. “To be sure, the Clause’s
ultimate goal is to ensure reliability of evidence, but it is a
procedural rather than a substantive guarantee. . . . [¶] The
Roberts test allows a jury to hear evidence, untested by the
adversary process, based on a mere judicial determination of
reliability. It thus replaces the constitutionally prescribed
method of assessing reliability with a wholly foreign one.”
(Crawford, supra, 541 U.S. at pp. 61–62.) Under Crawford, if an
exception was not recognized at the time of the Sixth
Amendment’s adoption, admission of testimonial hearsay against
40
a criminal defendant violates the confrontation clause unless
(1) the declarant is unavailable to testify and (2) the defendant
had a previous opportunity to cross-examine the witness or
forfeited the right by his own wrongdoing. (Crawford, at pp. 62,
68; see Giles v. California (2008) 554 U.S. 353, 357–373.)
Aranda-Bruton involves the introduction of the confession
of a co-defendant. (See generally, People v. Washington (2017) 15
Cal.App.5th 19, 26 [explaining reach of Aranda-Bruton rule].) In
Bruton, the United States Supreme Court held that the
admission of a non-testifying codefendant’s confession implicating
the defendant violates the confrontation clause's guarantee of the
right to cross-examination even if the jury is instructed to
disregard the confession as to the defendant. (Bruton v. United
States, supra, 391 U.S. at pp. 127–128.) The Aranda court
reached a similar conclusion on non-constitutional grounds.
(People v. Aranda, supra, 63 Cal.2d at pp. 528–531; see also
People v. Fletcher (1996) 13 Cal.4th 451, 455.)
However, nearly 40 years after Aranda and Bruton were
decided, the United States Supreme Court held that the
confrontation clause only prohibits the admission of testimonial
hearsay statements. (Crawford, supra, 541 U.S. at pp. 59, 68–69;
see Whorton v. Bockting (2007) 549 U.S. 406, 420 [confrontation
clause has no application to out-of-court nontestimonial
statements]; People v. Gutierrez (2009) 45 Cal.4th 789, 812
[“[o]nly the admission of testimonial hearsay statements violates
the confrontation clause”].) “Nontestimonial hearsay is subject
only to ‘traditional limitations upon hearsay evidence’ and does
not implicate the Sixth Amendment right of confrontation.”
(People v. Arauz (2012) 210 Cal.App.4th 1394, 1401–1402.)
41
In Crawford, the United States Supreme Court did not
explicitly define “testimonial statements,” however. (Crawford,
supra, 541 U.S. at p. 51.) But Crawford did describe types of
statements that constitute a “core class” of testimonial
statements. These include functional equivalents of in-court
testimony, such as affidavits and similar pretrial statements
“made under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial.” (Id. at pp. 51–52.) In sum, “the
confrontation clause is concerned solely with hearsay statements
that are testimonial, in that they are out-of-court analogs, in
purpose and form, of the testimony given by witnesses at trial.”
(People v. Cage (2007) 40 Cal.4th 965, 984 (Cage).) To be
“testimonial” under Crawford, a statement must have been
“given and taken primarily for the purpose [of] . . . establish[ing]
or prov[ing] some past fact for possible use in a criminal trial.”
(People v. Cage (2007) 40 Cal.4th 965, 984.)
“[S]tatements made unknowingly to an informant or
statements between fellow prisoners,” however, “are ‘clearly
nontestimonial.’” (People v. Fayed (2020) 9 Cal.5th 147, 169.)
People v. Arauz¸ supra, 210 Cal.App.4th 1394, is illustrative.
There, the defendants were charged with attempted murder in a
gang-related shooting. (Id. at p. 1397.) During the investigation,
police arrested a suspected accomplice for an unrelated drug
offense and placed him in a cell adjoining a paid informant posing
as a Mexican Mafia member. (Id. at p. 1399.) The accomplice,
deceived by this ruse, told the informant he drove the defendants
to the scene and defendants shot the victims. (Ibid.) Defendants
asserted that evidence of the accomplice’s incriminating
statements violated their confrontation clause rights. (Id. at p.
42
1402.) Rejecting that argument, the Court of Appeal held the
statements were nontestimonial because the accomplice “thought
he was answering to the Mexican Mafia. He had no belief that his
statements were being monitored and would be used in a
subsequent trial.” (Ibid.)
Like the defendant in Arauz, supra, 210 Cal.App.4th 1394,
McMorries did not realize he was conversing with an informant.
Nor were Solorio’s conversations with McMorries or Lopez
testimonial. (See People v. Gallardo (2017) 18 Cal.App.5th 51,
67–68 [statements were nontestimonial because, regardless of
informant’s intent in asking the question, there was no evidence
defendant knew or suspected the informant was a government
agent or that his comments might be used at trial].)
Lopez’s Aranda-Bruton argument fails for the same reason.
Post-Crawford, the rule of those cases applies only to testimonial
statements. (People v. Cortez (2016) 63 Cal.4th 101, 129 [rejecting
Bruton argument because, among other things, “‘the
confrontation clause applies only to testimonial hearsay
statements’”]; see also People v. Washington, supra,15
Cal.App.5th at p. 28.)
4. Substantial Evidence Supports Lopez’s Murder
Conviction.
In sum, Lopez argues Solorio’s hearsay statement to
McMorries that Lopez had agreed to the killing of Knight, which
was related by Salazar through an unrecorded conversation, does
not constitute substantial evidence. We disagree. Because the
statement is admissible, it demonstrates that Lopez was aware of
and involved in the agreement to have Knight killed because
Knight had failed to turn over his tax collections.
43
IV. SUBSTANTIAL EVIDENCE ALSO SUPPORTS
LOPEZ AND SOLORIO’S CONVICTIONS FOR
EXTORTION AND CONSPIRACY TO COMMIT
EXTORTION.
Solorio argues insufficient evidence supports his
convictions on Counts 5 and 12, which charge him with extortion
by threat jointly with Lopez. Lopez concurs and expands the
argument to include his convictions for conspiracy to commit
extortion and extortion on Counts 3, 4, 6, 7, 8, 9, 10, and 11,
which McMorries joins with respect to Count 3. They contend
there is no evidence that they or someone acting at their direction
threatened to inflict unlawful injury upon the victims with the
specific intent to induce the victims to surrender money, or that
the threat was the controlling cause of the victims’ surrender of
money or property. Further, they contend the practices of the
Mexican Mafia cannot supply the necessary mental state of an
aider and abettor, nor can it be supplied by propensity evidence.
A. Factual Background.
Salazar told individuals from whom he collected taxes that
they had to pay. On occasion, someone who refused to pay taxes
would be beaten, or killed. Salazar would give collected tax
money to Lopez. Franco testified individuals are told that if they
do not pay, they would “have problems.”
Serrano, who was a tax collector for Tonito’s crew, collected
taxes from gangs in Bell Gardens and turned the money (“rent”)
over to Solorio. Serrano testified that all the crew’s tax collectors
were armed. Local gang members and drug dealers do not like to
pay taxes, and only do so because they know they will face
violence or the threat of violence. Later, Lopez started picking up
44
the taxes from Serrano. Lopez told Serrano that if he had any
problem collecting taxes, Lopez would take care of it. The
Mexican Mafia exerts a lot of influence over local gangs because
the local gangs know that if their members do not pay taxes, and
later end up in jail or prison, they could be harmed.
With respect to specific counts, the prosecution presented
evidence of taped phone calls and surveillance of the victims
giving money to Salazar, as well as Salazar’s testimony that he
collected money from certain individuals. These included
Carmelo Pizzaro (“Spooky”) (Count 4), Robert Abeyta (“Clumsy”)
(Count 6), Alex Medrano (“Dreamer”) (Count 7), Arnulfo Chavez
(“Froggy”) (Count 8), Jerome Saucedo (“Lazy”) (Count 9), Mario
Munoz (“Skinny”) (Count 10) and Manuel Gomez (Count 11).
More individualized evidence was presented for Counts 5
and 12.
Count 5 concerned extortion of Vincent Lugo (“Crook”).
Neslen heard Lugo make telephone calls in September 2010 to
Salazar’s wife and arrange to deliver money to her. Several days
later, Salazar’s wife turned over the money to Solorio, which she
described as “$400 from WES (Lugo).” In early November 2010,
surveillance observed Lugo give $400 to Salazar at a restaurant
in South Gate. This money was subsequently given to Lopez.
Count 12 concerned extortion of Eduardo Gonzalez
(“Droopy”). Neslen testified Gonzalez called Salazar’s wife
Darlene Vasquez and made arrangements to deliver money to
her. Vasquez told Solorio she received $400 from “Droopy.”
Surveillance disclosed Vasquez gave $500 to Lopez at a
restaurant in South Gate. Salazar testified Lopez used his phone
to tell Gonzalez he was to continue making payments to Salazar.
45
The trial court instructed the jury with CALJIC Nos. 14.70
(defining extortion), 14.71 (what constitutes threats inducing
fear), 14.72 (meaning of term “unlawful injury”), and 14.73
(causal relation between fear and consent).
B. Discussion.
Extortion is the obtaining of property or other
consideration from another with his or her consent induced by
the wrongful use of force or fear. (§ 518, subd. (a).) Section 519
provides that “fear” may be induced by a threat of any one of the
following: (1) To inflict an unlawful injury to the person or
property of the individual threatened or of a third person; (2) To
accuse the individual threatened, or a relative of the threatened
individual, of a crime; (3) To expose, or to impute to the victim a
deformity, disgrace, or crime; (4) To expose a secret affecting the
victim and (5) To report his, her, or their immigration status or
suspected immigration status. Extortion is a specific intent
crime, and thus guilt depends on the intent of the person who
makes the threat and not the effect the threat has on the victim.
(People v. Umana (2006) 138 Cal.App.4th 625, 641.)
“In order to establish extortion, ‘the wrongful use of force or
fear must be the operating or controlling cause compelling the
victim’s consent to surrender the thing to the extortionist.’”
(Chan v. Lund (2010) 188 Cal.App.4th 1159, 1171.) The threat
may be implied from all the circumstances: “‘No precise or
particular form of words is necessary in order to constitute a
threat under the circumstances. Threats can be made by
innuendo and the circumstances under which the threat is
uttered and the relations between [the defendant] and the [target
of the threats] may be taken into consideration in making a
determination of the question involved.’ [Citations.] . . .‘The more
46
vague and general the terms of the accusation the better it would
subserve the purpose of the accuser in magnifying the fears of his
victim, and the better also it would serve to protect him in the
event of the failure to accomplish his extortion and of a
prosecution for his attempted crime.’” (Stenehjem v. Sareen (2014)
226 Cal.App.4th 1405, 1424; see also People v. Choynski (1892) 95
Cal. 640, 642 [persons guilty of extortion “seldom possess the
hardihood to speak out boldly and plainly, but deal in mysterious
and ambiguous phrases”].) The threat may be implied from the
facts and context. (People v. Massengale (1968) 261 Cal.App.2d
758, 764–765.) “The more vague and general his actions and
statements the better they will serve his purpose in magnifying
the fear of his victim and the better also it will serve to protect
him in the event of the failure to accomplish his extortion and of
a prosecution of his attempted crime. [Citations.]” (Ibid.)
Section 182 prohibits a conspiracy by two or more people to
“commit any crime.” (§ 182, subd. (a)(1).) Conspiracy requires
that the defendant and another person had the specific intent to
agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof
of the commission of an overt act by one or more of the parties to
such agreement in furtherance of the conspiracy. (People v.
Johnson (2013) 57 Cal.4th 250, 257.) Both attempt and
conspiracy cover inchoate crimes and allow intervention before
the underlying crime has been completed. (Ibid.) However,
conspiracy law attaches culpability at an earlier point than
attempt. “‘Conspiracy is an inchoate offense, the essence of which
is an agreement to commit an unlawful act.’ [Citations.]
Conspiracy separately punishes not the completed crime, or even
its attempt.” Rather, the crime of conspiracy punishes the
47
agreement itself and does not require the commission of the
substantive offense (Ibid.) A conspiracy may be implied from the
circumstances, including the conduct, relationships, and
activities of the conspirators. (People v. Bollaert (2016) 248
Cal.App.4th 699, 725.) A co-conspirator shares in the guilt of the
principal. (People v. Maciel (2013) 57 Cal.4th 482, 515.)
In evaluating sufficiency of the evidence, we must view the
evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence. (People v.
Perez (2010) 50 Cal.4th 222, 229.) Circumstantial evidence may
be sufficient to connect a defendant with the crime and to prove
his guilt beyond a reasonable doubt. (People v. Abilez (2007) 41
Cal.4th 472, 504.)
Here, the prosecution relied on the threat to do an unlawful
injury to the person or property of the person threatened. (§ 519,
subd. (1).) This threat was made in the context of the Mexican
Mafia’s control of neighborhoods, its imprimatur of “13” giving
local gangs status and protection, and the risk of consequences
(harm or death) if “taxes” were not paid. Thus, although there
was no evidence of specific words uttered to the victims, the
exchange of cash in this context constituted substantial evidence.
Defendants rely on People v. Ochoa (2016) 2 Cal.App.5th
1227, where the evidence was insufficient to show that defendant
attempted to extort property from a food truck worker. The
defendant, a gang member, asked the worker for “rent,” but the
worker referred the defendant to the food truck owner. A few
minutes later, the defendant approached the worker from behind,
tapped his shoulder, and shot him without exchanging words. At
issue in Ochoa was the charging document: the information did
48
not identify the business (nor its owner) as a victim of attempted
extortion. Instead, the information identified the worker as the
only victim. Because the information misidentified the victim of
the attempted extortion, it failed to provide the defendant with
legally sufficient notice of the charge against him. In Ochoa, the
food truck owner was unaware of a demand for property or an
implied threat that defendant had made, and thus no extortion
occurred. (Id. at pp. 1231–1232.) Here, there is ample evidence
the victims knew of the threats: Salazar testified he told the
victims they had to pay.
V. SUBSTANTIAL EVIDENCE OF ATTEMPTED
MURDER (SOLORIO)
Solorio contends insufficient evidence supports his
convictions for attempted murders of James Arellano and Daniel
Bugarin because, at most, the evidence showed preparation and
thus fails to show the direct movement towards commission of
the offense.
A. Factual Background.
1. James Arellano (Count 16)
In April 2010, Salazar suspected that Arellano, a tax
collector, was keeping tax money, and told Solorio. Arellano was
in a county jail under the control of Mexican Mafia member Lalo
Martinez, and was housed in the same unit as Hector Ornelas,
one of Salazar’s fellow gang members. Through an intermediary,
Solorio texted Martinez to obtain authorization to kill Arellano:
“James Hernandez Arellano aka Lil Danger, 4M Marijuanos 13.
Hard Candy.” In April 2010, Arellano was attacked and stabbed
in jail by inmates. One of the attackers told a deputy he did not
49
want to attack Arellano, but he had been ordered to do so.
Arellano believed the order to attack him came from Solorio.
The prosecution argued at trial that the text message
constituted the overt act to support the attempted murder
charge. The court instructed the jury in line with this theory, “On
April 7, 2010, defendant Solorio sent a text message . . . ordering
a deadly attack on James Arellano. The text read ‘James Arellano
also known as Lil danger 4m marijuana locos 13. Hard candy.’”
2. Daniel Bugarin (Count 18)
In January 2009, Solorio told “Smokey” Martin that he was
looking for “Wacky” (Bugarin) from South Side Pasadena, who
was in the county jail. Solorio stated that Wacky was not on “good
status” and he had the paperwork on Bugarin. Solorio wanted to
make sure they had “scissors and shit there too . . . because I
want it done right.” Later that month, Solorio told Smokey that
he had received the “work” and it was “a go” but that they should
hold off until higher-ups could vouch for the work.
In February 2009, Bugarin was stabbed by gang members
affiliated with the Mexican Mafia while in custody. Bugarin
believed Solorio ordered the attack because Solorio was in charge
of the territory where Bugarin operated.
The jury was instructed on an aiding and abetting theory
for the attempted murders.
B. Discussion.
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a); People v. Smith (2005) 37
Cal.4th 733, 739.) “Attempted murder requires the specific intent
to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Lee (2003) 31
50
Cal.4th 613, 623.) Liability for an attempt does not require that
any element of the underlying offense be accomplished. “‘[A]
person may be convicted of an attempt to commit a crime he
never could have completed under the circumstances.’
[Citations.]” (People v. Moses (2020) 10 Cal.5th 893, 899.)
The overt act element of attempt is satisfied when “a direct
but ineffectual act [has been] done toward [a crime’s]
commission.” (§ 21a.) “The overt act element of attempt requires
conduct that goes beyond ‘mere preparation’ and ‘show[s] that
[defendant] is putting his or her plan into action.’ [Citations.]”
(People v. Watkins (2012) 55 Cal.4th 999, 1021.) The boundaries
of attempt require an act sufficiently close to completing the
crime. “For example, if a person decides to commit murder but
does nothing more, he has committed no crime. If he buys a gun
and plans the shooting, but does no more, he will not be guilty of
attempt. But if he goes beyond preparation and planning and
does an act sufficiently close to completing the crime, like rushing
up to his intended victim with the gun drawn, that act may
constitute an attempt to commit murder.” (People v. Johnson,
supra, 57 Cal.4th at p. 258.)
“Although a definitive test has proved elusive, we have long
recognized that ‘[w]henever the design of a person to commit
crime is clearly shown, slight acts in furtherance of the design
will constitute an attempt.’ [Citations.]” (People v. Superior Court
(Decker) (2007) 41 Cal.4th 1, 8.) “Indeed, where (as here) the
crime involves concerted action—and hence a greater likelihood
that the criminal objective will be accomplished [citation]—there
is a greater urgency for intervention by the state at an earlier
stage in the course of that conduct. [Citation.]” (Id. at pp. 10–11.)
The line between mere preparation and conduct fulfilling the act
51
element of attempt is difficult to determine. (People v. Hajek and
Vo (2014) 58 Cal.4th 1144, 1192.) It is a question of degree and
depends upon the facts and circumstances of a particular case.
(Ibid.)
Here, on Count 16, Solorio contends the mere sending of
the text message seeking authorization to kill Arellano does not
rise to the level of attempt. On Count 18, he argues there is no
evidence he had done all that he could to facilitate Bugarin’s
stabbing. We disagree. Solorio’s argument ignores the fact the
matter was tried on an aiding and abetting theory.
“‘[A]n aider and abettor with the necessary mental state is
guilty of the intended crime.’” (People v. Chiu (2014) 59 Cal.4th
155, 158.) “‘A “person aids and abets the commission of a crime
when he or she, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the
offense, (3) by act or advice aids, promotes, encourages or
instigates, the commission of the crime.”’ [Citation.] ‘[T]o be
guilty of attempted murder as an aider and abettor, a person
must give aid or encouragement with knowledge of the direct
perpetrator's intent to kill and with the purpose of facilitating the
direct perpetrator’s accomplishment of the intended killing—
which means that the person guilty of attempted murder as an
aider and abettor must intend to kill.’” (People v. Nguyen (2015)
61 Cal.4th 1015, 1054.)
Solorio facilitated both attempted murders. With respect to
Arellano, he set the wheels in motion by obtaining authorization,
thereby giving aid and encouragement to the actual perpetrators
of the attack. Similarly, with respect to Bugarin, Solorio set up
the attack and made sure before it occurred that everything was
52
in order, namely, that the actual perpetrators had implements to
stab Bugarin.
VI. CLAIMED INSTRUCTIONAL ERROR: ACCOMPLICE
LIABILITY (CALJIC NO. 3.00)
Solorio and Lopez argue the trial court erred in giving
CALJIC No. 3.00 on accomplice (aider and abettor) liability
because the instruction misstates the law by stating aiders and
abettors are equally culpable, when an aider and abettor may be
less culpable.
A. Factual Background.
The trial court gave CALJIC No. 3.00, as follows:
“Persons who are involved in committing or attempting to
commit a crime are referred to as principals in that crime. Each
principal, regardless of the extent or manner of participation is
equally guilty. Principals include:
“1. Those who directly and actively commit or attempt to
commit the act constituting the crime, or
“2. Those who aid and abet the commission or attempted
commission of the crime.
“When the crime charged is either murder or attempted
murder, the aider and abettor’s guilt is determined by the
combined acts of all the participants as well as that person’s own
mental state. If the aider and abettor’s mental state is more
culpable than that of the actual perpetrator, that person’s guilt
may be greater than that of the actual perpetrator. Similarly, the
aider and abettor’s guilt may be less than the perpetrator’s, if the
aider and abettor has a less culpable mental state.” (CALJIC 3.00
(emphasis added.))
53
B. Discussion.
As a threshold matter, the Attorney General asserts that as
the instruction was a correct statement of the law, the claim of
instructional error was not preserved for appeal because defense
counsel neither objected to, nor sought modification of, the
instruction. Generally, a party may not complain on appeal that
an instruction is incomplete or confusing unless the party has
requested appropriate clarifying or amplifying language. (People
v. Castaneda (2011) 51 Cal.4th 1292, 1348; People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1163.)
We agree. The “equally guilty” language of CALJIC 3.00 is
a correct statement of the law, and therefore appellants were
required to request a modification or clarification. (People v.
Nilsson (2015) 242 Cal.App.4th 1, 25–26.) Appellants forfeited
this argument because they did not raise it below, which would
have given the trial court an opportunity to clarify the instruction
and thereby avoid any possible ambiguities in the instruction as
applied to this case.
VII. CLAIMED INSTRUCTIONAL ERROR: INTENT TO
KILL, CONSPIRACY TO COMMIT MURDER (CALJIC No.
6.11)
Lopez argues his convictions for murder and attempted
murder (Counts 2, 17 and 19) must be reversed because
conspiracy to commit murder requires that each conspirator have
the specific intent to commit murder, and the jury was incorrectly
instructed with CALJIC 6.11 that it could convict him without
the required mental state by relying on the natural and probable
consequence of conspiring to commit extortion. Further, he
54
asserts SB 1437 implicitly repealed attempted murder based
upon any natural and probable consequence theory.
A. Factual Background: Jury Instructions.
The trial court instructed the jury on conspiracy to commit
murder.
“A conspiracy to commit murder is an agreement entered
into between two or more persons with the specific intent to agree
to commit the crime of murder and with the further specific
intent to commit that murder, followed by an overt act committed
in this state by one or more of the parties for the purpose of
accomplishing the object of the agreement. Conspiracy is a crime.
[¶] The crime of conspiracy to commit murder requires proof that
the conspirators harbored express malice aforethought, namely,
the specific intent to kill unlawfully another human being.”
(CALJIC No. 8.69)
The jury was also instructed: “A member of a conspiracy is
not only guilty of the particular crime that to his knowledge his
confederates agreed to and did commit, but is also liable for the
natural and probable consequences of any crime or act of a co-
conspirator to further the object of the conspiracy, even though
that crime or act was not intended as a part of the agreed upon
objective and even though he was not present at the time of the
commission of that crime or act. [¶] You must determine whether
the defendant is guilty as a member of a conspiracy to commit the
originally agreed upon crime or crimes, and, if so, whether the
crimes alleged in Counts 1, 16 & 18 were perpetrated by a co-
conspirator in furtherance of that conspiracy and was a natural
and probable consequence of the agreed upon criminal objective of
that conspiracy. [¶] In determining whether a consequence is
“natural and probable” you must apply an objective test based not
55
on what the defendant actually intended but on what a person of
reasonable and ordinary prudence would have expected would be
likely to occur. The issue is to be decided in light of all of the
circumstances surrounding the incident. A ‘natural consequence’
is one which is within the normal range of outcomes that may be
reasonably expected to occur if nothing unusual has intervened.
‘Probable’ means likely to happen.” (CALJIC 6.11, emphasis
added.)
The jury was also properly instructed on an aiding and
abetting theory with CALJIC No. 3.00 (as discussed ante). The
jury was also instructed with CALJIC No. 3.01, which defines
aiding and abetting: “A person aids and abets the commission or
attempted commission of a crime when he or she: [¶] (1) With
knowledge of the unlawful purpose of the perpetrator, and
[¶] (2) With the intent or purpose of committing or encouraging or
facilitating the commission of the crime, and[¶] (3) By act or
advice, aids, promotes, encourages or instigates the commission
of the crime. [¶] A person who aids and abets the commission or
attempted commission of a crime need not be present at the scene
of the crime. To be guilty as an aider or abettor, the defendant’s
intent or purpose of committing or encouraging or facilitating the
commission of the crime by the perpetrator must be formed
before or during the commission of the crime. [¶] Mere knowledge
that a crime is being committed and the failure to prevent it does
not amount to aiding and abetting.”
In closing argument, the prosecution argued extensively on
the natural and probable consequences before the jury.
56
2. Lopez’s Claim is Cognizable On Direct
Appeal.
Prior to the enactment of Senate Bill 1437, “an aider and
abettor [was not required to] personally possess malice, express
or implied, to be convicted of second-degree murder under a
natural and probable consequences theory.” (People v. Gentile
(2020) 10 Cal.5th 830, 847 (Gentile).) Indeed, “‘the mens rea of
the aider and abettor with respect to [the nontarget] offense [was]
irrelevant [because] culpability [was] imposed simply because a
reasonable person could have foreseen the commission of the
nontarget crime.’” (People v. Chiu, supra, 59 Cal.4th at p. 164.)
Effective January 1, 2019, Senate Bill 1437 amended
section 188 to provide that, outside the context of felony murder,
“in order to be convicted of murder, a principal in a crime shall
act with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.” (Stats.
2018, ch. 1015 § 2.) “The natural and probable consequences
doctrine is incompatible with this requirement. . . . .” (Gentile,
supra, 10 Cal.5th at p. 847.) Accordingly, our Supreme Court has
concluded that “Senate Bill 1437 eliminates natural and probable
consequences liability for murder regardless of degree.” (Id. at pp.
847–848.)
Senate Bill 1437 also enacted section 1170.95, subdivision
(a), which permits a person convicted of murder under a natural
and probable consequences theory to petition the sentencing
court to have his or her murder conviction vacated and to be
resentenced on any remaining counts. A person is entitled to
section 1170.95 relief if, among other things, he or she “could not
be convicted of first or second degree murder” following the
enactment of Senate Bill 1437. (§ 1170.95, subd. (a)(3).)
57
In Gentile, our Supreme Court held that “[t]he ameliorative
provisions of Senate Bill 1437 do not apply on direct appeal to
nonfinal convictions obtained before the law became effective.
Such convictions may be challenged on Senate Bill 1437 grounds
only through a petition filed in the sentencing court under section
1170.95.” (Gentile, supra, 10 Cal.5th at pp. 851–852.)
In 2021, while this case was pending on appeal, the
Legislature enacted Senate Bill 775. Among other things, Senate
Bill 775 amends section 1170.95 to provide that “[a] person
convicted of murder, attempted murder, or manslaughter whose
conviction is not final may challenge on direct appeal the validity
of that conviction based on the changes made to Sections 188 and
189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018).”
(Stats. 2021, ch. 551, § 2.) Senate Bill 775 took effect on January
1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(1) [absent urgency
clause, statutory amendments enacted during regular session of
the Legislature become effective on January 1 of the following
year].)
Because defendants’ judgment is not yet final, we address
the impact of Senate Bill 1437 on their convictions. (People v.
Vieira (2005) 35 Cal.4th 264, 306 [a “judgment is not final until
the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed”]; People v. Lizarraga (2020) 56
Cal.App.5th 201, 206 [“a petition for writ of certiorari is timely
filed within 90 days after entry of judgment of a state court of
last resort”].)
58
B. The Erroneous Instruction on Natural and
Probable Cause Was Harmless Beyond a Reasonable
Doubt.
1. Conspiracy to Commit Murder.
Conspiracy to commit murder requires the specific intent to
kill. (People v. Swain (1996) 12 Cal.4th 593, 602.) Intent to kill
for purposes of murder, also known as express malice, is shown
when the assailant either desires the victim’s death or knows to a
substantial certainty that death will occur. (People v. Smith
(2005) 37 Cal.4th 733, 739.) Intent to kill may “be inferred from
the defendant’s acts and the circumstances of the crime. (Id. at p.
741.)
Guilt as a direct aider and abettor requires: (1) a crime
committed by the direct perpetrator; (2) knowledge of the direct
perpetrator's intent to commit the crime; (3) intent to assist in
committing the crime; and (4) conduct that in fact assists in
committing the crime. (People v. Perez (2005) 35 Cal.4th 1219,
1225.) The defendant must not only know the direct perpetrator’s
intent, he or she must share that intent. (People v. Beeman (1984)
35 Cal.3d 547, 560.) “Senate Bill 1437 did not change accomplice
liability for murder under direct aiding and abetting principles.”
(People v. Jenkins (2021) 70 Cal.App.5th 924, 931.) “‘One who
directly aids and abets another who commits murder is thus
liable for murder under the new law just as he or she was liable
under the old law.’” (Ibid.)
“Liability for intentional, target offenses is known as
‘direct’ aider and abettor liability; liability for unintentional,
nontarget offenses is known as the ‘“‘natural and probable
consequences’ doctrine.’”’ (In re Loza (2018) 27 Cal.App.5th 797,
801.) “Senate Bill 1437 does not eliminate direct aiding and
59
abetting liability for murder because a direct aider and abettor to
murder must possess malice aforethought.” (Gentile, supra, 10
Cal.5th at p. 848.)
“Under the natural and probable consequences theory of
aiding and abetting a murder, a defendant can be found guilty of
murder if he or she aids and abets a crime (i.e., the target crime)
and murder (i.e., the nontarget crime) is a natural and probable
consequence of that target crime.” (People v. Chavez (2018) 22
Cal.App.5th 663, 683.) Here, the target offense was first degree
murder because appellants were convicted of conspiracy to
commit first degree murder. “[A] conviction of conspiracy to
commit murder requires a finding of intent to kill[.]” (People v.
Swain (1996) 12 Cal.4th 593, 607.) “‘[A]ll conspiracy to commit
murder is necessarily conspiracy to commit premeditated and
deliberated first degree murder.’” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 641.)
Thus, Solorio and Lopez can be liable for Knight’s murder
on a theory they directly aided and abetted the offense, and the
same principles would apply to the attempted murder and
extortion charges.
2. Harmless Error.
The Supreme Court has distinguished two categories of
incorrect theories of jury instructions. (People v. Aledamat (2019)
8 Cal.5th 1, 7 (Aledamat); People v. Guiton (1993) 4 Cal.4th 1116,
1128.) A factually inadequate theory “is an otherwise valid legal
theory that is not supported by the facts or evidence in a case.”
(Aledamat, at pp. 7–8.) A legally inadequate theory “is incorrect
because it is contrary to law.” (Id. at p. 7.) We presume jurors are
able to evaluate and ignore factually incorrect theories. (Id. at p.
8; Guiton, at p. 1125.) Legally incorrect theories require a more
60
stringent standard of prejudice because jurors are less able to
identify an incorrect statement of the law. (Aledamat, at p. 8;
Guiton, at p. 1125.)
The Supreme Court has held that the Chapman10 harmless
error standard applies to an “alternative-theory error” like the
one here. (Aledamat, supra, 8 Cal.5th at p. 13.) The Supreme
Court stated that the “reviewing court must reverse the
conviction unless, after examining the entire cause, including the
evidence, and considering all relevant circumstances, it
determines the error was harmless beyond a reasonable doubt.”
(Ibid.) In determining under Chapman “whether the error was
harmless, the reviewing court is not limited to a review of the
verdict itself. An examination of the actual verdict may be
sufficient to demonstrate harmlessness, but it is not necessary.”
(Ibid.) The reviewing court should consider the likelihood the jury
applied the incorrect instruction, “not simply the strength of the
evidence to support a guilty verdict using the correct instruction.”
(People v. Thompkins (2020) 50 Cal.App.5th 365, 399.)
C. Application.
Here, we conclude any error was harmless beyond a
reasonable doubt because is not possible that the jury relied on
the doctrine of natural and probable consequences to find
defendants guilty of murder, attempted murder, and extortion.
Instead, the facts establish that the crimes committed were not
the inadvertent foreseeable outcomes of appellants’ criminal
behavior. Rather, they were the planned objectives of the
conspiracy and therefore liability properly attached under the
aider and abettor doctrine.
10 Chapman v. California (1967) 386 U.S. 18.
61
“Natural and probable consequences” is defined as “[a]
natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes.”
(CALCRIM No. 402, emphasis omitted.) Here, the doctrine would
not apply because the murder and extortion offenses were not the
unintended results of defendants’ conduct, but instead were the
very results they envisioned. So, we conclude the jury necessarily
relied on the viable aiding and abetting theory upon which they
were instructed.
Accordingly, the record establishes appellants were
convicted under a theory that remains valid under section 189, as
amended by Senate Bill No. 1437.
VIII. CLAIMED INSTRUCTIONAL ERROR: FAILURE TO
SUA SPONTE INSTRUCT WITH CALJIC 6.24.
McMorries argues the trial court erred in failing to instruct
the jury with CALJIC No. 6.24 regarding the use of co-
conspirator’s statements. McMorries contends this failure was
prejudicial because No. 6.24 provides the foundational
requirements of the existence of a conspiracy, and he contends
such evidence was slim. He was only captured on seven of the
wiretapped phone calls, in two conversations, a recorded cell
communication, and two body wire conversations; all other
statements were admitted under Evidence Code section 1223, the
coconspirator exception to the hearsay rule. Alternatively, he
asserts that if there is no sua sponte duty, he argues his trial
counsel was ineffective for failing to request the instruction.
A. Procedural Background.
Although statements of conspirators were admitted during
trial pursuant to Evidence Code section 1223, trial counsel did
62
not request instruction No. 6.24, which sets forth the
foundational requirements for consideration of such hearsay
statements. The trial court did not instruct with this instruction.
CALJIC 6.24 provides:
“Evidence of a statement made by one alleged conspirator
other than at this trial shall not be considered by you as against
another alleged conspirator unless you determine by a
preponderance of the evidence:
“1. That from other independent evidence that at the time
the statement was made a conspiracy to commit a crime existed;
“2. That the statement was made while the person making
the statement was participating in the conspiracy;
“3. That the statement was made in furtherance of the
objective of the conspiracy, and was made before or during the
time when the party against whom it was offered was
participating in the conspiracy.
“The word “statement” as used in this instruction includes
any oral or written verbal expression or the nonverbal conduct of
a person intended by that person as a substitute for oral or
written verbal expression.”
The trial court gave other instructions regarding the
charged conspiracy: CALJIC No. 6.10 (conspiracy and overt act
defined), CALJIC No. 6.11 (conspiracy, joint responsibility),
CALJIC No. 6.12 (proof of express agreement of conspiracy
unnecessary), CALJIC No. 6.13 (association alone does not prove
membership in conspiracy), CALJIC No. 6.14 (acquaintance with
all co-conspirators not necessary), CALJIC No. 6.18 (commission
of act in furtherance of conspiracy does not itself prove
membership in conspiracy), and CALJIC No. 6.22 (conspiracy,
case must be considered as to each defendant).
63
In addition, the court gave CALJIC Nos. 6.16 and 6.19:
“Where a conspirator commits an act or makes a
declaration which is neither in furtherance of the object of the
conspiracy nor the natural and probable consequence of an
attempt to attain that object, he alone is responsible for and is
bound by that act or declaration, and no criminal responsibility
therefor attaches to any of his confederates.” (CALJIC No. 6.16)
“Every person who joins a conspiracy after its formation is
liable for and bound by the acts committed and declarations
made by other members in pursuance and furtherance of the
conspiracy during the time that he or she is a member of the
conspiracy.
“A person who joins a conspiracy after its formation is not
liable or bound by the acts of the co-conspirators or for any crime
committed by the co-conspirators before that person joins and
becomes a member of the conspiracy.
“Evidence of any acts done or declarations made by other
conspirators prior to the time that person becomes a member of
the conspiracy may be considered by you in determining the
nature, objectives and purposes of the conspiracy, but for no other
purpose.” (CALJIC No. 6.19)
B. Any Error in Failing to Instruct Was Harmless.
Hearsay evidence is generally inadmissible. Hearsay
statements by coconspirators, however, may nevertheless be
admitted against a party if there is independent evidence to
establish prima facie the existence of a conspiracy. Once
independent proof of a conspiracy has been shown, three
preliminary facts must be established: “‛(1) that the declarant
was participating in a conspiracy at the time of the declaration;
(2) that the declaration was in furtherance of the objective of that
64
conspiracy; and (3) that at the time of the declaration the party
against whom the evidence is offered was participating or would
later participate in the conspiracy.’” (People v. Hardy (1992) 2
Cal.4th 86, 139; Evid. Code, § 1223, subd. (c).)
Although the existence of the conspiracy must be shown by
independent proof, such showing need only be prima facie
evidence of the conspiracy. This prima facie showing may be
circumstantial and may be by means of any competent evidence
which tends to show that a conspiracy existed. (People v. Beck
and Cruz, supra, 8 Cal.5th at pp. 627.) Furthermore, the
independent proof required to establish the existence of a
conspiracy may consist of uncorroborated accomplice testimony.
(Id. at p. 628.)
“We review de novo a claim that the trial court failed to
properly instruct the jury on the applicable principles of law.”
(People v. Canizalez (2011) 197 Cal.App.4th 832, 850.) “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 necessary for the jury’s understanding of the case.”
(People v. St. Martin (1970) 1 Cal.3d 524, 531.)
Two courts have held, without analysis of the court’s sua
sponte duty to instruct, that the failure to instruct with CALJIC
No. 6.24 is harmless error. (People v. Sully (1991) 53 Cal.3d 1195,
1231–1232 [assuming CALJIC No. 6.24 should have been given,
failure to do so harmless error]; People v. Prieto (2003) 30 Cal.4th
226, 251–252 [same].) We similarly need not determine whether
there was a sua sponte duty to instruct with CALJIC No. 6.24.
65
Although given the admissibility of the coconspirators’
statements pursuant to Evidence Code section 1223, CALJIC No.
6.24 would have been appropriate, any failure to instruct was
harmless.
Here, in any event, numerous statements independently
established the existence of the conspiracies to commit murder
and extortion. McMorries made numerous statements to Solorio,
Lopez and Salazar regarding the gang’s ongoing extortion,
Knight’s failure to remit taxes, and planning and execution of
Knight’s murder. Finally, viewing the extensive instructions on
conspiracy as a whole, it is not likely that the jury failed to make
the foundational finding that conspiracies existed and these
hearsay statements were made in furtherance of the conspiracy.
C. Counsel Was Not Ineffective.
The right to effective assistance of counsel derives from the
Sixth Amendment right to assistance of counsel. (Strickland v.
Washington (1984) 466 U.S. 668, 684-686.) To state a claim that
counsel rendered constitutionally ineffective assistance, “‘the
defendant must first show counsel’s performance was deficient, in
that it fell below an objective standard of reasonableness under
prevailing professional norms. Second, the defendant must show
resulting prejudice, [namely], a reasonable probability that, but
for counsel’s deficient performance, the outcome of the proceeding
would have been different.’” (People v. Hoyt (2020) 8 Cal.5th 892,
958.)
“When examining an ineffective assistance claim, a
reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance.” (People v. Mai (2013) 57
Cal.4th 986, 1009.) “On direct appeal, a conviction will be
66
reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance
are more appropriately resolved in a habeas corpus proceeding.”
(Ibid.)
Here, appellant cannot demonstrate prejudice on this
record because any failure to request this instruction was
harmless as discussed above.
IX. NEW TRIAL MOTION ON EXTORTION COUNTS.
Appellants McMorries and Solorio argue that the trial court
abused its discretion in refusing to grant their new trial motion
on the extortion counts based upon what they contend was
inflammatory language inadvertently included with a transcript
of their phone conversations. (Counts 3, 5 and 12.)
A. Factual Background.
Expert testimony at trial on the operations of the Mexican
Mafia established that its primary activity was extortion. Before
trial, Lopez moved to exclude the use of the word “extortion” to
describe the collection and payment of taxes or rent money. The
trial court granted the motion and ordered the experts would not
use the word “extortion” when testifying to facts or hypotheticals.
Experts would only be permitted to use terms such as “payment
of rent,” and “money paid.”
During trial, the prosecution played for the jury audio
recordings of conversations between Lopez and Salazar regarding
tax collections. Transcripts of the recordings were given to the
jurors. However, the transcripts contained a footer that contained
67
the notation “Meet with Ronald Dave Lopez to hand over $2,300
of extortion money.” Due to use of the word “extortion,” the
prosecution asked the trial court to admonish the jury. Defense
counsel asked for fresh copies of the transcripts to be provided to
the jurors, but the prosecution argued that rather than exchange
the transcripts for clean copies (because the jurors had already
made notations on their copies), the prosecution asked for a
limiting instruction. The trial court gave the jurors black
markers and asked them to cross out the footers, and stated it
would provide a limiting instruction.
Appellants moved for mistrial on the extortion counts. The
trial court denied the motion, stating, “I don’t think this is so
prejudicial that we have somehow tainted the jurors to the point
where they can’t reach a fair and just verdict. The court
instructed the jury: “If you recall when we were doing voir dire,
what I told you was that we're putting evidence into an
imaginary box, and we're talking about evidence that is coming
from this witness stand, also the audiotapes that you're hearing.
that is what is going into the imaginary box. [¶] There is
something that is not going into the imaginary box. So if you go
back to page—or tab 14 in this same book, tab 14, and you look at
the bottom—the very bottom right where it says 2 of 12, 3 of 12,
the paging. there is an extraneous language there with just a
notation made by somebody who was doing the transcribing or
something. That is not going into the imaginary box; so you can’t
consider it. [¶] . . . [¶] When you deliberate you’re not to consider
what is below the black line. That's why I’m having you take it
out, to make it easier for you to understand that that is not going
into the imaginary box. You are not allowed to consider that
sentence on any of those pages.”
68
B. Discussion
“‘“A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.
[Citation.] Whether a particular incident is incurably prejudicial
is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions.
[Citation.]” [Citation.] A motion for a mistrial should be granted
when “‘“a [defendant's] chances of receiving a fair trial have been
irreparably damaged.”’”’” (People v. Silveria and Travis (2020) 10
Cal.5th 195, 298–299.) The defendant bears the burden to show
the trial court abused its discretion in denying his motion for a
mistrial. (People v. Maury (2003) 30 Cal.4th 342, 434–437.) We
review a trial court’s ruling on a motion for a mistrial under the
deferential abuse of discretion standard. (People v. Schultz (2020)
10 Cal.5th 623, 673.)
In People v. Navarette (2010) 181 Cal.App.4th 828, upon
which defendants rely, the defendant was charged with
committing a lewd act on a four-year-old. (Id. at p. 830.) The trial
court granted the defense motion to suppress any reference to
defendant’s confession that was obtained in violation of the
defendant’s Miranda rights. (Id. at p. 831.) Upset with the court’s
ruling, one of the detectives “promised he ‘was going to show’ the
court.” (Id. at p. 832.) During that detective’s testimony, he was
asked why he had decided not to conduct DNA testing on swabs
taken from the victim’s body. (Id. at p. 831.) The detective
answered, “‘Well, for several reasons, the first of which it’s a
court rule that the defendant’s statement is inadmissible. So I
can’t state the first reason.’” (Ibid.) The trial court struck the
testimony and gave a curative instruction to the jury. (Id. at pp.
831–832.) On appeal, the court held the curative instruction was
69
insufficient because the jury could have reasonably inferred from
the detective’s testimony that the defendant “had confessed or
otherwise incriminated himself, rendering DNA evidence
unnecessary.” (Id. at p. 834.) The court further found the trial
court’s curative instructions could not undo the damage inflicted
by the detective's testimony because the instruction “did not
break the link the jury was likely to perceive between a
‘statement’ and a ‘confession’ in the context of other evidence the
jury heard.” (Ibid.)
Appellants contend the description in the footer of the
transcript provided written confirmation of the prosecution’s
interpretation of the coded communications. Under these
circumstances, they argue, the instruction was insufficient to
break the link the jury was likely to perceive about the exchange
of money. Further, the remedy of marking out the footer did not
remedy the situation but instead highlighted the problem.
We disagree. Unlike Navarette, where the prohibited
material was deliberately inserted into evidence, the word
“extortion” was heard at trial in other, proper contexts. The jury
had already listened to experts describe that the main operation
of the Mexican Mafia was extortion. Defendants were charged
with violations of sections 518 and 519 and instructed on
“extortion.” Serrano testified to his participation in “extortion.”
Given the ubiquity of the word “extortion” at trial, and the crimes
with which defendants were changed, the erroneous inclusion of
the word in a footer did not deprive defendants of a fair trial.
This is particularly true because the judge took curative steps to
ensure the jurors understood the footer was not evidence. We find
no abuse of discretion in the trial court’s decision to deny the new
trial motion.
70
X. PITCHESS REVIEW.
Lopez requests this court independently review the record
of the in-camera hearing on his Pitchess11 motion. He also
requests review of the sealed materials to determine what
documents were produced or not produced for the trial court’s
review and the sufficiency of any explanation of such production.
The People do not object to our review.
A. Factual Background
On April 11, 2014, Lopez filed a motion for an order to
produce documents for inspection and a motion for pretrial
discovery of law enforcement personnel records for Neslen for the
previous five years concerning any accusations of violation of civil
liberties, detention without reasonable cause, falsifying evidence,
misconduct, excessive use of force, or aiding and abetting another
officer’s misconduct. (Evid. Code, § 1043.) Lopez also sought
discovery of former Pitchess motions filed against Neslen.
Lopez alleged in his supporting affidavits for the state
wiretaps, that Neslen had asserted he only contacted one
informant and no other informants were known (“no other
informants, other than those detailed in this affidavit, are
currently known or available with the capacity to infiltrate these
target subjects.” This sole informant was used to justify the
necessity of the wiretaps. Lopez later learned that in an
application for a federal wiretap, Neslen represented he had six
(and later eight) additional informants.
The prosecution opposed, principally asserting that Lopez
failed to comply with the good cause and materiality
11 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
71
requirements of Evidence Code section 1043, subdivision (b)(3)
because the supporting declaration was deficient. The reasons for
the discovery, namely, the different number of informants Neslen
relied on for the wiretap authorizations, was insufficient.
On June 4, 2014, after argument on the motion, the trial
court conducted an in camera Pitchess hearing to review the
officer’s files. The hearing was recorded, transcribed, and filed
under seal. At the in-camera hearing, outside the presence of the
parties, the custodians of records for the Bell Gardens Police
Department testified under oath about the categories of
documents they reviewed. The trial court found no discoverable
materials.
B. Discussion.
“‘[A] criminal defendant may, in some circumstances,
compel the discovery of evidence in [a] law enforcement officer’s
personnel file that is relevant to the defendant’s ability to defend
against a criminal charge.’” (Garcia v. Superior Court (2007) 42
Cal.4th 63, 69.) By providing that the trial court should conduct
an in-camera review, the Pitchess review process balances the
defendant’s need for disclosure of relevant information with the
law enforcement officer’s legitimate expectation of privacy in his
or her personnel records. (Ibid.)
If after the defendant files a Pitchess motion, “the trial
court concludes the defendant has fulfilled [the statutory]
prerequisites and made a showing of good cause, the custodian of
records should bring to court all documents ‘potentially relevant’
to the defendant's motion. [Citation.] The trial court ‘shall
examine the information in chambers’ . . . ‘out of the presence and
hearing of all persons except the person authorized [to possess
the records] and such other persons [the custodian of records] is
72
willing to have present’ [Citations.]. Subject to statutory
exceptions and limitations . . . the trial court should then disclose
to the defendant ‘such information [that] is relevant to the
subject matter involved in the pending litigation.’” (People v.
Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).)
We review the trial court’s decision not to order the release
of personnel records for abuse of discretion. (People v. Winbush
(2017) 2 Cal.5th 402, 424; Mooc, supra, 26 Cal.4th at p. 1228.) If a
trial court is found to have abused its discretion in denying
Pitchess discovery, a defendant is not entitled to relief unless he
can demonstrate a reasonable probability of a different outcome
had the evidence been disclosed. (People v. Gaines (2009) 46
Cal.4th 172, 182–183.)
Having reviewed the record of defendant’s in-camera
Pitchess motion hearing, we find no abuse of discretion. The court
appropriately denied the motion. (See Mooc, supra, 26 Cal.4th at
pp. 1228–1232.)
XI. CLAIMED CUMULATIVE ERROR.
Appellants argue that even if we conclude the individual
errors at trial do not require reversal or retrial, the cumulation of
such errors deprived them of a fair trial. Under the cumulative
error doctrine, the cumulative effect of several trial errors may be
prejudicial even if they would not be prejudicial when considered
individually. (People v. Capers (2019) 7 Cal.5th 989, 1017; In re
Reno (2012) 55 Cal.4th 428, 483.) Because we have found either
no error or harmless error, we can find no cumulative error.
XII. STRIKING OF ENHANCEMENTS.
McMorries argues that under SB 136, the prior prison term
enhancements on his sentence imposed pursuant to section 667.5,
73
subdivision (b) should be stricken because his prior convictions
were not for sexually violent offenses. (Welf. & Inst. § 6600, subd.
(b).) Respondent agrees.
After the filing of the jury’s verdict, appellant admitted the
truth of the two prior prison terms alleged in the information for
purposes of former section 667.5, subdivision (b). Based on this
admission, at sentencing, the trial court sentenced appellant to
five consecutive one-year terms on Counts 1, 3 and 13.
Effective January 1, 2020, Senate Bill No. 136 amended
section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) By this
revision, the Legislature “amend[ed] section 667.5, subdivision (b)
to limit its prior prison term enhancement to only prior prison
terms for sexually violent offenses, as defined in Welfare and
Institutions Code section 6600, subdivision (b).” (People v.
Jennings (2019) 42 Cal.App.5th 664, 681.)
On January 1, 2020, the effective date of Senate Bill No.
136, this appeal was pending. A statute that ameliorates the
punishment for an offense will generally apply retroactively to
any case in which the judgment is not yet final before the
effective date of the statute. (In re Estrada (1965) 63 Cal.2d 740,
748.)
Accordingly, we will modify the judgment by striking the
one-year prior prison term sentencing enhancements that the
court imposed on Counts 1, 3 and 13 under section 667.5,
subdivision (b).
XIII. CORRECTION OF ABSTRACT OF JUDGMENT
Appellants argue their abstracts of judgment must be
modified to delete the fines and assessments shown because at
the sentencing hearing, the court did not impose any such fines
or fees, although the minute order and abstract of judgment
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states it did so. They request that if we impose such fines or fees,
that we impose the amounts reflected in the minute order, not
the abstracts of judgment, and that we remand the matter for an
ability to pay hearing pursuant to People v. Duenas, supra, 30
Cal.App.5th 1157 (Duenas)12 on the court facilities and
operations assessments and restitution fines imposed under
sections 1465.8, subdivision (a)(1) and Government Code section
70373.
A. Factual Background.
At the sentencing hearing, the trial court did not impose
any fines or fees on appellants. The minute order of the
sentencing hearing, however, reflects that it imposed the
following on each of the appellants: (1) a $40.00 Court operations
assessment (§ 1465.8, subd. (a)(1)); (2) a $30.00 criminal
conviction assessment (Gov. Code, § 70373); (3) a $240.00
restitution fine (§ 1202.4, subd. (b)); and (4) a $240.00 parole-
supervision fine (§ 1202.45).
Solorio: On each of the three abstracts, $240 each for
sections 1202.4, subd. (b) and 1202.45; and $400.00 for section
1465.8 and $300 for Gov. Code section 70373.
Lopez: On each of the three abstracts, $240 each for the
sections 1202.4, subd. (b) and 1202.45; and $680.00 for section
1465.8 and $510 for Gov. Code section 70373.
B. Discussion.
12 Currently, the issue addressed in Duenas is on review in
the California Supreme Court. (People v. Kopp (2019) 38
Cal.App.5th 47.)
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The oral pronouncement of the sentence controls over the
abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181,
185.)
Government Code section 70373 and Penal Code section
1465.8, which impose court facilities and court operations
assessments on every criminal conviction, each provide that the
assessment “shall be imposed on every conviction for a criminal
offense” except for parking offenses. (Gov. Code, § 70373, subd.
(a)(1); Pen. Code, § 1465.8, subd. (a)(1).) These assessments are
mandatory and non-punitive. (People v. Fleury (2010) 182
Cal.App.4th 1486, 1493.)
Because these fees are mandatory, the trial court’s failure
to impose them constituted an unauthorized sentence. We may
correct an unauthorized sentence at any time, and thus these
assessments may be imposed. (People v. Barnwell (2007) 41
Cal.4th 1038, 1048, fn.7.) However, we decline to remand to the
trial court to conduct an ability to pay hearing pursuant to
Duenas, supra. In Duenas, supra, 30 Cal.App.5th 1157, the court
held that “due process of law requires the trial court to conduct
an ability to pay hearing and ascertain a defendant’s present
ability to pay” before it imposes assessments under section 1465.8
and Government Code section 70373. (Id. at p. 1164.)
Even under Duenas, however, fines and fees are properly
imposed if the defendant has the ability to pay them. ““‘Ability to
pay does not necessarily require existing employment or cash on
hand.” [Citation.] “[I]n determining whether a defendant has the
ability to pay a restitution fine, the court is not limited to
considering a defendant’s present ability but may consider a
defendant’s ability to pay in the future.” [Citation.] This
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include[s] the defendants ability to obtain prison wages[.]’”
(People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.)
Here, we can infer that appellants can pay the fines and
fees imposed upon them from their probable future wages,
including their prison wages. (People v. Avilas, supra, 39
Cal.App.5th at p. 1076.) “Prison wages range from $12 to $56 per
month, depending on the prisoner’s skill level.” (Ibid.) The state
is permitted to garnish a portion of those wages, as well as trust
account deposits, to satisfy the restitution fine. (Ibid.; see
§ 2085.5, subd. (a).) Appellants are serving lengthy terms, which
gives them ample time to earn sufficient funds to pay the fees.
Accordingly, we need not remand for an ability-to-pay hearing.
On the other hand, the restitution fines are intended to be,
and are recognized as, additional punishment for a crime. (See
People v. Hanson (2000) 23 Cal.4th 355, 362–363.) These fines are
discretionary because there are situations in which they are not
required. Subdivision (b) of section 1202.4 provides: “In every
case where a person is convicted of a crime, the court shall
impose a separate and additional restitution fine, unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record.” (See also People v. Tillman (2000)
22 Cal.4th 300, 303.) Respondent concedes that because the court
did not impose them on the record at sentencing, and the
prosecution failed to object, these fines must be stricken from the
abstracts of judgment.
DISPOSITION
The judgment of conviction is affirmed. The judgment is
modified to strike the prior prison term enhancements imposed
pursuant to section 667.5, subdivision (b), on Counts 1, 3 and 13
as to McMorries, and the fines imposed pursuant to sections
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1202.4 and 1202.45 are stricken as to all appellants. On remand,
the trial court shall forward corrected abstracts of judgment to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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