People v. Madrigal ( 2023 )

Filed 7/6/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046577
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1359219)
v.
JOEL MADRIGAL,
Defendant and Appellant.
Defendant Joel Madrigal was among a group of four or five males who got out of
a van and attacked a man on a sidewalk. The attackers beat the man, robbed him, and
returned to the van for their escape. One of the attackers stabbed the victim with a knife
multiple times during the attack, and he died soon thereafter. A jury found Madrigal
guilty of first degree murder and second degree robbery but acquitted him of participation
in a criminal street gang and found gang allegations not true. The trial court imposed an
aggregate term of 100 years to life consecutive to 12 years in prison.
Among other claims, Madrigal contends the retroactive application of Senate Bill
No. 1437, which added elements to the definition of felony murder, requires us to reverse
the first degree murder conviction. Madrigal further contends that after defense counsel
subpoenaed audio recordings of the van driver’s jailhouse phone calls, the trial court
erred by refusing to review the calls or release them to the defense.
For the reasons below, we conclude these claims are meritorious. We will reverse
the judgment, vacate the first degree murder conviction, conditionally reverse the robbery
conviction, and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offenses
In January 2013, Madrigal and three or four other men got out of a van and
attacked Donald Harvey on the sidewalk. One of the attackers stabbed Harvey multiple
times, killing him. The men stole $25 to $30 from Harvey and returned to the van for
their escape. Alicia Pacheco, Madrigal’s girlfriend at the time, was driving the van. The
prosecution alleged Madrigal and the other attackers were active participants in the
Norteño criminal street gang.
1. The Attack and Robbery
Harvey’s body, surrounded by blood, was found on the side of Southside Drive in
a residential area of San Jose. Victor Vazquez witnessed the attack from his property
across the street. He was standing outside with a friend when he heard some yelling and
screaming from across the street. Vazquez saw a group of four or five men hitting and
kicking a man while holding him against the front grill of a vehicle parked on the street.
It looked to Vazquez like all four or five of the attackers were kicking and throwing
punches at the man. Some of them took turns holding the man. The man was screaming
and trying to get away from them. Vazquez never saw any weapons.
Vazquez and his friend started to approach the attackers while yelling, “Hey,” to
move them away from the man being attacked. The attackers ran away, and the man,
who had been leaning against the front of the parked vehicle, dropped to the ground.
Vazquez asked the man if he was okay, but the man did not respond. When Vazquez saw
blood on the ground, he called 911. Vazquez then saw a van driving away from the area.
He did not recognize any of the attackers, and he could not see their faces well enough to
describe them to the police.
Two of Harvey’s friends testified that they were drinking with him at a nearby
liquor store shortly before the attack. Harvey, who had some cupcakes and a drink with
him, left on foot to drop the items off somewhere while the two friends stayed at the
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liquor store. Five or ten minutes later, one of the two friends spotted four men beating up
Harvey down the street about a block and a half away. The two friends ran down the
street to defend Harvey, but the attackers ran away before the friends could get there.
They stayed with Harvey and tried to talk to him while another man called 911. One of
the two friends saw a green van driving by. Someone inside the van opened a door, four
men hopped into it, and the van drove away. The friend heard the attackers yell “Norte”
twice as the van was driving away. The friend testified that Harvey had had money on
him. The friend testified that he did not see any of the attackers going through Harvey’s
pants pockets, but two pockets were “sticking out” or “looked into.”
When the police arrived, Harvey was lying on the sidewalk, and he was
unresponsive with a large amount of blood coming from his body. Police found a
screwdriver and a cord lock on the ground, and crime scene photos showed four or five
coins lying in the gutter.
Various maps showed the surrounding area. The southwest end of Southside
Drive stops at Monterey Street in a T-shaped intersection. From there, Southside Drive
continues northeast in a straight line and intersects with Hope Street. Harvey’s body was
found on the side of Southside Drive near the intersection of Hope Street. Continuing
another block northeast, Southside Drive intersects with Water Street.
After canvassing residences in the area for video cameras, police obtained two
videos recorded at the time of the assault. A video with a time stamp around the time of
the attack showed a van consistent with Pacheco’s van pausing momentarily on Water
Street at an intersection south of Southside Drive before proceeding south. A second
video with a time stamp beginning just prior to the time of the attack was recorded from
two cameras at a guard shack on Southside Drive across from Hope Street. The video
images were too dark to show the details of the vehicles that appear in them, but the
lights from various vehicles could be seen as the vehicles drove back and forth on
Southside Drive. One portion of the video showed a set of vehicle lights traveling
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eastbound on Southside Street. A detective testified that the shape of that vehicle was
“consistent with the shape or silhouette of a van” and that it had “lighting configurations
consistent with” Pacheco’s van. The video also showed the silhouettes of four persons
walking westbound on Southside Drive, followed by the silhouette of at least one person
running eastbound on Southside Drive about 40 seconds later. One set of vehicle lights
in the video was consistent with a vehicle turning into Hope Street and waiting for about
a minute before turning back onto Southside Drive, but the video images were obscured
by headlight glare from one or more vehicles.
As the prosecution played the videos for the jury, a detective described their
contents. The detective testified that “based on the interviews” of the witnesses he had
done, the videos show a van turning onto Hope Street, making a U-turn, waiting for some
time, and then driving eastbound down Southside Drive. As to the vehicle turning onto
Hope Street, the detective testified, “I’ve seen this video multiple times, and I know for a
fact that’s what occurs. But I didn’t see it as you played it just now.” The videos were
not detailed or accurate enough to identify any of the persons walking or running by. On
cross-examination, the detective conceded that the quality of the video taken from the
guard shack on Southside Drive was “not the best.”
An autopsy of Harvey’s body showed he had suffered five stab wounds, as well as
multiple abrasions on the face resulting from blunt force. A forensic pathologist for the
prosecution testified that Harvey died as the result of blood loss through a stab wound in
the back of his left thigh severing the femoral artery. The fatal wound was five and a half
inches deep, an inch and a half long, and the artery was completely severed. The wound
was “oblique, linear, had a sharp upper end, it had a wide, blunt lower end.” None of the
five stab wounds could have been inflicted by the screwdriver that was found at the
scene. The forensic pathologist testified it was possible that all five wounds were
inflicted with the same knife, and while it was likely that four of them were inflicted with
the same knife, one of the wounds (not the fatal wound) was an “odd duck” that was
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“very different” from the others. As to whether it was likely the same knife was used to
inflict that wound, he testified that the wound was “too different.” He added, “I can’t say
it’s impossible, but it’s a very different wound.” A forensic pathologist for the defense
testified that she could not determine whether the wounds were caused by more than one
knife.
2. Police Interview of Madrigal in May 2013
In May 2013, Madrigal told the police he had information about the attack. In a
video recorded interview, Madrigal stated he was in the van with several other people
when four males got out to rob someone. Madrigal described the person who did the
stabbing as a 16- or 17-year-old “little kid” who went to Andrew Hill High School. 1 He
was about five feet and eight inches tall with long dark hair, and he weighed about 140 or
150 pounds. The stabber was bragging about it.
Madrigal identified two of the other males as “Temper” (later identified as Alex
Barrientos) and “Boogie” (later identified as Ceasar Torres). He could not recall the
name of the third male, but he thought it was something like “Enrique”, “Enrico”, or
“Emilio” (later identified as Enrique Martinez). Madrigal said some of the males were
“associated with” a Northerner gang called Feldspar. The males “cliqued up with
Feldspar” or “chill with” them.
As for himself, Madrigal claimed he had stayed in the van with three females. He
identified two of them as Jasmine (later identified as Jasmine Nieto) and Alicia (later
identified as Alicia Pacheco, also known as Alicia Pazos, Torres’s sister). Alicia was
driving the van.
The police asked Madrigal if he knew in advance whether the others were
planning on doing anything. Madrigal responded, “We’re just gonna get beer and—and
The police later identified Moises “Lobo” Hernandez as a person fitting this
1
description. His DNA matched a DNA sample taken from the cord lock that was found
at the scene of the attack.
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fuckin’ they were acting stupid like. . . . where fuckin’ anybody could get it. I’m like,
‘You guys are fuckin’ off the hook man.’ ” When asked if that meant “maybe steal some
shit,” Madrigal responded, “Yeah,” and added that “they do a lot of beer runs,” and
Madrigal was the one who had already bought beer earlier in the evening.
The police tried to establish when the group had purchased beer and where they
got it. In a series of confusing exchanges about how many times they had gotten beer and
where they went for it, Madrigal stated that they had done multiple beer runs but that the
attack occurred when they were on the way to the liquor store during one of the later
runs. He added, “But these little fuckers have fuckin’ intentions and we thought they
were just gonna pull a beer run, right? So we fuckin’ just went to the corner. These little
—whatever the fuck they were doing they . . . I heard it was like a old—old white guy
dude.” Madrigal stated that they didn’t make it to the beer run because “they started
beating up that guy.” Because they all lived in the same neighborhood, Madrigal’s
reaction was “like, ‘Dude, what the fuck are you guys doing?’ ” When the police asked
again about what the others had said they were planning to do, Madrigal responded that
one of them had said it was a beer run, and when they came back from the attack, “[W]e
were like, ‘What the fuck? Was it a scrap you guys . . . .’,” whereupon they fled from the
scene in the van.
When the police asked why they had attacked the victim, Madrigal responded,
“They were just like, ‘Anybody can get it. We wanted to test it.’ You know, and I was
like, ‘What the fuck?’ ” When the police asked what “get it” meant, Madrigal explained
that when he was young and gang banging, “I wouldn’t fuckin’ like beat up random
people” but he would walk around and “talk shit.” He then added, “So I just think it was
this—they were just fuckin’ being dumbass little fucks and—and one of them fuckin’ just
wasn’t fuckin’ satisfied with that.”
Madrigal then stated that he saw the attack happen while he was in the van with
the females. It looked like “somebody getting jumped in the street,” after which they ran
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back to the van and hopped in. The person who did the stabbing was smiling and
laughing in the back of the van. But Madrigal did not know anybody had gotten stabbed
until they got back to the house and the stabber bragged about it. When the police asked
if the stabber had the knife on him, Madrigal responded, “Yeah. They had the knife.
They kept it. It was like a Rambo knife.” Madrigal said Torres added, “Fuck, I dropped
the screwdriver.” Madrigal described the knife as “black on black” and “[L]ike a bone
crusher dude.” Madrigal clarified that he saw the “youngster” with the knife, and added
that the males had blood on their clothes. Madrigal told them they should change their
clothes and told Pacheco, “I better not go to fuckin’ prison for this shit.”
Madrigal said he asked them why they attacked the victim, and they responded
that they got $25. Madrigal did not see the money. The police asked Madrigal, “Who
told you they stole the money?” Madrigal responded, “[F]uckin’ Temper [Barrientos]
little dumbass.”
3. Police Interview of Madrigal on June 6, 2013
The police interviewed Madrigal again on June 6, 2013. The police asked again
about the group’s plan prior to the attack. Madrigal stated, “I was planning on buying
beer.” He said it changed from him buying beer to a doing a “beer run” when they were
on the way to the store, but nobody else had any money to put in, so Barrientos
responded, “[L]et’s do a beer run fucker.” Madrigal explained he would “just buy me a
couple of tall cans” and let them get their own beer since they did not have any money.
Madrigal stated he thought it was still a beer run when they were getting out of the van.
Madrigal stated again that the stabber was “the little youngster” who went to
Andrew Hill High School. The police took a buccal swab from Madrigal’s mouth and
told him they wanted to test it against DNA found on the screwdriver that was left at the
scene of the attack. The police asked Madrigal if he had ever touched a screwdriver
before, and Madrigal said he had used one at the house. The police told Madrigal the
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screwdriver they had found at the scene of the attack was large, and Madrigal said he
probably seen a screwdriver that large but that he did not think he had touched it.
Madrigal stated that he had seen the other males carry screwdrivers before, and he
agreed that they were “known to carry screwdrivers at times.” When asked if he knew
specifically who was known to carry a screwdriver, Madrigal said, “I’d say like all of
them. If they ain’t got a screwdriver they got either uh, uh like a[n] ice pick or a knife.”
When asked why they would carry these items, Madrigal responded “To stab people, hurt
people. I don’t know. I know personally I just carry screwdrivers so you could carjack
people. You know what I mean? Like stolen cars.” When asked if he would carry
something for protection, Madrigal said he would, but when asked about “gang banging,”
Madrigal said, “No, shit, I don’t gang bang. I just sometimes I walk around with a knife
now because uh, I’m like fuck, I don’t want to be caught without one. It’s uh, if, if I,
these guys decide to jump me or something, I’m going to try to walk away, but if
someone puts their hands on me then well, I got to defend myself.”
4. Search and Interview of Pacheco
On June 12, 2013, the police executed a search warrant at Pacheco’s home and
took her and her brother Torres into custody. The van used in the assault was parked in
the driveway of her house. Pacheco admitted to the police that she had been driving the
van at the time of the assault. She stated that after driving with Madrigal and Barrientos
to the liquor store, she was driving away from the store when Madrigal said he “saw
someone that he didn’t like.” Madrigal said he wanted to talk to this person and told
Pacheco to park down the street. Pacheco said Madrigal got out of the van alone, after
which he came back walking “fast paced”, got in the van, and told Pacheco to drive
home. The police then confronted Pacheco with the videos showing multiple persons
walking on Southside Drive. Pacheco then admitted that Martinez, Torres, and Nieto
were also in the van at the time. Pacheco said there was another female in the van, but
Pacheco stated she did not know her name. Pacheco stated that after Madrigal said he
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saw somebody he did not like, she parked, and all four of the males got out while the
females stayed in the van. Madrigal was the first to jump out. Then the males all ran
back to the van.
5. Interview of Madrigal on June 17, 2013
After searching and interviewing Pacheco, the police re-interviewed Madrigal on
June 17, 2013. The police informed Madrigal, who was in custody, that they had found
things in his house and that others were making accusations against him, so they wanted
to hear his responses to them.
Madrigal then admitted that he was with the other males from the van to do a
“beer run” but he claimed he did not know the victim was going to be stabbed or killed.
He admitted that in his prior interviews, he had left out that “I was walking with them to
do the beer run. And when the guy came, I actually kinda like held him like, but I didn’t
know like—like he got stabbed and I didn’t know like the guy stabbed him. I didn’t
know a murder was gonna be involved. I’m like—like when they chased him, and got
him, I just like grabbed him like just come here, where you going? And that’s it. And I
let him go. That’s all I did.”
Madrigal again asserted that the “the little kid,” whose name Madrigal did not
know, was the one who stabbed the victim. When asked to explain again how it
happened, Madrigal said he and the four other males were walking together when “all
those niggas got on him first.” Madrigal continued, “[S]o I like . . . grab him like this and
they’re getting on him and then the next thing you know, this nigga fucking falls and—
and then all I heard is, ‘Ah, why you guys doing this? Man, why?’ And I’m like,
‘Fuck.’ ” Then they ran back to the van.
The police asked Madrigal if he punched the victim. Madrigal asserted he did not
punch the victim, but when asked why he held the victim, Madrigal explained, “I was
gonna whoop his ass, like I was gonna help them but then like, like I just held him and
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like, I didn’t hit nobody. I’m like—I like threw him down, like I just threw him down for
them. That’s when I backed up. I didn’t punch nobody.”
Madrigal said he did not see anyone stab the victim. He said that when “I seen the
kid,” that was “when I let go. Like oh, shit.” Madrigal said Torres had a screwdriver at
the scene, but that Torres did not stab the victim with it. Torres was “more or less just
hitting the dude.” Barrientos and Martinez were also hitting the victim.
When asked again why they attacked Harvey, Madrigal responded that
“everybody was buzzing” and he described their attitude as, “Anything goes like fuck it,
we’re just gonna, we’re just gonna fucking cause a ruckus. These guys wanted to cause a
ruckus and I knew better. I knew I shouldn’t have jumped out of that car, man.” The
police asked Madrigal who took Harvey’s money, and Madrigal said it was “the kid who
poked him because he was passing it out.” Madrigal asked them “What’d you guys get?”
and the stabber responded, “30 something lousy dollars.” The police asked if they
intended to rob the victim “in the first place,” or at what point did the robbery come up.
Madrigal said, “After we already left and then like—he told us how much money he got.
That’s the only involvement I had in it, sir.”
The police again asked if the plan was really to do a beer run, and Madrigal
responded again that he was really planning to buy beer, because he had money on him.
When the police asked Madrigal whether he got out of the van to do a beer run or “to
cause a ruckus,” Madrigal again stated he was just planning to buy beer. The others were
planning to do a “beer run” because they did not have money, and he did not want to pay
for their beer again, having already bought beer for them earlier in the day. When the
police asked Madrigal if he heard anything like one of them “made some plans about
some things to get money,” Madrigal responded in the negative.
The police again asked Madrigal whether he heard the others talk about getting
money and “insinuating a robbery.” Madrigal said “there was small talk in the back of
the van about that and I was like we ain’t bothering nobody, man. Nobody’s getting
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fucking robbed.” When the police asked who was talking about robbery, Madrigal
responded, “Um, they weren’t talking about robbery. Uh, they were like, ‘Man, fuck it.
Let’s just—let’s just get a Paisa; whoa, whoa, whoa.’ And I was like, ‘Dude, nobody’s
gonna fucking do—you guys gonna fucking do a beer run, then well, let’s go fucking do
it. That’s it, man.’ That’s it. That’s all. That’s it, man. Nobody has to fucking rob
nobody. And I said it. I said nobody has to rob nobody and—and they were gonna do
the beer run already. So I was just like let’s just do the fucking beer run, man.”
The police asked Madrigal, “What did you think when they stopped this guy?”
Madrigal stated that “they ran up on them,” and he thought they would “just whoop his
ass.” Nobody talked to the victim.
Madrigal stated he did not have any weapons on him at the time. He said that after
they got back to the house, Torres stated he was hitting the victim when he (Torres)
dropped the screwdriver, but Torres denied stabbing the victim. Madrigal said that after
the victim was stabbed, “that’s why I backed up like—like that’s why I threw him. I
threw him down and I was like fuck. Like in my eyes, and I was like, ‘Why do you gotta
stab him, blood?’ ”
Madrigal denied that he had blood on his hands or clothes, and he stated that he
didn’t stab the victim or do anything to get blood on his hands. He admitted he told the
others to wash the blood off themselves and their clothes. He did not want to get caught,
“For something I didn’t like—something I didn’t —I didn’t know this guy was gonna
fucking stab him or I didn’t know all this.” He denied he was “trying to be their leader or
anything like that.”
6. Testimony of Alicia Pacheco
Pacheco testified at trial for the prosecution. She testified in exchange for an
agreement allowing her to plead guilty to charges of assault with a deadly weapon and
accessory to murder with gang enhancements for a maximum term of 11 years in prison.
She had been charged with murder, robbery, and a gang enhancement. She had been
11
romantically involved with Madrigal before the assault. Madrigal told her he was from
the “SJG” gang, which Pacheco understood to mean “San Jose Grande,” a Norteño gang.
Pacheco admitted to driving the van the night of the assault. She testified that
Lobo (identified as Moises Hernandez) was not there. She had drawn a map for the
police showing the route she took before and after the incident. She testified that after
the group got into the van that night, they went to a liquor store on the corner of
Southside Drive and Monterey Road. She went into the store by herself, bought a blunt
wrap, and came back to the van.
She then drove the van out of the liquor store parking lot and turned left
(northeast) onto Southside Drive. She continued driving on Southside Drive past Hope
Street and toward the intersection of Southside Drive and Water Street, where there was a
stop sign. She testified that Madrigal had seen someone on the sidewalk as she was
driving by, and Madrigal said something to the effect that he didn’t like the man, but she
could not recall the exact words Madrigal used.
She stopped at the stop sign at the intersection of Southside Drive and Water
Street, and Madrigal, Barrientos, Martinez, and Torres got out of the van. Jasmine Nieto
and another girl, whose name Pacheco did not know, stayed in the van. After the males
got out of the van, Madrigal told her to “[G]o back to that street.” She made a U-turn at
the intersection and drove back (southwest) down Southside Drive. She turned right
(northwest) onto Hope Street, made another U-turn, and came back down Hope Street
toward Southside Drive. She stopped the van on Hope Street before reaching Southside
Drive and waited about 30 seconds or a minute until the males came back and got in the
van.
Pacheco testified there was no talk of a “beer run” before the males got out of the
van. She did not see the assault, and she did not hear whether they were talking about it,
but Madrigal had blood on his hand. Later, they went to a Safeway, where Madrigal and
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Barrientos got out. They came out with two cases of beer, and Barrientos was running.
Barrientos was laughing in the back of the van afterwards.
Pacheco testified that later that night, Madrigal told her he had stabbed the man.
She testified Madrigal threw her against the wall and choked her, telling her he “can’t
leave a witness.” She did not see him with a weapon at any point.
On cross-examination, Pacheco admitted she blamed Madrigal for her being in
custody, and that she had stated, “ ‘That piece of shit could fucking die, for all I care.’ ”
She admitted having made several statements to the police that contradicted her
testimony. She had previously told the police Madrigal had not been violent with her.
She had also told police she did not know if Hernandez was with them at the time of the
assault.
Pacheco testified she did not hear any discussion of a beer run in the van before
the attack, but she conceded she had taken Torres and his friends for beer runs in her van
on prior occasions. She would drive them to the store in her van, and they would come
running out of the store with stolen beer.
A police officer subsequently testified to inaccuracies in Pacheco’s pretrial
statements to the police. Pacheco had told police that Madrigal was the only one who got
out of the van before the attack. She changed her version of what happened after the
police told her they knew she was lying and threatened to “send her to jail.” She did not
admit her brother was involved until the police told her they knew he was involved.
7. Testimony of Jasmine Nieto
Jasmine Nieto, Alicia Pacheco’s cousin, testified that she was in the van that night.
~(20 RT 5723, 5734)~ She was 15 years old at the time. ~(20 RT 5722)~ Nieto testified
that, among others, “Lobo” (Moises Hernandez) was in the van but Martinez was not.
~(20 RT 5738-5739)~
Nieto testified that after they parked at the liquor store, both she and Pacheco went
inside to buy some snacks. They got back into the van, drove down the street, and
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“dropped off all the guys” in front of the apartments next to the liquor store. She didn’t
hear the males say anything before they were dropped off. The girls waited in the van for
“[m]aybe a couple minutes” and the males came back. They were running, and they were
out of breath.
Nieto testified that the van was facing “in this direction” when they dropped off
the males, but the record does not indicate which direction. The prosecutor questioned
Nieto about a map she had drawn for the police showing the route the van had taken that
night. The map shows a red “X” marking the location of the liquor store, with a red line
coming out of the parking lot, continuing northeast down Southside Drive, turning
southeast onto Water Street, and continuing down Water Street.
On cross-examination, Nieto testified that after they dropped off the males, she
and Pacheco just drove around for an hour, whereupon they returned to pick up the males
at the same place where they had been dropped off. Nieto did not remember them saying
anything when they got back. She remembered a “beer run” happening that night, but
she couldn’t remember when or where it happened. She saw blood on Torres’s shoe, but
she did not remember seeing blood on anyone else. She did not learn there had been a
robbery or killing that night until the police came to her house.
Nieto told the police that Torres thought Madrigal was cool, and that Torres was a
“follower” of Madrigal. She did not have any memory of anyone talking about doing a
“beer run” that night.
B. Procedural Background
The prosecution charged Madrigal with three counts: count 1—murder (Pen.
Code, § 187) 2; count 2—second degree robbery (§§ 211, 212.5, subd. (c)); and count 3—
active participation in a criminal street gang (§ 186.22, subd. (a)). As to counts 1 and 2,
the information alleged Madrigal committed the offenses for the benefit of, at the
2
Subsequent undesignated statutory references are to the Penal Code.
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direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) The
information further alleged Madrigal had suffered two prior strike convictions and had
served two prior prison terms. (§§ 667, subds. (a)-(i), 667.5, subds. (b)-(c), 1170.12.)
The case proceeded to trial in February 2018.
The court instructed the jury on three theories of first degree murder based on
CALCRIM No. 521: willful, deliberate, and premeditated murder; murder by lying in
wait; and felony murder. For the felony murder theory, the court instructed the jury
based on CALCRIM No. 540B with robbery or aiding and abetting robbery as the
underlying felony.
In closing argument, the prosecutor argued the evidence supported all three
theories of first degree murder. He argued the felony murder theory first, and he
suggested the jury should also start with that theory first because the law was simpler and
would require less time in deliberations. He conceded there was no reliable evidence of
who stabbed Harvey, and he told the jury he was not trying to prove Madrigal was the
stabber. While the prosecutor argued “this was an implied malice murder case, without a
doubt,” he also argued the evidence showed the killing was premeditated, willful, and
deliberated. He further argued the evidence proved lying in wait, and that lying in wait
could be proved on an implied malice theory because it did not require intent to kill.
In deliberations, the jury asked multiple questions, including whether they could
convict Madrigal of robbery as a natural and probable consequence of assault with force
likely to produce great bodily injury. The trial court answered affirmatively and gave the
jury additional instructions on this theory of liability. The court further instructed the
jury that if it found Madrigal guilty of robbery based on a theory of natural and probable
consequences, the robbery could not be used as a basis for felony murder.
The jury found Madrigal guilty of first degree murder (count 1) and second degree
robbery (count 2) but acquitted him of participation in a criminal street gang (count 3)
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and found the gang allegations not true. The trial court found true the prior conviction
and prison term allegations.
The trial court imposed an aggregate term of 100 years to life consecutive to
12 years in state prison. The term consisted of 75 years to life for count 1, 25 years to life
for count 2, two consecutive five-year terms for each prior conviction, and two
consecutive one-year terms for each prior prison term.
II. DISCUSSION
A. Effect of Amendments to the Felony Murder Statute on the First Degree Murder
Conviction
Madrigal contends we must vacate his first degree murder conviction based on the
application of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which
amended the definition of felony murder to add the elements now set forth in subdivision
(e) of section 189. The Attorney General concedes the amended version of the statute
applies to this case but he contends the failure to instruct the jury on the newly added
elements of felony murder was harmless beyond a reasonable doubt given the evidence in
the record. Madrigal disputes that the error was harmless.
1. Legislative Amendments Enacted Under Senate Bill Nos. 1437 and 775
“Senate Bill 1437 ‘amend[ed] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.’ (Stats. 2018, ch. 1015, § l, subd. (f).)” (People v. Gentile (2020) 10 Cal.5th
830, 842.) The relevant amendment is set forth in subdivision (e) of section 189: “A
participant in the perpetration or attempted perpetration of a felony listed in subdivision
(a) in which a death occurs is liable for murder only if one of the following is proven: [¶]
(1) The person was the actual killer. [¶] (2) The person was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded, induced, solicited,
16
requested, or assisted the actual killer in the commission of murder in the first degree. [¶]
(3) The person was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189,
subd. (e).) The specific part of the amendment at issue here is the addition of subdivision
(e)(3) of section 189, which incorporates the existing felony-murder special circumstance
set forth in subdivision (d) of section 190.2.
“Senate Bill 775 amended [section 1172.6] to provide that a person with a
qualifying conviction that is not final may challenge the validity of that conviction on
direct appeal based on Senate Bill 1437’s changes to the murder statutes.” 3 (People v.
Birdsall (2022) 77 Cal.App.5th 859, 865-866 (Birdsall).) “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).” (§ 1172.6,
subd. (g).)
The amended section 189 sets forth two elements in subdivision (e)(3): whether
the defendant was a “major participant” in the underlying felony, and whether the
defendant acted with “reckless indifference to human life.” (§ 189, subd. (e)(3).) These
elements reflect the language used by the United States Supreme Court in Tison v.
Arizona (1987) 481 U.S. 137, and California courts have looked to that case in construing
the terms. (People v. Banks (2015) 61 Cal.4th 788, 798 (Banks).)
The “major participant” element refers to “the defendant’s personal role in the
crimes leading to the victim’s death” and is intended to reflect “the defendant’s
individual responsibility for the loss of life, not just his or her vicarious responsibility for
the underlying crime.” (Banks, supra, 61 Cal.4th at p. 801, italics added.) In other
words, the focus is on the defendant’s own culpability, not on the others who committed
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section
3
1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.)
17
the crime and killed the victim. (Ibid.) “[A] defendant’s personal involvement must be
substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony
murder.” (Id. at p. 802.)
“Reckless indifference to human life is ‘implicit in knowingly engaging in
criminal activities known to carry a grave risk of death.’ [Citation.] Examples include
‘the person who tortures another not caring whether the victim lives or dies, or the robber
who shoots someone in the course of the robbery, utterly indifferent to the fact that the
desire to rob may have the unintended consequence of killing the victim as well as taking
the victim’s property.’ [Citation.] Reckless indifference ‘encompasses a willingness to
kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does
not specifically desire that death as the outcome of his actions.’ [Citation].” (In re
Scoggins (2020) 9 Cal.5th 667, 676-677 (Scoggins).)
“Reckless indifference to human life has a subjective and an objective element.
[Citation.] As to the subjective element, ‘[t]he defendant must be aware of and willingly
involved in the violent manner in which the particular offense is committed,’ and he or
she must consciously disregard ‘the significant risk of death his or her actions create.’
[Citations.] As to the objective element, ‘ “[t]he risk [of death] must be of such a nature
and degree that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him [or her], its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the actor’s situation.” ’
[Citation.] ‘Awareness of no more than the foreseeable risk of death inherent in any
[violent felony] is insufficient’ to establish reckless indifference to human life; ‘only
knowingly creating a “grave risk of death” ’ satisfies the statutory requirement.
[Citation.] Notably, ‘the fact a participant [or planner of] an armed robbery could
anticipate lethal force might be used’ is not sufficient to establish reckless indifference to
human life. [Citations.]” (Scoggins, supra, 9 Cal.5th at p. 677.)
18
The legal meanings of these elements incorporate the existing felony-murder
special circumstances defined in subdivision (d) of section 190.2. As such, case law
preceding the enactment of Senate Bill 1437 established an overlapping set of factors
relevant to a showing of the two elements. CALCRIM No. 540B sets forth a pattern jury
instruction with a nonexclusive list of the factors.
2. Application of the Statutory Amendments to the First Degree Murder
Conviction
Madrigal contends the enactment of Senate Bill 775, which took effect after he
filed this appeal, allows him to challenge his murder conviction based on the statutory
amendments made by Senate Bill 1437. The Attorney General does not dispute this. The
plain language of section 1172.6, subdivision (g) gives defendants the right to challenge a
murder conviction on direct appeal so long as the conviction is not final; it places no
other time limits on that right. Madrigal’s conviction is not yet final, so he may bring
that challenge here. (Birdsall, supra, 77 Cal.App.5th at p. 866; People v. Hola (2022) 77
Cal.App.5th 362, 369-370 (Hola).)
The Attorney General also does not dispute that under the amendments Senate
Bill 1437 made to the definition of felony murder in section 189, the jury instructions on
felony murder at Madrigal’s trial were erroneous. Because the trial predated the
enactment of Senate Bill 1437, the instructions did not include any of the additional
elements set forth in subdivision (e) of the amended section 189. Although the court
correctly instructed the jury based on the law in effect at the time, a postconviction
change in the law upon which the conviction is based is still treated as instructional
“error” as if the erroneous instruction was given at the time of trial. (Hola, supra, 77
Cal.App.5th at p. 371; Birdsall, supra, 77 Cal.App.5th at p. 868.)
While the parties agree that instructing the jury on first degree felony murder
without the newly added elements constitutes instructional error, they disagree on
whether the error requires reversal.
19
a. Relevant Procedural Background
The trial court instructed the jury on three theories of liability for first degree
murder: willful, deliberate, and premeditated murder; murder by lying in wait; and felony
murder where the death was caused in the commission of a robbery. In closing argument,
the prosecutor raised the felony murder theory of liability first, together with the elements
of robbery, and he presented the evidence supporting them. Consistent with the jury
instructions, the prosecutor argued the jury could find Madrigal guilty of felony murder
even if the killing was unintentional, accidental, or negligent.
The prosecutor then discussed the elements of murder more generally. He
expressly conceded that the evidence did not establish the identity of the person or
persons who stabbed Harvey: “There is no reliable evidence in this case about the
identity of the stabber or stabbers— right? —including Joel Madrigal himself. . . . [¶] . . .
So I’m just trying to be very clear here that I am not presenting a case to you and asking
you to find Joel Madrigal [sic] because there is reliable evidence of who the stabber is.
I’m going to explain why you should find him guilty even though there isn’t any reliable
evidence of who the stabber is. [¶] And let me be clear. By that I mean I don’t think you
can find, beyond a reasonable doubt, he was the stabber. All right? I don’t think you can
do that. And I’m not asking you to premise any verdict on him on that belief. Because
there’s no witness to that, and he didn’t confess. And I don’t think you can just say,
‘Well, because he lied, he had to be the stabber.’ That’s not proof beyond a reasonable
doubt.”
In discussing the mens rea for murder, the prosecutor emphasized implied malice
and the theory of natural and probable consequences: “So this is an implied malice
murder case, without a doubt. You don’t have to figure out who the stabber was, because
this was a group attack, with weapons. . . . [¶] . . . Holding a person while your fellow
gang members are attacking him with weapons is an act that the direct and natural and
20
probable consequence of doing that is a person is going to die if you hold them doing—
doing that.”
Later in his argument, the prosecutor raised the other two theories of first degree
murder, but he urged the jury to consider the felony murder theory first, and he
summarized it as follows: “I would suggest, actually, as a group, deliberating on felony
murder first for this reason: It’s—the law is simpler. [¶] If there was a robbery, and Joel
Madrigal knew about it and participated in it, and somebody was killed in the course of
the robbery, even accidentally, that’s felony murder. You don’t have to go into implied
malice. You don’t have to look at the acts, whether . . . the death was a natural and
probable consequence of his act. It’s just was there a robbery, and did someone die?
Donald Harvey died. [¶] So, really, felony murder just comes down to was there a
robbery; did Joel Madrigal know about it?” He emphasized again that felony murder was
the easiest theory to apply because, “That means you don’t have to spend time
deliberating on the law in murder, those two elements, nor do you have to spend any time
going through was it willful, deliberate, and premeditated, or was it lying in wait.” He
then presented evidence for the other two theories of first degree murder.
In the final version of the instructions, the trial court again instructed the jury on
three different theories of liability for first degree murder: willful, deliberate, and
premeditated murder; murder by lying in wait; and felony murder. As to first degree
felony murder, the trial court instructed the jury it could only find Madrigal guilty of
felony murder if he intentionally committed a robbery or intentionally aided and abetted a
robbery by another person who did the act that resulted in death during the commission
of the robbery.
On count 1, the jury rendered a general verdict finding Madrigal guilty of murder
in the first degree without specifying any additional facts or any theory of liability, but
the jury found the gang allegation not true. Similarly, as to count 2, the jury found
21
Madrigal guilty of robbery in the second degree but found the gang allegation not true.
On count 3, the jury found Madrigal not guilty of participating in a criminal street gang.
b. The Standard for Evaluating Harmless Error
As set forth above, the trial court instructed the jury on three possible theories of
liability for first degree murder: willful, deliberate, and premeditated murder; murder by
lying in wait; and felony murder. The first two theories each provided a valid alternative
theory the jury could have used to convict Madrigal, but the version of the felony murder
theory presented to the jury was invalid.
At oral argument, the Attorney General conceded there is a reasonable probability
the jury relied on the invalid felony murder theory. The concession is well-taken. The
prosecutor emphasized the felony murder theory in closing argument, and the evidence
for the other theories—that the murder was willful, deliberate, and premeditated, or that it
was committed by lying in wait—was far from overwhelming. The evidence for the
invalid felony murder theory was much stronger, and the jury actually convicted
Madrigal on the underlying felony. The jury in deliberations did submit multiple
questions about lying in wait, but we cannot conclude from this alone that the jury relied
on that theory beyond a reasonable doubt; nor does the Attorney General argue this. The
Attorney General further concedes there was substantial evidence that Madrigal was
neither the actual killer nor an aider and abettor who intended to kill. The Attorney
General’s harmless error argument relies solely on subdivision (e)(3) of section 189,
allowing for felony murder liability if the defendant was a major participant in the
underlying felony and acted with reckless indifference to human life.
Because the trial court did not instruct the jury on all the elements of first degree
felony murder under the amended version of section 189, the error violated Madrigal’s
right to a jury trial on all the elements of the offense under the federal Constitution. To
evaluate prejudice from a federal constitutional error, we apply the Chapman standard,
“requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt
22
that the error complained of did not contribute to the verdict obtained.” (Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman).) “Instructional error regarding the
elements of the offense requires reversal of the judgment unless the reviewing court
concludes beyond a reasonable doubt that the error did not contribute to the verdict.”
(People v. Chun (2009) 45 Cal.4th 1172, 1201.) The state has the burden to show the
error was harmless. (Arizona v. Fulminante (1991) 499 U.S. 279, 296.)
In his briefing, Madrigal argued the proper standard for prejudice is whether the
record shows beyond a reasonable doubt that the jury actually relied on a valid theory of
liability. At oral argument, however, both parties conceded the proper standard is set
forth in the California Supreme Court’s recently filed opinions, In re Lopez (2023) 14
Cal.5th 562 (Lopez) and In re Ferrell (2023) 14 Cal.5th 593 (Ferrell). 4 Whether the
error is characterized as instruction based on an invalid theory or the omission of required
elements, “a reviewing court may hold the error harmless where it would be impossible,
based on the evidence, for a jury to make the findings reflected in its verdict without also
making the findings that would support a valid theory of liability.” (Lopez, at p. 568.)
“[W]hile ‘overwhelming’ evidence may demonstrate harmlessness, a court’s
analysis of whether the evidence is ‘overwhelming’ in this context is not as subjective or
free-ranging as that term might imply. Instead, the analysis requires a court to rigorously
review the evidence to determine whether any rational juror who found the defendant
guilty based on an invalid theory, and made the factual findings reflected in the jury’s
verdict, would necessarily have found the defendant guilty based on a valid theory as
well. [Citation.]” (Lopez, supra, 14 Cal.5th at p. 568.) “The question here is not the
4
Madrigal further contends harmless error analysis based on the evidence in the
record is inapplicable in this case because he lacked notice of the newly added elements
at the time of trial, such that defense counsel had no reason to adduce or argue the
evidence relevant to them. Madrigal’s argument relies largely on facts not in the
record—e.g., his trial counsel’s strategic decisions about what investigation to conduct—
and would be more appropriately raised in writ proceedings. In any event, because we
find the error requires reversal for the reasons below, we do not address this issue.
23
sufficiency of the evidence to support a valid theory, but its opposite.” (Id. at p. 591.) To
determine harmlessness, “a reviewing court essentially asks whether any rational juror
who made the findings reflected in the verdict and heard the evidence at trial could have
had reasonable doubt regarding the findings necessary to convict the defendant on a valid
theory.” (Ibid.)
Lopez relied on the harmless error standard for the failure to instruct on an element
of the offense as set forth in Neder v. United States (1999) 527 U.S. 1 (Neder). A
reviewing court does not reweigh the strength of each party’s evidence; it does not
“ ‘become in effect a second jury to determine whether the defendant is
guilty.’ [Citation.]” (Id. at p. 19.) Even when the prosecution’s case is strong, the error
is not harmless if the record contains evidence that could rationally lead to a contrary
finding. (Ibid.) We do not focus exclusively on the evidence favorable to the verdict,
and we do not presume the existence of any facts the jury might reasonably infer in favor
of the prosecution. (People v. Mil (2012) 53 Cal.4th 400, 418 (Mil).) We do not view the
evidence in the light most favorable to the prosecution. We review the evidence in the
light most favorable to the defendant, and in doing so, we do not reweigh the evidence or
resolve evidentiary conflicts. (Ibid.; People v. Valenti (2016) 243 Cal.App.4th 1140,
1166-1167 (Valenti).) “The testimony of a single witness may be sufficient—even if
there is significant countervailing evidence, and the testimony is subject to justifiable
suspicion.” (Valenti, at p. 1167 [citing People v. Barnwell (2007) 41 Cal.4th 1038,
1052].) If a thorough review of the record shows there is any evidence that a rational
juror could find as a basis for reasonable doubt as to any erroneously omitted element,
then the error requires reversal, even when there is “ample evidence” to support a finding
of guilt. (See Valenti, at p. 1166.)
c. The Error Was Not Harmless
We first observe that nothing in the jury’s verdicts or findings, viewed in isolation,
implies the jury found either of the two omitted elements. The jury rendered a general
24
verdict of guilt on the first degree murder charge, in addition to the verdict on second
degree robbery. The jury found the gang enhancements not true and acquitted Madrigal
on the substantive gang count. The jury found Madrigal guilty on the robbery count, but
this does not necessarily imply a finding that he was a major participant in it or that he
acted with reckless indifference to life. None of the findings show the jury did not rely
on the erroneous felony murder instructions, and nothing else in the verdicts implies the
jury found the omitted elements.
Looking to the evidence in the record, the Attorney General contends the evidence
overwhelmingly shows Madrigal was a major participant in the robbery and acted with
reckless indifference to life. Madrigal contends the record shows these elements were not
established beyond a reasonable doubt by the evidence pertaining to his state of mind and
conduct during the offense.
The Attorney General relies on Mil, supra, 53 Cal.4th 400, and Birdsall, supra, 77
Cal.App.5th 859, to support his position. But in both Mil and Birdsall, the reviewing
courts based their conclusions in part on whether the omitted elements were uncontested.
This is in accord with the harmless error standard first set forth in Neder: The error is
harmless “where a reviewing court concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming evidence.” (Neder, supra, 527
U.S. at p. 17, italics added; People v. Merritt (2017) 2 Cal.5th 819, 832 (Merritt);
Birdsall, at p. 867.)
In Mil, supra, 53 Cal.4th 400, the California Supreme Court considered a trial
court’s failure to instruct the jury on the major participant and reckless indifference
elements of the felony-murder special circumstance under subdivision (d) of section
190.2. Because those are the same as the elements omitted from the felony-murder
instructions at issue in this case, the Attorney General argues Mil is on point. We agree
that Mil is on point, but it does not support the Attorney General’s position that the error
here was harmless. The Court in Mil concluded the error was not harmless and reversed
25
the true finding on the special circumstance because the element of intent was not
uncontested and the evidence could have supported a finding of reasonable doubt. (Mil,
at pp. 417-419.) As in Mil, here the element of intent was not uncontested. While the
element of reckless indifference to human life was not specifically litigated here,
Madrigal made numerous statements and defense counsel made numerous arguments
about his state of mind that cannot be reconciled with a finding of reckless indifference.
In Birdsall, supra, 77 Cal.App.5th 859, the Court of Appeal for the First District,
Division 4, considered the effect of Senate Bill 1437’s amendment to the felony murder
statute, similar to the claim brought here. Birdsall is somewhat less on point than Mil, in
that Birdsall did not concern the elements added by subdivision (e)(3) of section 189; it
instead relied on subdivision (e)(1), holding that the record showed Birdsall was the
“actual killer.” Birdsall is instructive, however, in its application of the harmless error
standard under Neder. As in this case, the trial court instructed the jury on a theory of
first degree felony murder as well as premeditated murder. The defendant was convicted
of first degree murder, and the jury found true three special circumstances—that the
murder was committed by means of lying in wait, committed during a robbery, and
committed during and a burglary. (§ 190.2, subds. (a)(15), (a)(17)(A) & (a)(17)(G).)
While the matter was on appeal, the Legislature enacted Senate Bill 1437, and Birdsall
argued the trial court’s felony murder instructions were defective because they omitted
the additional elements now in subdivision (e) of section 189. (Birdsall, at p. 867.)
Applying the harmless error standard for omitted elements as set forth in Merritt,
supra, 2 Cal.5th 819, the Court of Appeal found the error harmless. (Birdsall, supra, 77
Cal.App.5th at p. 870.) In his confession, Birdsall had described in detail how he and his
friend strangled the victim with chokeholds and wrapped a rope around her neck, with
Birdsall and the friend each pulling on the two ends of the rope until the victim stopped
breathing. (Id. at p. 862.) In closing argument, defense counsel for Birdsall did not
contest that he killed the victim, and argued instead that he was in a dissociated state at
26
the time. (Id. at p. 871.) On these grounds, the Court of Appeal held it was uncontested
that Birdsall personally killed the victim, and that no rational jury could find he was not
the actual killer. Accordingly, the Court of Appeal held the error was harmless beyond a
reasonable doubt because a finding that the defendant is the actual killer is one of the
additional grounds for felony-murder liability under the amended version of section 189.
(§ 189, subd. (e)(1).) As to all the remaining elements required for felony murder, the
trial court had properly instructed the jury. (Birdsall, at p. 872.)
Unlike in Birdsall, in this case, Madrigal’s statements and his counsel’s arguments
both contested his state of mind and the extent of his participation in the robbery. First,
Madrigal made numerous statements to the police contradicting the state of mind required
for reckless indifference to life. To establish reckless indifference, the prosecution would
be required to show, among other things, that Madrigal was aware of and willingly
involved in the violent manner in which the robbery was committed, and that he
consciously disregarded the significant risk of death his actions created. (Scoggins,
supra, 9 Cal.5th at p. 677.) In multiple interviews, the police questioned Madrigal
repeatedly about what he knew or heard prior to the assault, and he repeatedly asserted
that he believed the group of males was on a “beer run”—taking beer from a store
without paying—prior to encountering Harvey on the street. Madrigal told police he had
his own money to buy beer for himself, and that he was not aware the others intended to
rob Harvey prior to the attack. He admitted that he was involved in the attack by
grabbing or holding the victim at some point, but he stated he was unaware Harvey had
been stabbed until after the fact, and he claimed to express shock when it happened.
In closing argument, defense counsel asserted those statements were credible, and
she contended the evidence objectively corroborated them. She argued that Madrigal had
consistently told police the plan was to do a beer run, that there was no plan to commit a
robbery, and no plan to commit a murder. She then highlighted the ways in which the
evidence objectively corroborated Madrigal’s version of events and his assertions that he
27
was unaware of any intent or plan to rob or stab the victim. Counsel argued there was
“[n]o evidence whatsoever that he had any notion that anybody was going to pull out a
knife and stab somebody.” She argued that Madrigal knew only that it was an assault
with fists, and there was nothing about an assault with fists that would be dangerous to
human life. She argued there was no evidence he knew his actions were dangerous to
human life or that he deliberately acted with conscious disregard for human life.
These portions of the record establish that, unlike in Birdsall, Madrigal contested
his state of mind with evidence and arguments that squarely contradict the findings a jury
would have to make to convict him of felony murder as a major participant in the robbery
acting with reckless indifference to life under subdivision (e)(3) of section 189.
The Attorney General argues the evidence in the record proves the omitted
elements of reckless indifference to human life and major participation beyond a
reasonable doubt based on the various factors set forth in CALCRIM No. 540B. These
factors include but are not limited to: whether Madrigal used a lethal weapon or knew
lethal weapons would be present during the robbery; whether he knew lethal weapons
were likely to be used; whether he knew they were used; whether he knew the number of
weapons involved; whether he was near the victim when the killing occurred; whether he
had the opportunity to stop the killing or help the victim; how long the crime lasted;
whether he was aware of anything that would make a coparticipant likely to kill; and
whether he tried to minimize the possibility of violence. Additional factors relevant to
whether Madrigal was a major participant in the underlying offense include his role in
planning the offense; his role in supplying or using lethal weapons; what he knew about
dangers posed by the crime, any weapons used, or past experience or conduct of the other
participants; whether he was in a position to facilitate or prevent the death; whether his
actions or inaction played a role in the death; and what he did after lethal force was used.
(Scoggins, supra, 9 Cal.5th at p. 677; Banks, supra, 61 Cal.4th at p. 803; People v. Clark
(2016) 63 Cal.4th 522, 618-623 (Clark); CALCRIM No. 540B.) “No one of these
28
considerations is necessary, nor is any one of them necessarily sufficient. All may be
weighed in determining the ultimate question, whether the defendant’s participation ‘in
criminal activities known to carry a grave risk of death’ [citation] was sufficiently
significant to be considered ‘major’ [citations].” (Banks, at p. 803.) We consider the
totality of the circumstances in analyzing reckless indifference to human life. (Scoggins,
at p. 677.)
The first factor is whether the defendant used lethal weapons or knew lethal
weapons would be used during the felony. (Scoggins, supra, 9 Cal.5th at p. 677.) The
Attorney General does not point to any evidence that Madrigal used or possessed any
weapons during the offense. Madrigal denied he had any weapons on him, and the
prosecution presented no evidence to the contrary. There was no evidence Madrigal
supplied any weapons involved in the robbery either.
The Attorney General asserts Madrigal knew the other attackers were in
possession of lethal weapons based on his statements to police. The Attorney General
further claims Madrigal “saw his cohorts carrying the specific weapons used in this case
moments before the robbery murder.” But the evidence is susceptible to the opposite
conclusion as well. When the police asked Madrigal, “[D]id you ever see them carry
screwdrivers before,” he said that he had, and he agreed with the detective’s statement
that “these guys were known to carry screwdrivers.” Madrigal added that they might also
carry “a[n] ice pick or a knife.” From this evidence a reasonable juror could infer that
Madrigal was aware the other attackers could be carrying screwdrivers, knives, or other
weapons, and he knew they had carried them before. But while a rational juror could
infer that Madrigal was aware of a risk they might also carry weapons on this occasion,
they could also entertain a reasonable doubt that he actually knew they had screwdrivers
or a knife prior to the robbery at issue here.
Some of Madrigal’s statements support a finding he saw a screwdriver at the scene
of the robbery, but not that he was aware of it before the robbery. When the detective
29
asked Madrigal who had the screwdriver that was found at the scene of the robbery,
Madrigal responded, “Boogie” (meaning Torres). The detective then asked, “Did you see
him with that at the scene?” (Italics added.) Madrigal began to respond, “Yeah, like
he . . . ,” whereupon the detective interrupted him and added, “Or did you only hear about
it at—at the end?” Madrigal responded, “No, no, he had it.” The detective never asked
Madrigal whether he saw the screwdriver before the robbery began, and the Attorney
General does not point to any other evidence showing Madrigal was aware prior to the
robbery that anyone had a screwdriver. Furthermore, there was no evidence Harvey was
stabbed with a screwdriver. Madrigal told police Torres used his fists to hit Harvey, and
at one point Madrigal said Torres had the screwdriver in his hand at the time, but
Madrigal stated Torres did not stab Harvey with the screwdriver. This statement was
corroborated by the prosecution’s forensic pathologist, who testified it was not possible
that the screwdriver found at the scene caused any of the five stab wounds found on
Harvey.
The forensic evidence showed Harvey was killed with a knife, consistent with
Madrigal’s statement to police that he saw the stabber in possession of a knife after the
robbery. 5 In support of the argument that Madrigal knew the other attackers possessed
weapons, the Attorney General points out that Madrigal “was able to describe it in vivid
detail,” and the Attorney General quotes at length from Madrigal’s statements describing
it. But the quotes in the Attorney General’s brief are statements by Madrigal describing
what he saw after the robbery, when the stabber bragged about using the knife on
Harvey. Madrigal told police the stabber was “just smiling, like laughing” when they got
back to the van after the robbery, and added, “like we didn’t know nobody got stabbed
until we fuckin’ got back to the fuckin’—to the fuckin’ house and that’s when fuckin’—
he’s like, ‘Yeah, I fed his ass fuckin’ three times nice and slow.’ ” The detective then
5
No knives were admitted into evidence, but the forensic pathologist opined it was
likely that four of the wounds, including the fatal wound, were caused by the same knife.
30
asked, “Did he have a knife on him?” Madrigal responded, “Yeah. They had the knife.
They kept it. It was like a Rambo knife.” Madrigal then described the physical
appearance of the knife. Later, the detective asked Madrigal, “[D]id he have the knife on
him at all during the night?” Madrigal responded, “Yeah,” and stated it was in a black
case. The detective again asked Madrigal, “Like it was like on him?” Madrigal then
responded that “after like the stabbing” someone else took the knife from the stabber to
clean it. Based on Madrigal’s statements, a rational juror could entertain a reasonable
doubt that Madrigal was aware prior to the robbery that anyone had a knife or any other
lethal weapon.
Madrigal’s statements support the inference that he knew after the fact that a knife
was used to stab Harvey, and he saw Torres had a screwdriver in his hand while hitting
Harvey. While it is possible for a screwdriver to be used as a lethal weapon, there is no
evidence the screwdriver in this case was used in a lethal fashion. As to whether
Madrigal knew the number of weapons involved, the evidence did not clearly establish
how many weapons were used. The forensic pathologist opined that one of the stab
wounds was different than the others, such that it was possible another knife was used,
but there was no other evidence to establish the use of more than one knife.
We agree with the Attorney General that Madrigal’s statements (if believed) could
prove to a rational jury that he knew the other participants had a capacity for violence.
He believed they were “associated with” and “cliqued up with” a gang, and he stated they
were known to carry weapons. But based on this record, a juror also could have a
reasonable doubt that Madrigal was aware they were likely to kill anyone. 6 Madrigal
6
Although the Attorney General describes the coparticipants in the robbery as
Madrigal’s “fellow gang members,” the evidence supporting this characterization was
weak. The prosecutor in closing argument described Madrigal as “gang dropout who was
leading a double life” and holding himself out to be a member of the “San Jose Grande”
or “SJG,” a Norteño gang subset. There was no evidence the other participants were ever
SJG members. The prosecution’s theory was that Madrigal was acting as an active
31
repeatedly told police he thought the purpose of the trip was to conduct a “beer run,” but
he also stated the others “were acting stupid like. . . . where fuckin’ anybody could get
it.” The detective asked if this meant “maybe steal some shit” and Madrigal responded,
“Yeah. You know what I mean? I just thought—they do a lot of beer runs,” adding that
he had been the one to pay beer early in the evening. When the detective asked why they
stopped Harvey, Madrigal responded, “They were just like, ‘Anybody can get it. We
wanted to test it.’ You know, and I was like, ‘What the fuck?’ ” The detective asked
again what “get it” meant, and Madrigal responded, “I wouldn’t fuckin’ like beat up
random people” but he would walk around and “talk shit” when he was in a gang. He
added that he thought “they were just fuckin’ being dumbass little fucks and—and one of
them fuckin’ just wasn't fuckin’ satisfied with that.”
In a subsequent interview, the detective asked Madrigal why they assaulted
Harvey, and Madrigal responded that “everyone was buzzing” and “we were just like the
motto was fucking fucking it. Anything goes like fuck it, we’re just gonna, we’re just
gonna fucking cause a ruckus. These guys wanted to cause a ruckus and I knew better.”
Later, the detective again asked Madrigal if he heard any of the others talking about
“getting money” and “insinuating a robbery,” Madrigal responded that “there was small
talk in the back of the van about that and I was like we ain’t bothering nobody man.
Nobody’s getting fucking robbed.” When the detective asked who was talking about
robbery, Madrigal responded that “they weren’t talking about robbery,” but that “they
were like, ‘Man, fuck it. Let’s just—let’s just get a Paisa.” The detective asked Madrigal
again what he thought they were going to do when they approached Harvey, and
Madrigal responded, “Like just whoop his ass, man.” Madrigal again denied he had any
intention of robbing anyone and claimed he was just planning to buy beer. Based on
these statements a reasonable juror could infer that Madrigal was aware it was possible
participant of the Norteño gang during the attack on Harvey. In any event, the jury
rejected the gang allegations.
32
they could assault or rob someone but also conclude that the statements do not clearly
establish that he knew it was likely they would actually kill someone, or even that it was
likely they would use a lethal degree of force.
As to Madrigal’s participation in the offense, it is undisputed that the record
establishes he was present, that he was close to Harvey during the robbery and the
stabbing, and that he held Harvey during the attack. Some of Madrigal’s statements show
he was likely holding Harvey at the point when Harvey was stabbed. Madrigal first
stated that when the others chased Harvey, “I just like grabbed him like just come here,
where you going? And that’s it. And I let him go. That’s all I did.” He then stated that
he grabbed Harvey, “and they’re getting on him and then the next thing you know, this
nigga fucking falls . . . .”
Madrigal asserted he did not hit Harvey. But when asked why he held Harvey, “I
was gonna whoop his ass, like I was gonna help them but then like, like I just held him
and like, I didn’t hit nobody. I’m like—I like threw him down, like I just threw him
down for them. That’s when I backed up. I didn’t punch nobody.” At another point in
the interview, Madrigal made a statement during which he said, “And then I was like—I
said—I said now I seen this guy stab him and like literally I seen—like I seen him go
like that,” (while making a forward motion with his hand), “and that’s why I’m just like
backed up like —like that’s why I threw him. I threw him down and I was like fuck.
Like in my eyes, and I was like, ‘Why do you gotta stab him, blood?’ ” 7 Madrigal
repeatedly asserted he was taken by surprise by the stabbing. Nonetheless, a rational jury
would likely conclude his actions played a role in Harvey’s death.
7
At this point in the interview, Madrigal was describing a conversation he had
with the other participants later in the night after the robbery. It is unclear whether, in the
quoted statement, Madrigal was relating the content of that conversation or if he was
describing the actual event as he recalled it.
33
There was no evidence Madrigal demanded or took any money or property off
Harvey’s person, but his own statements clearly show he was a participant in the robbery
as well as the physical assault on Harvey by holding him during the attack. By his own
description of the attack, he was likely holding Harvey at the point when Harvey was
stabbed, although he disavowed any foreknowledge of the stabbing.
As to the duration of the robbery, it was brief. The Attorney General estimates the
attack and robbery lasted about 39 seconds based on the video recordings. The portions
of the videos showing the vehicle lights coming and going suggest that about two minutes
elapsed between the time when the group got out of the van and the time when they
returned to it. A rational juror could determine that the offense was not committed over a
“prolonged period” that would have created a “greater window of opportunity for
violence” such that it was more likely the offense would culminate in murder. (See
Scoggins, supra, 9 Cal.5th at p. 680 [because a prolonged restraint of the victim provides
a greater window of opportunity for violence possibly culminating in murder, it can
indicate that the defendant exhibited reckless indifference to human life].)
A rational juror could also conclude there was no clear or credible evidence
Madrigal engaged in any planning for the robbery. The Attorney General, echoing the
prosecutor in closing, argues the movement and stopping of the van more than a block
away from the liquor store shows the attack was planned in advance—that the group was
stalking Harvey, not planning a beer run. Defense counsel argued that Pacheco simply
wanted to avoid having her van identified with the beer run, as shown by her testimony
that she had parked away from the front of the store in a prior beer run. 8 A rational juror
could reasonably believe the prosecutor’s inference was more plausible, but even
assuming it was true, this does not establish Madrigal’s personal intent as distinct from
that of the other participants. Determining a defendant’s culpability under the reckless
8
Police told Pacheco that another liquor store owner had called in a report of a
different beer run and the owner had provided police the license plate number on her van.
34
indifference theory is an “individualized inquiry” focused on the “ ‘character of the
individual offender.’ ” (Scoggins, supra, 9 Cal.5th at p. 683.) The only evidence
Madrigal personally directed the movement of the van with a plan to get Harvey came
from Pacheco, who testified that Madrigal had seen someone on the sidewalk as she was
driving by, whereupon Madrigal said something to the effect that he didn’t like the man.
Pacheco testified that when she got to a stop sign, Madrigal got out of the van with the
others and told her to drive up to the next street. But as the Attorney General concedes,
Pacheco’s credibility was dubious. She had multiple motives to blame Madrigal while
exculpating herself and her brother, and the record shows she lied about critical facts on
multiple occasions in her testimony and statements to police. The prosecutor in closing
argument characterized Pacheco as “a mess” and conceded there was “no reliable
evidence in this case about the identity of the stabber” despite Pacheco’s testimony that
Madrigal had admitted stabbing Harvey. While a rational jury could reasonably credit
Pacheco’s testimony about Madrigal directing her to stop the van, at most this shows a
minimal degree of planning bordering on impulse. And while it contradicts Madrigal’s
claim that he thought they were only conducting a beer run, a rational juror could
conclude it does not show Madrigal was planning to rob Harvey instead of merely
harassing him or possibly assaulting him with less-than-lethal force.
As to whether Madrigal had an opportunity to stop the killing or help the victim,
the evidence on this factor was mixed. Madrigal was one of four five attackers, and at
least one of the others possessed a lethal weapon while Madrigal was unarmed. Madrigal
estimated Torres was about the same height or maybe a little taller than himself, and that
he weighed about 150 pounds. He estimated Barrientos was five feet seven inches tall
and weighed 110 pounds. He described Martinez as “their big homie,” who was about
five feet eight inches tall and about 170 pounds. He described the stabber as a “real
skinny kid” who was about five feet eight inches tall and around 140 to 150 pounds.
35
The Attorney General contends Madrigal could have used his influence over the
others to stop them because he was significantly older and they looked up to him as an
“OG” or “original gangster.” Madrigal was 27 years old at the time, Pacheco was 23,
Martinez was 21, Torres was 17, and Barrientos was 17. Pacheco testified that her
brother Torres looked up to Madrigal, and the prosecution’s gang expert testified that
younger gang members are expected to follow the lead of older members. When the
detective interviewing Madrigal suggested the others looked up to him, Madrigal agreed
but he denied he directed them in the attack. Madrigal claimed that in the van before the
attack he tried to discourage the others from doing anything other than getting beer, but
he did nothing to physically stop it and he admitted he willingly joined the assault on
Harvey to “just whoop his ass.” Thus a rational juror could infer that Madrigal could
have helped the victim or tried to stop the killing and failed to do so.
Similarly, a rational juror could conclude that Madrigal’s statements and conduct
after the killing demonstrated a calloused state of mind and indifference towards the
victim’s plight. Madrigal ran away from the scene after Harvey was stabbed and did
nothing to help him. Furthermore, he advised the others to keep their voices down, wash
off the blood, and get rid of their bloody clothing.
In summary, the record contains strong evidence that Madrigal was aware his
coparticipants might have weapons such as screwdrivers, but a rational juror could
conclude the evidence does not establish beyond a reasonable doubt he knew prior to the
attack that anyone actually had a lethal weapon like the knife used to kill Harvey. There
is no evidence Madrigal had any weapons in his own possession, he did not supply any
weapons used in the offense, and he never expressed any intent to use lethal force. His
statements to police support a finding he knew his coparticipants might assault or rob
someone prior to the attack, but a juror could conclude that these did not clearly establish
he was aware anyone intended to use lethal force. He characterized the others’ attitude as
“off the hook,” “anybody can get it,” and wanting to “cause a ruckus” or “get a Paisa,”
36
but those statements were ambiguous insofar as they did not clearly imply an intent to kill
as opposed to robbing or assaulting someone without lethal force. There is little or no
evidence of planning by Madrigal, but the evidence shows he was a willing participant in
the physical assault on Harvey, he assisted in the assault by holding Harvey, and he was
willing to assault Harvey himself with his fists.
This evidence was sufficient for a rational jury to infer Madrigal did all this
knowing there was a risk the attack could turn fatal. But a rational juror also could
conclude that the evidence falls short of proving reckless indifference to life beyond a
reasonable doubt. “Awareness of no more than the foreseeable risk of death inherent in
any armed crime is insufficient; only knowingly creating a ‘grave risk of death’ satisfies
the constitutional minimum. [Citation.]” (Banks, supra, 61 Cal.4th at p. 808.) “ ‘[T]he
fact a participant [or planner of] an armed robbery could anticipate lethal force might be
used’ is not sufficient to establish reckless indifference to human life. [Citation.]”
(Scoggins, supra, 9 Cal.5th at p. 677.) Even assuming Madrigal knew prior to the attack
that someone would use a knife, that alone would not be sufficient to prove reckless
indifference. “The mere fact of a defendant’s awareness that a gun will be used in the
felony is not sufficient to establish reckless indifference to human life. [Citation.]”
(Clark, supra, 63 Cal.4th at p. 618.)
Furthermore, if a jury did not reject Madrigal’s claims that he thought the others
were only going to beat Harvey when Madrigal grabbed him, and that Madrigal was
unaware Harvey would be stabbed until the moment it happened, those statements would
provide grounds for reasonable doubt. The Attorney General dismisses those statements
as lies while simultaneously relying on many other statements by Madrigal, treating them
as sincere admissions of his participation in the offense. As a reviewing court, we do not
automatically reject a defendant’s statements based solely on their exculpatory nature.
(See People v. Brown (2023) 14 Cal.5th 453 [a rational jury could have credited
defendant’s statements expressing a lack of intent to kill].) The question is whether the
37
evidence as a whole showed Madrigal’s statements concerning his lack of awareness
were so unbelievable that no rational juror would credit them.
It is indisputable that Madrigal lied repeatedly on multiple occasions about the
extent of his involvement in the attack, including much of the first interview in which he
claimed he never left the van. But it is also indisputable that many of his statements were
accurate. A rational juror could reasonably evaluate these statements the same way the
prosecutor did in closing argument—crediting inculpatory admissions while dismissing
exculpatory denials. But the evidence supporting that interpretation in determining the
element of reckless indifference was not so overwhelming that a rational jury would
necessarily adopt it. A rational juror could believe some exculpatory portions of
Madrigal’s statements regardless of the fact that he lied in some parts. “Jurors remained
free to pick and choose those portions of evidence they found credible, ‘ “weaving a cloth
of truth” ’ from available materials. [Citation.]” (Ferrell, supra, 14 Cal.5th at p. 605.)
Given that Madrigal lied in some statements and told the truth in others, a rational
juror might also have some uncertainty about whether he was telling the truth or lying in
his exculpatory statements and look instead to other evidence of reckless indifference that
could independently disprove or corroborate the statements. The other evidence the
Attorney General identifies consists of the movement and locations of the van; Pacheco’s
testimony about what Madrigal said to her; the participants’ status as alleged gang
members; evidence that Madrigal exercised influence over them; and the duration of the
offense. For the reasons set forth above, a rational jury considering the whole of this
evidence could find reasonable doubt based on Madrigal’s statements disavowing any
knowledge or awareness that the group would use lethal force.
Given the totality of the evidence, a rational juror could have a reasonable doubt
whether Madrigal was subjectively aware of a grave risk of death when he participated in
the attack on Harvey. Furthermore, we cannot say it would be impossible, based on the
evidence, for a jury to make the findings reflected in its verdicts without also making the
38
findings that would support a valid theory of liability. We conclude the failure to instruct
the jury on the omitted elements was not harmless under the standard set forth in Lopez,
supra, 14 Cal.5th 562, and Ferrell, supra, 14 Cal.5th 593. We must therefore reverse the
first degree murder conviction.
B. The Trial Court’s Failure to Review or Release Discovery Sought by the Defense
In December 2017, Madrigal subpoenaed the county jail for Pacheco’s jailhouse
phone calls, and they were produced to the trial court. After looking at the disc
containing the recorded calls, but without listening to any of the calls, the court refused to
release them to the defense. Madrigal contends the trial court erred by refusing to review
and disclose the recordings. The Attorney General contends the court properly refused to
release them because Madrigal was engaged in an impermissible “fishing expedition” and
failed to show good cause for their release.
1. Procedural Background
On December 19, 2017, defense counsel served a subpoena duces tecum on the
Santa Clara County Department of Correction seeking, among other things, recordings of
in-custody phone calls made by Pacheco between March 4, 2015 and the date of the
subpoena. Concurrent with the subpoena, counsel filed a motion for release of the
documents supported by a sworn declaration setting forth the grounds on which the
defense was entitled to receive the documents.
Among other things, defense counsel’s declaration asserted the following: Pacheco
had previously been a codefendant in this case charged with the same counts and gang
allegations levied against Madrigal. Pacheco had been promised leniency in exchange
for her testimony at trial, and in exchange for her cooperation, she pleaded guilty to
assault with a deadly weapon (§ 245, subd. (a)(1)) and accessory after the fact (§ 32),
with gang enhancements on both counts. Pacheco was subject to a maximum term of 11
years in prison.
39
Counsel’s declaration asserted the records could be potentially exculpatory by
showing Pacheco had engaged in conduct or made statements that could be used to
impeach her trial testimony and “shed light” on her veracity and credibility as a
cooperating witness. Counsel asserted on information and belief that Pacheco may have
been speaking to other persons about the case during the jailhouse phone calls, and
counsel set forth numerous ways in which the records could assist her in preparing a
defense.
No party moved to quash the subpoena, and the court received a disc containing
the recordings. At a hearing on January 9, 2018, the court requested argument on the
materiality or relevance of the documents. At the hearing, counsel asserted that in her
experience in criminal cases, people often make statements in jailhouse phone calls
showing they had lied in prior statements or would lie in exchange for consideration from
the prosecution. Counsel also asserted Pacheco had given several interviews to police,
both before and after being offered a plea agreement in exchange for her testimony, and
that her subsequent statements changed substantially from prior statements. The
prosecution objected to release of the phone calls on the grounds the defense had failed to
show good cause. At the conclusion of the hearing, the court ruled that it would take the
matter under submission and review the records.
At a hearing on January 18, 2018, the court stated the disc contained files but that
the court was unable to access them. 9 The court ruled it would not release the recordings,
but that defense counsel could request further review on “something specific” in the
future. Based on the court’s statement that it had been unable to access the recordings,
defense counsel asked the Department of Correction to provide another disc.
Madrigal then moved in limine for discovery of the records under section 1054.1
and Brady v. Maryland (1963) 373 U.S. 83. The prosecution opposed the discovery
9
The prosecution advised the court that the discs usually include an application
that would need to be installed to listen to the calls.
40
motion on the grounds the defense had failed to set forth good cause. The court
addressed the matter at a hearing on in limine motions on February 7, 2018. Defense
counsel represented that the police had questioned Pacheco about her communications
with Enrique Martinez, and that Pacheco told police she had discussed the case with him
on the phone. The prosecutor conceded that Pacheco and Martinez had discussed the
case, but he asserted this occurred while they were both in custody, and not through
jailhouse phones. The court ruled that it would review the materials, but “if this is a huge
population of something” that the court could not review “easily . . . and quickly,” then
the court would probably ask for “further clarification on terms to identify what may be
relevant.”
The next day, the court informed the parties it had looked at the disc with the
phone calls. The court said it was “unable to open them for the purpose of listening to
them,” but the disc contained “hundreds of calls” with a maximum length of 15 minutes.
The court stated, “I am not going to review hours and hours and hours of phone calls. If
there’s some further indication of a particular phone number that was called or a
particular date or time, then . . . I think that that might be something we can address. [¶]
But, at this time, it seems too speculative to me, and it’s a very large universe of phone
calls without further clarification as to what date, time, or number may be relevant.”
When the prosecution listed Pacheco as a potential witness in its trial brief,
defense counsel moved for reconsideration. The trial court denied the motion, ruling that
counsel’s grounds amounted to “pure speculation” and there was no indication the
records would contain the information she sought.
2. Legal Standards
A criminal defendant has a right to discovery by a subpoena duces tecum of third
party records by “demonstrating the requested information will facilitate the
ascertainment of the facts and a fair trial. [Citations.]” (Pitchess v. Superior Court (1974)
11 Cal.3d 531, 536 (Pitchess); People v. Superior Court (Barrett) (2000) 80 Cal.App.4th
411305, 1316 (Barrett).) “When a defendant has issued a subpoena to a person or entity
that is not a party for the production of books, papers, documents, or records, or copies
thereof, the court may order an in camera hearing to determine whether or not the defense
is entitled to receive the documents.” (§ 1326, subd. (d).)
Defense counsel “may issue a criminal subpoena duces tecum, and, unlike civil
subpoenas, there is no statutory requirement of a ‘ “good cause” ’ affidavit before such a
subpoena may be issued. [Citations.]” (Facebook, Inc. v. Superior Court (Touchstone)
(2020) 10 Cal.5th 329, 343-344 (Facebook).) However, “a criminal subpoena does not
command, or even allow, the recipient to provide materials directly to the requesting
party.” (Id. at p. 344.) “[T]he sought materials must be given to the superior court for its
in camera review so that it may ‘determine whether or not the [requesting party] is
entitled to receive the documents.’ [Citations.].” (Ibid.)
To acquire the materials, the defendant must make a showing of good cause—that
is, specific facts justifying discovery. (Barrett, supra, 80 Cal.App.4th at p. 1318; Millaud
v. Superior Court (1986) 182 Cal.App.3d 471, 475.) “ ‘[T]he good cause requirement
embodies a “relatively low threshold” for discovery.’ [Citation.]” (People v. Gaines
(2009) 46 Cal.4th 172, 182 (Gaines).) It requires “ ‘some cause for discovery other than
“a mere desire for the benefit of all information.” ’ ” (Facebook, supra, 10 Cal.5th at
p. 344.) An accused is entitled to any “ ‘pretrial knowledge of any unprivileged
evidence, or information that might lead to the discovery of evidence, if it appears
reasonable that such knowledge will assist him in preparing his defense. . . .’ [Citation.]”
(Ballard v. Superior Court (1966) 64 Cal.2d 159, 167 (Ballard).)
As part of the good cause showing, a defendant has the burden to show a
“plausible justification” for inspection. (Facebook, supra, 10 Cal.5th at p. 329; Hill v.
Superior Court (1974) 10 Cal.3d 812, 817-818; Ballard, supra, 64 Cal.2d at p. 167.) In
assessing whether this burden is satisfied, we consider whether defense counsel has
presented “specific facts demonstrating the subpoenaed documents are either admissible
42
or might lead to admissible evidence” that will reasonably assist counsel in preparing a
defense. (Facebook, at p. 345.) Furthermore, the documents must be “requested with
adequate specificity to preclude the possibility that defendant is engaging in a ‘fishing
expedition.’ ” (Pitchess, supra, 11 Cal.3d at p. 538.)
“The People, even if not the target of the discovery, also generally have the right
to file a motion to quash ‘so that evidentiary privileges are not sacrificed just because the
subpoena recipient lacks sufficient self-interest to object’ [citation] or is otherwise unable
to do so. [Citation.] Even where the People do not seek to quash the subpoena, the court
may desire briefing and argument from the People about the scope of the third party
discovery.” (Kling v. Superior Court (2010) 50 Cal.4th 1068, 1078.) (See also People v.
Nieves (2021) 11 Cal.5th 404, 433 [a trial court may entertain argument from the
opposing party on third party discovery and a prosecutor’s submission of argument in
such a matter is not improper].)
We review the trial court’s ruling for an abuse of discretion. (Facebook, supra, 10
Cal.5th at p. 359.)
3. The Trial Court Erred by Refusing to Review or Release the Records
Madrigal subpoenaed the records more than two months before the start of trial,
and the Department of Correction readily produced them to the superior court. No party
moved to quash the subpoena. The Attorney General does not claim Madrigal’s
subpoena was untimely, and nothing in the record would support such an assertion. No
party contends, and the trial court did not find, that release of the materials would intrude
upon any protected governmental interest, or violate any right of confidentiality, privacy,
or evidentiary privilege.
The trial court at various times cited different reasons for its decision, ruling that
defense counsel’s showing of good cause was insufficiently specific; too speculative;
failed to show the relevance of the records; and failed to show the records would contain
the information she sought. The court stated that the records produced were too
43
voluminous for the court to review quickly and easily, and that it would not review
“hours and hours” of phone calls. Ultimately, the court ruled it would not release or even
review the records because counsel’s request was not specific enough to identify a small
volume of records that the court could review quickly and easily to determine whether
they contained anything relevant.
The Attorney General argues the trial court “reasonably conditioned review and
potential release on greater specificity, which never came.” The Attorney General argues
that defense counsel, by failing to narrow the scope of her request, showed she was
engaged in an impermissible “fishing expedition.” As to the trial court’s refusal to even
review the records, the Attorney General argues the trial court had no duty to listen to the
calls and “go on appellant’s fishing expedition for him.”
We first consider whether defense counsel demonstrated a “plausible justification”
for acquiring the documents. This is the “most significant” consideration, and “should be
given prominence.” (Facebook, supra, 10 Cal.5th at p. 345, fn. 6.) Defense counsel
accurately characterized Pacheco as “one of the main witnesses for the prosecution.” In
multiple interviews with the police, Pacheco admitted she was driving the van at the time
of the assault, and she made numerous statements specifically describing Madrigal’s role
as well as what he said immediately before and after the incident. Defense counsel
accurately pointed out that Pacheco had changed her statements over the course of
multiple interviews with police, including statements during a proffer session after which
the prosecution offered her a plea agreement. Counsel further represented that Pacheco
had written a letter about the case to another defendant (Enrique Martinez, who was
allegedly in the van) while the two were in custody, and that she had spoken with him on
the phone. The prosecutor conceded Pacheco had written the letter, and he argued the
phone calls were made during a different time frame, but he did not refute that Pacheco
had spoken to Martinez on the phone. All of these facts provided a reasonable basis for
defense counsel to seek Pacheco’s statements.
44
The trial court ruled that counsel had failed to show the information she sought
was actually in Pacheco’s jailhouse phone calls. But defense counsel is not required to
show the information she seeks is actually in the subpoenaed materials. “No showing by
the defendant that the material sought actually exists or that it would be admissible as
evidence at trial is required. [Citations.]” (People v. Coyer (1983) 142 Cal.App.3d 839,
842 (Coyer).) The defendant is entitled to “information that might lead to the discovery
of evidence, if it appears reasonable that such knowledge will assist him [or her] in
preparing his [or her] defense. . . .’ [Citation.]” (Ballard, supra, 64 Cal.2d at p. 167.)
Defense counsel argued that in her experience defendants in custody often discuss
their cases on the phone. We also think it plausible that Pacheco discussed the case
during her jailhouse calls. 10 The Attorney General, citing People v. Windham (2006)
145 Cal.App.4th 881 (Windham), implies it is unlikely Pacheco would have discussed the
case on the jailhouse phones because inmates are warned their calls may be recorded and
monitored. (Id. at p. 885.) But that is exactly what the defendant in Windham did.
Windham was charged with domestic violence, and while in custody, he “attempted to
call [the victim] 83 times on the jail telephones. Twelve completed conversations to [the
victim] included some references to the events leading to Windham’s arrest.” (Id. at
p. 884.) This is hardly an uncommon phenomenon. A cursory search of the case law
yields hundreds of opinions involving defendants making statements about their cases on
jailhouse phones, often providing evidence to support their convictions.
Given the relevance of Pacheco’s testimony and her history of contradictory
statements, it is plausible that if she made statements about the case during jailhouse
phone calls, defense counsel could use them to impeach Pacheco’s testimony, undermine
10
Although defense counsel did not rely on these facts, we note that Pacheco’s
brother Torres was also a defendant in the case, and Pacheco’s cousin Nieto testified that
she too was present in the van. On this record, Pacheco had many opportunities to
discuss the case on jailhouse phones.
45
her credibility, or use them to discover exculpatory evidence. We conclude the materials
Madrigal sought might have led to the discovery of evidence that would have assisted
him in preparing his defense. (Ballard, supra, 64 Cal.2d at p. 167.)
The Attorney General argues defense counsel’s request was insufficiently specific
because it resulted in records too voluminous for the court to review them quickly and
easily. This claim relies on two faulty premises. First, the fact that a request for records
yields a large volume of them does not by itself show the request was overbroad. The
requirement of specificity applies to counsel’s description of the information sought, not
the volume of records it produces. (Facebook, supra, 10 Cal.5th at p. 348 [the defendant
must “ ‘describe the requested information’ ” with at least some degree of specificity].)
Here, the subpoena specified all calls made on one jail’s phones by one specific person
over a specifically defined time frame. This request was sufficiently specific.
It is true that a large volume of materials may be indicative of an overbroad
request, but that is less true today than in the past. In People v. Serrata (1976) 62
Cal.App.3d 9, the defendant issued subpoenas to the IBM Corporation, and the trial court
granted IBM’s motion to quash. (Id. at p. 14.) The Court of Appeal held the trial court
properly quashed the subpoenas as a “broad, blanket demand for documents” that
“amounted to nothing more than a fishing expedition.” (Id. at p. 15.) One of the
subpoenas “called for the production of ‘literally millions of pieces of paper’ which were
located at IBM plants throughout the world and which constituted the work product of
numerous teams of experts and scientists who had devoted as much as four or five years
to the development of the sixteen complex computer devices which were the subject of
the subpoenas.” (Id. at p. 15.) Here, defense counsel’s subpoena did not call for the
46
production of millions of pieces of paper located throughout the world. The requested
phone calls were gathered from one place and readily produced in digital form on disc. 11
Technology has evolved considerably since the IBM era of 1976. Computers,
smart phones, email, texts, and the Internet now give ordinary persons the ability to
generate large volumes of digital records. And the custodians of those records typically
have the capacity to store and retrieve even larger volumes. As a consequence, even a
highly specific request can result in a large number of digital documents, and modern-day
litigants routinely engage in discovery productions with mindbogglingly large volumes of
records. The burdens of this fall on defendants as well as courts and prosecutors. (See
U.S. v. Stein (S.D.N.Y. 2006) 461 F.Supp.2d 201, 203 [considering the burdens placed on
defendants by large volumes of discovery].) Fortunately, for some, litigation support
technology provides a multitude of powerful applications for managing and reviewing
digital records.
Unfortunately, it appears the trial court here was unable or unwilling to review any
of the subpoenaed phone calls. Law enforcement agencies, on the other hand, often have
the capacity to retrieve, review, and search over large volumes of digital records. (See,
e.g., Windham, supra, 145 Cal.App.4th 881.) It may be that Madrigal’s counsel had
similar technology, but if she did, she was hamstrung by the trial court’s outright refusal
to review or release the records.
That brings us to the second faulty premise in the Attorney General’s position:
that the trial court’s inability to easily review the documents justified its refusal to release
them. The Attorney General cites no authority for the proposition that a defendant’s
request for records must be specific enough to allow trial courts to review them quickly
and easily, and we are aware of no such authority. Nor could that be a legitimate
11
If the subpoena had placed an unjustified burden on the Department of
Correction, it could have moved to quash the subpoena on that ground. (Facebook, Inc.
v. Superior Court (Hunter) (2020) 46 Cal.App.5th 109, 119.)
47
condition for release of the documents absent any other conditions. If Pacheco’s calls
consisted of “hours and hours and hours” of statements helpful to Madrigal’s defense, he
would be entitled to them despite their volume.
The Attorney General argues the trial court had no legal duty to review the
documents. That may be so, but the court could have released them anyway. As a
general matter, a trial court’s decision whether to review subpoenas documents is
discretionary, not mandatory. Upon receiving the subpoenaed documents, “the court may
order an in camera hearing to determine whether or not the defense is entitled to receive
the documents.” (§ 1326, subd. (d).) (See People v. Hammon (1997) 15 Cal.4th 1117,
1122 [trial court was not required to review subpoenaed documents].) While certain
circumstances may necessitate or require in camera review, there were no such
circumstances here. This was not a Pitchess motion for the personnel records of peace
officers. There is nothing in the record to suggest that release of the materials would
harm any legitimate governmental interest, or violate any right of confidentiality, privacy,
or evidentiary privilege. And as set forth above, Madrigal made the required showing of
good cause for their release. We see nothing in the statutes or case law that would have
prohibited the court from releasing the records without conducting an in camera review.
While the trial court had the discretion to review the records, it refused to do so
because the review would take too long. The court could have released the documents
without reviewing them, but it refused to do that too. Once the defendant showed good
cause for release of the documents, the trial court erred by refusing to release them on the
ground it could not review them quickly and easily. We hold this constituted an abuse of
discretion.
4. Conditional Reversal and Remand
The proper remedy for this type of error is a conditional reversal with directions to
the trial court to review the requested documents in chambers on remand. (Gaines,
supra, 46 Cal.4th at pp. 180-181 [when a trial court fails to review the documents at all,
48
remand to the trial court is appropriate].) The Attorney General nonetheless contends any
error was harmless because Pacheco’s testimony was “inconsequential.” He points out
that the prosecutor in closing argument disavowed her testimony that Madrigal admitted
stabbing Harvey. The Attorney General argues the jury must have discredited her
testimony, so it would not have mattered even assuming defense counsel could have
impeached Pacheco with her jailhouse calls. He argues that even if Pacheco expressly
admitted in a jailhouse call that she lied about Madrigal confessing to the stabbing, such
an admission would not have changed the outcome of the trial.
But Pacheco gave other testimony the prosecutor relied on in closing argument.
Pacheco admitted she was driving the van at the time of the assault. She was the only
witness whose testimony about the van turning around prior to the attack was consistent
with the videos. As set forth above, she testified that she drove down Southside Drive,
and after the group of males got out at a stop sign on Water Street, she made a U-turn,
drove back to Hope Street, turned right down Hope Street, made another U-turn, and
waited there on Hope Street for the males to return. The prosecution relied on this
testimony as evidence the group was intentionally stalking Harvey prior to the attack.
While the prosecution introduced video evidence from cameras stationed at a guard shack
across from Hope Street, the videos by themselves did not clearly establish the van’s
movement. The videos showed vehicle lights moving back and forth on Southside Drive,
and arguably one set of vehicle lights showed a vehicle turning around on Hope Street,
but the poor quality of the videos and the glare from a vehicle’s headlights made it
difficult to determine whether it was Pacheco’s van in the videos.
Nieto’s testimony about the movement of the van also failed to establish that it
had turned around prior to the attack. Similarly, a detective testified that Madrigal
himself had drawn a map of the van route, but Madrigal’s map showed the van turning
left (northwest) off of Southside Drive onto Hope Street, making a U-turn, and turning
left (northeast) back onto Southside Drive before turning right (southeast) down Water
49
Street. Madrigal’s description of the van’s route cannot be reconciled with the movement
of vehicle lights captured in the videos from the guard shack.
Furthermore, Pacheco was the only witness who testified it was Madrigal who told
her to turn the van around and go back to Hope Street after stating something to effect
that he “saw someone he didn’t like.” The prosecution presented no other evidence to
support the claim it was Madrigal who directed the movement of the van, or that he had
any intent or plan to assault Harvey when the group got out of the van.
Additionally, Pacheco testified that she saw blood on Madrigal after the attack.
She further testified that Madrigal told her he was in a gang, evidence the prosecution
relied on to argue he was “holding himself out” as a gang member. The prosecution
argued that Madrigal’s gang status gave him a motive to rob, and that as gang members,
the attackers would not have randomly assaulted an ordinary person. Echoing the
prosecution’s closing argument, the Attorney General embraces the same theories, and he
relies on many portions of Pacheco’s testimony to support them in the same fashion.
As explained in our analysis of the omitted felony murder elements above, we
agree with the Attorney General’s contention that Pacheco “testified dubiously”—a factor
in our conclusion that the evidence of the omitted elements was not overwhelming. But a
rational juror could have credited her testimony. In any event, we cannot say her
testimony was “inconsequential.” Moreover, it is possible her jailhouse phone calls may
lead to the discovery of evidence that would be helpful to Madrigal’s defense apart from
impeaching Pacheco.
On this record, it is impossible to assess prejudice from the failure to disclose the
subpoenaed materials because we do not know what they contain, and the trial court
made no record of their contents. (See Coyer, supra, 142 Cal.App.3d at p. 844
[traditional harmless error analysis would be “speculative” where court of review could
not determine whether compliance with discovery request would reveal the requested
information].) The proper remedy in this situation is to remand to the trial court.
50
(Gaines, supra, 46 Cal.4th at pp. 180-181.) Accordingly, we will conditionally reverse
the robbery conviction and remand the matter to the trial court for further proceedings as
set forth below.
C. Remaining Claims
Madrigal raises numerous additional claims. First, he contends the trial court
erred by failing to instruct the jury on assault as a lesser included offense of robbery.
Second, he contends the court improperly instructed the jury on the specific intent
required for an accomplice to robbery. Third, he contends the court violated his due
process rights by allowing the jury to convict him on the robbery count based solely on
the uncorroborated testimony of an accomplice. Fourth, he contends the court failed to
instruct the jury on voluntary manslaughter as a lesser included offense of murder. Fifth,
he contends the court failed to instruct the jury on the requirement of unanimity as to the
facts of the murder charge. Sixth, he contends various fines and fees were imposed
without finding he had the ability to pay them. He further contends cumulative prejudice
from multiple errors requires reversal.
Because we are reversing the judgment, we do not reach the merits of these
claims. In the event the trial court reinstates the robbery conviction on remand, Madrigal
will not be precluded from raising the relevant claims again in any subsequent appeal.
III. DISPOSITION
The judgment is reversed. The first degree murder conviction on count 1 is
vacated, the matter is remanded for further proceedings consistent with this opinion, and
the second degree robbery conviction on count 2 is reversed conditional on the outcome
of the proceedings on remand. On remand, the trial court shall either release the
subpoenaed documents to Madrigal or exercise its discretion to review them in camera to
determine whether any portion of them must be released. If the trial court releases any
portion of the subpoenaed documents, it shall allow Madrigal an opportunity to show
prejudice. If the trial court determines Madrigal was prejudiced by its previous failure to
51
release the documents, the trial court shall order a new trial on count 2, which may be
joined with any retrial that may be held on other charges filed in this matter. If the trial
court determines no documents must be released based on its in camera review, or that
Madrigal was not prejudiced by the failure to release the documents, the trial court shall
reinstate the judgment of conviction on the second degree robbery count.
52
_______________________________
Greenwood, P. J.
WE CONCUR:
_______________________________
Grover, J.
_______________________________
Danner, J.
People v. Madrigal
H046577
Trial Court: Santa Clara County Superior Court
Superior Court No.: C1359219
Trial Judges: The Honorable Griffin M. J. Bonini
The Honorable Helen E. Williams
The Honorable Eric S. Geffon
Attorneys for Defendant and Appellant Cliff Gardner, under appointment by
JOEL MADRIGAL: the Court of Appeal, and Daniel
Buffington for Defendant and Appellant
Attorneys for Plaintiff and Respondent Rob Bonta,
THE PEOPLE: Attorney General of California,
Lance E. Winters,
Chief Assistant Attorney General,
Julie L. Garland,
Assistant Attorney General,
Michael P. Pulos and Joseph Christian
Anagnos,
Deputy Attorneys General
H046577
People v. Madrigal