People v. Escalante CA2/3 ( 2024 )

Filed 10/14/24 P. v. Escalante CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B323966
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA149219)
v.
ENZO ESCALANTE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Roger Ito, Judge. Affirmed as modified,
remanded with directions.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Charles S. Lee, Kathy S. Pomerantz and
Sophia A. Lecky, Deputy Attorneys General, for Plaintiff and
Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
A jury convicted Enzo Escalante of first and second degree
murder (Pen. Code, § 187, subd. (a); counts 1 & 3),1 two counts of
possession of a concealed firearm by a prohibited person (§ 25400,
subd. (a)(2); counts 2 & 5) and second degree robbery (§ 211;
count 4). On appeal, Escalante contends the trial court erred in
denying his request to sever the two murder charges, which he
asserts were unrelated. He further argues that the prosecutor
violated the California Racial Justice Act (§ 745) (Racial Justice
Act) by commenting that Escalante’s skin was lighter at trial
than in photos taken near the time the crimes were committed,
six years earlier. Finally, Escalante contends the court erred in
imposing two life without possibility of parole (LWOP) sentences
on count 3 and the abstract of judgment incorrectly fails to reflect
that the sentence on count 5 was stayed.
The Attorney General concedes the sentencing errors and
also observes that the prosecution erred in charging Escalante
with the multiple murder special circumstance on both murder
counts. He disputes Escalante’s remaining contentions.
We modify the judgment to impose only one LWOP
sentence on count 3. We also strike one of the multiple murder
special circumstance findings and direct the trial court to amend
the abstract of judgment to reflect the court’s oral pronouncement
with respect to count 5. We otherwise affirm the judgment.
1 All undesignated statutory references are to the Penal
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
The Murder of Christopher Ramirez
Isaac Ramirez was 16 years old when his brother,
Christopher Ramirez, was killed on June 27, 2016.2 That day,
Isaac and his friend, Eddie, were heading to a marijuana
dispensary and to get donuts. As they were walking, Isaac
observed a stationary black Nissan. Two men were standing
outside the car and one was seated in the driver’s seat. While
Isaac and Eddie were crossing the street, one of the men standing
outside the Nissan asked, “Where are you from?” Isaac
understood the man to be asking whether Isaac belonged to a
gang. He replied, “I don’t bang. I’m not from a gang.” The man
stated he was from the KAM gang and asked, “ ‘Are you sure you
don’t write? You don’t bang?’ ” Isaac understood the first
question was asking whether he was part of a tagging crew. He
replied, “No, I don’t write or bang.” Eddie remained silent. The
man told Isaac to go to a nearby alley. Isaac began heading there
when Eddie stopped him and told him to go to the marijuana
dispensary.
Isaac and Eddie entered the dispensary and took a seat.
While inside, Eddie called someone. Escalante, the driver of the
Nissan, followed them in. Escalante was 18 years old at the time.
He sat down beside Isaac and asked, in an angry tone of voice,
“ ‘What do you bang? What do you write?’ ” He repeated the
questions at least five times. Isaac replied each time that he did
not bang or write. Escalante grew increasingly angry.
Meanwhile, Isaac felt his phone vibrating but ignored it. He
2 Because Christopher and Isaac Ramirez share the same
last name, we refer to Isaac by first name only. No disrespect is
intended.
3
feared he was going to be beaten up or shot. At some point, a
security guard told anyone who did not have business in the
dispensary to leave. Before going, Escalante touched Isaac on the
shoulder and told him, “ ‘I’ll wait for you outside.’ ” Isaac finally
answered his phone. It was Ramirez, who told Isaac to come
outside. Isaac obeyed and saw Ramirez near the donut shop.
Isaac approached and told his brother what happened with
Escalante. Ramirez ran towards the Nissan. Isaac followed.
Escalante was seated in the driver’s seat of the Nissan and
was watching Ramirez and Isaac. Ramirez approached the
driver’s side of the vehicle and punched Escalante in the face.
Isaac then heard a gunshot. Ramirez immediately ran across the
street and fell to the ground. He had a bullet wound in his chest.
Isaac had never seen Escalante or the other men before
that evening. Before hearing the gunshot, he was not aware that
anyone was armed. Ramirez did not have any weapon in his
hand when he approached Escalante and was unarmed as far as
Isaac knew. Escalante left the scene before law enforcement
arrived.
Ramirez was 21 years old at the time of his death. He was
shot twice, once in the left chest and once in the forearm. The
chest wound was fatal.
A detective responded to the scene and recovered video
from several businesses in the area. Sergeant Robert Martindale,
a homicide investigator with the Los Angeles County Sheriff’s
Department, reviewed the videos. Martindale had previously
interviewed Escalante and recognized him in a video taken inside
the marijuana dispensary on the day of the shooting. Video also
showed Escalante speaking with Isaac in the dispensary, as well
4
as individuals running away moments before Ramirez staggered
across the street.
The Murder of Jeremiah Bonilla
On July 6, 2016, Cruz Curiel was at home when an old
acquaintance, Alexis Anguiano, arrived with Escalante. They
had a bicycle with them. Anguiano told Curiel they just wanted
to hang out.
While the three were smoking marijuana, Escalante pulled
out a semi-automatic handgun from his waistband. Escalante
cleaned the gun, then handed it to Anguiano, and took pictures of
Anguiano with the gun. Escalante said he had the gun for his
protection and told them, “ ‘Fool, I’m banging and there are a lot
of fools out to get me.’ ” He also “said he was part of something
south side.”
Curiel’s cousin, Jeremiah Bonilla, later showed up at
Curiel’s house. Curiel sometimes sold marijuana for Bonilla and
was expecting him. When Bonilla knocked on the door, Curiel
told Escalante to get rid of the gun. Bonilla came in and began
weighing out marijuana. Escalante and Bonilla introduced
themselves. Escalante asked whether Bonilla sold marijuana
and they exchanged numbers. Escalante asked if he could
purchase $400 or $500 worth of marijuana. Shortly after this
conversation, Bonilla left. Eventually, Escalante and Anguiano
also left.
Curiel later called Bonilla. Bonilla mentioned that he
wanted to sell marijuana to Escalante in front of Curiel’s house
because it would be safer. Curiel told him not to trust Escalante
or make a deal with him and that he had seen Escalante with a
gun. Curiel tried calling Bonilla again multiple times that
5
evening but could not reach him. He later learned that Bonilla
had been killed.
Anguiano testified that he attended middle school with
Escalante and considered him a friend in July 2016. Anguiano
also knew Curiel from school and they used to hang out together.
In 2016, Anguiano was part of a tagging crew called KAB, which
stood for Known and Blown. Escalante was also part of the crew,
which would “go out[,] tag, hang out, [and] smoke [marijuana].”
According to Anguiano, on July 6, 2016, he went to Curiel’s
house. He asked to invite Escalante over. Anguiano had a
bicycle with him, but Escalante did not. They smoked marijuana
together. At some point, Escalante pulled out a semi-automatic
gun, which Anguiano identified as a Glock 27. He and Curiel
took pictures and video with the gun for Snapchat. Curiel told
Escalante to put the gun away because his cousin was coming
over. When Bonilla arrived, he had a jar of marijuana with him,
which he gave to Curiel. Escalante introduced himself to Bonilla
and asked for Bonilla’s number because he wanted to buy
marijuana.
Anguiano and Escalante left Curiel’s house at around
11:00 p.m. They went to the backyard of Escalante’s house,
where they smoked more marijuana. Anguiano saw Escalante
texting. After a couple of hours, Escalante said he was going
somewhere. He took Anguiano’s bicycle. Anguiano estimated
that Escalante returned 20 or 30 minutes later. He no longer had
the bicycle. He seemed scared and told Anguiano he had shot
Curiel’s cousin. Before Anguiano left, he saw Escalante with
about an ounce of marijuana, which would have been worth at
least $200 or $300.
6
Mariana Becerra was Bonilla’s girlfriend. The night he
died, Bonilla texted that he was busy at Curiel’s house. Becerra
texted him at 2:51 a.m. asking Bonilla why he was ignoring her.
He responded, “ ‘Sorry, someone wants to pick up 500 rn and
really persistent.’ ” Becerra replied, “ ‘Really? Who wanted to
pick up at 3:00 a.m.?’ ” She did not receive a response.
Police officers from the Bell Police Department reported to
the scene of the shooting on the morning of July 7, 2016. They
observed a car that had crashed through a garage door, which
was still running. The officers located Bonilla inside the car. He
was in the driver’s seat, deceased, and slumped towards the
passenger seat. The officers secured the crime scene and
questioned nearby residents. One witness later testified that she
heard a man’s voice say “ ‘whoa, whoa, whoa’ ” and then a
gunshot. She saw a car with red lights blinking and a man
leaving on a bicycle. The car had knocked down the door of a
garage. Two other witnesses testified they heard three gunshots
and the sound of a crash. One of them saw “a masculine person”
getting on a bicycle and riding away. A fourth witness was
woken up by loud arguing between two men. He heard a noise
like an engine revving and a loud crash.
Bonilla was 22 years old at the time of his death. His cause
of death was a gunshot wound to the chest. A criminalist
specializing in firearms analysis testified that the bullets and
cartridge cases recovered from the scene exhibited features
consistent with Glock pistols.
Martindale reviewed surveillance video showing a bicyclist
riding into the alley and pulling into an empty parking spot.
Bonilla’s car entered the alley shortly thereafter and parked in
that same spot. The video showed a figure outside the car
7
moving from the back of the vehicle to the passenger side. The
video next captured the vehicle accelerating forward and crashing
through a garage door. According to Martindale, it also faintly
showed the person on a bicycle exiting the parking spot where the
car had been and riding away.
Martindale also reviewed the contents of Bonilla’s phone.
He observed a text thread between Bonilla and a phone number
ending in 8080, which was registered to Escalante and was
suspended several days after Bonilla was killed. The first
message from Escalante’s number said: “ ‘Enzo bro.’ ” The
exchange concerned how much marijuana could be purchased for
$500. Bonilla later asked where Escalante was and he replied
with a “pin,” or a map denoting a specific location, which was
almost exactly where the shooting took place. The map was titled
“ ‘Enzo Escalante’s location.’ ” Escalante later wrote, “ ‘I’m right
here pull up.’ ”
Confessions to the Crimes
Kevin Medina was friends with Escalante in 2016. Medina
was also part of the tagging crew, KAB. Escalante had told
Medina he had joined KAM about a month before July 2016.
Prior to July 2016, Medina saw Escalante with a semi-automatic
firearm.
On July 9 or 10, 2016, Escalante arrived at Medina’s house
and asked Medina to give him a ride to meet up with his aunt.
He said “he was into some trouble so he needed to get out” and
had been involved in a murder. Medina agreed to give him a
ride. Escalante told Medina that Medina would not see him
again.
While they were driving, Medina asked about the murder.
Escalante said he was with a friend who wanted to steal
8
marijuana. He did not identify the friend. Escalante was
involved in this plan and claimed the marijuana was a “tax.” He
had been the one texting the marijuana dealer. According to
Escalante, when they arrived, the friend pointed a gun at the
man selling marijuana, the man tried to grab the gun, and the
friend shot him. The marijuana dealer was inside a car.
Escalante said he grabbed the marijuana after the man was shot
and told him, “ ‘You got taxed.’ ”
Karen Gurrola was Escalante’s ex-girlfriend. While they
were dating, Gurrola saw Escalante with at least two small
firearms. Gurrola also saw a video of Escalante being “courted,”
or being beaten up by a group of people to become part of a gang.
Escalante confirmed to Gurrola that he was a member of KAM.
Gurrola ended their relationship because she did not want to be
around a gang member, but they resumed contact in July 2016.
Escalante called Gurrola from an unknown number and asked to
meet up. When they met, Escalante informed Gurrola that he
was planning to go to Mexico. Gurrola later drove to visit
Escalante in Tijuana. They resumed their relationship there.
In or around November 2016, while Gurrola was visiting,
Escalante told her that he had been part of a killing. Gurrola
asked, “ ‘You killed him?’ ” Escalante replied that he did because
the individual “wasn’t doing what [Escalante] asked him to do” by
giving up the marijuana he had. He identified the person as
Bonilla. Escalante had been seeing Bonilla in his dreams. The
killing took place in Bonilla’s car. Escalante had been texting
with Bonilla at around 3:00 a.m. before the killing. Bonilla
offered to sell him marijuana. Escalante met with Bonilla on a
bicycle in an alley, pulled a gun, and pointed it at Bonilla.
Escalante told Bonilla, “ ‘Give me your weed.’ ” Bonilla declined
9
and said, “ ‘You’re not going to kill me over weed.’ ” Escalante
shot him. Escalante did not seem remorseful. He said he used a
Glock to kill Bonilla.
Gurrola asked if this was the only thing Escalante had
done. He mentioned another incident and identified the victim as
Ramirez. Escalante said he killed Ramirez near a marijuana
dispensary and had defended himself because Ramirez was
coming towards him with a knife. Escalante did not mention
Isaac. Escalante told Gurrola he got rid of the firearm he used in
the killings by giving it to “the main head” of the KAM gang.3
When Gurrola returned to the United States in December 2016,
she immediately informed the Bell Police Department about the
killings.
Gang Expert Testimony
Officer Ruben Catani of the Bell Gardens Police
Department worked in a gang unit for five years and testified
that he was familiar with the KAM gang, or Krazy Ass Mexicans.
To rise through the ranks of KAM, it is necessary for members to
“put in work,” or engage in crimes. Committing murder would be
the fastest way to rise through the ranks. In KAM’s slang,
“taxing” someone means robbing them of something that the gang
member can then resell. The gang member then provides this
money to older members who are higher in the gang hierarchy.
According to Catani, in a video from the marijuana
dispensary, Escalante threw a hand signal that appeared “very
similar to the way KAM throws up their gang sign.” Escalante
appeared to be making a “K” with his hand, for KAM. He made
this sign more than once. Catani testified that asking where one
3 Forensic evidence indicated different guns were used in the
Ramirez and Bonilla shootings.
10
is from and whether they bang or write is a gang challenge and it
is reasonable for one to expect violence to follow the question.
Using photograph exhibits, Catani identified tattoos related to
KAM on Escalante, including “KAMSTER”; a Chevy logo, which
members use to represent the Southside faction of KAM; a Rams
logo, which represents KAM because the words rhyme; and the
number 60, which Catani believed showed Escalante’s allegiance
to or membership in a particular clique within Southside KAM.
The Underlying Proceedings
The People charged Escalante by information with the
murders of Ramirez and Bonilla (§ 187, subd. (a); counts 1 & 3,
respectively), two counts of possession of a concealed firearm by a
prohibited person (§ 25400, subd. (a)(2); counts 2 & 5), and second
degree robbery (§ 211; count 4). The information alleged that the
multiple murders charged in counts 1 and 3 were a special
circumstance under section 190.2, subdivision (a)(3). It further
alleged that the Bonilla murder was committed while Escalante
was engaged in the commission of a robbery under section 190.2,
subdivision (a)(17). In connection with counts 1, 3, and 4, the
information alleged that Escalante personally used a firearm,
personally and intentionally discharged a firearm, and the
personal and intentional discharge of the firearm caused great
bodily injury and death within the meaning of section 12022.53,
subdivisions (b) through (d). Finally, as to all counts, the
information alleged that Escalante had a prior serious or violent
felony conviction within the meaning of section 667,
subdivision (d), and section 1170.12, subdivision (b).
A jury found Escalante guilty of the second degree murder
of Ramirez and the first degree murder of Bonilla. It also found
Escalante guilty of two counts of having a concealed firearm by a
11
prohibited person and the second degree robbery of Bonilla. In
connection with both murder counts, the jury found the multiple
murder special circumstance true. In connection with the Bonilla
murder, the jury found the robbery special circumstance true.
With respect to the murder counts and the robbery count, the
jury found the firearm enhancements true.
Escalante waived his right to trial on a strike prior in a
juvenile case and admitted the allegation.
As to the Bonilla murder, the court imposed two concurrent
LWOP sentences based on the two true special circumstance
findings, plus 25 years to life for the firearm enhancement. As to
the Ramirez murder, the court sentenced Escalante to a term of
15 years to life, doubled due to Escalante’s prior serious or violent
offense conviction, plus a consecutive sentence of 25 years to life
for the firearm enhancement. Thus, for the murder counts, the
court sentenced Escalante to a total of 80 years to life, plus the
concurrent LWOP sentences. The court imposed and stayed
(§ 654) sentences of 16 months for counts 2 and 5 and a sentence
of two years for count 4.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion by
Denying the Motion to Sever
Although Escalante concedes the murder counts met the
statutory requirements for joinder because they were the same
class of crime, he contends the trial court erred in denying his
motion to sever the counts because the murders were unrelated
in their commission and their joinder deprived him of a fair trial.
Escalante fails to make a clear showing of prejudice. We
conclude the court did not abuse its discretion in denying the
motion.
12
A. Background
Escalante filed a motion to sever the two murder charges.
He asserted there was no cross-admissible evidence and no
connection between the intent or motive underlying the two
offenses. He further argued joinder of the charges would
prejudice him because the Bonilla killing would inflame the jury
against him when considering the Ramirez killing. He also
claimed prejudice because he wished to testify regarding the
Ramirez killing but not the Bonilla killing, which he claimed was
a weaker case.
The prosecution opposed the request and argued the
multiple murder special circumstance would be impossible to
prove if the same jury were not presented with evidence of both
murders. It further argued the offenses were the same class of
crime, Gurrola’s testimony would be cross-admissible, and the
incidents evinced a similar intent and common plan. The
prosecution also asserted it intended to call Catani as a gang
expert to provide evidence admissible in both cases to show
motive, intent, and identity.
Following argument, the court observed that the two
crimes were properly joined because of the multiple murder
special circumstance. The court further reasoned that Gurrola’s
testimony would establish the marijuana robbery was a
“taxation” in the context of gang activity and the evidence was
cross-admissible because the Ramirez killing was also gang-
related. The court therefore denied the motion.
B. Applicable legal principles
Section 954 “provides in relevant part: ‘An accusatory
pleading may charge two or more different offenses connected
together in their commission, or different statements of the same
13
offense or two or more different offenses of the same class of
crimes or offenses, under separate counts, and if two or more
accusatory pleadings are filed in such cases in the same court,
the court may order them to be consolidated.’ [Citation.] The
statute also provides that ‘the court in which a case is triable, in
the interests of justice and for good cause shown, may in its
discretion order that the different offenses or counts set forth in
the accusatory pleading be tried separately or divided into two or
more groups and each of said groups tried separately.’
[Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 769 (Soper).)
“The purpose underlying this statute is clear: joint trial
‘ordinarily avoids the increased expenditure of funds and judicial
resources which may result if the charges were to be tried in two
or more separate trials.’ [Citation.]” (Id. at p. 772; see also
People v. Anderson (2018) 5 Cal.5th 372, 388 (Anderson) [“The
law prefers trying charged offenses together because doing so
ordinarily promotes efficiency”].)
“Unlike what occurs in situations involving the
admissibility of uncharged misconduct—in which the People bear
the burden of establishing that the evidence has substantial
probative value that clearly outweighs its inherent prejudicial
effect—by contrast, in the context of properly joined offenses,
‘[t]he burden is reversed.’ [Citation.] In the latter setting, ‘[t]he
prosecution is entitled to join offenses under the circumstances
specified in section 954. The burden is on the party seeking
severance to clearly establish that there is a substantial danger
of prejudice requiring that the charges be separately tried.
[Citations.]’ ” (Soper, supra, 45 Cal.4th at p. 773.) “A defendant,
to establish error in a trial court’s ruling declining to sever
properly joined charges, must make a ‘ “clear showing of prejudice
14
to establish that the trial court abused its discretion . . . .” ’
[Citation.] A trial court’s denial of a motion to sever properly
joined charged offenses amounts to a prejudicial abuse of
discretion only if that ruling ‘ “ ‘ “ ‘falls outside the bounds of
reason.’ ” ’ ” ’ [Citation.]” (Id. at p. 774.) We conduct a two-part
inquiry to determine whether there is a clear showing of
prejudice.
“ ‘In determining whether a trial court’s refusal to sever
charges amounts to an abuse of discretion, we consider four
factors: (1) whether evidence of the crimes to be jointly tried is
cross-admissible; (2) whether some charges are unusually likely
to inflame the jury against the defendant; (3) whether a weak
case has been joined with a stronger case so that the spillover
effect of aggregate evidence might alter the outcome of some or
all of the charges; and (4) whether any charge carries the death
penalty or the joinder of charges converts the matter into a
capital case.’ [Citation.]” (Anderson, supra, 5 Cal.5th at pp. 388–
389.)
Second, we determine whether joinder resulted in gross
unfairness to the defendant. “[E]ven if the trial court’s ruling
was proper as a matter of state law, we will reverse the judgment
if the defendant shows that joinder of the charges actually
resulted in ‘ “ ‘gross unfairness’ ” ’ amounting to a denial of due
process during the guilt phase.” (People v. Simon (2016) 1
Cal.5th 98, 123 (Simon).)
“We review the trial court’s decision to deny a severance
motion for abuse of discretion.” (People v. Armstrong (2016) 1
Cal.5th 432, 455–456.)
15
C. The trial court did not abuse its discretion in
denying Escalante’s severance motion
It is undisputed that the statutory requirements for joinder
were met because the murders were crimes of the same class.
(§ 954.) Thus, we consider whether the court abused its
discretion in denying the motion to sever the murder charges
under the two-part inquiry described above.
Escalante contends there was no cross-admissible evidence.
However, our Supreme Court has explained that “even the
complete absence of cross-admissibility does not, by itself,
demonstrate prejudice from a failure to order a requested
severance. [The court] repeatedly [has] found a trial court’s
denial of a motion to sever charged offenses to be a proper
exercise of discretion even when the evidence underlying the
charges would not have been cross-admissible in separate trials.”
(Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221; accord,
Anderson, supra, 5 Cal.5th at p. 389; Simon, supra, 1 Cal.5th at
p. 123.) We therefore consider the other factors described above.
Escalante acknowledges that“[o]n the surface, neither
murder readily appears to be more likely than the other to
inflame a juror” and “the seriousness of the two street shootings
is likely comparable to a lay eye.” Still, he asserts the Bonilla
murder was more likely to inflame the jury because “it was
calculated and not provoked in the slightest,” whereas Escalante
shot Ramirez after Ramirez “unilaterally inserted himself on
behalf of his bullied brother and attacked Escalante . . . .”
Escalante claims this is “a fact tending to justify self-defense”
and makes the Ramirez killing “less egregious and inflammatory
. . . .” We disagree that Escalante’s persistent harassment of a 16
year old, and his subsequent close-range shooting of the unarmed
16
man who came to his younger brother’s defense, was significantly
less inflammatory. Escalante’s assertion that he “was not the one
who initially challenged Isaac,” while accurate, ignores that he
followed Isaac into the marijuana dispensary, repeatedly
questioned him about his gang or tagging crew affiliation, threw
gang signs at him, and told Isaac he would be waiting for him
outside. The record strongly indicated that Escalante intended to
harm Isaac and Ramirez’s actions in Isaac’s defense were, at a
minimum, provoked.
Escalante also contends that the Ramirez case, though less
inflammatory, was stronger than the Bonilla case. The record
does not support this contention. The evidence established that
Escalante admitted his involvement in the Bonilla murder to
Anguiano, Medina, and Gurrola. Escalante’s text messages with
Bonilla placed him at the scene of the crime. Although Escalante
told Medina a friend was responsible for the shooting, witnesses
who lived near the scene of the shooting observed only one person
on a bicycle riding away from the scene.
“[A]s between any two charges, it always is possible to
point to individual aspects of one case and argue that one is
stronger than the other. A mere imbalance in the evidence,
however, will not indicate a risk of prejudicial ‘spillover effect,’
militating against the benefits of joinder and warranting
severance of properly joined charges.” (Soper, supra, 45 Cal.4th
at p. 781; accord, People v. Johnson (2015) 61 Cal.4th 734, 752
(Johnson).) The cases here were of sufficiently similar strength
that joining them did not prejudice Escalante.
Finally, as noted above, the refusal to sever charges may be
an abuse of discretion where any one of the charges carries the
death penalty or joinder converts the entire matter into a capital
17
case. Here, as to the Bonilla case, the People alleged a robbery
special circumstance, which made Escalante eligible for the death
penalty. (§ 190.2, subd. (a)(17)(A).) Joinder did not convert the
entire matter into a capital case. And, while we agree that the
trial court was mistaken in its reasoning that the multiple
murder special circumstance required the two cases to be tried
together, the fact remains that, if tried separately, the People
could have tried the Bonilla matter first and alleged the multiple
murder circumstance in the subsequent proceedings in the
Ramirez murder. (See Johnson, supra, 61 Cal.4th at p. 752.)
In both Simon and Johnson, the prosecution pursued the
death penalty (see Simon, supra, 1 Cal.5th at p. 110; Johnson,
supra, 61 Cal.4th at p. 740), and our high court rejected the claim
that the joinder of capital and non-capital charges was improper,
reasoning that there was “less risk of prejudice” to the defendant
where “one of two joined murder incidents would independently
give rise to a capital charge . . . .” (Simon, at p. 128; accord,
Johnson, at p. 752.) Here, too, the Bonilla incident would have
independently given rise to a capital charge. However, the
prosecution elected not to seek the death penalty and did not put
the issue before the jury as required by section 190.3. Thus, the
joinder of the capital and non-capital charges could not have
“bolstered the possibility of [Escalante] receiving a death
sentence.” (Simon, at p. 128.) Moreover, when, as here, strong
evidence supports each incident, neither case poses “an undue
risk of unjustified conviction.” (Id. at p. 129.) Joinder in this
case did not “bolster the possibility of conviction,” and did not
bolster the possibility of a severe penalty being imposed as
punishment. (Ibid.) We perceive no risk of prejudice to
18
Escalante resulting from the joinder of the capital and non-
capital murder charges.
Although Escalante cites Bean v. Calderon (9th Cir. 1998)
163 F.3d 1073, in the context of capital case liability, we do not
find it persuasive in this case. In Bean, the Ninth Circuit
concluded there was prejudice in joining unrelated murder
charges where substantial, undisputed evidence supported the
defendant’s guilt in one of the cases and only fingerprint
evidence, which the defendant “vigorously disputed at trial
through expert testimony,” supported his guilt in the second case.
(Id. at p. 1085.) We have already rejected Escalante’s claim that
there was a significant disparity in the strength of the Bonilla
and Ramirez cases. And, as we will discuss below, “unlike in
Bean, there is ‘affirmative evidence of the jury’s ability to assess
the [two incidents] separately.’ [Citation.]” (Simon, supra, 1
Cal.5th at p. 131.)
We conclude the trial court’s order was proper as a matter
of state law. We therefore consider whether joinder resulted in
gross unfairness to Escalante. “In determining whether joinder
resulted in gross unfairness, [our Supreme Court] ha[s] observed
that a judgment will be reversed on this ground only if it is
reasonably probable that the jury was influenced by the joinder
in its verdict of guilt.” (Simon, supra, 1 Cal.5th at pp. 129–130.)
Here, strong evidence supported both murder charges. The
court instructed the jury in this case with CALCRIM No. 3515,
which states that each count is a separate crime that must be
considered separately, and a separate verdict must be returned
for each. The jury demonstrated it was capable of differentiating
between the Ramirez and Bonilla murders by returning two
different verdicts, finding Escalante guilty of second degree
19
murder for the Ramirez killing and first degree murder for the
Bonilla killing. As in Soper, this “ ‘suggest[ed] that the jury was
capable of differentiating between defendant’s various murders;
no improper spillover effect is evident here.’ [Citations.]” (Soper,
supra, 45 Cal.4th at p. 784; accord, Simon, supra, 1 Cal.5th at
p. 130 [that jury found defendant guilty of first degree murder as
to one charge and second degree murder as to other “ ‘strongly
suggests that the jury was capable of weighing the evidence and
differentiating among [the] various charges’ ”].)
Escalante argues the jury’s questions asking for definitions
of first degree murder, second degree murder, and manslaughter,
and whether “ ‘ “felony robbery” automatically bump[s] it up to
1st degree murder,’ ” mean “the jurors had some degree of
difficulty with the joined murder charges.” Yet, he also concedes
that these questions “do[ ] not reveal the details of the jurors’
difficulties . . . .” Indeed, the jury’s “difficulties” appeared to
concern the law, not the facts. Escalante fails to demonstrate
that joinder actually resulted in gross unfairness that amounted
to a violation of his federal constitutional rights.
II. Escalante Fails to Establish the Prosecutor’s
Comment Violated the Racial Justice Act
Escalante also contends the matter must be remanded
because the prosecutor introduced racial bias into the trial by
commenting that Escalante’s skin tone was lighter at the time of
trial than it appeared in photos and videos taken when the
crimes were committed six years earlier. Although Escalante
forfeited this claim by failing to object in the trial court, we
nevertheless consider the argument and conclude the prosecutor’s
comment was a racially neutral and unbiased description of the
20
defendant’s physical appearance, permissible under the Racial
Justice Act.
A. Background
Defense counsel, the prosecution, and multiple witnesses
commented on the differences between Escalante’s appearance at
the time the offenses occurred and at trial, including his skin
tone. In his opening remarks to the jury, the prosecutor told the
jury they would see Snapchat photos Anguiano had taken with
Escalante’s gun and Escalante would appear in the background of
those photos. He stated, “By the way, folks, as we’re sitting here,
Mr. Escalante looks the [sic] very different than he did back then.
He’s [sic] skin’s lighter. He’s put on weight, shaved. You’ll hear
he’s the same person.”
During his opening argument, Escalante’s counsel observed
the charged offenses took place six years earlier. Referring to
surveillance video, he told the jury, “This is how [Escalante]
looked inside [the marijuana dispensary]. Lot darker. And he
was barely a teenager or . . . barely over 18. Six years ago.” He
pulled up a “better photo” of Escalante “near the time” of the
offenses and similarly observed, “Different. Long time ago.
Looks different now.”
Isaac testified that he was unsure whether he saw the
person who killed his brother in the courtroom. He agreed he
had previously identified his brother’s killer to detectives and at
a prior hearing. When the prosecutor asked what changed, Isaac
replied, “His appearance,” referring to Escalante. Isaac said
Escalante was “thinner” at previous hearings but appeared to be
the same person who killed Ramirez.
While cross-examining Anguiano, defense counsel asked
whether Anguiano looked different in 2016. He agreed he did.
21
Defense counsel then asked, “Of course Enzo looked different too;
right?” Anguiano agreed. Defense counsel asked, “Lot lighter?”
Anguiano again agreed. The prosecutor objected, and defense
counsel clarified, “Skin. Skin stone [sic].” The court overruled
the objection and Anguiano agreed with this observation.
B. Applicable law
The Racial Justice Act provides “[t]he state shall not seek
or obtain a criminal conviction or seek, obtain, or impose a
sentence on the basis of race, ethnicity, or national origin.”
(§ 745, subd. (a).) “The [Racial Justice] Act sets forth four
categories of conduct, any of which, if proved [by a preponderance
of the evidence], is enough to ‘establish’ a violation of section 745,
subdivision (a).” (Young v. Superior Court (2022) 79 Cal.App.5th
138, 147; § 745, subd. (a).)
Only one of these categories is relevant here. Escalante
contends “an attorney in the case . . . used racially discriminatory
language about the defendant’s race, ethnicity, or national origin,
or otherwise exhibited bias or animus towards the defendant
because of the defendant’s race, ethnicity, or national origin,
whether or not purposeful.” (§ 745, subd. (a)(2).) “ ‘Racially
discriminatory language’ means language that, to an objective
observer, explicitly or implicitly appeals to racial bias, including,
but not limited to, racially charged or racially coded language,
language that compares the defendant to an animal, or language
that references the defendant’s physical appearance, culture,
ethnicity, or national origin. Evidence that particular words or
images are used exclusively or disproportionately in cases where
the defendant is of a specific race, ethnicity, or national origin is
relevant to determining whether language is discriminatory.”
(Id., subd. (h)(4).) Subdivision (a)(2) “does not apply . . . if the
22
person speaking is giving a racially neutral and unbiased
physical description of the suspect.” (Id., subd. (a)(2).)
“For claims based on the trial record, a defendant may raise
a claim alleging a violation of subdivision (a) on direct appeal
from the conviction or sentence. The defendant may also move to
stay the appeal and request remand to the superior court to file a
motion pursuant to this section.” (§ 745, subd. (b).) “If a motion
is filed in the trial court and the defendant makes a prima facie
showing of a violation of subdivision (a), the trial court shall hold
a hearing. A motion made at trial shall be made as soon as
practicable upon the defendant learning of the alleged violation.
A motion that is not timely may be deemed waived, in the
discretion of the court.” (Id., subd. (c).)
C. The record does not support Escalante’s
assertion that the prosecutor violated the
Racial Justice Act
As a preliminary matter, the Attorney General argues
Escalante has forfeited his argument under the Racial Justice
Act by failing to raise it before the trial court.4
His position finds support in People v. Lashon (2024) 98
Cal.App.5th 804 (Lashon). The Lashon court observed that the
original version of the Racial Justice Act “provided that the only
methods for seeking relief for racial bias after entry of judgment
were by way of a petition for writ of habeas corpus or a motion
under section 1473.7, in a court of competent jurisdiction.
4 The trial in this matter took place in May 2022, after
section 745 became effective in January 2021. At all times since
its original enactment, the statute has allowed defendants to seek
relief prior to the imposition of judgment by filing a motion in the
trial court.
23
[Citations.] While the Legislature provided a defendant could
raise a violation of section 745 for the first time in a habeas
petition [citation], there was no provision in section 745 ‘for
raising a violation of the statute for the first time on direct
appeal.’ [Citation.]” (Id. at p. 811, fns. omitted.) The Act was
later amended and “the Legislature was asked to consider
whether a defendant could pursue a postjudgment section 745
claim by avenues other than a petition for writ of habeas corpus
or a section 1473.7 motion.” (Id. at p. 812.) “The Legislature
responded with Assembly Bill [No.] 1118 [2023–2024 Reg. Sess.]
(Stats. 2023, ch. 464), effective January 1, 2024, which now
allows a defendant to seek review of a section 745 claim on direct
appeal if the violation was based on the trial record. [Citation.]
As an alternate method, a defendant may request a stay of the
direct appeal and remand to allow the filing of a motion in the
trial court.” (Ibid.) The court noted that Assembly Bill No. 1118
“did not include any language indicating a section 745 claim
could be presented on direct appeal for the first time.” (Ibid.) “In
the absence of such language,” the court concluded that its
“review of a section 745 claim, like any other appellate claim, is
subject to the general appellate rules of preservation and
forfeiture of claims that could have been but were not made in
the trial court.” (Ibid.)
The Lashon court explained that its conclusion was
supported by other provisions of the statute, including a 2022
amendment “provid[ing] that a section 745 motion shall be made
in the trial court ‘as soon as practicable upon the defendant
learning of [an] alleged violation,’ and ‘[a] motion that is not
timely may be deemed waived, in the discretion of the
court.’ [Citations.]” (Lashon, supra, 98 Cal.App.5th at p. 813.)
24
The court reasoned the retention of “the waiver provision in
subdivision (c) of section 745 . . . is consistent with the basic
rationale of the forfeiture doctrine . . . .” (Ibid.) It observed that
“[i]t makes little sense for the Legislature to prescribe a
comprehensive procedure for making and adjudicating a
section 745 motion at the trial level (including a specific waiver
provision for untimely motions), only to allow defendants who
could have but did not use that procedure (thereby preserving
their claim for review) to bypass that procedure and pursue a
section 745 claim for the first time on direct appeal.” (Ibid.;
accord, People v. Singh (2024) 103 Cal.App.5th 76, 113–115
(Singh).)
Escalante contends the forfeiture rule should not be applied
in the context of Racial Justice Act claims because it “has never
been applied evenly” and “is part of the systemic problem the
[Racial Justice Act] was designed to address.” He does not
support this claim by reference to statutory language or
legislative reports or commentaries indicating the Legislature’s
intent. Although not dispositive of the Legislature’s intent, the
author of Assembly Bill No. 1118 acknowledged that a stay of
appeal to allow the trial court to rule on a Racial Justice Act
claim “may be necessary to permit the trial court to rule on the
claim in the first instance, and to allow the parties to fully
litigate the issue” in light of general appellate rules of
preservation and forfeiture of issues on direct appeal. (Lashon,
supra, 98 Cal.App.5th at p. 814.)
Considering this discussion, the Lashon court “f[ound] it
significant that the Legislature did not include any language to
the effect that a section 745 claim may be raised on direct appeal
‘for the first time,’ which it could have easily done” and concluded
25
“[t]he omission of such language strongly suggests the
Legislature intended to leave the issues of preservation and
forfeiture of claims on direct appeal to be resolved by the courts
based on long-standing procedural canons.” (Lashon, supra, 98
Cal.App.5th at p. 814; Singh, supra, 103 Cal.App.5th at pp. 114–
115.) We find the Lashon court’s reasoning persuasive.
Escalante forfeited the Racial Justice Act claim by failing to
object in the trial court.
Escalante nonetheless contends this court should exercise
its inherent discretion to reach the merits of his argument. We
disagree with Escalante that a reviewing court must always
exercise this discretion; in many instances, it may be impossible
for an appellate court to fully assess a claim under the Racial
Justice Act in the first instance based only on a cold record. For
example, without hearing a speaker’s tone of voice or observing
an individual’s demeanor and conduct over the course of trial, a
reviewing court may be ill-positioned to determine whether “[t]he
judge, an attorney in the case, a law enforcement officer involved
in the case, an expert witness, or juror exhibited bias or animus
towards the defendant because of the defendant’s race, ethnicity,
or national origin.” (§ 745, subd. (a)(1).)
Here, however, Escalante’s claim is based solely on the
language the prosecutor used in a single, undisputed statement
in his opening argument. “[C]ourts have discretion to consider a
new theory on appeal if it involves a legal question based on
undisputed facts.” (Cox v. Griffin (2019) 34 Cal.App.5th 440,
450.) Thus, instead of considering his ineffective assistance of
counsel claim (People v. Lua (2017) 10 Cal.App.5th 1004, 1014),
and given the limited nature of Escalante’s contention on appeal,
26
we exercise our discretion to consider the merits of Escalante’s
argument.
Escalante has not established a violation of the Racial
Justice Act. The Racial Justice Act does not bar “a racially
neutral and unbiased physical description of the suspect.” (§ 745,
subd. (a)(2).) Here, the People’s case relied in part on
photographs and videos of Escalante taken around the time the
crimes occurred. The prosecutor’s commentary on the differences
between Escalante’s appearance in the Snapchat pictures and
video and his appearance at trial was not gratuitous; the pictures
and other photographic and video evidence would not advance the
prosecution’s case if the jury did not accept that Escalante was
the person shown.
The prosecutor was also not alone in observing that
Escalante’s appearance had changed noticeably between when
the crimes occurred and trial six years later. Isaac initially had
difficulty recognizing Escalante as the person he had previously
identified as his brother’s killer. He identified a change in
Escalante’s size, which the prosecutor also noted. Escalante’s
own counsel observed that many years had passed between the
time the crimes occurred and trial and Escalante’s skin tone was
a “[l]ot darker” in 2016. Anguiano agreed Escalante looked
different and his skin tone was a “[l]ot lighter” at the time of trial
than it had been in 2016. The prosecutor’s statements were
almost identical to descriptions made by others and do not appear
to lack neutrality or indicate racial bias or animus.5
5 We note that Escalante’s argument under the Racial
Justice Act is based solely on the prosecutor’s comment in his
opening statement. Escalante does not contend that the
27
The circumstances here are distinguishable from those of
People v. Simmons (2023) 96 Cal.App.5th 323 (Simmons). In
Simmons, in a “lengthy and disjointed cross-examination,” the
prosecutor “mentioned on many occasions that appellant is a
‘light-skinned’ Black man and asked him to compare his skin tone
to that of other people mentioned in his testimony.” (Id. at
p. 330.) As one of several examples, the prosecutor questioned
the defendant about his skin tone, asking him “to confirm that he
was also light skinned and that ‘[s]ometimes people mistake you
for something other than Black.’ ” (Ibid.) The defendant agreed
that he was sometimes mistaken for being another race. (Id. at
pp. 330–331.) During her rebuttal argument, the prosecutor
argued that the defendant “ ‘bragged about all the women he was
able to fool with his good looks, and he admitted to having an
ambiguous ethnic presentation and that people that don’t know
him think he’s something other than Black.’ ” (Id. at p. 331.)
On appeal, the parties agreed the prosecutor violated the
Racial Justice Act with this statement. (Simmons, supra, 96
Cal.App.5th at p. 335.) The court observed: “The comment at
issue here violates subdivision (a) because it equates appellant’s
skin tone and ‘ethnic presentation’ with deception, implying that
he was not a credible witness because the color of his skin fooled
women and confused strangers. The suggestion that a witness is
lying based on nothing more than his complexion is as baseless as
it is offensive. Section 745 targets precisely this sort of racially
biased language.” (Id. at p. 336.)
In this case, the prosecutor made a single reference to
Escalante’s skin tone in recognition of the fact that Escalante’s
references his trial counsel or the trial witness made to his skin
tone violated section 745, subdivision (a)(2).
28
appearance had changed in the six years since the murders.
Unlike the prosecutor in Simmons, he did not repeatedly call
attention to Escalante’s skin tone while questioning witnesses or
during argument. Further, the prosecutor did not equate
Escalante’s skin tone being lighter or darker to positive or
negative traits, or relate it to his membership in any racial or
ethnic group. Contrary to Escalante’s suggestion, nothing in the
record suggests the prosecutor stated or implied that Escalante
had “cleaned up his image” because his skin tone was lighter at
trial, or that the prosecutor invited the jury to consider
Escalante’s appearance for any reason other than identification.
In context, the prosecutor’s comment was an attempt to neutrally
describe how Escalante’s appearance had changed over six years
and assure the jury he was the same person. We have no basis to
conclude this physical description was language that, to an
objective observer, explicitly or implicitly appealed to racial bias.
Escalante has failed to establish that the prosecutor’s
comment violated section 745.
III. We Direct the Trial Court to Correct the Sentencing
Issues Identified by the Parties
Escalante and the Attorney General agree the court
erroneously imposed two LWOP sentences on count 3 and the
abstract of judgment should be amended to reflect the court’s oral
pronouncement that the sentence on count 5 was stayed. The
Attorney General further notes that one of the multiple murder
special circumstance findings must be stricken. We agree.
A. We modify the judgment to impose a single
LWOP sentence on count 3
Escalante contends the court erred in doubling the LWOP
sentence for the Bonilla murder under the Three Strikes Law.
29
The Attorney General disputes that the court doubled the
sentence under the Three Strikes Law but agrees it erroneously
imposed two LWOP sentences based on the two special
circumstance findings. We agree with the Attorney General’s
reading of the record.
Section 190.2, subdivision (a), permits the imposition of an
LWOP sentence “if one or more” special circumstances are true.
(Italics added.) Multiple true special circumstance findings do
not justify additional punishment. (People v. Montes (2014) 58
Cal.4th 809, 874 [defendant “faced no additional punishment
merely as a result of” second special circumstance true finding].)
The trial court’s imposition of LWOP sentences for both special
circumstance findings was error.
The Attorney General observes that the abstract of
judgment does not reflect the erroneous imposition of multiple
LWOP terms on count 3. However, the court’s oral
pronouncement and its minute order reflect the imposition of two,
concurrent LWOP sentences. We therefore modify the judgment
to impose a single LWOP sentence on count 3, plus 25 years to
life for the firearm enhancement. The abstract of judgment need
not be amended with respect to this modification under the
circumstances.
B. The superfluous multiple murder special
circumstance finding must be stricken
The Attorney General further argues the prosecution erred
by alleging the multiple murder special circumstance in
connection with both murder counts. He argues this court should
strike one of the true findings.
Where an “information alleged two multiple-murder special
circumstances, one in connection with each murder, and the jury
30
found both true,” our high court has concluded that “only one
special circumstance finding is proper” and “one of the findings
should be stricken.” (People v. Avena (1996) 13 Cal.4th 394, 425.)
“In numerous cases involving the same kind of error, [the
Supreme Court] ha[s] stricken the superfluous finding and
concluded the defendant suffered no prejudice.” (People v.
Halvorsen (2007) 42 Cal.4th 379, 422.) We reach the same
conclusion and strike the second multiple murder finding.
C. The abstract of judgment must be amended to
reflect the trial court’s stay of the sentence on
count 5
Finally, Escalante and the Attorney General agree the
abstract of judgment incorrectly fails to indicate that the
sentence for count 5 was stayed and should be amended to reflect
the trial court’s oral pronouncement. We direct the trial court to
amend the abstract of judgment to conform to the court’s oral
pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185
[courts, including appellate courts, have “ ‘the inherent power to
correct clerical errors in [their] records so as to make these
records reflect the true facts’ ”].)
31
DISPOSITION
We modify the judgment to reflect a single LWOP sentence
on count 3, plus 25 years to life for the firearm enhancement. We
strike one of the two multiple-murder special-circumstance
findings and direct the trial court to amend the abstract of
judgment to reflect the court’s oral pronouncement staying the
sentence on count 5. The clerk of the superior court is to forward
a copy of the amended abstract of judgment to the California
Department of Corrections and Rehabilitation. We otherwise
affirm the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
BERSHON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
32