People v. Flores CA2/6 ( 2024 )

Filed 10/15/24 P. v. Flores CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B329609
(Super. Ct. No. 2018006179)
Plaintiff and Respondent, (Ventura County)
v.
DAVID NAPOLEON DIAZ
FLORES,
Defendant and Appellant.
David Napoleon Diaz Flores appeals his conviction,
by jury, of two counts of first degree murder (Pen. Code, §§ 187,
subd. (a), 189, subd. (a))1 and three counts of second degree
robbery. Each murder count included robbery and multiple
murder special circumstance allegations (§ 190.2, subd. (a)(3),
(a)(17)(A)) and the allegation that appellant personally
discharged a firearm causing death. (§ 12022.53, subd. (d).) The
All statutory references are to the Penal Code unless
1
otherwise stated.
robbery counts also included the allegation that appellant
personally used a firearm in committing each robbery.
(§ 12022.53, subd. (b).) The trial court sentenced appellant to an
aggregate prison term of life without the possibility of parole plus
19 years, four months. Appellant was also ordered to pay
restitution, fines and assessments.
Appellant contends the trial court erred when it
instructed the jury that Joseph Martinez and Joel Montijo were
accomplices as a matter of law. We affirm.
Facts
On the night of May 16, 2017, over the course of
about 30 minutes, two people were shot and four people were
robbed at different locations in Oxnard. Joseph Martinez and
Joel Montijo pleaded guilty to several felonies in connection with
these events.2 They testified that they had been hanging out
with appellant at Martinez’s home in Port Hueneme when they
decided to go out and commit some robberies, as the group had
done several times in the past. Usually, Martinez would drive
the trio around in his black BMW until they found a potential
victim. Montijo and appellant would get out of the car and rob
the victim. Martinez would then drive them back to one of their
houses and divvy everything up. Although they usually brought
guns, no one was shot before May 16.
2Martinez pleaded guilty to two counts of voluntary
manslaughter, four counts of second degree robbery and one
count of attempted robbery. He was sentenced to 20 years, 8
months in prison. Montijo pleaded guilty to one count of second
degree murder and four counts of second degree robbery. He also
admitted to having personally used a firearm in each offense.
Montijo was sentenced to 35 years to life in prison.
2
On the evening of the 16th, Montijo had a black
Glock .40 caliber pistol. Martinez loaned appellant his black .45
caliber Glock pistol. Martinez drove the trio around in his BMW
until Montijo told him to drive down an alleyway and stop by a
carport that was adjacent to an apartment building. Aaron
Austin was standing near his minivan when he was confronted
by appellant and Montijo. Appellant told Austin to give up his
valuables. Austin protested that he did not have anything.
Meanwhile, Montijo opened the sliding door to Austin’s van and
searched for valuables. He didn’t find anything. Appellant shot
Austin and took his backpack before returning to the BMW with
Montijo. He later threw the backpack out of one of the car’s
windows. Austin died from his injuries.
Martinez continued driving. After about five
minutes, he parked in another alley. Appellant and Montijo
walked down the alley. They soon encountered Ernesto Perez
and Rosa Magana who were sitting in a car parked in one of the
carports. Montijo went to the driver’s side of the car, pointing his
pistol at Perez. Appellant went to the passenger side and pointed
Martinez’s pistol at Magana. Appellant communicated with the
victims because he could speak Spanish and Montijo could not.
Perez and Magana handed over their phones, wallet, purse and
car keys. Appellant and Montijo returned to their car and
Martinez drove away. They took cash out of Perez’s wallet and
his cell phone, then threw the rest of the stolen items out of the
car window.
Martinez drove for a few more minutes, until Montijo
told him to stop. Montijo tried to rob a man who had been
walking alone. The victim handed him a bunch of change.
Montijo and appellant continued walking into an alley. There,
3
they found Edward Viveros Leon and Constancio Lopez Vasquez
who were drinking in a carport. Viveros laughed at Montijo,
saying he did not believe the pistol was real. Montijo shot
Viveros in the leg. At about the same time, appellant fired
several shots at Viveros, hitting him in the head and left
shoulder. Appellant took the other man’s cell phone and then he
and Montijo returned to the car. Viveros died from his injuries.
His roommates found his body early the next morning as they
were leaving for work.
Martinez explained that, in the days after the
shootings, he became concerned the .45 caliber pistol would be
connected to him, particularly because he had loaded it. At
Martinez’s request, appellant sold the pistol.
Officers investigating the Austin shooting found the
keys to his mini van in the car port near his body. They also
recovered two .45 caliber shell casings in the alley. Two .45
caliber bullets were recovered from Austin’s body. Montijo’s
fingerprints were found on the passenger door of Austin’s
minivan.
Two .45 caliber shell casings, one .40 caliber shell
casing and one .40 caliber bullet fragment were recovered several
feet from Viveros’ body. During the autopsy, .45 caliber bullets
were recovered from his body.
The .45 caliber bullets recovered from Austin and
Viveros were fired from the same pistol. The .45 caliber shell
casings found at the two murder scenes were also fired from the
same pistol.
A search of Montijo’s residence yielded a Glock 27 .40
caliber pistol. The .40 caliber bullet casing found at the Viveros
4
murder scene was fired from that pistol. Officers also recovered
the cell phone that had been stolen from Ernesto Perez.
In June 2017, appellant was in custody in Ventura
County on an unrelated firearm charge. While being interviewed
by detectives, appellant admitted that he knew Montijo and
Martinez and that he had been in Martinez’s car in the past.
Detectives showed appellant a press release about the Austin and
Viveros shootings. Appellant told them that he was in Texas
when the shootings occurred. Cell phone data demonstrated that
appellant was in Oxnard at the time of the murders. In addition,
his phone traveled very close to Martinez’s phone, to the site of
the Austin murder, to the site of the Viveros murder and back to
Martinez’s home in Port Hueneme.
A confidential informant (CI) had a recorded
conversation with appellant while they were both in custody.
Appellant told the CI that he had no proof of his alibi. He also
told the CI that the victims were “random fools,” that a revolver
was not used in the crimes and that a Glock pistol bigger than a
9-milimeter was used. He was positive the police did not have
the pistol.
Discussion
The trial court instructed the jury with CALCRIM
Nos. 335 and 708, that, “If the crimes of Murder or Robbery were
committed, then Joel Montijo and Joseph Martinez were
accomplices to those crimes.” Appellant contends the trial court
prejudicially erred in instructing the jury that Martinez and
Montijo were accomplices as a matter of law. He contends the
trial court should instead have instructed the jury with
CALCRIM Nos. 334 and 707, to first determine whether they
were accomplices. We conclude there was no error because there
5
was no reasonable dispute that Martinez and Montijo were
accomplices.
“A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as
shall tend to connect the defendant with the commission of the
offense . . . .” (§ 1111.) In this context, an accomplice is a person
“who is liable to prosecution for the identical offense charged
against the defendant on trial in the cause in which the
testimony of the accomplice is given.” (Ibid.) “‘A witness is liable
to prosecution within the meaning of section 1111 if he or she is a
principal in the crime.’ [Citation.] A principal includes those
who ‘directly commit the act constituting the offense’ and those
who ‘aid and abet in its commission.’ [Citation.]” (People v.
Carrasco (2014) 59 Cal.4th 924, 968.) Whether a person is an
accomplice is a question of fact for the jury, unless the facts and
the inferences to be drawn from them are undisputed. (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 103.)
Where the evidence will support only one conclusion,
the trial court has a duty to instruct the jury with CALCRIM No.
335, that a witness is an accomplice to the charged offense as a
matter of law. (People v. Snyder (2003) 112 Cal.App.4th 1200,
1218-1219.) However, where the evidence is in dispute, the trial
court is obligated to instruct the jury with CALCRIM No. 334,
that it must determine whether the witness is an accomplice, and
the factors it should consider in making that determination.3
3Where they are alleged, the trial court also has a duty to
instruct the jury with CALCRIM No. 707 or No. 708, on the
consideration of accomplice testimony in determining whether
special circumstance allegations have been proved.
6
(People v. Hayes (1999) 21 Cal.4th 1211, 1270-1271 (Hayes);
People v. Johnson (2016) 243 Cal.App.4th 1247, 1269 (Johnson).)
“Failure to instruct pursuant to section 1111 is
harmless if there is sufficient corroborating evidence.
Corroborating evidence may be slight, may be entirely
circumstantial, and need not be sufficient to establish every
element of the charged offense.” (Hayes, supra, 21 Cal.4th at p.
1271.) It “must implicate the defendant in the crime and relate
to proof of an element of the crime, [but] it need not be sufficient
to establish all the elements of the crime.” (People v. Williams
(2008) 43 Cal.4th 584, 638 (Williams).) Corroboration is
sufficient “‘“if it tends to connect the defendant with the crime in
such a way as to satisfy the jury that the accomplice is telling the
truth.” . . .’” (People v. Manibusan (2013) 58 Cal.4th 40, 95
(Manibusan), quoting People v. Valdez (2012) 55 Cal.4th 82, 147-
148.) While the testimony of one accomplice cannot corroborate
that of another accomplice, a defendant’s own admissions may
constitute the necessary corroboration. (People v. Rangel (2016)
62 Cal.4th 1192, 1222; People v. Williams (1997) 16 Cal.4th 635,
680.)
Appellant contends the trial court erred by
instructing the jury that Martinez and Montijo were accomplices
to the crimes, rather than instructing the jury to determine
whether they were accomplices. He contends the instruction
allowed their guilt to be imputed to him because it informed the
jurors that the trial court found their testimony credible. We are
not persuaded.
First, there is no reasonable factual dispute that
Martinez and Montijo were accomplices to the murders and
robberies. They were charged with and pled guilty to the same
7
crimes that were charged against appellant. Each witness
admitted that he was a principal in the commission of those
crimes. The defense theory at trial was that Martinez was
actually the shooter and Montijo had a greater role than he
admitted. But even under this theory, each witness still meets
the statutory definition of an accomplice because he is either a
direct perpetrator or an aider and abettor to each offense. (§
1111.)
Appellant contends the instruction that Martinez and
Montijo were accomplices as a matter of law implicitly informed
jurors that the trial court found their testimony credible,
necessarily imputing their guilt to appellant. We disagree. The
trial court’s instruction did not inform the jury that appellant
had committed the charged crimes, or that Martinez and Montijo
were his accomplices. It instructed the jury that, if it found the
crimes had been committed, then Martinez and Montijo were
“accomplices to those crimes.” The jury was still charged with
finding whether the crimes occurred and whether appellant
participated in them.
Moreover, the record contains sufficient evidence
corroborating their testimony. (Manibusan, supra, 58 Cal.4th at
p. 95; Williams, supra, 43 Cal.4th at p. 636.) Consistent with the
testimony of both witnesses, security camera video and
eyewitness testimony established that a BMW was present at
each crime scene. Bullets and casings recovered from the crime
scenes confirmed that two armed individuals committed each
offense, as described by both witnesses. A .40 caliber pistol was
recovered from Montijo’s residence. It matched a casing found at
the scene of Viveros’s murder. In addition to other gunshot
wounds, Viveros was shot in the leg, as Montijo testified. Perez’s
8
cell phone was recovered from Montijo’s residence. Montijo’s
fingerprints were found on the passenger door of Austin’s van.
Martinez testified that he loaned appellant a .45 caliber pistol.
While that pistol was not recovered, .45 caliber bullets and
casings were found at both murder scenes and recovered from the
bodies of both victims.
Appellant also made admissions that corroborate the
accomplice testimony. In recorded conversations, appellant told a
jailhouse informant that the victims were just “random fools,”
that he used a Glock pistol that was bigger than a 9-millimeter
and that he was positive the police did not have it. When he
spoke with detectives, appellant admitted that he knew both
accomplices and that he had been in Martinez’s car. He also
provided a false alibi. Contrary to appellant’s claim that he was
in Texas, cell phone data placed his phone very near Martinez’s
and the crime scenes and then at Martinez’s house in Port
Hueneme.
This independent evidence is more than sufficient to
corroborate the accomplices’ testimony. (Manibusan, supra, 58
Cal.4th at p. 95; Hayes, supra, 21 Cal.4th at p. 1271.)
Consequently, there is no reasonable probability the jury would
have found that either witness was not an accomplice or that
their testimony was not corroborated, had it been instructed to
make that finding. (Johnson, supra, 243 Cal.App.4th at p. 1271.)
Moreover, the instruction that Martinez and Montijo
were accomplices meant that their testimony had to be
independently corroborated before the jury could rely on it. If the
jury found the witnesses were not accomplices, the only
consequence would have been that it could rely on their
testimony without any independent corroboration. The
9
instruction did not prejudice appellant because it required the
jury to find their testimony was corroborated before relying on it.
Finally, we reject appellant’s contention that the trial
court violated his due process right to a fair trial by removing
from the jury the question of whether Martinez and Montijo were
accomplices. The trial court instructed the jury to evaluate the
witness’ credibility (e.g., CALCRIM Nos. 226, 316) and to
determine appellant’s guilt. Nothing in its instructions removed
those questions from the jury. The only consequence of the
accomplice instructions at issue was to add the corroboration
requirement, making it more difficult for the jury to find
appellant guilty. Those instructions could not have contributed
to the verdict. Thus, any error in the accomplice instructions was
harmless beyond a reasonable doubt. (People v. Chavez (2004)
118 Cal.App.4th 379, 387.)
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
10
David Worley, Judge
Superior Court County of Ventura
______________________________
Matthew Alger, 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, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, Stefanie Yee, Deputy Attorney
General, for Plaintiff and Respondent.