People v. Navarro

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY NAVARRO,
Defendant and Appellant.
S165195
Orange County Superior Court
02NF3143
October 28, 2021
Chief Justice Cantil-Sakauye authored the opinion of the Court,
in which Justices Corrigan, Liu, Cuéllar, Kruger, Groban, and
Jenkins concurred.
PEOPLE v. NAVARRO
S165195
Opinion of the Court by Cantil-Sakauye, C. J.
A jury convicted defendant Anthony Navarro of the first
degree murder of David Montemayor and of conspiracy to
commit his murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd.
(a)),1 as well as participation in a criminal street gang (§ 186.22,
subd. (a)). The jury found true the special circumstance
allegations that the murder was committed in the course of a
robbery (§ 190.2, subd. (a)(17)(A)) and in the course of a
kidnapping (§ 190.2, subd. (a)(17)(B)) and was committed to
further the activities of a criminal gang (§ 190.2, subd. (a)(22)).
Following the penalty phase of the trial, the jury returned
a verdict of death. Defendant moved for a new trial and for
modification of his sentence to life without the possibility of
parole. The trial court denied those motions and sentenced
defendant to death. This appeal is automatic. (§ 1239, subd.
(b).)
We affirm the judgment.
I. FACTS
A. Guilt Phase Evidence
1. Prosecution evidence
The murder victim, David Montemayor, was the manager
and part owner of a trucking company, Interfreight Transport,
1
All further statutory references are to the Penal Code
unless otherwise indicated.
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located in Rancho Dominguez. Montemayor’s sister, Deborah
Perna, who also worked at Interfreight, disliked her brother.
She believed that Montemayor was embezzling funds from the
company and storing the cash in coffee cans in his garage.
In early 2002, Perna hired Edelmira Corona to work as an
office assistant at Interfreight. Around May that year, Perna
asked Corona if she knew anyone who could have Montemayor
killed.2 Corona put her off, but Perna was persistent. At some
point, Perna gave Corona a handwritten note bearing
Montemayor’s home address and telephone number and asked
again whether Corona could arrange for Montemayor’s killing.
Corona was again noncommittal and stashed the note in her
desk.
According to Corona, she introduced defendant to Perna in
August 2002, when he came to Interfreight to deliver
methamphetamine to Corona.3 Soon after, Perna suggested
that Corona give defendant the note with Montemayor’s address
and phone number and ask him to kill her brother. When
2
Although it is not clear why Perna believed Corona could
arrange for a killing, the evidence at trial suggested that
Corona’s father is a high-ranking member of a criminal gang.
3
Corona was the only person involved in the killing to
testify at trial, besides defendant himself. Four other
participants — Perna and three others, whose roles are
discussed subsequently — were convicted of the murder after
separate trials. The convictions of Perna and one of the other
participants have been affirmed on appeal. (People v. Perna
(July 23, 2007, G036905 [nonpub. opn.]; People v. Lopez (July
23, 2007, G0371693 [nonpub. opn.].) The other two were
sentenced to death, and their automatic appeals are pending
before this court. (People v. Alberto Martinez, S185364, app.
pending; People v. Armando Macias, S196185, app. pending.)
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Corona saw defendant later and he inquired about Perna,
Corona told him that Perna had seen his tattoos and suggested
Corona hire him to kill Montemayor. Defendant merely
laughed.
In mid-August, defendant drove Corona to northern
California to visit her father, an inmate at the state prison at
Pelican Bay, and her then-boyfriend, who was jailed in
Humboldt County. Corona told defendant that her father was a
leader in the Mexican Mafia, a southern California prison gang.
During the drive, Corona received a call from Perna. When
Perna learned Corona was with defendant, she asked whether
Corona had mentioned the killing of Montemayor. When
Corona told defendant about the conversation, he asked for
Montemayor’s address, but Corona did not have the address
with her.
Corona and defendant made plans to meet about another
matter a week later, and defendant asked Corona to bring
Perna’s handwritten note to the meeting. Before giving
defendant the note that day, Corona wrote “one hand” on it,
indicating that Montemayor was an amputee. She also told
defendant that Perna said he could keep anything he found in
Montemayor’s home, in particular the cash Perna believed was
hidden in the garage. When Corona told defendant that Perna
wanted him to make Montemayor “disappear,” he responded,
“yes.”
During a later phone call, Corona asked defendant about
the note. He said he had lost it and asked her to get him the
information again, but she never did so. In early September,
Perna asked Corona when defendant was going to kill
Montemayor. Corona told her defendant had lost the note and
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“wasn’t doing anything.” Corona never again spoke with
defendant about Montemayor’s killing, she testified. Although
Perna continued to talk to Corona about having Montemayor
killed, Corona “would just laugh at her.” Corona ceased working
at Interfreight soon after, on September 17, 2002.
Montemayor’s weekday routine was to leave his Orange
County home at 6:00 a.m., drive to Interfreight in his Ford
Expedition, and open the business. On the morning of October
2, the business was already open when the other employees
began to arrive, but Montemayor was not there. Around 6:45
a.m., a neighbor spotted Montemayor’s Expedition driving down
the street near his home, followed closely by another SUV. A
few minutes later, shortly before 7:00 a.m., near an intersection
about a half-mile from Montemayor’s home, several gunshots
were heard. Police found Montemayor’s body lying near his
Expedition, along with spent bullet casings. He had been killed
by a gunshot to the head.
At the time of the shooting, the driver of a vehicle near the
intersection saw two men running around a vehicle, one of them
firing a handgun. The two men entered a blue Chevrolet Blazer
with a license plate containing “3L” and drove off. Soon after, a
police officer driving an unmarked car spotted a Chevrolet
Blazer matching the description of the vehicle seen at the site of
the shooting. After a high-speed chase, during which two
firearms were thrown from the Blazer, police arrested the three
occupants, Armando Macias, Alberto Martinez, and Gerardo
Lopez. One of the handguns thrown from the vehicle was later
matched to the bullet that killed Montemayor, and the other gun
was linked to a bullet and spent casings found at the scene of
the shooting.
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As he was being apprehended, Macias threw a cell phone
into nearby bushes; police later found that the cell phone was
registered to defendant’s girlfriend.4 The phone dropped by
Macias was determined to have been in contact with a cell phone
used by defendant 18 times in the hour and one-half
surrounding the killing. Macias was also found to have a
business card in his wallet. Handwritten on the back was
defendant’s gang moniker and the number of another cell phone
linked to defendant. Martinez’s wallet contained a piece of
paper with “Anthony Navarro” written on it, along with
defendant’s auto club membership number.
On the day before Montemayor’s killing, Macias had
rented a car. Investigating police found Macias’s rented car
parked in front of defendant’s home. The Blazer used by the
three was registered at the address of defendant’s home,
although not in defendant’s name. Around 9:00 a.m. on the
morning of the killing, defendant’s wife called police to report
that the Blazer had been stolen, but a subsequent search of the
Blazer revealed keys in the ignition and no signs of forced entry.
The registered owner of the Blazer never sought its release from
police impoundment after the killing.
In subsequent testimony, defendant acknowledged that he
maintained a series of cell phones for the use of gang members
who worked with him.5 Telephone records showed that one of
4
Although defendant was married at the time of the killing,
he was romantically involved with another woman, whom we
will refer to as his girlfriend.
5
In addition to the cell phone dropped by Macias, three
other numbers were registered to defendant’s girlfriend. A
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the cell phones linked to defendant, with a number ending in
“1600,” was in repeated contact with cell phones linked to
Corona, defendant’s wife, defendant’s girlfriend, Macias, and
Martinez in the hours preceding Montemayor’s killing. In
particular, the records show that Corona called the 1600 phone
at 5:00 p.m. on the evening prior to the homicide. Later that
evening, the phone was used to make repeated calls to
defendant’s wife and Corona. Beginning around 11:00 p.m., the
1600 phone recorded multiple calls to Macias and Martinez,
followed throughout the night by more calls to Corona, Macias,
and defendant’s wife. Early the following morning, the 1600
phone was used to call Macias and Corona. The next day, a
person who identified herself as “Mrs. Johnston” called
customer service of the Nextel mobile phone company and
changed the number assigned to the 1600 cell phone;
defendant’s wife’s cell phone records reflected calls to Nextel
around that time. In addition, Corona attempted to call Macias
four times around 6:30 a.m. on the morning Montemayor was
killed. Her last call connected and lasted for a minute.
Two weeks later, police stopped defendant while he was
driving a Lexus vehicle. In the glove compartment of the Lexus
were Perna’s handwritten note with Montemayor’s address and
phone number and a CD case containing a photograph of
Corona. During the stop, defendant confirmed to a detective
that he was “an older member or elder member” of the Pacoima
Flats street gang. Following his arrest in connection with
Montemayor’s murder, defendant wrote several letters from jail
mechanic who lived at defendant’s home prior to the killing,
Daniel Johnston, testified that defendant used four of the five
cell phone numbers registered in Johnston’s name.
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suggesting his involvement in gang activities. Among these
were letters to both Macias and Martinez expressing affection
and discussing personal matters.
A local police detective, Nathaniel Booth, testified as an
expert concerning matters relating to street gangs. Booth was
a member of the gang unit of the Buena Park police department
and had participated in a search of defendant’s home during its
investigation of the Montemayor killing. He testified that gang
members are expected to “put[] in work” for the gang by
committing crimes or violence for the benefit of the gang. Older
members of the gang “often are more like supervisors,” with
younger members committing “the majority of the violent crime”
in order to prove their mettle.
Booth testified that gangs generally acquire a name,
which often refers to the neighborhood in which they operate,
and individual members are given monikers used within the
gang. Graffiti is used to promote the gang or individual
members, mark turf, and challenge other gangs. One form of
graffiti is the “roll call,” in which a gang member records a list
of the gang members with which that member regularly
associates. Tattoos are also used to indicate gang membership
and identity. Citing several of defendant’s tattoos, Booth
identified him as a member of the Pacoima Flats gang, which is
affiliated with the Mexican Mafia. When Booth searched
defendant’s residence, he saw words spray painted and written
on the walls of the garage in the manner of graffiti. Among
others, these illustrated the words or terms PF, Droop, Droops,
Droop Baby, Lil Droops, Crook, Pirate, Lil Pirate, Chito, Blackie,
D’Sta, Dee, and Weaz. Booth identified “Droopy” as defendant’s
gang moniker, while Crook and Pirate are the monikers of
Martinez and Macias, respectively, both of whom Booth also
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identified as Pacoima Flats gang members.6 He identified this
graffiti as a “very short” roll call, identifying a series of members
who “associate together within the gang.” Booth also identified
Lopez as a member of the Pacoima Flats gang. Based on this
and other information, Booth concluded that defendant,
Martinez, Macias, and Lopez were all members of the Pacoima
Flats gang at the time of Montemayor’s killing and that
Montemayor was killed for the benefit of the gang.
2. Defense evidence
Defendant testified that he became a member of the
Pacoima Flats gang in 1978, at the age of 12. He decided to
become an informer for the Federal Bureau of Investigation
(FBI) in 2000, after the Mexican Mafia killed his cousin.
Thereafter, he cooperated with the Los Angeles office of the FBI
from April to October 2000, the San Diego office of the FBI from
November 2000 to November 2001, and the Bureau of Alcohol,
Tobacco, and Firearms (ATF) for two months in mid-2002.
As an aspect of his cooperation, defendant attended
meetings of members of the Mexican Mafia while wearing a
listening device and camera. He was able to relate extensive
information about planned gang activities. Defendant was also
provided funds by the FBI that he turned over to a senior
member of the Mexican Mafia, passing the money off as
protection payments extorted from other gang members,
referred to as “rent.” This enhanced defendant’s status in the
6
Subsequently, during cross-examination, defendant
acknowledged that his home was a “hangout” and that “Crook”
and “Lil Pirate 2,” painted on the garage walls, referred to
Martinez and Macias, respectively. “D’Sta” referred to
defendant.
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gang, which in turn increased his effectiveness as an informant.
Defendant was declared by the gang to be a llavero, or “key
holder,” effectively the top gang member in an assigned portion
of Pacoima. Defendant acknowledged that he maintained “at
least nine” cell phones at this time. He permitted others to use
the phones, which helped him keep track of his fellow gang
members.
Defendant believed that he began to be viewed with
suspicion within the gang no later than March 2002, when he
was arrested for possession of a firearm by a felon, a potential
third strike crime, but was released on low bail and never
formally charged. He received the lenient treatment because of
his status as an informant. The Los Angeles FBI terminated
defendant as an informant in 2000 because it learned that
rumors of his cooperation were circulating within the gang.
Defendant said he first met Corona in April 2002, when
Macias introduced her to him. Corona told him she was the
daughter of Felipe Vivar, a “mafia boss” whom defendant knew
by reputation, and that Vivar had put her in charge of gang
activities in the area. Corona told defendant that Vivar wanted
him to commit a killing in Orange County. By that time,
defendant had been terminated as an informant, was no longer
receiving government funds, and had stopped making rent
payments to the gang. He was concerned that the gang assumed
he was collecting and withholding the payments and had
ordered his killing.
In June 2002, defendant was the victim of a freeway
shooting, which he interpreted as a warning from the gang. He
sought a second meeting with Corona, hoping that she could
help him set things right. Corona told him she could arrange for
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the removal of an order for defendant’s death, imposed by the
gang, for a payment of $14,000. Defendant only had $7,000,
which he gave to her. On this occasion, Corona gave him Perna’s
handwritten note with Montemayor’s address and asked him to
arrange for the killing, telling him the victim owed Vivar money.
Defendant believed that she also told him the intended victim
was her boss. “One hand” was written on the note, but
defendant did not ask what it meant. Defendant put the note in
the glove compartment of his Lexus.
After this meeting, defendant attempted to report the
requested killing to his handler for the ATF, James Starkey, but
Starkey told defendant he was too busy and instructed
defendant to contact Rod Rodriguez, a Los Angeles police
detective with whom defendant had also worked. Defendant
thereafter spoke with Rodriguez and told him that Vivar’s
daughter said Vivar “wanted somebody from the San Fernando
area to come out to Orange County to kill somebody.” Defendant
told Rodriguez he did not know the name of the victim but had
his address. Because the note with the address was in his car,
defendant was unable to provide Rodriguez the address, nor did
he provide Corona’s phone number. Rodriguez instructed him
to find out the name of the intended victim, telling defendant he
could not do anything without that name.
Defendant acknowledged driving to northern California
with Corona, characterizing the trip as a further attempt to
straighten out his relations with the gang, as well as to get more
information about the requested killing for Detective Rodriguez.
During the drive, Corona told defendant about the money
thought to be hidden in Montemayor’s garage, but she refused
to give him the victim’s name. This time, rather than asking
defendant to commit the killing, Corona suggested that he “get
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some homies to do it.” Defendant thought she was not serious.
Two weeks later, Corona paged defendant. When he returned
her call, she asked, “Are you going to do this?” He told her he
needed the address again, claiming he had lost the note.
Although she said she would get back to him with the address,
she never did. Defendant testified that by the time of this
conversation with Corona he had forgotten where he left the
note and did not remember until it was found in the police
search.
Defendant testified that he believed the prosecution’s
theory of the crime was implausible because no senior gang
member would permit a car registered at his address to be used
in a killing; the same is true regarding his cell phones. Further,
by the time of the killing defendant believed he was regarded as
a turncoat by the gang. Defendant had been shot at twice while
driving on the freeway, suffering a wound the second time. In
addition, his car was shot at while being driven by a friend.
After his arrest, defendant was attacked by Macias and Lopez
while detained in a holding cell. They stabbed him eleven times,
calling him a “rat.”
The account by defendant of his activities as an informant
was largely corroborated by the testimony of law enforcement
agents from the FBI and ATF. Their recollections of defendant’s
communications about the Montemayor murder plot, however,
differed from his own. Starkey confirmed that in early June
2002, defendant called him and said “somebody was going to hit
somebody.” Defendant was unable to provide any additional
information, such as the potential victim, location, or timing of
the killing. Starkey told defendant to get more information and
to deal with Rodriguez because Starkey was busy with another
matter. Starkey said that if defendant had provided sufficient
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detail to support an investigation, he would have turned to it
immediately.
When Rodriguez, a Los Angeles police detective in 2002,
first met defendant, he was aware that defendant was regarded
as an effective informant. Because defendant was, as Rodriguez
characterized him, a “shot caller” in the gang, he was in a unique
position to gather information. In July 2002, defendant called
Rodriguez to ask if he was interested in “some type of a kidnap
for ransom or a murder for hire case.” At the time, defendant
said he did not have any additional information. In particular,
defendant did not mention Corona or the note with the victim’s
address and telephone number. Rodriguez told defendant he
needed more information, such as the name of the victim, and
asked defendant to find out as much additional information as
he could. Defendant mentioned the matter again in a telephone
call two weeks later, suggesting that the killing would occur in
Orange County. Rodriguez said he needed more information to
put defendant in touch with appropriate law enforcement
officials in Orange County. Again, defendant did not provide
any other information. He said he would get back to Rodriguez,
but he never did.
B. Penalty Phase Evidence
1. Prosecution case in aggravation
Laurie Fadness testified that in February 2002, several
men entered her home and attacked three men — David
Gallegos, Gallegos’s cousin, and a roommate of Fadness.
Fadness had left the house that evening. When she returned,
she saw several unfamiliar vehicles parked in front, including a
black SUV. As she approached the back door, she heard “two
loud bangs.” Entering, she saw several men scattering toward
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the doors. One of them yelled, “Droopy, Jesse, let’s go!” Gallegos
and his cousin were bloody and in shock, and her house was a
shambles.
Gallegos testified that five men entered Fadness’s house
that night. He identified all five, without naming defendant.
When they entered, one of the men said to Gallegos’s cousin,
“Droopy wants to talk to you.” The cousin responded that he
had nothing to say to Droopy. At that point, the men began
beating them, and Gallegos heard two gunshots. He later saw
that his cousin had suffered a gunshot wound to the head.
Gallegos acknowledged that he told police he heard the name
“Droopy” that day and knew defendant by that name, but he
said that defendant was not present.
Gallegos also testified regarding an incident about six
weeks later, in March 2002. At that time, he was asked to
deliver a letter to a member of the Pacoima Flats gang by a
member of a rival gang. Two weeks after he made the delivery,
Gallegos learned that Droopy wanted to talk to him. Gallegos
was eventually taken to defendant’s house at gunpoint.
Defendant was in the garage with several other men, including
the men to whom Gallegos had delivered the letter. Defendant
asked about Gallegos’s delivery of the letter. When Gallegos told
them who had given it to him, defendant and the other men
began to beat and torture him. Eventually, Gallegos heard
defendant say, “He’s got to go,” after which Gallegos was taken
away and shot 14 times. Gallegos identified defendant to police
as one of the shooters in a photographic line up.
Paul Parent was a mechanic hired by defendant in
September 2001 to service the vehicles of defendant, his family,
and his friends. At defendant’s insistence, Parent moved into
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defendant’s house two weeks later. Within a few weeks, Parent
became frightened by activities at the house and attempted to
leave. In retaliation, defendant and two other men beat Parent
and broke his finger with a hammer. Defendant thereafter
threatened to kill Parent if he did not return to work. A month
later, Parent again attempted to get away from defendant’s
house. When his escape attempt failed, he was beaten again by
defendant and four other men. Defendant beat Parent on at
least two other occasions. In April, defendant gave Parent a van
and granted him permission to leave, in return for Parent’s
assistance in moving defendant’s household. Ten minutes after
the move was complete, defendant called Parent and said, in a
mocking tone, “Rudy is going to shoot you.” About two minutes
later, Parent was shot in the back. His recovery required six
months of hospitalization.
Karensa Spellman met defendant through a friend and
began selling defendant methamphetamine. At some point,
defendant sought information from her about one of his rivals in
the gang, whom she knew. When Spellman told defendant she
had no information, he beat and kicked her repeatedly. He then
locked Spellman in his garage, where she remained for two
weeks without food before Parent helped her escape.
The prosecution also provided evidence of two prior
adjudicated crimes. In 1983, when he was 16 years old,
defendant participated with between 25 and 30 other gang
members in the shooting of two rival gang members. There was
no evidence that defendant was among the shooters, and he was
convicted of voluntary manslaughter. In 1995, defendant
arranged to meet Francisco Chavez in a parking lot to purchase
some clothing. When defendant arrived, he and three other men
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robbed Chavez and his wife at knifepoint. Defendant was
convicted of second degree robbery with use of a weapon.
There was, in addition, testimony about the impact of
Montemayor’s death. His wife and daughters testified about
their personal losses, and Montemayor’s death led to the failure
of Interfreight, putting its employees out of work.
2. Defense case in mitigation
Detective Rodriguez testified that defendant continued to
act as an informant even after his arrest in this case, providing
useful information to law enforcement. Two FBI agents
provided additional detail about defendant’s work as an
informant for the FBI. His cooperation was valuable and was
undertaken at great risk, placing the lives of both defendant and
his family members in danger. For several years, defendant also
had participated in outreach programs for youth directed at
preventing gang participation. Defendant’s brother and
daughter testified about his positive role in their lives.
II. DISCUSSION
A. Guilt Phase Claims
1. Defendant’s convictions are supported by the
evidence
Defendant’s convictions are necessarily premised on a
finding that he conspired with or acted as an accomplice to the
actual killers to bring about Montemayor’s murder. Defendant
contends that the jury was not presented with sufficient
evidence of his participation in such a conspiracy to support the
convictions. We find sufficient evidence to support the jury’s
judgment.
“When reviewing a challenge to the sufficiency of the
evidence, we ask ‘ “whether, after viewing the evidence in the
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light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” ’ [Citation.] Because the sufficiency of the
evidence is ultimately a legal question, we must examine the
record independently for ‘ “substantial evidence — that is,
evidence which is reasonable, credible, and of solid value” ’ that
would support a finding beyond a reasonable doubt.” (People v.
Banks (2015) 61 Cal.4th 788, 804 (Banks).) In doing so, we “view
the evidence in the light most favorable to the jury verdict and
presume the existence of every fact that the jury could
reasonably have deduced from that evidence.” (People v. Reed
(2018) 4 Cal.5th 989, 1006 (Reed).) “We must also ‘accept logical
inferences that the jury might have drawn from the
circumstantial evidence.’ ” (People v. Flores (2020) 9 Cal.5th
371, 411 (Flores).) We do not question the credibility of a
witness’s testimony, so long as it is “not inherently improbable,”
nor do we reconsider the weight to be given any particular item
of evidence. (Reed, at p. 1006; see id. at p. 1007.)
“ ‘ “Conspiracy requires two or more persons agreeing to
commit a crime, along with the commission of an overt act, by at
least one of these parties, in furtherance of the conspiracy.” ’ ”
(People v. Dalton (2019) 7 Cal.5th 166, 244 (Dalton).) “ ‘Evidence
is sufficient to prove a conspiracy to commit a crime “if
it supports an inference that the parties positively or tacitly
came to a mutual understanding to commit a crime.” ’ ” (People
v. Thompson (2016) 1 Cal.5th 1043, 1111, italics omitted
(Thompson).) “Evidence of an agreement does not require proof
that the parties met and expressly agreed; a criminal
conspiracy can be shown through circumstantial evidence.”
(People v. Penunuri (2018) 5 Cal.5th 126, 145.) “If the
agreement between the conspirators is the crux of criminal
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conspiracy, then the existence and nature of the relationship
among the conspirators is undoubtedly relevant to whether such
agreement was formed, particularly since such agreement must
often be proved circumstantially. ‘ “The existence of a
conspiracy may be inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and
during the alleged conspiracy.” ’ ” (People v. Homick (2012) 55
Cal.4th 816, 870, italics omitted (Homick).)
The testimony and forensic evidence, viewed in the light
most favorable to the prosecution, demonstrated that Perna
wanted her brother killed and solicited Corona’s aid to that end.
Corona, who had ties to the Mexican Mafia, contacted
defendant, a well-positioned gang member, about that
possibility. By Corona’s account, she introduced Perna to
defendant and later conveyed to him Perna’s request for the
killing. By defendant’s account, Corona passed on a request,
which could have been understood as a demand, for the killing
from a highly placed member of the Mexican Mafia. Either way,
it was not disputed that Corona solicited defendant to commit
the murder, generally described the victim to him, and provided
him a writing with the victim’s address and telephone number.
From defendant’s acceptance of the note, which was still in his
possession at the time of the murder, and Corona’s description
of his conduct in accepting it, the jury could have inferred that
he was willing to consider undertaking the assignment.
Detective Booth testified that the typical street gang is
disciplined and hierarchical. Junior members of the gang are
expected to serve the interests of more senior members; senior
members, in turn, leave the execution of criminal activities to
more junior members. Defendant was a longtime member of the
Pacoima Flats street gang. By his own admission, he was
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regarded as a llavero, the chief gang member in a portion of
Pacoima. His home was a gathering place for gang members, to
whom he provided vehicles and cell phones. Yet at the time of
the murder his standing within the gang was threatened by
rumors that he was an informant and by his failure to maintain
the rent payments. From this, the jury could have concluded
that defendant had a non-financial motive to accomplish the
murder, which could have shored up his deteriorating position
in the gang.
Between two and six months after Corona first proposed
the murder, Montemayor was killed by three gang members, all
of whom were members of the same gang as defendant.7 Two of
the three were sufficiently close to defendant within the gang
that their monikers were among those of a small number of
associates painted on the walls of his garage. In committing the
killing, these associates used a vehicle registered to defendant’s
address. In the hours prior to the shooting, two of the gang
members were repeatedly in contact with cell phones associated
with defendant and Corona.8 Further, the 1600 cell phone
linked to defendant was in constant communication with
Macias, Martinez, Corona, and defendant’s wife beginning on
the evening prior to the killing, continuing through the night
7
Corona testified that she first proposed the murder to
defendant in August 2002, but his recollection was that the first
conversation occurred in April.
8
Although the Blazer and cell phone service plans were not
in defendant’s name, there was evidence that defendant
registered his assets in the names of other persons, presumably
to avoid the assets being traced to him. The jury could therefore
have inferred that the Blazer and the various cell phones were
controlled by defendant.
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Opinion of the Court by Cantil-Sakauye, C. J.
and into the early morning. After the killing, attempts were
made to obscure the connection between defendant and the
crime by reporting stolen the vehicle used in the killing and
changing the number of the 1600 cell phone.
Accordingly, the evidence could be understood to
demonstrate that: (1) defendant, a relatively senior member of
the Pacoima Flats, a criminal street gang, was asked or directed
to commit the Montemayor killing by Corona, whose father was
a highly placed gang member; (2) defendant received and
retained Montemayor’s address and phone number from
Corona; (3) Montemayor was subsequently killed by two
Pacoima Flats gang members who were among a small group
closely associated with defendant, along with a third member of
the same gang; (4) these gang members were permitted to use
and did use defendant’s car and cell phones in committing the
killing; (5) the two gang members closest to defendant were in
repeated contact with him and Corona in the hours leading up
to the killing; and (6) defendant was similarly in constant
communication with these two and Corona in the twelve hours
leading to the murder. This pattern is consistent with Detective
Booth’s testimony about street gang culture, in which, he said,
older members tend to supervise, while younger members are
tasked with the actual commission of violent crime.
As noted above, when reviewing the sufficiency of the
evidence to support a criminal conviction, we apply a deferential
standard. We view the evidence in the light most favorable to
the prosecution and, taking that view, ask whether
“ ‘ “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” ’ ” (Banks,
supra, 61 Cal.4th at p. 804, italics omitted.) Given defendant’s
standing within the Pacoima Flats gang, a jury reasonably could
19
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Opinion of the Court by Cantil-Sakauye, C. J.
have inferred that the subordinates were enlisted to commit the
crime on defendant’s behalf. Further, although there is no direct
evidence that defendant conspired with the three gang members
to commit the crime, a jury reasonably could have concluded
beyond a reasonable doubt that defendant recruited and
directed them and facilitated their commission of the killing,
based on the shooters’ gang relationship to defendant, their use
of a vehicle registered to defendant’s address, and the killers’
repeated contact with him and Corona immediately before the
killing.
Defendant offers several alternative, contrary
interpretations of the evidence. The interpretations vary in
their plausibility, but our consideration of them is, in any event,
constrained by our deferential standard of review. We must
accept the jury’s verdict if it represents a rational conclusion
from the evidence, and, for the reasons discussed above, we find
it so. We analyze defendant’s interpretations below, while
recognizing that, in the end, they address matters that were the
jury’s to resolve.
Defendant first contends that the foregoing evidence was
sufficient to support only a “suspicion” that he “might” have
been a member of the conspiracy. This characterization
underestimates the probative force of the evidence, which
readily supported the conclusion that defendant was, in effect,
the killers’ boss in a criminal enterprise. He was solicited to
commit the killing; his subordinates committed the shooting
using his property; and these subordinates were in repeated
contact with him before and during the killing. The inference
that the gang members were working in concert with defendant
therefore finds solid support in the evidence. It is true, as
defendant argues, that there was no direct evidence of his
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Opinion of the Court by Cantil-Sakauye, C. J.
personal participation past the point of his solicitation by
Corona, but such evidence was not required. Given the nature
of criminal conspiracies, it is often the case that there is no
direct evidence of an agreement among the conspirators.
(Homick, supra, 55 Cal.4th at p. 870 [“such agreement must
often be proved circumstantially”].) Contrary to defendant’s
contention, direct evidence is unnecessary when, as here, the
circumstantial evidence permits the jury to infer beyond a
reasonable doubt that an agreement existed.
Defendant also contends that his mere association with
the shooters is insufficient to support a finding that he conspired
with them. (See, e.g., Simmonds v. Superior Court (1966) 245
Cal.App.2d 704, 708 [“the law recognizes that mere association
or mere presence cannot alone furnish the basis for a charge of
coconspiracy”].) That is correct as a principle of law, but the
prosecution provided evidence of more than mere association.
As noted above, it could be concluded that defendant had a
personal motive to commit the killing; was, pursuant to his
standing in the gang, the shooters’ boss; permitted them to use
his property in committing the crime; and was in
communication with them before and at the time of the shooting.
Defendant suggests the killing was staged in a manner
designed to frame him, perhaps because of the suspicions that
he was an informant. As noted, he testified that no person in
his position would knowingly permit gang underlings to use his
car in committing a homicide or would communicate with those
underlings by cell phone in the course of the crime. Although
these aspects of the killing certainly inculpated defendant in the
killing, the jury was not required to accept them as the result of
an attempt to frame him. They could simply be explained as
incaution.
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Opinion of the Court by Cantil-Sakauye, C. J.
The jury could also have discounted defendant’s theory
because the plot he outlined depended for its success on the
shooters’ apprehension. The forensic evidence used to implicate
defendant was located because the killers were found in
possession of it immediately after the homicide. Had the
shooters not been spotted, chased, and arrested, police would not
have been able to use Macias’s cell phone to connect defendant
to the crime. Nor would they have found the business card
bearing defendant’s gang moniker in Macias’s wallet, and they
might not have been able to identify the vehicle used. In other
words, framing defendant in this manner would succeed only if
the killers were caught soon after the killing. Accepting
defendant’s claim therefore required the jury to conclude that
the killers’ apprehension was an integral part of the plan to
frame him. Although this is conceivable, the jury was by no
means compelled to conclude that the evidence of defendant’s
involvement in the execution of the scheme was, in effect,
fabricated.
Defendant contends that it “defies logic” to infer that he
was involved in the killing after having told two law
enforcement officers about it. Though defendant was free to
argue, as he did, that this evidence was helpful to him, the jury
was entitled to discount it. (See Reed, supra, 4 Cal.5th at p.
1007.) Defendant knew considerably more about the planned
killing than he told the officers, including the involvement of
Corona and the address and telephone number of the proposed
victim. Yet he told the detectives little more than that a
homicide would occur at some unspecified time in Orange
County, perhaps involving unidentified gang “big homies.” As a
result, nothing defendant told the detectives would permit them
to connect the crime, if and when it occurred, to him personally.
22
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Opinion of the Court by Cantil-Sakauye, C. J.
For this reason, the jury’s conclusion that the reports did not
preclude his subsequent participation in the murder was
entirely rational.
Finally, defendant contends the evidence is “just as
consistent” with his innocence and points to several
circumstances that, he asserts, are inconsistent with his
participation in the killing. In particular, defendant cites (1) his
disclosures to law enforcement, (2) his move to Las Vegas prior
to the killing, (3) the use of his vehicle in the crime, (4) the
suspicions within the gang that he was an informant, and (5) his
poor relations with his wife, who was a friend of Corona. We
acknowledge that these factors, if accepted as true, weighed
against the conclusion that defendant was involved in the
killing. Our task in reviewing the sufficiency of the evidence to
support a criminal conviction, however, is not to weigh the
evidence to determine the most likely interpretation. Rather,
we view the evidence and the reasonable inferences therefrom
in the light most favorable to the jury’s determination, taking at
face value evidence that is not inherently improbable, and
presuming the existence of every fact reasonably deduced from
that evidence. (Flores, supra, 9 Cal.5th at p. 411; Reed, supra,
4 Cal.5th at p. 1006.) We ask not whether the jury’s judgment
was the most probable interpretation of the evidence, but simply
whether it was a rational one. (Banks, supra, 61 Cal.4th at p.
804.) For the reasons discussed above, we conclude that the
jury’s judgment here was rational. None of the circumstances
cited by defendant persuades us otherwise.
2. Defendant failed to demonstrate that he withdrew
from the conspiracy
Defendant contends that, assuming he was involved in the
homicide, he withdrew from the conspiracy by reporting the plan
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Opinion of the Court by Cantil-Sakauye, C. J.
to police. Simply as a matter of the law of withdrawal,
defendant’s conduct was insufficient. As defendant
acknowledges, California law requires a withdrawing defendant
to “ ‘notify[] the other party or parties of whom he had
knowledge of his intention to withdraw from the commission of
the crime and . . . [do] everything in his power to prevent its
commission.’ ” (People v. Richardson (2008) 43 Cal.4th 959,
1022, fn. omitted; see also People v. Fayed (2020) 9 Cal.5th 147,
178–179.) Putting aside the issue of notification, the evidence is
clear that defendant did not do “everything in his power” to
prevent the killing. Merely by disclosing to Rodriguez either
Corona’s involvement or the address and phone number of the
intended victim, defendant could have prevented the killing.
Instead, he withheld that information.
Defendant argues, alternatively, we should hold that “a
person may withdraw from a conspiracy by communicating the
pending plot to law enforcement,” although he acknowledges
that he is unaware of any California decision announcing such
a rule of law. Even if we were to adopt his proposed rule, it
would presumably require that the defendant make a more
fulsome disclosure of the planned crime than occurred here. As
discussed above, defendant disclosed no genuinely useful
information to law enforcement, while withholding information
that likely would have permitted the officers to prevent the
killing — for example, the address and phone number of the
victim or Corona’s solicitation. We decline to rule that the
limited nature of defendant’s disclosure to the law enforcement
officers was sufficient to constitute a withdrawal from the
conspiracy.
24
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Opinion of the Court by Cantil-Sakauye, C. J.
3. The evidence was sufficient to support the special
circumstances for murder during a robbery and
murder during a kidnapping
Relying on our decision in Banks, supra, 61 Cal.4th 788,
defendant contends the evidence was insufficient to support a
finding that he was a “major participant” in the killing, as
required by section 190.2, subdivision (d). Such evidence was
unnecessary, however, because the jury necessarily found that
defendant intended Montemayor’s death.
Section 190.2, subdivision (d), states that a defendant can
be sentenced under a felony murder special circumstance upon
findings that the defendant was a “major participant” in the
crime and acted with reckless indifference to life. In Banks, we
applied this subdivision in concluding that a defendant who
participated as the getaway driver in an armed robbery that
resulted in a killing was a not “major participant” in the robbery.
(Id., supra, 61 Cal.4th at p. 807; see id. at pp. 804–807.) Section
190.2, subdivision (d), however, applies only to defendants who
lacked the intent to kill and did not actually kill. Section 190.2,
subdivisions (b) and (c) subject defendants who were either the
actual killer or possessed the intent to kill, respectively, to a
felony murder special circumstance without the finding of
further elements.
The clear distinction between this case and Banks is the
underlying crime. The defendant in Banks participated in an
armed robbery that incidentally involved a killing; defendant in
the present case conspired to commit a murder that incidentally
involved an attempted robbery and kidnapping. Although not
all of the theories of murder on which defendant was tried
required a finding of intent to kill, both conspiracy to murder
and a special circumstance for murder committed for the benefit
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Opinion of the Court by Cantil-Sakauye, C. J.
of a criminal street gang require that finding. (E.g., People v.
Beck and Cruz (2019) 8 Cal.5th 548, 641, 642 (Beck and Cruz)
[“ ‘all conspiracy to commit murder is necessarily conspiracy to
commit premeditated and deliberated first degree murder’ ” and
“conspiracy to commit murder may not be based on a theory of
implied malice”]; People v. Anthony (2019) 32 Cal.App.5th 1102,
1144–1145 [street gang special circumstance requires intent to
kill concerning a defendant who was not the actual killer].) The
jury was so instructed.9 In finding defendant guilty of
conspiracy to murder and finding true the criminal street gang
special circumstance, the jury necessarily found that he acted
with the intent to kill Montemayor. Defendant was therefore
subject to the felony murder special circumstances under section
190.2, subdivision (c).
Sufficient evidence supported the jury’s finding that
defendant possessed intent to kill. From the beginning, the
result sought by Perna and Corona was Montemayor’s death.
Any kidnapping was merely a means to that end, and the
robbery was intended to compensate the killers for their efforts.
The jury was entitled to infer that in participating in this
scheme, defendant knew and intended that Montemayor would
be killed. Accordingly, neither Banks nor section 190.2,
subdivision (d) provides a basis for reversing the special
9
Conspiracy to murder, the jury was instructed, “requires
proof that the conspirators harbored express malice
aforethought, namely, the specific intent to kill.” Regarding the
special circumstance, the jury was instructed that it was
required to find that “such defendant with the intent to kill
counseled, commanded, induced, solicited, requested, or
assisted any actor in the commission of the murder.”
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Opinion of the Court by Cantil-Sakauye, C. J.
circumstance findings for murder in the course of a robbery or
kidnapping.
4. Sanchez error does not require reversal of
defendant’s gang-related conviction and special
circumstance
Because the trial featured testimony by an expert
concerning gang activities, we requested that the parties file
supplemental briefing addressing the possible application of
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In Sanchez,
we held that “case-specific out-of-court statements” cited by an
expert witness to support an expert opinion are offered for their
truth. (Id. at p. 684.) Such evidence must therefore be
admissible under an exception to the hearsay rule or supported
by competent evidence in the record. (Id. at p. 686.) In a
subsequent decision, we held that a claim of error from the
admission of Sanchez hearsay is not forfeited by a defendant’s
failure to object at a trial that occurred prior to the issuance of
Sanchez. (People v. Perez (2020) 9 Cal.5th 1, 9 (Perez).)
Defendant raises two issues under Sanchez. First, he
contends the prosecution’s gang expert, Detective Booth, relied
on hearsay in testifying regarding defendant’s gang affiliation.
Second, defendant argues that because Booth’s testimony about
predicate criminal activity by members of the Pacoima Flats
gang was based on hearsay, his gang-related conviction and
special circumstance were not supported by the evidence.
Assuming Booth’s testimony regarding defendant’s gang
affiliation was admitted in violation of Sanchez, it was plainly
harmless, given his own later admission of that membership.
Although we agree with defendant that Booth’s testimony about
predicate criminal activity was inadmissible under Sanchez,
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Opinion of the Court by Cantil-Sakauye, C. J.
that error was harmless under the circumstances, for the
reasons stated below.
a. Defendant’s participation in the Pacoima Flats
gang
Defendant contends that Booth related the following items
of case-specific hearsay in his testimony addressing defendant’s
gang affiliation: (1) defendant was a member of the Pacoima
Flats gang; (2) defendant had been a member of the gang “all of
his life”; and (3) defendant’s moniker within the gang was
“Droopy.” Defendant is correct that Booth identified hearsay
sources when testifying to these three matters, but that does not
necessarily make the admission of the testimony error under
Sanchez. Its admission was improper only if the expert’s
testimony about the case-specific facts was not otherwise
supported by competent evidence in the record. (See Sanchez,
supra, 63 Cal.4th at p. 686 [“What an expert cannot do is relate
as true case-specific facts asserted in hearsay statements,
unless they are independently proven by competent evidence or
are covered by a hearsay exception”].)
There was abundant competent evidence admitted at trial
to demonstrate that defendant was a longtime member of the
Pacoima Flats gang, notably including his own testimony, and
that his moniker within the gang was Droopy. Because most of
this evidence was admitted after Booth’s testimony, however, it
arguably cannot be cited to support admission of his testimony.
(See, e.g., People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510 [“If
prior unobjected testimony supported the prosecution experts’
case-specific testimony, the testimony was not objectionable
under Sanchez”].)
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Opinion of the Court by Cantil-Sakauye, C. J.
We need not resolve the propriety under Sanchez of the
admission of Booth’s testimony about defendant’s gang
activities because any error in the admission of this testimony
was unquestionably harmless. In addressing the standard for
harmless error in the Sanchez context, we must take into
consideration whether the erroneously admitted hearsay
evidence was “testimonial” for purposes of Crawford v.
Washington (2004) 541 U.S. 36, 61. (See Valencia, supra, 11
Cal.5th at p. 840.) If so, we apply the federal constitutional
standard of Chapman v. California (1967) 386 U.S. 18(Chapman), which requires reversal unless we conclude “beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” (Id. at p. 24; Valencia, at p.
840.) If not, we apply the state law standard of People v. Watson
(1956) 46 Cal.2d 818 (Watson), which requires reversal if it is
reasonably probable the verdict would have been different had
the error not occurred. (Id. at p. 836; Valencia, at p. 840.)
Here, we conclude that the admission of Booth’s testimony
about defendant’s gang ties was harmless under either
standard. Competent, credible evidence establishing his gang
membership and moniker was ultimately admitted, including,
as noted, defendant’s own admissions. The jury therefore would
have learned these facts independently of Booth’s testimony.
b. Defendant’s membership in a criminal street
gang
Defendant also contends that Sanchez was violated when
Booth relied on hearsay in testifying with respect to various
predicate gang crimes, assertedly resulting in insufficient
evidence to support his gang-related conviction and special
circumstance. Although we agree with defendant that some of
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Opinion of the Court by Cantil-Sakauye, C. J.
this evidence was admitted in violation of Sanchez, we conclude
that its admission was harmless error.
In contending that the evidence was insufficient to
support his convictions, defendant misunderstands the effect of
a finding of Sanchez error. Evidence erroneously admitted is
properly considered in weighing the sufficiency of evidence to
support a conviction, notwithstanding its erroneous admission.
(E.g., People v. Story (2009) 45 Cal.4th 1282, 1296–1297
[erroneously admitted evidence is considered in deciding
whether the evidence at trial was sufficient to support a
conviction, thereby permitting a retrial after a reversal for
prejudicial error in the admission of the evidence]; see also
People v. Potts (2019) 6 Cal.5th 1012, 1031 [“But the evidence
here was admitted, and its probative value bears on the
sufficiency of the evidence at trial”].) Sanchez error therefore
does not affect the sufficiency of the evidence to convict. Instead,
the question before us, as with any other erroneously admitted
hearsay, is whether the error in admitting that evidence was
prejudicial. Unlike a finding of insufficient evidence, a finding
of prejudice does not bar retrial of the overturned conviction.
(People v. Hernandez (2003) 30 Cal.4th 1, 6 [“As a general rule,
it is well established that if the defendant secures on appeal a
reversal of his conviction based on trial errors other than
insufficiency of evidence, he is subject to retrial”].) We evaluate
defendant’s claim of error from this perspective.
To prove defendant’s participation in a criminal street
gang, it was necessary for the prosecution to establish that the
Pacoima Flats gang qualified as a “criminal street gang” under
the governing statute, section 186.22. That statute defines
“criminal street gang” as a group “whose members individually
or collectively engage in, or have engaged in, a pattern of
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Opinion of the Court by Cantil-Sakauye, C. J.
criminal gang activity,” among other requirements. (§ 186.22,
subd. (f).) In turn, a “pattern of criminal gang activity” is
defined as the commission of two or more specific enumerated
crimes, known as predicate offenses, by members of the gang.10
(§ 186.22, subd. (e).) The circumstances of such predicate
offenses are case-specific facts for purposes of Sanchez, and
expert testimony about them must be supported by competent
evidence. (People v. Valencia (2021) 11 Cal.5th 818, 839
(Valencia) [“facts concerning particular events and participants
alleged to have been involved in predicate offenses . . . constitute
case-specific facts that must be proved by independently
admissible evidence”].)
To establish the commission of the predicate offenses
constituting a pattern of criminal gang activity, Detective Booth
testified about his examination of documents maintained by the
Department of Corrections and Rehabilitation regarding the
crimes committed by four men he identified as members of the
Pacoima Flats gang. As defendant acknowledges, Booth’s
reliance on these materials to establish the commission of the
predicate offenses did not violate Sanchez because the
documents were admitted into evidence.11
Defendant persuasively argues, however, that Booth
relied on hearsay materials in testifying that the men who
committed these crimes were associated with the Pacoima Flats
10
Although section 186.22 has been amended since
Montemayor’s killing, the same elements existed at the time.
(See, e.g., People v. Zermeno (1999) 21 Cal.4th 927, 930 [citing
the definition of a “ ‘pattern of criminal gang activity,’ ” from the
then-current version of section 186.22, subd. (e)].)
11
Defendant has not challenged the propriety of the court’s
ruling in admitting this evidence, and we do not consider it.
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Opinion of the Court by Cantil-Sakauye, C. J.
gang. Booth described the basis for his conclusion that each of
the four were gang members as an “investigation” of their
“backgrounds.” He did not describe the nature of the
investigations, other than that they involved a review of
documents maintained by local law enforcement. Although
Booth mentioned a few specific documents uncovered during the
investigation and explained their role in his conclusions, many
of the documents were not identified, and most of them appear
not to have been introduced into evidence. The documents he
identified that were in evidence — notably, four packets of
documents relating to the crimes from the Department of
Corrections and Rehabilitation — contain little or no
information relevant to the gang membership of the men who
committed the crimes. The admission of Booth’s testimony that
these men were members of the Pacoima Flats gang was
therefore erroneous under Sanchez.
We conclude, however, that the error was harmless under
either standard. (See Valencia, supra, 11 Cal.5th at p. 840.) In
People v. Turner (2020) 10 Cal.5th 786 (Turner), which provides
helpful guidance, an expert witness offered her opinion that a
fetus killed by the defendant was viable at the time of its death,
which was then an element of the crime of murder of a fetus.
The conclusion was based on the contents of an autopsy report
that was not admitted into evidence. We found admission of the
expert’s testimony on this point to have been in violation of
Sanchez. Because there was little other evidence in the record
to support the jury’s presumed finding that the fetus was viable
at the time of its death, we concluded that the defendant likely
would have been acquitted of this charge in the absence of that
testimony and reversed the fetal murder conviction. (Id. at
pp. 821–825.)
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Opinion of the Court by Cantil-Sakauye, C. J.
A similar evaluation of prejudice here suggests two
separate but related inquiries. The first, as in Turner, is
whether there was sufficient evidence to support a finding that
the Pacoima Flats gang satisfied the statutory requirements for
a criminal street gang in the absence of Booth’s testimony about
the crimes of the four alleged gang members. If there was
insufficient evidence to convict in the absence of the erroneously
admitted testimony, the error cannot have been harmless. The
second inquiry, assuming sufficient evidence existed in the
absence of the error, is whether the jury’s judgment nonetheless
might have been different in the absence of Booth’s testimony.
With respect to proof of the predicate offenses, the
Attorney General argues that, in the absence of Booth’s
testimony, the jury would have been entitled to consider for this
purpose the crimes committed by defendant and Montemayor’s
killers, citing People v. Loeun (1997) 17 Cal.4th 1 (Loeun). The
defendant in Loeun and a fellow gang member each assaulted
and struck a person they believed to be a member of a rival gang.
(Id. at p. 6.) The jury convicted the defendant of assault with a
deadly weapon and found true an allegation that the crime was
committed for the benefit of a criminal street gang, despite the
absence of proof of any other crimes committed by alleged gang
members. (Id. at p. 7.) Acknowledging that the jury could
consider evidence of his own crime, the defendant argued that
“to establish the requisite ‘pattern of criminal gang activity,’ the
prosecution must in addition present evidence of at least
one prior offense of gang activity.” (Ibid, italics in original.) We
rejected the contention, finding the evidence at trial sufficient to
support the enhancement allegation. As we explained, section
186.22 “allows the prosecution the choice of proving the
requisite ‘pattern of criminal gang activity’ by evidence of ‘two
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Opinion of the Court by Cantil-Sakauye, C. J.
or more’ predicate offenses committed ‘on separate
occasions’ or by evidence of such offenses committed ‘by two or
more persons’ on the same occasion. Therefore, when the
prosecution chooses to establish the requisite ‘pattern’ by
evidence of ‘two or more’ predicate offenses committed on a
single occasion by ‘two or more persons,’ it can, as here, rely on
evidence of the defendant’s commission of the charged offense
and the contemporaneous commission of a second predicate
offense by a fellow gang member.” (Id. at p. 10, italics in
original, fn. omitted; see also People v. Tran (2011) 51 Cal.4th
1040, 1046.)
Under Loeun, supra, 17 Cal.4th 1, the evidence of the
crimes committed by defendant, Macias, Martinez, and Lopez in
the course of the Montemayor killing was sufficient to support
the jury’s finding that the Pacoima Flats gang qualified as a
criminal street gang. One of those crimes, of course, was the
underlying homicide, a crime committed by defendant and all
three direct participants. Further, as demonstrated by this
jury’s true finding of the two special circumstances, each also
committed, at a minimum, attempted robbery and kidnapping.12
12
Even if the evidence admitted at trial was insufficient to
demonstrate that the three killers actually accomplished the
robbery of Montemayor, both attempted and completed crimes
qualify under section 186.22. (Id., subd. (e) [“ ‘pattern of
criminal gang activity’ means the commission of, attempted
commission of, conspiracy to commit, or solicitation of, . . . or
conviction of two or more of the following offenses . . . .”].) The
jury could have inferred from the evidence that Montemayor
traveled to the office that morning, opened the office, and was
kidnapped by the killers when they forced him to return home.
In light of the evidence that defendant was told Montemayor
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Opinion of the Court by Cantil-Sakauye, C. J.
All of these crimes qualify as a predicate offense under section
186.22. (Id., subds. (e)(2), (3), (15).) Ample evidence established
that Macias and Martinez were members of the Pacoima Flats
gang, including defendant’s testimony that they were members
of the gang and the presence of their gang monikers with his on
his garage wall. Accordingly, even disregarding Booth’s
testimony, the record contained sufficient evidence of predicate
offenses committed by members of the Pacoima Flats gang to
satisfy section 186.22.
We further conclude that admission of Booth’s testimony
about the four individuals was harmless under either standard
for assessing prejudice. (See Valencia, supra, 11 Cal.5th at p.
840.) Wholly apart from evidence sufficient to satisfy the
statutory “pattern” requirement, voluminous evidence was
offered at trial suggesting that the Pacoima Flats gang operated
as a criminal gang. Defendant testified as much, describing for
the jury his role in the gang and its activities. As he
acknowledged, he acted as an informant for federal agencies
investigating the gang’s criminal activities, while acting as a
leader in the gang. Booth offered similar, unobjectionable
testimony. Because (1) the statute’s technical requirements
were satisfied by evidence of the crimes committed in connection
with Montemayor’s death and (2) there was copious other
evidence that the Pacoima Flats gang operated as a street gang,
the jury had no reason to hesitate in concluding that the
Pacoima Flats gang qualified as a criminal street gang under
kept cash in a can at his house, the jury could have inferred that
the killers’ purpose in forcing Montemayor to return home was
to rob him of that cash.
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the law. Exclusion of Booth’s testimony about the other four
purported gang members would not have changed this result.
5. The trial court did not abuse its discretion in
anticipating potentially objectionable assertions in
defendant’s opening statement
Prior to trial, the defense kept from the prosecution its
decision to present testimony by defendant, but defense counsel
disclosed this intent in confidence to the court. During an ex
parte hearing shortly before the parties were to deliver their
opening statements, the trial court discussed with defense
counsel an outline of his planned opening statement. The court
was concerned that a series of factual assertions contained in
the outline had no obvious evidentiary source other than
defendant’s planned testimony. As the trial court recognized,
the assertions might be viewed as objectionable by the
prosecution, given its ignorance of defendant’s intention to
testify and the absence of any other known witness competent
to testify about the assertions. In an effort to anticipate such
objections, the court suggested that the defense either
(1) disclose the potentially objectionable assertions to the
prosecution, (2) disclose defendant’s intent to testify, or (3) defer
its opening statement until the close of the prosecution’s case-
in-chief. Defense counsel elected to defer the opening statement.
Defendant now contends that the trial court rulings leading to
this decision constituted a prejudicial abuse of discretion.
We find no error. The trial court’s rulings were a
reasonable and proper attempt to prevent a likely disruption of
trial while preserving the confidentiality of defendant’s intent to
testify.
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a. Factual background
During pretrial proceedings, the prosecution lodged an
objection to a defense proposal to elicit testimony from law
enforcement officers Starkey and Rodriguez that defendant
reported the possible killing to them. The prosecution
contended that defendant’s statements to the officers were both
irrelevant and hearsay. After a lengthy but inconclusive
hearing on the objection, defense counsel asked for an ex parte
hearing in camera. There, counsel informed the court that
defendant intended to testify, a tactical decision that counsel did
not want to reveal to the prosecution. The court acknowledged
that the officers’ testimony might be admissible to corroborate
defendant’s testimony. The court declined to overrule the
prosecution’s objection on that basis, however, because “I don’t
know whether defendant [will] or will not take the stand until
such time as he actually gets sworn in,” given his constitutional
right not to testify.
When the matter arose again in open court, the trial court
ruled, without further explanation, that defendant’s statements
to Starkey and Rodriguez were inadmissible, but it couched the
ruling as open to reconsideration during trial, recognizing that
“there are several contingencies that could take place.” As a
result of the ruling, however, the court instructed the defense
that it could not refer, during its opening statement, “to any
alleged statement by the defendant to Starkey or Rodriguez.”
Defense counsel again asked for an ex parte hearing, at
which counsel reiterated the plan to present defendant’s
testimony. Although the court accepted counsel’s
representation, it continued to express the belief that a “legal
standard” prevented it from making any ruling premised on
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defendant’s testimony because defendant could not be assumed
to testify until he, in fact, took the stand. Over defense
objection, the court adhered to its ruling regarding opening
statement, although the court modified the ruling slightly to
permit counsel to tell the jury that defendant spoke to Starkey
and Rodriguez soon after speaking with Corona.
A week before the commencement of trial, the court had
asked both parties to submit “a brief summary of your opening
statement.” The court did not explain the purpose of the
request, but it appears to have been part of the court’s efforts to
organize and control the proceedings. On the day before opening
statements were to be given, the court requested an ex parte
hearing with defense counsel. During the hearing, the court told
counsel that it had reviewed the outline of defendant’s planned
opening statement.13 The court was concerned because “a large
portion of [the planned opening statement] is really predicated
on [defendant’s testimony], and the prosecution is not aware
that that’s going to take place. That’s going to trigger objections
during your opening statement . . . .”14 Further, the court
13
The court’s ex parte discussion of the outline with defense
counsel was unusual, but the procedure has not been challenged
by defendant. We make no ruling regarding the propriety of this
aspect of the court’s conduct.
14
The trial court’s concerns were well-founded. The outline
of an opening statement submitted to the court relied heavily on
defendant’s anticipated testimony. In addition to describing
Navarro’s report to Starkey and Rodriguez, it provided an
extended account of his work as an informant, including details
that were likely known only to defendant. Further, the outline’s
account of defendant’s dealings with Corona differed in some
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Opinion of the Court by Cantil-Sakauye, C. J.
explained, it would sustain an objection to assertions in the
opening statement if no witness could be identified whose
testimony would support them. The court suggested that, in
order to maintain the confidentiality of defendant’s intent to
testify, “I’m prepared to defer your opening statement until the
prosecution completes their case-in-chief.” As the court noted,
“The only other alternative I would have is a disclosure at this
juncture and during your opening statement that you plan to
call the defendant and he will testify.”
During the ensuing discussion, the court identified several
matters in defendant’s proposed opening statement for which
there was no obvious evidentiary source other than defendant.
According to the court, these were found on a single page of the
confidential outline. As a possible means of obviating the need
to defer defendant’s opening statement, the court suggested that
defense counsel give the prosecution a copy of that page to
determine whether the prosecution objected to any of the
assertions. If the prosecution raised no valid objection, the court
noted, “then I’m going to leave the opening statement alone.”
Although objecting to this approach, defense counsel tentatively
agreed to the disclosure.15 At this point in the hearing, the court
respects from her own account, and defendant was the only
conceivable evidentiary source for these differences. Given the
defense’s decision not to disclose defendant’s intended
testimony, it was certainly possible, as the trial court feared,
that portions of the opening statement would be challenged by
the prosecution as unsupported by the testimony of known
witnesses.
15
This procedure would not necessarily have required the
defense to reveal to the prosecution its plan to call defendant as
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adjourned for lunch, with the express understanding that the
defense could consider its options during the break.
When the ex parte hearing resumed, defense counsel
immediately informed the court that, in light of its rulings, “I
think we would like to withdraw the proposed opening
statement that we intended to use and reserve the right to
present to the court a new and different opening statement
predicated upon what we hear in court from the People’s case-
in-chief, as well as what we intend to introduce on the defense.”
In response to a question from the court, counsel confirmed that
defendant had decided to defer his opening statement until
completion of the prosecution’s case-in-chief.
b. Discussion
“ ‘[T]he function of an opening statement is not only to
inform the jury of the expected evidence, but also to prepare the
jurors to follow the evidence and more readily discern its
materiality, force, and meaning.’ ” (People v. Gurule (2002)
28 Cal.4th 557, 610.) Although the assertions made in an
opening statement do not constitute evidence (Cox v. Griffin
(2019) 34 Cal.App.5th 440, 451), “the statement does offer a
‘story line’ into which the pieces of evidence should fit.” (People
v. Harris (1989) 47 Cal.3d 1047, 1085, fn. 19.) “[I]t is
requisite that when [a party] elects to make an opening
statement the facts shall be fairly presented by counsel, and that
there shall be no statement of facts which he cannot, or will not,
be permitted to prove.” (People v. Stoll (1904) 143 Cal. 689, 693–
694.) For that reason, counsel must have a good faith belief that
a witness, but the content of the outline would have made plain
defendant’s intent to testify.
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the assertions in an opening statement are supported by
evidence that is reasonably available and admissible. (Hawk v.
Superior Court (1974) 42 Cal.App.3d 108, 121 (Hawk).) This
principle is illustrated by People v. Romero (2007) 149
Cal.App.4th 29, which considered a claim that the trial court
erred in permitting the defense to refer to self-defense in its
opening statement only on the express condition that counsel
knew the defendant would testify. The Court of Appeal held the
condition appropriate because defendant and the deceased
victim were the only witnesses to the crime. “Without testimony
from [defendant], there would have been no evidence of the
circumstances which led to [the victim’s] death and hence no
evidence to support a finding of self-defense.” (Id. at p. 44.)
Under section 1044, the judge in a criminal trial has “the
duty . . . to control all proceedings during the trial, and to limit
the introduction of evidence and the argument of counsel to
relevant and material matters, with a view to the expeditious
and effective ascertainment of the truth regarding the matters
involved.” The statute “vests the trial court with broad
discretion to control the conduct of a criminal trial.” (People v.
Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) With
respect to closing argument, “the trial court retains the
discretion to ‘ensure that argument does not stray unduly from
the mark, or otherwise impede the fair and orderly conduct of
the trial.’ ” (People v. Rhoades (2019) 8 Cal.5th 393, 446.) We
see no reason why the same rule should not apply to counsels’
opening statements, with due regard for the different functions
of those two presentations. We review an exercise of the court’s
authority in controlling the trial for abuse of discretion. (People
v. Edwards (2013) 57 Cal.4th 658, 743.)
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Defendant first contends the trial court erred in ruling
that his attorney could not mention the content of defendant’s
communications with Starkey and Rodriguez in opening
statement. We need not review the merits of this ruling,
however, because it was never implemented. In defense
counsel’s opening statement, given at the close of the
prosecution’s case-in-chief, counsel was permitted, without
objection, to describe the content of defendant’s communications
with Starkey and Rodriguez. Further, it is not clear that the
court’s ruling regarding the content of defendant’s
communications with Starkey and Rodriguez was a dispositive
or even substantial factor in defendant’s decision to defer his
opening statement, which was motivated by an overarching
desire to keep from the prosecution knowledge of his plan to
testify. Even if the court had permitted mention of defendant’s
statements to Starkey and Rodriguez, the defense’s underlying
dilemma remained: The defense risked revelation of
defendant’s intent to testify because “a large portion” of
defendant’s planned opening statement, well beyond the
mention of his discussions with Starkey and Rodriguez, was
premised on defendant’s own testimony.16
16
Although we decline to review the merits of the trial
court’s ruling barring the defense from mentioning in opening
statement the content of defendant’s communications with the
detectives, we share defendant’s skepticism about the trial
court’s rationale. The court appeared to accept that the
communications would be admissible if defendant testified, but
it declined to adopt this justification because defendant had not
yet taken the stand. With respect to inclusion of the
communications in opening statement, however, the relevant
consideration appears to have been defense counsel’s good faith
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With more pertinence, defendant contends that the trial
court committed prejudicial error by forcing the deferral of his
opening statement until after the prosecution’s case in chief.
Preliminarily, we note that there is nothing unprecedented
about the deferral of an opening statement. As a matter of
tactics, criminal defendants are expressly authorized to defer
opening statement in this manner. (§ 1093, subd. (b)
[“defendant or his or her counsel may . . . make an opening
statement [at the beginning of trial], or may reserve the making
of an opening statement until after introduction of the evidence
in support of the charge”].)
We conclude that in making the rulings leading to deferral
of the opening statement, the trial court acted within the bounds
of its broad discretion to manage trial proceedings. The trial
court’s suggestion that it was prepared to defer the defense’s
opening statement was made in response to defendant’s resolve
not to inform the prosecution of his intent to testify. In the
ensuing discussions, the court presented counsel with a set of
choices. The defense could provide a copy of one page of the
outline of its opening statement to the prosecution to determine
whether the prosecution objected to statements in the outline,
or it could reveal defendant’s intent to testify, or it could defer
the opening statement. As the court told the defense, if the
prosecution expressed no objection to the outline, “[T]hen I’m
going to leave the opening statement alone.” As noted, counsel
initially agreed to provide a copy of the page to the prosecution.
It was only after his return from lunch that defense counsel
belief that defendant would testify to the communications.
(Hawk, supra, 42 Cal.App.3d at p. 121.) There seems little
question that counsel possessed such a belief.
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informed the court that defendant would defer his opening
statement.
We find no abuse of discretion in the trial court’s actions.
Defense counsel planned to make assertions in an opening
statement that had no disclosed evidentiary source. As the trial
court recognized, it was possible that the prosecution would
raise ostensibly well-founded objections to these assertions
because it was unaware of defendant’s intent to testify. Further,
the prosecution had previously secured favorable rulings that
appeared to cover at least some of the content of the proposed
opening statement. From the prosecution’s point of view, the
assertions would have been improper because they were not
supported by evidence that is reasonably available and
admissible. (See Hawk, supra, 42 Cal.App.3d at p. 121.) Such
objections, in turn, would have presented the trial court with the
choice either of overruling the objections based on the defense’s
ex parte communications about its trial strategy or sustaining
the objections despite its knowledge that defendant planned to
testify. Within those confines, the court would have had little
choice but to sustain the objections to avoid reliance on
confidential ex parte communications. At that point, the
defense would have been faced with the decision either of (1)
disclosing for the first time to the prosecutor and the jury its
plan for defendant to testify, (2) amending its opening statement
in light of the sustained objections, or (3) deferring its opening
statement. Its choices, in other words, would have been little
different from those presented to the defense by the court at the
ex parte hearing.
By presenting this set of choices to the defense prior to the
commencement of trial, the court sought to avoid the disruption
and possible prejudice to defendant that might have occurred
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had the objections been raised during defendant’s opening
statement. A trial judge has broad discretion in controlling the
conduct of a trial, and the court’s attempt to prevent disruption
on the first day of trial was well within that discretion. As the
court noted, if the prosecution did not object to the outline,
defendant’s opening statement could proceed as planned. If the
prosecution objected, the defense would need to take account of
those objections in the presentation of its opening statement.
Had the defense been confident that it could proceed with the
opening statement as planned without giving away defendant’s
intent to testify, it presumably would have been willing to share
the outline with the prosecution, as proposed by the court. The
defense’s decision to defer its opening statement, rather than
disclose the outline, suggests that defense counsel recognized
that giving the opening statement as planned was inconsistent
with preserving the confidentiality of defendant’s intent to
testify.
Defendant contends the trial court’s ruling was an
improper interference with defense counsel’s tactical decisions.
Any interference, however, was within the trial court’s broad
discretion. The trial court did not prevent defendant from giving
an opening statement or calling witnesses. Nor did it order
disclosure of defendant’s intent to testify or the contents of such
testimony. As discussed above, the trial court’s ruling merely
sought to anticipate and prevent a possible disruption of trial.
As a result of the court’s diligence, defense counsel had a
meaningful opportunity to consider the options the court made
available to avoid the disruption, and defendant chose the option
of deferring his opening statement until after the prosecution’s
case. That decision presumably reflected the defense’s view of
the best tactical course in dealing with the realities of trial,
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which made it difficult both to rely on defendant’s testimony in
opening statement and to keep confidential his intent to testify.
Defendant contends he was prejudiced by the deferral of
his opening statement, relying on a contemporary scientific
theory of communications. For the reasons discussed above, we
find no error in the trial court rulings that led to the deferral of
defendant’s opening statement, which attempted to
accommodate defendant’s desire to maintain as confidential his
intent to testify under the circumstances. We therefore have no
occasion to reach the issue of prejudice.17
6. The trial court’s discovery sanction was not
prejudicial
Defendant contends the trial court committed a
prejudicial abuse of discretion when it imposed a discovery
sanction that barred the defense from asking Detective
Rodriguez whether, during a pretrial interview with one of the
defense attorneys, Rodriguez said defendant told him about
Corona’s involvement in the solicitation of Montemayor’s
killing. We find it unnecessary to rule on the propriety of the
court’s sanction because, even presuming error, there was no
prejudice.
Defendant testified that he when he spoke with Rodriguez
following his solicitation by Corona, he told Rodriguez
“[e]verything that happened, how I met this girl, what she said
she was, and what she wanted to happen in Orange County.”
17
For similar reasons, we reject defendant’s contention that
the trial court’s action denied him due process of law. Due
process did not guarantee defendant the right to rely on the
substance of his own testimony in opening statement while
preserving the confidentiality of his intention to testify.
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Opinion of the Court by Cantil-Sakauye, C. J.
When defense counsel asked Rodriguez about the same
conversations during his direct testimony, Rodriguez’s
recollection of the conversations was different. According to
Rodriguez, defendant called him to ask if he was interested in
“some type of a kidnap for ransom or a murder for hire case.”
Rodriguez recalled that defendant later said that “big
homies” — that is, persons in control of the Mexican Mafia —
were involved. When Rodriquez asked defendant “for suspect
information and who they thought the victim was going to be,”
defendant responded that “he didn’t really know at that point.”
A short time after this testimony, defense counsel asked
Rodriguez, “Did you tell [a member of the defense] that
[defendant] . . . said that some woman was behind this also
trying to get the defendant to do something?” Before Rodriguez
was able to answer, the prosecution objected, and the trial court
excused the jury. Asked by the court for a foundational offer of
proof, defense counsel told the court that Rodriguez spoke to one
of his co-counsel “at an earlier date, I think even three years
ago.” In that conversation, defense counsel told the court,
Rodriguez recalled defendant telling him “not only about the big
homies but there was some woman involved who was trying to
get him . . . to do something.” Counsel said that notes were
taken of the conversation, although, as discussed below, counsel
subsequently recanted that claim.
The prosecutor objected to the introduction of this
evidence because the defense had not provided any discovery
regarding Rodriguez’s communications with defense counsel
about his recollection of defendant’s statements. The trial court
noted that the defense had disclosed two reports concerning its
communications with Rodriguez, which the court and the
parties had reviewed during a conference immediately prior to
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Opinion of the Court by Cantil-Sakauye, C. J.
Rodriguez’s testimony, but “that information is not contained in
those documents.” The court “accept[ed] the People’s
representation” that the defense had “not disclosed that to
them.” Defense counsel acknowledged that this information
might “inadvertently” have been “left . . . out.”
The court did not believe defense counsel’s claim that he
had made a good faith effort to comply with discovery
obligations, recounting prior instances in which the defense had
failed to disclose the contents of communications with Rodriguez
and noting that counsel had earlier expressed a reluctance to
comply with Roland v. Superior Court (2004) 124 Cal.App.4th
154 (Roland), then-new case law requiring the disclosure of oral
communications by potential witnesses with the defense,
including defense counsel. The court expressly found that the
failure to disclose “was not a good faith error” and prohibited the
defense from inquiring about Rodriguez’s communications with
the defense about defendant’s statements as a “sanction” for
failing to comply with Roland.
During the subsequent colloquy, defense counsel admitted
that he was by no means certain that Rodriquez had ever made
the statement attributed to him in the objectionable question.
Counsel “thought” co-counsel had mentioned the comment, but
he could not find any reference to it in his notes. He said that
co-counsel claimed to have heard Rodriguez make the statement
again during a meeting they held with Rodriguez the day before.
Defense counsel himself, however, did not “remember
[Rodriguez] exactly even saying that.” As the discussion
continued, counsel acknowledged that he was “not sure . . .
where exactly I got the information from. My recollection is, my
feeling was, it might have [come] from [Rodriguez].” Eventually,
counsel conceded, “[T]his might be a lot to do over nothing. He
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might not even have said that exactly. I don’t know if he said
that for sure or not. I’m asking a question, what else was said
basically is what I wanted to know.”
During subsequent cross-examination by the prosecution,
Rodriguez was asked directly whether defendant had told him
about Corona or her relationship with Vivar as well as many
other details surrounding the proposed killing known to
defendant, and Rodriguez responded that defendant had not.
Section 1054.3, subdivision (a), provides in relevant part:
“The defendant and his or her attorney shall disclose to the
prosecuting attorney: [⁋] (1) The names and addresses of
persons, other than the defendant he or she intends to call as
witnesses at trial, together with any relevant written or
recorded statements of those persons, or reports of the
statements of those persons.” In Roland, the Court of Appeal
interpreted the phrase “reports of the statements of those
persons” to require a defendant (and, reciprocally, the
prosecution) to disclose the content of any oral statements made
by a disclosed witness to the defense, including those made
directly to defense counsel. (§ 1054.3, subd. (a)(1); see Roland,
supra, 124 Cal.App.4th at pp. 165, 167.) Defendant argues we
should find the sanction imposed by the trial court improper
because (1) Roland was incorrect in requiring the disclosure of
the content of a witness’s oral statements to defense counsel or
(2) the trial court abused its discretion in concluding that
counsel violated section 1054.3 and in imposing the sanction.
We have previously declined to address the propriety of Roland
when the failure to disclose was harmless. (Thompson, supra, 1
Cal.5th at p. 1102.)
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We decline to resolve defendant’s contentions because the
trial court’s sanction was unquestionably harmless, whether
measured by the state law standard of Watson or the more
exacting federal constitutional standard of Chapman. The
content of defendant’s communications with Rodriguez was
unquestionably important to the defense, but the court’s
sanction in no way prevented counsel from asking about those
communications. Rather, the area of inquiry forbidden to the
defense was Rodriguez’s conversations with defense counsel
about his communications with defendant. The detective’s
conversations with defense counsel were irrelevant to the trial,
except as a means of impeachment or as an aid to memory.
Their potential value in even that role, however, was limited.
Because the defense had no notes reflecting Rodriguez’s
purported comments and counsel disavowed any intent to put
co-counsel on the stand to dispute Rodriguez’s version, the
defense had little ability to challenge a denial by Rodriguez that
he made the claimed remarks to co-counsel. In a declaration
subsequently submitted to the court, Rodriguez was, in fact,
quoted as denying that he had told co-counsel that defendant
had mentioned Corona.18
18
The denial was contained in a declaration submitted to the
court in connection with the prosecution’s opposition to
defendant’s motion to reconsider the denial of a request to recall
Rodriguez. In the declaration, an investigator for the
prosecution stated: “I told Rodriguez that the defense was now
saying that Rodriguez wanted to change his testimony. [¶]
Rodriguez rolled his eyes and said that all that happened in the
hallway was that [co-counsel] had asked him whether he
remembered Navarro telling him, during the pre-October
conversations, that a woman was trying to drag him into a crime
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Further, the inquiry barred to defense counsel was
revealed to be little more than a fishing expedition when he
conceded that he did not know whether Rodriguez had ever
made the statement attributed to him. As counsel eventually
acknowledged, “I don’t know if he said that for sure or not. I’m
asking a question, what else was said basically is what I wanted
to know.” The court’s sanction did not preclude defense counsel
from asking that question — “what else was said” by defendant
to Rodriguez. Finally, as noted, the prosecution thoroughly
explored just that issue on cross-examination, and Rodriguez
expressly testified that defendant did not tell him about
Corona’s relationship with Vivar or her solicitation of the
killing. Given these circumstances, the trial court’s sanction
precluding the defense from asking Rodriguez about his
conversation with co-counsel was harmless beyond a reasonable
doubt.19 (Chapman, supra, 386 U.S. at p. 24; see People v.
Aledamat (2019) 8 Cal.5th 1, 3–4.)
that had been set up by the big homies. Rodriguez said that he
told [co-counsel] ‘no,’ he did not remember that. Rodriguez said
[co-counsel] then asked him ‘if it was possible’ that Navarro had
said that to him sometime prior to October. Rodriguez said he
told [co-counsel] that he supposed it was literally possible that
Navarro had told him that, but that he had no such recollection.”
19
In general terms, defendant contends the trial court’s
sanction denied him a litany of constitutional rights, including
“appellant’s right to due process of law under the Fifth and
Fourteenth Amendments, his Sixth Amendment right to
counsel, and his Eighth Amendment right to a reliable guilt and
penalty judgment.” For the reasons discussed, we find no
violation of defendant’s federal constitutional rights.
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7. The trial court did not err in excluding defendant’s
post-arrest statements to Rodriguez
Defendant contends the trial court erred in excluding
statements by Rodriguez regarding a conversation with
defendant following defendant’s arrest for Montemayor’s
murder. We find no error.
During redirect of Rodriguez, defense counsel asked about
a conversation Rodriguez had with defendant after he was jailed
for the Montemayor killing. Following a hearsay objection, the
trial court excused the jury and questioned Rodriguez
concerning the conversation. Rodriguez said that he went to the
jail with the intent of meeting with defendant and “clos[ing] out”
the file associated with defendant’s work as an informant.
During their meeting, defendant explained his presence in jail
by reference to his earlier conversations with Rodriguez, saying
“[Y]ou remember me telling you about this kidnap case?”
Defendant then referred, in Rodriguez’s recollection,
“specifically [to] a female and . . . the big homies.” The mention
of a “female” was significant because Rodriguez’s and
defendant’s accounts of their conversations prior to the killing
had differed in this respect. Defendant contended he had told
Rodriguez about Corona; Rodriguez did not recall defendant
mentioning a woman. Defense counsel argued that evidence of
defendant’s post-arrest statement to Rodriguez should be
admitted as a prior consistent statement, but the trial court
excluded it as hearsay.
We find no abuse of discretion in the court’s ruling.
Because defendant’s statement to Rodriguez was made
following his arrest, its primary relevance to the case at hand
was to demonstrate that defendant told Rodriguez about Corona
when he first contacted Rodriguez — that is, it was being offered
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for its truth to bolster defendant’s assertion on the stand that he
had told Rodriguez about Corona prior to his arrest. The
statement was therefore inadmissible hearsay, unless subject to
an exception. Evidence Code section 791, subdivision (b) does
allow admission of this type of hearsay, a prior consistent
statement of a witness, but the exception is available only if “the
statement was made before the bias, motive for fabrication, or
other improper motive is alleged to have arisen.” (See, e.g.,
Dalton, supra, 7 Cal.5th at p. 234.) By the time of defendant’s
arrest for the Montemayor killing, a motive for fabrication had
plainly arisen. We therefore find no abuse of discretion in the
trial court’s exclusion of the statement as hearsay. (People v.
Edwards (1991) 54 Cal.3d 787, 820.)
Defendant contends the statement was not hearsay
because it was offered to prove that “appellant had disclosed the
plot to Rodriguez.” The contention does not avoid the hearsay
problem. It is true that the statement was not hearsay if the
purpose of its admission was to prove that defendant informed
Rodriguez of the plot at the time the statement was made, after
defendant had been jailed. For that purpose, however, the
statement was excludable as irrelevant; defendant does not
contend that his post-arrest disclosure to Rodriguez had
probative value independent of its confirmation of his pre-arrest
statements. As defendant acknowledges, “what mattered was
that he had told one of his law enforcement handlers about the
plot in advance.” If admitted for that purpose, however, the
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statement was being offered to prove its truth and, as discussed
above, was properly excluded as hearsay.20
8. The trial court’s other challenged evidentiary
rulings were largely correct or did not prejudice
defendant
a. Defendant’s additional hearsay claims fail
Defendant contends the trial court erroneously sustained
hearsay objections to three questions. We find no prejudicial
error.
First, defendant contends that the trial court incorrectly
sustained a hearsay objection to a question asked of Rodriguez
about his encounter with defendant in jail following defendant’s
arrest for the Montemayor killing. Defense counsel asked, “Did
[defendant] confirm that he was [in jail] for this robbery-murder
that he was trying to tell you about in July?” Defendant argues
that “[n]either the fact that [defendant] had been arrested for a
robbery-murder nor the fact that the offense was the same one
[defendant] had told Rodriguez about in July or August were
offered to prove the truth of those facts but instead to show that
[defendant] had made the statements.”
We find no abuse of discretion in the court’s ruling. As
noted above, defendant’s post-arrest statements in jail about his
earlier conversations with Rodriguez were irrelevant to the
trial, except to corroborate his trial testimony about those
earlier conversations. Defendant’s “confirmation” to Rodriguez
that he was in jail in connection with the same incident “that he
20
Because there was no error under state evidence law,
defendant’s federal constitutional claim fails as well. (People v.
Seumanu (2015) 61 Cal.4th 1293, 1311.) The same is true of
each of defendant’s unsuccessful claims of evidentiary error.
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was trying to tell you about in July” was relevant only to prove
that he had told Rodriguez about the possible killing in July,
prior to its occurrence. In that role, the confirmation would have
been offered to prove its truth. Defendant argues that the
statement was offered to prove Rodriguez’s knowledge, but the
argument does not help his claim. Rodriguez’s knowledge of
defendant’s statement was irrelevant, except to the extent that
his knowledge confirmed defendant’s making of the statement.
Second, defendant contends, and we agree, that the trial
court erred in preventing him, on hearsay grounds, from asking
Rodriguez about questions posed by defendant’s wife during
telephone calls with Rodriguez. Defendant believed that the
nature of the questions would demonstrate that his wife was
sexually jealous of defendant. We agree with defendant that it
is difficult to imagine how the wife’s questions could constitute
objectionable hearsay. (See, e.g., People v. Jurado (2006) 38
Cal.4th 72, 117 [“The request for the gun, by itself, was not
hearsay, however, because an out-of-court statement is
hearsay only when it is ‘offered to prove the truth of the matter
stated.’ [Citation.] Because a request, by itself, does not assert
the truth of any fact, it cannot be offered to prove the truth of
the matter stated”].) The court’s ruling was not, however,
prejudicial because defendant was able to obtain equivalent
information merely by asking Rodriguez directly whether
defendant’s wife appeared to be jealous. Rodriguez confirmed
that she appeared to be “extremely” jealous. Defendant does not
point to any additional material information he was prevented
from obtaining by the court’s ruling; the only other topic,
defendant’s relocation to Las Vegas prior to the killing, was
proved by other evidence.
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Finally, the trial court erred in precluding any inquiry into
the nature of telephone calls between defendant’s wife and his
mother on hearsay grounds. Because the purpose of defendant’s
questions was not to prove the truth of any particular statement
made by either participant during these calls, but rather to show
through defendant’s wife’s comments that she was attempting
to find defendant, counsel’s questions did not seek hearsay
testimony. Through persistence, however, defense counsel was
able to establish that the purpose of these calls was to locate
defendant. The court’s error was therefore harmless.
b. The evidence of gang activities was not excessive
Defendant contends the trial court permitted the
admission of “far more gang-related evidence than was
necessary for the prosecution’s case.” We find no abuse of
discretion in the trial court’s rulings.
Defendant asserts the trial court erred in permitting the
gang expert, Detective Booth, to testify regarding certain gang
behavior patterns that, he maintains, were not directly raised
by the present case — for example, the connection to a
particular geographic territory, the ways in which members are
admitted to the gang, the value afforded violent acts within the
gang, and the manner in which gangs control their territory.
Defendant argues that because this was “not a typical gang
case,” which he characterizes as “a drive-by shooting of rival
gangs, or defense of turf, or violence for the sake of
intimidation,” but instead was a “murder for hire,” such
evidence served no purpose other than to engender bias.
We find no abuse of discretion in the trial court’s refusal
to exclude such evidence as more prejudicial than probative
under Evidence Code section 352. Although, as defendant
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argues, this might not have been the type of crime associated in
the public mind with street gangs, it was undoubtedly a product
this type of organized crime. Montemayor’s killing was
accomplished by three men acting in concert, while in regular
communication with other interested persons. The motive for
the crime was unclear, although various possibilities were
raised. Booth’s testimony about the behavior of street gangs,
the relations among gang members, and their values placed the
killers’ conduct in context, served to explain why three young
men who had no known connection to the victim would commit
such a serious crime with no apparent guarantee of financial
gain. We find no error in its admission.
c. The materials seized from Martinez’s residence
were relevant
Defendant next contends the trial court abused its
discretion in permitting the introduction of items seized from
the home of one of the killers, Martinez. These items included
(1) a paper containing doodles, along with the writings “Crook”
and “Pacoima Flats,” (2) photographs of Macias and Martinez,
and (3) a notebook containing the telephone numbers of Macias
and Lopez. Although these materials did not relate directly to
defendant, they were probative of the relationships among the
individuals and their connection to the Pacoima Flats gang.
There was no abuse of discretion in their admission.
d. The evidence of predicate offenses was not
excessive
Defendant also contends the trial court abused its
discretion in permitting the prosecutor to introduce evidence of
more than the minimum number of predicate offenses necessary
to demonstrate a pattern of criminal activity under section
186.22, subdivision (e).
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The prosecution alleged a special circumstance under
section 190.2, subdivision (a)(22), which requires that the
murder occur “while the defendant was an active participant in
a criminal street gang” and be “carried out to further the
activities of the criminal street gang.” As discussed above, a
criminal street gang is statutorily defined, in part, as an
association of at least three persons who have engaged in “a
pattern of criminal gang activity.” (§ 186.22, subd. (f).) A
pattern of criminal gang activity, in turn, requires a
demonstration that the alleged gang has committed “two or
more” of a series of specified crimes. (§ 186.22, subd. (e).) In
theory, therefore, it was necessary for the prosecution to prove
the commission of only two of the listed crimes to demonstrate
this element of the special circumstance.
Booth was permitted to testify regarding the commission
of three predicate offenses by three different gang members
before defendant objected under section 352 that proof of
additional predicate offenses was more prejudicial than
probative. In ruling on the objection, the trial court first noted
that defendant had failed to object to this testimony when it was
disclosed in outline form prior to Booth’s testimony. The court
then denied the objection on the merits, ruling that it was
“prepared to give the [prosecution] some latitude” in proving the
elements of the special circumstance. Booth then presented
evidence of one additional crime, a robbery committed by a
fourth gang member.
Defendant argues the trial court abused its discretion in
allowing evidence of “twice as many predicate crimes than were
needed.” We find no abuse of discretion. The prosecution had
the burden of proving to the satisfaction of the jury that the
Pacoima Flats gang was a criminal street gang, as defined in
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section 186.22. As part of that burden, the prosecution was
required to demonstrate that the alleged gang had participated
in a “ ‘pattern of criminal activity,’ ” which required the
commission of “two or more” of the predicate offenses. (§186.22,
subd. (e), italics added.) Two predicate offenses is therefore the
minimum that the prosecution was required to prove, but proof
of more than the minimum was consistent with this statutory
language. Further, the prosecution was required more
generally to prove that the Pacoima Flats gang qualified as a
“ ‘criminal street gang,’ ” defined in part as “any ongoing
organization, association, or group . . . having as one of its
primary activities the commission of one or more of” the
predicate offenses listed in subdivision (e). (§186.22, subd. (f).)
In making a case under this provision of subdivision (f), the
prosecution may need to introduce more than the bare minimum
of predicate offenses to ensure that the jury is provided with a
reasonable account of the “primary activities” of the gang. Like
the trial court, the courts of appeal have recognized that
prosecutors must be given some latitude in this regard and have
refused to impose an “artificial” numerical limit on the number
of predicate offenses that may be proved. (People v. Hill (2011)
191 Cal.App.4th 1104, 1139 [not error to allow proof of eight
predicate offenses].)
Section 352 serves as a brake on such proof, limiting it to
a number of predicate offenses that is not more prejudicial than
necessary to make the case under the elements of section 186.22.
We find no abuse of discretion in the trial court’s conclusion that
evidence of four predicate offenses was not excessive,
particularly because there was no contention that any of the
predicate offenses mentioned by Booth involved defendant.
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9. The trial court did not abuse its discretion in
denying an adjournment to permit counsel to
interview an FBI witness
Defendant contends the trial court erred in declining to
delay trial proceedings to give defense counsel an opportunity to
interview an FBI agent who had appeared to testify. We find no
error.
Defendant called FBI agent Curran Thomerson to testify
about defendant’s work as an informant. The FBI had declined
to make Thomerson available to the parties prior to his
appearance to testify. Reports concerning defendant’s work
with the FBI had been produced to the defense, however, and
the parties were informed that Thomerson would be made
available to testify concerning the matters disclosed in the
reports.
On the morning of Thomerson’s testimony, defense
counsel was apparently able to speak privately with him for a
few minutes prior to the commencement of trial. When the case
was called, counsel asked the court for an additional fifteen
minutes with Thomerson for the purpose of “see[ing] what areas
we are going to concentrate on.” The court denied the request,
noting that “you already know what testimony you’re going to
elicit from this witness concerning the relationship of your client
to the FBI, and you’ve been provided adequate discovery for that
purpose.”
Toward the end of Thomerson’s testimony, during a break
in the proceedings, the court asked defense counsel whether
there was “any area [of testimony] that you think that you
haven’t had a chance to inquire into.” Counsel renewed his
request for additional time to speak privately with Thomerson,
explaining that he wanted to go over the reports produced to the
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defense. Counsel suggested that the court take an early lunch
break. The court denied that request, but it permitted defense
counsel a “few minutes” with Thomerson to clarify a specific
issue identified by counsel. The court explained that counsel’s
request “to go over the reports . . . in detail with the witness”
was denied because, “essentially, I think everything that you
wanted to give to the jury in the guilt phase dealing with his
relationship with the FBI has, in fact, been presented fully.”
Without articulating a specific legal theory or pointing to
an offer of proof made in the trial court, defendant contends the
trial court’s refusal to delay the trial to give counsel additional
time with Thomerson “hampered [his] ability to present his
defense.” We are unaware of any principle of law that would
have required the trial court to adjourn the trial to permit
counsel to interview Thomerson. The trial court has broad
discretion to carry out its “duty” under section 1044 to “control
all proceedings during [a criminal] trial, . . . with a view to the
expeditious and effective ascertainment of the truth regarding
the matters involved.” (§ 1044; see Hernandez, supra, 33
Cal.4th at p. 1048.) Counsel was seeking, in effect, a brief
continuance of trial to permit him to interview Thomerson.
“ ‘[T]he decision whether or not to grant a continuance of a
matter rests within the sound discretion of the trial court.
[Citations.] The party challenging a ruling on a
continuance bears the burden of establishing an abuse of
discretion, and an order denying a continuance is seldom
successfully attacked.’ ” (People v Fuiava (2012) 53 Cal.4th 622,
650.) On the other hand, “the trial court may not exercise its
discretion ‘so as to deprive the defendant or his attorney of a
reasonable opportunity to prepare.’ ” (People v. Doolin (2009) 45
Cal.4th 390, 450.)
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Defendant has failed to establish that the trial court
abused its discretion or violated his constitutional rights by
denying the request for a brief continuance. There was no
general claim that defendant lacked sufficient time to prepare
his defense. The only complaint involved this specific witness,
Thomerson. As the trial court found, defendant was provided
with detailed reports on the subject of Thomerson’s testimony
sufficiently in advance to allow preparation. Further, the trial
court did permit defense counsel a few minutes with Thomerson
in advance of his testimony and an additional opportunity to
speak with him regarding the single specific issue about which
counsel expressed uncertainty. The trial court merely denied
defense counsel the post hoc opportunity to review with the
witness the reports of defendant’s work to, as counsel phrased
it, “find out what else he left out [of the reports].” As defendant
concedes in his brief, “[t]here may have been little more that
[defense counsel] could have gleaned from meeting with
Thomerson.” Particularly given defendant’s opportunity to
review these reports well in advance of Thomerson’s appearance
and the abundance of evidence introduced relating to
defendant’s activities as an informant, we find no abuse of
discretion in the trial court’s decision to push ahead with trial.
Defendant also contends the trial court abused its
discretion in denying his motion to admit the entirety of the FBI
reports into evidence. Those reports consisted largely of the logs
made by law enforcement of their contacts with defendant in the
course of his work as an informant. Well in advance of
Thomerson’s testimony, the trial court told counsel that “the
nature and the quality of [defendant’s cooperation with law
enforcement] is relevant and viable.” But the court noted that
the logs themselves “appear[] to be unduly time consuming and
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not relevant in many respects.” Despite the court’s request that
defense counsel prune the reports to redact extraneous
materials, counsel identified for redaction only a recitation of
defendant’s arrests and mentions of two attorneys suspected of
criminal conduct when offering the reports into evidence.
Consistent with its earlier expressed concern that the reports
“contain[] many entries that are extraneous to the particular
case,” the court denied the motion, reasoning that “the pertinent
portions have been given to the jury in the form of testimony.”
We find no abuse of discretion in the trial court’s decision
to exclude the reports of defendant’s activities as an informant.
The specific details of his work were, after all, peripheral to the
trial. The critical issue was to demonstrate that defendant was,
for a significant period of time, a useful and effective informant
for law enforcement, and the lengthy testimony of defendant
and his handlers conclusively established this. Further, as the
trial court noted, the “pertinent portions” of the reports were the
subject of live testimony. The additional details contained in the
reports were of marginal relevance, and the trial court acted
well within its discretion in concluding that this evidence was
more likely to distract than inform.
Defendant suggests the trial court’s ruling deprived him
of a fair trial because it excluded evidence “critical” to his
defense. (See Chambers v. Mississippi (1973) 410 U.S. 284, 302.)
As the trial court noted, however, the pertinent evidence
contained in the reports was presented to the jury through the
testimony of defendant and his handlers. Defendant identifies
no material, let alone critical, evidence contained in the reports
that was not the subject of live testimony.
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Defendant’s appellate brief characterizes the rulings
challenged in this section as reflecting the trial court’s bias
against the defense. Defendant does not attempt to make a
serious demonstration of judicial bias, and we find no evidence
of bias in the foregoing rulings. “[A] trial court’s numerous
rulings against a party — even when erroneous — do not
establish a charge of judicial bias, especially when they are
subject to review.” (People v. Guerra (2006) 37 Cal.4th 1067,
1112.)
Finally, we reject defendant’s claim that the challenged
evidentiary rulings were cumulatively prejudicial. As discussed
above, we have found no significant error in the trial court’s
rulings, and any errors that did occur had no bearing on the
jury’s judgment, whether considered alone or together.
10. Defendant’s claims of prosecutorial misconduct
lack merit
a. The prosecutor’s leading questions were not
improper
Defendant contends the prosecutor committed prejudicial
misconduct when he “repeatedly prevented [defendant] from
giving complete answers to his questions, engaged in . . .
repeated argumentative questions and sarcastic comments, and
engaged in questioning which had been precluded in a pretrial
hearing.” We find no misconduct.
“ ‘A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render
the subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
trier of fact.’ [Citation.] ‘As a general rule a defendant may not
complain on appeal of prosecutorial misconduct unless in a
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timely fashion — and on the same ground — the defendant
made an assignment of misconduct and requested that the jury
be admonished to disregard the impropriety.’ ” (People v.
Silveria and Travis (2020) 10 Cal.5th 195, 306.) “[T]o establish
reversible prosecutorial misconduct a defendant must show that
the prosecutor used ‘ “deceptive or reprehensible methods” ’ and
that it is reasonably probable that, without such misconduct, an
outcome more favorable to the defendant would have resulted.”
(People v. Caro (2019) 7 Cal.5th 463, 510.)
Defendant first cites a series of six leading questions
asked during the prosecution’s cross-examination of defendant.
Each time, the prosecutor, after hearing defendant’s negative
response to the question, cut defendant off as he tried to explain
his denial and moved to strike defendant’s partial, attempted
explanation. The trial court sustained each request to strike,
noting that the defense could allow defendant to explain his
answers during redirect examination.
The Attorney General argues defendant forfeited any
claim of prosecutorial misconduct by failing to object and
request an admonition. Defendant did, however, repeatedly
object to the prosecutor’s conduct. Because the trial court
clearly condoned the prosecutor’s approach to cross-
examination, any request for an admonition would appear to
have been futile. (See Flores, supra, 9 Cal.5th at p. 403 [defense
need not object and request an admonition when to do so would
have been futile].)
On the merits, we find no misconduct by the prosecutor,
and defendant cites no legal authority suggesting an
impropriety. The prosecutor’s insistence on a yes or no answer
to his leading questions is an accepted convention of cross-
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examination. Generally, “[a] witness must give responsive
answers to questions, and answers that are not responsive shall
be stricken on motion of any party.” (Evid. Code, § 766.) When
a question calls for a yes or no answer, the attempt to append
an explanation to the answer is, strictly speaking,
nonresponsive. (E.g., People v. Davis (1963) 217 Cal.App.2d 595,
598 [“A general question alluding to a meeting at another ‘time’
at a given place does not invite the witness to include that which
happened on the occasion in his answer. The motion to strike
should have been granted as to all that portion of the answer
after the word ‘yes’ ”].) The practice can be subject to abuse if,
for example, a prosecutor asks questions premised on assumed
facts for which the prosecutor has no good faith basis. But that
type of abuse is not alleged here. The prosecutor’s questions
were based on a reasonable reading of the evidentiary record.
Defendant was given the opportunity, in the first instance, to
deny the questions’ implicit accusations. Defendant had the
opportunity to explain those denials on redirect examination. In
these circumstances, we do not find the prosecutor’s conduct to
have been so unfair as to deny due process to defendant.
b. The prosecutor’s allegedly aggressive cross-
examination did not rise to the level of
misconduct
As a second example of prosecutorial misconduct,
defendant cites a series of questions during the prosecutor’s
cross-examination of him that, he contends, constituted
testimony or were argumentative or sarcastic or “denigrated
[defendant’s] testimony and character.” Defendant failed to
preserve this claim by registering an objection on this ground
and seeking an admonition. Further, the prosecutor’s
aggressive questioning did not constitute misconduct.
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“A prosecutor is permitted wide scope in the cross-
examination of a criminal defendant who elects to take the
stand.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1147
(Gutierrez).) “When a defendant voluntarily testifies in his own
defense the People may ‘fully amplify his testimony by inquiring
into the facts and circumstances surrounding his assertions, or
by introducing evidence through cross-examination which
explains or refutes his statements or the inferences which may
necessarily be drawn from them.’ ” (People v. Harris (1981) 28
Cal.3d 935, 953.) Generally, as we explained in People v.
Armstrong (2019) 6 Cal.5th 735, “A prosecutor may honestly
urge that a defendant lied. Convincing the jury that he did so is
a potent weapon.” (Id. at p. 797.)
Defendant forfeited these claims of prosecutorial
misconduct. Although defendant did object to many of the
questions on evidentiary grounds, he did not do so on grounds of
prosecutorial misconduct, nor did he seek an admonition from
the court regarding this type of conduct.21
21
As to some of defendant’s claims, this failure makes it
impossible to determine whether the prosecutor’s questions
were improper. On one cited instance, the prosecutor attempted
to demonstrate that an occasion of cooperation with law
enforcement by defendant, which occurred several years before
trial, was undertaken for the purpose of gaining leniency. The
prosecutor asked, “What actually happened is a couple days
later [the arresting officer] went down and talked to a court
commissioner that your case was going to be in front of” to
secure defendant’s release. Defense counsel unsuccessfully
objected that “[c]ounsel is testifying,” but he did not otherwise
contest the question. The question was not improper, however,
merely because evidence supporting its factual premise was not
at that time contained in the trial record, so long as the
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Even if these claims were not forfeited, we would not find
this aspect of the prosecutor’s manner of cross-examination to
constitute misconduct. Defendant provides details of eleven
separate incidents. An example is the prosecutor’s cross-
examination regarding defendant’s decision to become an
informant. When defendant said he was “tired” of gang life, the
prosecutor responded, “So in response to being tired of the gang
life, you signed up to be a rat.” When defendant said he chose
that course rather than moving away because he was not
“financially set,” the prosecutor responded, “That’s a good topic
for conversation. Being an informant offer[ed] monetary
rewards, didn’t it?” Defendant acknowledged that he needed to
support himself, to which the prosecutor responded, “Support
yourself by turning in friends like Philip Sanchez, is that right?”
When defendant answered affirmatively, the prosecutor
followed, “Is that how you view this, I’ll trade my friends in so I
can have a few dollars for myself?”
In a similar vein, when defendant said he did not
remember what he meant when writing in a letter, “I got five
signatures,” the prosecutor responded sarcastically, “Did you go
to Dodger Stadium, get the autographs of five ballplayers?”
When defendant answered he had no idea what the question
meant, the prosecutor asked rhetorically, “If the author doesn’t
know, how are we to know?” Soon after, when defendant
acknowledged that one purpose in writing the letter was to
convince the recipient that he was still the llavero in his
prosecutor had a good faith belief in the truth of the premise.
Because defendant did not seek an offer of proof, however, we
have no way of knowing the basis for the prosecutor’s question
and, consequently, have no grounds to evaluate its propriety.
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territory, the prosecutor responded, “That’s what your whole life
was about, was keeping up that appearance, right?” When
defendant responded that, no, he was trying to find out
information, presumably to relay to law enforcement, the
prosecutor again employed sarcasm, asking, “You were very,
very motivated to stop crime, weren’t you?”
Defendant also highlights “aggressive” cross-examination
about his actions immediately following the murder. After
defendant acknowledged that, upon first hearing press reports
of the Montemayor’s killing, he did not contact Starkey or
Rodriguez to tell them what he knew, the prosecutor asked,
“[W]hy not?” Defendant answered, “I don’t know. I don’t know.”
The prosecutor responded, “That’s the best you can do for us?”
To bring the point home, the prosecutor followed up, “This is
your whole defense, isn’t it? . . . That you were an informant
and you were trying to stop this murder, and somehow you got
tossed up in this and you’re wrongly accused. Isn’t that your
defense?” When defendant then said he did not remember
whether he called Rodriguez at that time, the prosecutor
responded, “Let me give you some time. Think about it. Give
us a better answer than that, if you can.” The prosecutor
followed up, “Isn’t it because you were involved in the murder?”
As these examples illustrate, the prosecutor’s questions
were sometimes sarcastic and aggressive. His approach,
however, was not unfair or deceptive. The questions cited by
defendant generally constitute fair, if forceful, comment on
inconsistencies and improbabilities in his testimony.
Accordingly, they were not outside the “wide scope” permitted in
the cross-examination of a criminal defendant who elects to take
the stand. (Gutierrez, supra, 28 Cal.4th at p. 1147.) We find no
misconduct.
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c. The prosecutor’s reference to Summer Sherwood
was not prejudicial
During the prosecutor’s cross-examination of defendant,
the questioning turned to communications between male and
female inmates during defendant’s pre-trial detention,
accomplished using piping in the jail. The prosecutor
established that defendant had engaged in the practice and
asked whether he still had communications with female
inmates. Defendant answered that he had gotten tired of it and
stopped. To the prosecutor’s inquiry when he stopped,
defendant answered, “After speaking to some girl named
Summer.” The prosecutor took this as a reference to Summer
Sherwood, who was eventually sentenced to prison for
threatening Corona to discourage her from testifying against
defendant in this matter. Upon defendant’s answer, the
prosecutor responded, “Oh, the girl who went upstate for
threatening Mira Corona?” This appears to have been the first
mention of Sherwood at trial.
Defendant objected and immediately moved for a mistrial,
contending the question constituted “intentional prosecutorial
misconduct.” In a subsequent colloquy, the prosecutor said that
he had no intention of introducing evidence of Sherwood’s
conviction prior to defendant’s mention of her name, but “[N]ow
that [defendant] has volunteered his connection to Summer Star
Sherwood it was something I was thinking of doing.” The court
took defendant’s motion for a mistrial “under submission”
pending the prosecutor’s decision. Defense counsel did not ask
to strike the question nor seek a jury admonition, and the
prosecution never presented further evidence regarding
Sherwood.
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We agree with defendant that the prosecutor’s question
appears to have been improper, although we do not accept his
proffered rationale. It is “well established that the prosecuting
attorney may not interrogate witnesses solely ‘for the purpose of
getting before the jury the facts inferred therein, together with
the insinuations and suggestions they inevitably contained,
rather than for the answers which might be given.’ ” (People v.
Wagner (1975) 13 Cal.3d 612, 619; see also People v. Visciotti
(1992) 2 Cal.4th 1, 52 [“a prosecutor may not examine a witness
solely to imply or insinuate the truth of the facts about which
questions are posed”].) It is clear from the proceedings that the
prosecutor had no intention, at the time he questioned
defendant, of actually proving Sherwood’s crime and
demonstrating its relevance to this matter. He appears to have
asked the question solely for the improper purpose of suggesting
to the jury that the woman with whom defendant acknowledged
speaking had been imprisoned for threatening Corona.
Although we recognize that the prosecutor’s question was
likely improper, it did not constitute prosecutorial misconduct;
the question was neither deceptive nor reprehensible, nor did it
infect the trial with such unfairness as to render the subsequent
conviction a denial of due process. It was a single, unanswered
question and an isolated reference to a matter only tangentially
related to the issues at trial. It undoubtedly had no effect on the
jury’s verdict.
d. The prosecutor’s questions regarding the reason
for the killers’ assault on defendant were proper
When defendant was incarcerated awaiting trial, two of
the killers, Lopez and Macias, attacked him with homemade
blades when the three were placed together in a holding cell.
Defendant testified that he had been the subject of a “green
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light” — an order from the highest levels of the Mexican Mafia
for his death — for some months prior to the Montemayor
killing, due to rumors of his work as an informant. He believed
the stabbing occurred pursuant to the green light. The
prosecution, by contrast, hoped to prove that the assailants had
learned of defendant’s work as an informant from discovery
produced during their murder prosecutions and sought revenge
on their own, rather than in response to orders from superiors
in the gang. The defense objected to the admission of evidence
supporting this theory as speculative and, in proceedings prior
to trial, sought to preclude it. The trial court reserved judgment
on the admission of the prosecution evidence, but it directed the
prosecution not to mention this theory in its opening
statement.22
The matter came to a head during the prosecution’s cross-
examination of defendant. The prosecution had changed its
theory by this time, postulating that Macias and Lopez sought
revenge because they learned from discovery in their
prosecutions that defendant had lied to them about the reason
for the Montemayor killing. According to the prosecution’s
revised theory, defendant told them that the order for the killing
came from Mexican Mafia leaders, but in fact it was committed
“just to curry personal favor with . . . Corona.” The court ruled
22
Defendant contends the trial court’s comments constituted
an in limine ruling precluding the defense from presenting
evidence and that the prosecutor’s subsequent questions
constituted misconduct because they violated this ruling. In
fact, the court made no ruling beyond precluding mention of
these matters in an opening statement, a ruling with which the
prosecution complied. The court deferred to trial any
substantive evidentiary rulings on this matter.
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that the prosecution would be limited to asking defendant
whether he had considered “that the other three co-defendants
felt he had lied to them,” without permitting mention of the
means by which they might have come to that conclusion. When
trial resumed, the prosecutor, after asking the permitted
question, also asked defendant a series of leading questions
premised on the theory that Macias and Lopez had learned
defendant had lied to them, although without suggesting the
manner in which they might have learned the truth. The court
overruled the defense objections, including the claim the
questions had not been asked in “good faith.”
Assuming the claim has been preserved, we find no
misconduct. The prosecutor’s questions simply presented to the
jury an alternative theory to explain the assailants’ conduct,
countering the theory articulated by defendant. Because the
prosecutor’s theory and questions were based on reasonable
inferences from the evidence presented at trial, there is no
reason to conclude they were asked in bad faith. Further,
because the prosecutor avoided asking defendant about the
assailants’ motives, but simply outlined factual circumstances
that might have explained their conduct, the questions did not
stray into impermissible speculation.
e. The cumulative impact of the prosecutor’s
conduct was not prejudicial
Defendant contends the cumulative impact of the
prosecutor’s misconduct was prejudicial. As discussed above,
however, we largely reject defendant’s claims of misconduct,
either on their merits or because the claims were not preserved.
To the limited extent the prosecutor’s conduct was improper, it
involved issues largely peripheral to defendant’s guilt and had
no impact on the verdict, under either test for prejudice.
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11. The cumulative impact of the trial court’s
errors was not prejudicial
We have largely rejected defendant’s claims of judicial
error. The possible errors we did find — the court’s discovery
sanction, its erroneous evidentiary rulings, and the admission
of evidence in violation of Sanchez — were individually minor
and had no material cumulative impact on the jury’s decision
under either test for prejudice.
B. Penalty Phase Claims
1. The evidence of defendant’s involvement in prior
criminal acts was sufficient to support their
admission under section 190.3, factor (b)
“In making its penalty determination, the jury is
authorized to consider three types of aggravating evidence, ‘[t]he
circumstances of the crime of which the defendant was convicted
in the present proceeding’ (§ 190.3, factor (a)), ‘[t]he
presence . . . of criminal activity by the defendant which
involved the use or attempted use of force or violence or the
express or implied threat to use force or violence’ ([§ 190.3],
factor (b)), and ‘[t]he presence . . . of any prior felony conviction’
(§ 190.3, factor (c)).” (People v. Johnson (2016) 62 Cal.4th 600,
645 (Johnson).) During the penalty phase, the prosecution
presented evidence of several violent criminal acts by defendant
under section 190.3, factor (b), including the armed assault at
the home of Laurie Fadness and the shooting of mechanic Paul
Parent. In addition, the trial court permitted the jury to
consider during the penalty phase a letter sent by defendant to
a person named “Niño” that purportedly solicited the recipient
to commit aggravated assault on another gang member.
Regarding the two criminal incidents mentioned, defendant
contends there was insufficient evidence of his involvement. As
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to the letter, defendant contends there was insufficient evidence
that it solicited violence. Although we find sufficient the
evidence supporting the two incidents, we agree with defendant
there was insufficient evidence to permit the jury to find that
the letter solicited aggravated assault. The erroneous
admission of that evidence, however, was not prejudicial.
a. The assault at the Fadness residence
During the penalty phase, the prosecution presented
testimony by Laurie Fadness and David Gallegos about a violent
assault in Fadness’s home. When Fadness came home one
evening, she found that Gallegos had been badly beaten and his
cousin had been shot. As she entered her home, the presumed
assailants were scrambling to leave, and she heard a person she
knew as “Primo” yell, “Droopy, Jesse, let’s go.” As Fadness
explained, Primo’s tone of voice at this time was not “casual.”
“[I]t was like hollering at him, like, ‘Let’s go.’ ” Fadness did not
identify defendant as having been present, but she did not have
a clear view of all the men as they hurriedly left her home.
Gallegos testified that five men entered the house that night,
and he identified all of them, without naming defendant; on the
contrary, Gallegos testified affirmatively that defendant was not
present. Yet when the five entered, Gallegos testified, one of
them said to Gallegos’s cousin, “Droopy wants to talk to you.”
The assault began when the cousin responded that he had
nothing to say to Droopy.
Defendant contends that this testimony contained
insufficient evidence of his involvement in the assault to support
its admission as a factor in aggravation under section 190.3,
factor (b). As we explained in People v. Johnson (2019) 8 Cal.5th
475, “Section 190.3, factor (b) permits the jury to consider the
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‘presence or absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.’ Before the
evidence is presented to the jury, the trial court must determine
that the evidence offered would allow a rational trier of fact to
decide beyond a reasonable doubt that the defendant committed
the criminal activity alleged under factor (b).” (Id. at p. 515.)
“We review a trial court’s decision to admit evidence of other
crimes for abuse of discretion, ‘ “and no abuse of discretion will
be found where, in fact, the evidence in question was legally
sufficient.” ’ [Citation.] ‘On appeal, the test of legal sufficiency
is whether there is substantial evidence, i.e., evidence from
which a reasonable trier of fact could conclude that the
prosecution sustained its burden of proof beyond a reasonable
doubt.’ ” (Ibid.) “ ‘Substantial evidence includes circumstantial
evidence and any reasonable inferences drawn from
that evidence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 57.)
The jury could have concluded beyond a reasonable doubt
that defendant was a participant in the events described by
Fadness and Gallego. The witnesses testified concerning two
occasions on which the assailants used the name “Droopy,”
defendant’s gang moniker. Fadness heard Primo use the name
“Droopy” in a manner that suggested he was addressing Droopy
directly, urging him to leave. Gallegos heard one of the
assailants tell his cousin, “Droopy wants to talk to you.”
Although it is true, as defendant contends, that Fadness did not
identify defendant as one of those present, it was evident from
her testimony that she did not get a clear view of all the
participants, who were leaving as she entered. It is also true
that Gallegos denied defendant’s presence, but it was for the
jury to resolve this apparent contradiction. The assailants’
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references to “Droopy,” both of which could be understood to
refer to a person present at Fadness’s home, constituted
sufficient evidence to support the conclusion that defendant was
present.23
Defendant contends the evidence was insufficient because
there was “no evidence that [defendant] was the only Droopy
that might have been involved in the drug trade in the San
Fernando Valley” and argues that the person who used the
name could have been “using [defendant’s] name to justify the
attack.” Defendant’s moniker, however, is sufficiently unusual
that the jury could have inferred beyond a reasonable doubt that
it referred to defendant. Given the distinctive nature of the
moniker, it was unnecessary for the prosecution to provide proof
that no other gang member in the general area used the name.
Further, the suggestion that the assailants were falsely using
defendant’s name is inconsistent with the remainder of the
witnesses’ testimony. Gallego’s cousin, like defendant, was a
member of the Pacoima Flats gang and presumably would have
been familiar with defendant.
b. The Parent shooting
Defendant hired Paul Parent as a mechanic and forced
him to live at defendant’s home. Parent testified that defendant,
often with others, beat him on at least four occasions and broke
his finger with a hammer after Parent attempted to leave the
23
Even if defendant were not present, we would be inclined
to find sufficient evidence to support the admission of this
conduct as factor (b) evidence. The remark “Droopy wants to
talk to you” strongly suggests that the assailants were acting at
the behest of defendant. As discussed above, defendant held a
position of authority within the gang and could direct others to
do his bidding.
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home. The shooting occurred after defendant had told Parent
he would be given defendant’s van and allowed to leave if he
helped defendant move his home furnishings. Ten minutes after
the move was completed, Parent was working under the hood of
the van, which was parked near defendant’s house, when his cell
phone rang. Defendant said, “Rudy is going to shoot you,” in a
tone of voice, Parent said, “like he just won the lottery.” “Two
minutes later,” Parent was, in fact, shot in the back by Rudy.
Parent said that he and Rudy were on friendly terms, but Rudy,
like Parent, worked for defendant.
Defendant argues the evidence was insufficient because it
is possible that defendant was simply warning defendant that
he was about to be shot, rather than being the instigator of the
shooting. We conclude that the evidence was sufficient for the
jury to find beyond a reasonable doubt that defendant was
involved in the shooting. Although defendant’s proposed
interpretation is plausible in the abstract, to conclude that
defendant was simply warning Parent would have been
inconsistent with the remainder of Parent’s testimony.
According to Parent, defendant had kept him a virtual prisoner.
On two prior occasions when Parent attempted to leave,
defendant enlisted others to help him beat Parent in retaliation.
Defendant’s ostensible grant to Parent of permission to leave,
much less to give him a van in the bargain, was wholly at odds
with this prior conduct. Rudy had no evident reason of his own
to shoot Parent; the two were on good terms. Further, defendant
presumably could have prevented the shooting if he knew of it
but did not approve, since Rudy worked for him. When
defendant called to alert Parent that he was to be shot,
defendant gave no indication of alarm; on the contrary, he was
exultant. As Parent said, defendant “warned” Parent in a tone
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of voice “like he just won the lottery.” Finally, the nearly
instantaneous shooting by Rudy strongly suggests that the
attack was coordinated with defendant’s cell phone call. These
circumstances permitted the jury to conclude beyond a
reasonable doubt that defendant’s call was not intended merely
to alert Parent.
c. The letter sent to Niño
During the guilt phase, the prosecution introduced a letter
written by defendant, largely in Spanish, to a person called
“Niño.” During the penalty phase, the court permitted the jury
to consider the letter as evidence of defendant’s attempt to solicit
an assault against two people named Chino and Sapote by
means of force likely to cause great bodily injury under factor (b)
of section 190.3. Defendant contends the letter was insufficient
in this role because (1) there was no evidence that Niño ever saw
the letter, (2) the letter was at most a solicitation of violence,
rather than the “use” of violence required by factor (b), and (3)
the letter did not clearly solicit criminal violence against Chino
and Sapote.
We agree with defendant that the trial court erred in
admitting this letter as evidence of the solicitation of violent
criminal conduct. Defendant testified that Niño was one of his
drug customers, and the letter was intended to shore up his
business relationship with Niño at a time when defendant was
in jail. It was written largely in Spanish, and the purported
references to assaultive conduct were couched in Spanish
language idioms that could not be understood literally — for
example, “send that Chino dude to the penis” and “hit him in the
mother.” The prosecution initially sought to translate the letter
through defendant, and he rejected the prosecutor’s suggestion
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that its language solicited violence. Although the prosecution
later presented a translation by a qualified Spanish translator,
the expert conceded that “to give a completely accurate
translation” of the letter “you would have to be very familiar
with [the participants’] form of the casual language to know
what they are really saying.” The intended meaning of the
critical phrases in the letter therefore appears too uncertain to
permit the jury to conclude that defendant was soliciting Niño
to commit aggravated assault. (Contra People v. Phillips (1985)
41 Cal.3d 29, 77 (Phillips) [written solicitation containing
detailed instructions for the abduction of witnesses, as well as
“directions to ‘knock out,’ ‘nail’ and ‘blast’ ” them]; see also id. at
p. 76, fn. 30.)
Any error in this respect, however, was harmless under
both the state law and constitutional standards for prejudice.
(People v. Casares (2016) 62 Cal.4th 808, 838; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1170.) As other aggravating
factors, the prosecution provided evidence of a series of
disturbing acts of violence committed by defendant or
coordinated under his direction: the two separate assaults
against Gallegos, in one of which Gallegos was shot 14 times by,
among others, defendant; the shooting of Gallegos’s cousin; five
separate assaults on Parent, including defendant’s sadistic
participation in Parent’s shooting; and the kidnapping of
Spellman. These were, of course, in addition to defendant’s
participation in the murder of Montemayor. It strains credulity
to argue that, in the face of this evidence, the jury would have
found defendant’s letter to Niño unduly persuasive in any way.
Against a multitude of acts of extraordinary violence, the letter
at most solicited a violent act. Further, as noted above, the
letter was not even clear in seeking violence. Its impact on the
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jury’s assessment of the appropriate penalty was undoubtedly
negligible. (See, e.g., Turner, supra, 10 Cal.5th at p. 827.)
2. The trial court did not err in instructing the jury
regarding its consideration of the facts underlying
defendant’s prior convictions
Defendant contends the trial court erred when it
instructed the jury that it could consider the facts underlying
his prior convictions as section 190.3, factor (b) evidence without
finding them true beyond a reasonable doubt.
Section 190.3, factor (c) permits the prosecution to
introduce evidence of prior felony convictions of a defendant as
factors in aggravation. To the extent the conduct underlying
those convictions satisfies the requirements of section 190.3,
factor (b), the jury may consider that conduct under factor (b) as
well. (Homick, supra, 55 Cal.4th at p. 889 ([“A prior felony
conviction for a violent crime is ‘admissible under section 190.3,
factor (b) as proof of criminal activity by’ the defendant”].) Here,
defendant stipulated to three prior felony convictions for
consideration under factor (c). In addition, the prosecution
introduced evidence of the conduct underlying two of the prior
convictions and argued that this conduct could also be
considered under factor (b). The trial court instructed the jury
that, in contrast to other factor (b) conduct, it was not required
to find beyond a reasonable doubt that this evidence
demonstrated criminal conduct because defendant had already
been convicted of the charges.
Defendant forfeited this claim when he failed to object to
the court’s instruction on these grounds.
On the merits, we have consistently declined to decide
“whether a reasonable-doubt instruction is required where the
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People seek to prove ‘conduct’ underlying the conviction other
than the facts necessarily established.” (People v. Hinton (2006)
37 Cal.4th 839, 911; People v. Bacon (2010) 50 Cal.4th 1082,
1123–1124 (Bacon); People v. Ashmus (1991) 54 Cal.3d 932,
1000.) In light of defendant’s forfeiture, we again decline.24
In any event, the court’s instruction was unquestionably
harmless. It is settled that the jury was entitled to consider the
conduct necessarily established by the convictions without proof
beyond a reasonable doubt. (Bacon, supra, 50 Cal.4th at p.
1123.) The details of the conduct underlying these two
convictions added little because it did not feature any conduct of
a severity beyond that suggested by the elements of the crimes.
Further, that conduct — defendant’s presence at a gang
shooting and his participation in a robbery at knifepoint —
added little to the litany of defendant’s violent conduct proved
under factor (b).
3. Defendant forfeited his claim that the trial court
erred in failing to consider his ability to pay the
levies it imposed
At sentencing, the trial court imposed the statutory
maximum restitution fine of $10,000 and a victim restitution
payment of $10,433.80. (§ 1202.4, subds. (b), (f).) Then, as now,
section 1202.4 permitted a trial court to consider a defendant’s
ability to pay in setting the amount of a restitution fine above
24
Defendant incorrectly contends that the question was
resolved in Phillips, supra, 41 Cal.3d 29. Although Phillips
holds that factor (b) conduct must be proved beyond a reasonable
doubt (id. at p. 65), it did not consider the particular interaction
between factors (b) and (c) presented here. As noted in the text,
our decisions subsequent to Phillips recognize that we have yet
to resolve the issue.
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the statutory minimum (id., subd. (c)), while it precluded the
court from considering the defendant’s ability to pay in setting
the amount of victim restitution (id., subd. (g)), which is
intended to reimburse a victim’s actual economic loss (id., subd.
(f)). Without distinguishing between the two types of levy,
defendant contends the trial court erred in imposing them
without inquiring about his ability to pay, given statements in
the probation report suggesting that he was destitute.25
Defendant acknowledges that he forfeited this claim when
he failed to object to imposition of the levies at sentencing. In
People v. Gamache (2010) 48 Cal.4th 347, we explained that “the
law at the time of . . . sentencing called for the trial court to
consider [the defendant’s] ability to pay in setting a restitution
fine, and [the defendant] could have objected at the time if he
believed inadequate consideration was being given to this
factor.” (Id. at p. 409.) We have consistently followed this
ruling, most recently in People v. Miracle (2018) 6 Cal.5th 318,
356.
Defendant contends that we should find his claims
preserved because “[b]oth fines are now subject to reversal” as a
result of the Supreme Court’s ruling in Timbs v. Indiana (2019)
__ U.S. __ [139 S.Ct. 682, 203 L.Ed.2d 11] (Timbs). Without
ruling on the constitutionality of any particular fine, Timbs
held, as a matter of law, that (1) the excessive fines clause of the
Eight Amendment of the federal Constitution applies to the
25
The probation report was somewhat in tension with the
testimony at trial, which implied that defendant controlled
substantial assets at the time the murder was committed. In
light of our resolution of this claim, we need not resolve the
apparent conflict.
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states through incorporation in the due process clause of the
Fourteenth Amendment and (2) the excessive fines clause
governs civil in rem forfeitures. (Id., 139 S.Ct. at pp. 689, 690.)
Because Timbs does not mention forfeiture, it has no direct
application here, regardless of the merits of defendant’s claim.
To the extent defendant claims he was excused from raising an
argument under Timbs because its application of the excessive
fines clause to state proceedings was a novel legal development
that could not have been anticipated at the time of his
sentencing, thereby excusing his failure to raise the issue (see,
e.g., Perez, supra, 9 Cal.5th at p. 8), the claim fails. Other
portions of the Eighth Amendment have long been held
applicable to the states. (E.g., Louisiana ex rel. Francis v.
Resweber (1947) 329 U.S. 459, 463 [prohibition of cruel and
unusual punishment applicable to states].) The argument for
extending these rulings to the excessive fines clause was
sufficiently obvious that the Supreme Court had already
assumed, well before defendant’s sentencing, that the entirety
of the Eighth Amendment applies to the states. (Roper v.
Simmons (2005) 543 U.S. 551, 560 [“The Eighth
Amendment provides: ‘Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.’ The provision is applicable to the States through the
Fourteenth Amendment.”) The decision in Timbs therefore did
not relieve defendant of the obligation to raise his challenge to
the levies in a timely manner.26
26
Alternatively, defendant contends his attorney’s
performance was deficient in the failure to raise this objection.
In the absence of any explanation for counsel’s conduct, we
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C. Defendant’s Constitutional Challenges to
California’s Imposition of the Death Penalty
Fail
Defendant raises a series of constitutional challenges to
California’s death penalty statute. He acknowledges that each
of these arguments has been rejected by this court in past
decisions. As he anticipates, we decline to revisit our prior
holdings with respect to these issues, which are listed below.
Given the longstanding nature of our rulings, we do not reiterate
their rationale.
California’s death penalty laws adequately narrow the
class of murderers subject to the death penalty. (People v.
Morales (2020) 10 Cal.5th 76, 112–113 (Morales).) In particular,
the special circumstances of section 190.2, which render a
murderer eligible for the death penalty, are not so numerous
and broadly interpreted that they fail adequately to narrow the
class of persons eligible for death. (Johnson, supra, 62 Cal.4th
at p. 654–655; People v. Myles (2012) 53 Cal.4th 1181, 1224–
1225.)
Section 190.3, factor (a), which permits the jury to
consider the circumstances of the capital crime in its penalty
determination, does not license the jury to impose death in an
arbitrary and capricious manner in violation of the United
States Constitution. (People v. Vargas (2020) 9 Cal.5th 793, 838
(Vargas); People v. Brown (2004) 33 Cal.4th 382, 401.)
The laws governing imposition of the death penalty are
not unconstitutional because they fail to provide “safeguards”
conclude his claim of ineffective assistance of counsel is better
raised in a petition for a writ of habeas corpus. (Johnson, supra,
62 Cal.4th at pp. 653–654.)
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urged by defendant to prevent its arbitrary and capricious
imposition. In particular, the federal Constitution does not
require that the jury agree unanimously on which aggravating
factors apply. (People v. Amezcua and Flores (2019) 6 Cal.5th
886, 928; People v. Lewis (2008) 43 Cal.4th 415, 533.) The jury
need not make written findings regarding the existence of
aggravating factors. (Beck and Cruz, supra, 8 Cal.5th at p. 671;
People v. Clark (2011) 52 Cal.4th 856, 1007.) Neither is the
death penalty unconstitutional for failing to require findings
beyond a reasonable doubt that an aggravating circumstance
(other than Penal Code section 190.3, factor (b) or (c) evidence)
has been proved, that the aggravating factors outweighed the
mitigating factors, or that death is the appropriate sentence.
(People v. McDaniel (2021) 12 Cal.5th 97, 142–148; People v.
Rangel (2016) 62 Cal.4th 1192, 1235.) Finally, there is no
Eighth Amendment requirement that our death penalty
procedures provide for intercase proportionality review. (People
v. Morales, supra, 10 Cal.5th at p. 113; People v. Lang (1989)
49 Cal.3d 991, 1043.) These conclusions are not affected by
Apprendi v. New Jersey (2000) 530 U.S. 466 or Ring v. Arizona
(2002) 536 U.S. 584. (People v. Bell (2019) 7 Cal.5th 70, 131.)
Nor does section 190.3’s use of adjectives such as
“extreme” and “substantial” in factors (d) and (g), respectively,
act as a barrier to the jury’s consideration of mitigating
evidence, in violation of constitutional commands. (Vargas,
supra, 9 Cal.5th at p. 838; People v. Adcox (1988) 47 Cal.3d 207,
270.) The court was not required to instruct the jury that the
statutory mitigating factors are relevant solely to mitigation,
and the court’s instruction directing the jury to consider
“whether or not” certain mitigating factors were present did not
invite the jury to use the absence of such factors as an
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aggravating circumstance, in violation of state law and the
Eighth and Fourteenth Amendments. (People v. Krebs (2019) 8
Cal.5th 265, 351; People v. Coffman and Marlow (2004) 34
Cal.4th 1, 123.)
The failure to afford capital defendants the same
procedural safeguards at the penalty phase that are afforded to
noncapital defendants does not offend equal protection
principles, because the two groups are not similarly situated.
(People v. Molano (2019) 7 Cal.5th 620, 678; People v. Whalen
(2013) 56 Cal.4th 1, 91.)
California does not regularly use the death penalty as a
form of punishment, and “ ‘its imposition does not violate
international norms of decency or the Eighth
Amendment’s prohibition against cruel and unusual
punishment.’ ” (People v. Powell (2018) 5 Cal.5th 921, 965.)
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III. DISPOSITION
For the foregoing reasons, the judgment is affirmed in its
entirety.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
88
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Navarro
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S165195
Date Filed: October 28, 2021
__________________________________________________________
Court: Superior
County: Orange
Judge: Francisco P. Briseño
__________________________________________________________
Counsel:
Richard I. Targow, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General,
Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys
General, Julie L. Garland and James William Bilderback II, Assistant
Attorneys General, A. Natasha Cortina, Christine Friedman and
Christine Levingston Bergman, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Richard I. Targow
P.O. Box 1143
Sebastopol, CA 95473
(707) 829-5190
Christine Levingston Bergman
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9159