People v. Nunez CA4/2

Filed 5/3/21 P. v. Nunez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071815
v. (Super.Ct.Nos. FWV17003089 &
FWV17003091)
RODOLFO NUNEZ et al.,
ORDER MODIFYING
Defendants and Appellants. OPINION AND DENYING
PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT
The petition for rehearing filed on April 29, 2021, is denied. The opinion filed in
this matter on April 28, 2021, is modified as follows:
On page 5, in the paragraph that begins, “We find no merit to each defendant’s
claims,” replace “Rodriguez’s claim” with “defendants’ claims.” The paragraph should
read:
1
We find no merit to each defendant’s claims of trial error and no merit to
defendants’ claims that the matter must be remanded for the court to consider whether to
impose a lesser firearm enhancement on count 1.
On page 99, in the paragraph that begins, “But in Yanez,” remove “(plur. opn. of
Ramirez, J.).” The paragraph should read:
But in Yanez, this court followed Tirado, not Morrison. (Yanez, supra,
44 Cal.App.5th at p. 459 [“[N]othing in the plain language of sections 1385 or 12022.53,
subdivision (h) suggests an intent to allow a trial court discretion to substitute one
sentencing enhancement for another.”]; see also Valles, supra, 49 Cal.App.5th at pp. 165-
167 [similarly concluding that “[t]he express language of sections 1385 and 12022.53,
subdivision (h)” does not “authoriz[e] the substitution of a lesser enhancement for a
greater enhancement, properly found true at trial, and for which there is no legal
impediment to imposition”]; but see Valles, at pp. 170-172 & fn. 1 (conc. opn. of
Menetrez, J.) [finding insufficient basis to depart from this court’s decision in Yanez, but
agreeing with Morrison, noting that Tirado and Yanez “frame[d] the issue incorrectly by
asking whether the amended statute ‘conveys the power to change, modify, or substitute a
charge or enhancement,’ ” and concluding that the correct question is whether the court,
“having exercised its power under the amended statute to strike a greater enhancement,”
“still has its previously recognized power to impose an uncharged lesser” enhancement].)
Based on this court’s decision in Yanez, remand for resentencing on each defendant’s
section 12022.53, subdivision (d) firearm enhancement is unwarranted.
2
These modifications do not change the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
3
Filed 4/28/21 P. v. Nunez CA4/2 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071815
v. (Super.Ct.Nos. FWV17003089 &
FWV17003091)
RODOLFO NUNEZ et al.,
OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed in part; reversed in part with directions.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant Rodolfo Nunez.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant Alfredo Rodriguez.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton, Deputy Attorney
General, for Plaintiff and Respondent
1
I. INTRODUCTION
Defendants Rodolfo Nunez and Alfredo Rodriquez were tried together before
separate juries and convicted of the first degree premeditated murder of Ofakitonga Kofu
on July 10, 2017. (Pen. Code, §§ 187, 189, subd. (a),1 count 1.) Rodriguez was also
convicted of unlawfully possessing a firearm as a felon. (§ 29800, count 2.)
Rodriguez’s jury (the red jury) further found that Rodriguez personally and
intentionally discharged a firearm in the commission of the murder (§ 12022.53,
subd. (d)), and that Rodriguez committed the murder and unlawfully possessed the
firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Nunez’s jury
(the blue jury) found that a principal (Rodriguez) personally and intentionally discharged
a firearm in the commission of the murder (§ 12022.53, subd. (d)), and that the murder
was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).)
Rodriguez was sentenced to five years plus 60 years to life.2 Nunez was
sentenced to 50 years to life.3 The court ordered each defendant to pay a $300 restitution
1 Undesignated statutory references are to the Penal Code.
2 Rodriguez’s five-year determinate term includes the middle term of two years
on count 2, plus three years for the gang enhancement on count 2. On count 1, Rodriguez
was sentenced to 25 years to life, plus 25 years to life for the firearm enhancement, plus
10 years for the gang enhancement.
3 Nunez’s sentence is comprised of 25 years to life for the murder, plus 25 years
to life for the firearm enhancement. The court imposed but stayed a 10-year term on
Nunez’s gang enhancement on count 1.
2
fine (Pen. Code, § 1202.4, subd. (b)) and $70 in court assessments on each of their
convictions. (Pen. Code, § 1465.8; Gov Code, § 70373.)
Rodriguez raises 10 claims of trial, sentencing, and clerical error. He first claims
that his murder conviction must be reversed because the trial court prejudicially erred
(1) in denying his motion to suppress the statements he made during his police interview
after he unequivocally invoked his right to counsel; (2) in allowing the prosecution’s
gang expert to testify to case-specific hearsay—namely, that his gang, the El Monte-
Flores (EMF) was required to follow directions from the Mexican Mafia and targeted
African- Americans; (3) in excluding evidence of Kofu’s prior robbery conviction (Evid.
Code, § 1103); and (4) in admitting hearsay statements from a 911 caller who reported
hearing the shooting and persons making statements at the time of the shooting.
Rodriguez also claims (5) the prosecutor misstated the law of premeditation and
deliberation during closing argument; and (6) the cumulative effect of the trial errors
requires reversal of his murder conviction.
Regarding sentencing, Rodriguez claims (7) remand for resentencing is necessary
so the court may consider whether to impose a lesser firearm enhancement on count 1;
(8) his 10-year term on the gang enhancement in count 1 is unauthorized and must be
stricken in favor of making his life term on count 1 subject to a 15-year minimum parole
eligibility period (MPEP) (§ 186.22, subd. (b)(5)); and (9) the trial court violated his due
process rights in imposing the $300 restitution fine and $140 in court assessments
without determining whether he was able to pay them. Lastly, Rodriguez claims that
3
(10) clerical errors in the sentencing minute order and his abstracts of judgment must be
corrected.
Nunez raises 12 claims of trial and sentencing error. He claims his first degree
premeditated murder conviction must be reversed because (1) insufficient evidence
shows he directly aided and abetted Rodriguez in committing the murder; (2) the
instructions, including CALCRIM No. 403, erroneously allowed the jury to convict him
of first degree premeditated murder based on a natural and probable consequences theory;
and (3) effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
eliminated liability for murder based on the natural and probable consequences doctrine,
and the legislation applies retroactively to nonfinal judgments on direct appeal.
Nunez also claims (4) the prosecution failed to prove the primary activities
element of the gang enhancement allegation in count 1; (5) the prosecution’s gang expert
was erroneously allowed to testify that, because the murder was preceded by a gang
confrontation, it was reasonably foreseeable that a murder would result; (6) the trial court
prejudicially erred in admitting Rodriguez’s hearsay statements that Nunez was the
aggressor in the confrontation with Kofu; (7) the trial court erroneously admitted the 911
caller’s hearsay statements (Rodriguez’s 4th claim of error); (8) in closing argument, the
prosecutor misstated the elements of aider and abettor liability for premeditated first
degree murder; (9) the matter must be remanded for resentencing so the trial court may
consider whether to impose a lesser firearm enhancement on count 1 (Rodriguez’s 7th
claim of error); (10) trial court violated his due process rights in imposing a $300
restitution fine and $70 in court assessments without determining whether he was able to
4
pay them (Rodriguez’s 9th claim of error); and (11) the cumulative effect of the trial
errors requires reversal. Lastly, Nunez joins Rodriguez’s eighth claim of error, that
(12) the 10-year gang enhancement on count 1 was unauthorized and must be stricken in
favor of subjecting Nunez’s life term on count 1 to a 15-year MPEP.
We find no merit to each defendant’s claims of trial error and no merit to
Rodriguez’s claim that the matter must be remanded for the court to consider whether to
impose a lesser firearm enhancement on count 1. We further conclude that any error in
imposing the $300 restitution fines and $70 per-conviction court assessments, without
determining that defendants were able to pay them, was harmless beyond a reasonable
doubt because the record shows that each defendant will be able to pay the fine and
assessment amounts over time. The People concede, and we agree, that each defendant’s
10-year gang enhancement on count 1 was unauthorized and must be stricken from each
defendant’s sentence, and that each defendant’s indeterminate 25-year-to-life term on
count 1 must instead be made subject to a 15-year MPEP. (§ 186.22, subd. (b)(5).)
We modify each defendant’s sentence accordingly, and we remand the matter to
the trial court with directions to prepare supplemental sentencing minute orders and
amended abstracts of judgment, reflecting our modifications to each defendant’s sentence
regarding the gang enhancements and the 15-year MPEPs. In all other respects, we
affirm each defendant’s judgment of conviction and sentence.
5
II. FACTUAL BACKGROUND
A. Evidence Admitted Before Both Juries
1. The July 10, 2017 Shooting Death of Kofu
Around 11:30 a.m., on July 10, 2017, Rodriguez shot and killed Kofu following an
argument between Kofu and Nunez outside of Kofu’s home in Fontana. Kofu’s brother,
Tali, testified that Kofu was upset and angry that morning because Kofu had an argument
with his mother. Kofu was affiliated with the Bloods street gang and regularly wore a red
bandana on his right side, reflecting the gang’s color and style.
A passerby, Jose V., saw Rodriguez shoot Kofu. At the time of the shooting, Jose
V. had known Nunez for a long time and had seen Rodriguez once before. Jose V. was
driving past Kofu’s house, with his windows down, when he saw Kofu standing outside
of Kofu’s house and saw Nunez’s car stopped in the intersection “across the street” from
Kofu’s house. Nunez was driving, and Rodriguez was in the front passenger seat.
As Jose V. drove between Nunez’s car and Kofu, he heard Nunez and Kofu
arguing. Jose V. slowed down and watched the altercation in his rearview mirror. Jose
V. had his windows down, and he heard Kofu yelling at Nunez that this was Kofu’s block
and to pick up trash or beer bottles that had been thrown from Nunez’s car. Nunez
refused to pick up the trash or beer bottles, got out of his car, and challenged Kofu to a
fight. Jose V. saw that Nunez and Kofu had their fists up and were walking toward each
other, but he then saw Nunez take several steps back and heard Nunez yell, “ ‘Sacala
huey,’ ” to Rodriguez, which is Spanish for “Get it out.” Rodriguez then got out of the
car with what looked like a sawed-off shotgun and shot Kofu from a distance of around
6
10 feet. Kofu fell to the ground and began crawling away from Rodriguez and Nunez.
Jose V. then drove away.
Tali was inside Kofu’s house when he heard one gunshot, followed by two more,
then heard Kofu yelling for help. Tali ran outside and saw Kofu crawling on the ground
and a car in the street. Someone was walking quickly toward the car’s passenger side as
the driver, who was in the car, was yelling: “ ‘Hurry up. Get in fool. Get in. Let’s
go.’ ” Tali ran toward the passenger but the passenger got in the car, and the car sped
away.4 Tali did not see the faces of the driver or the passenger. Tali then tried to help
Kofu.
2. The Anonymous 911 Call
An anonymous person called 911 at 11:38 a.m., on July 10, 2017, and reported the
shooting, which the caller said happened three minutes earlier, or around 11:35 a.m. The
caller said he/she would “rather stay anonymous” but indicated that he/she lived near the
shooting and heard, but did not see, the shooting.
The caller said that they first heard a gunshot, then heard someone say, “ ‘No, no,
I’m sorry, I’m sorry,’ ” then heard another person say, “ ‘I told you not to fuck with
me!’ ” The caller then heard “at least” two more gunshots. A recording of the 911 call
was played for both juries. Before trial, Jose V. told a detective that he heard Nunez say,
“I told you not to fuck with me.”
4A surveillance video showed what appeared to be Nunez’s car driving away
from the area near Kofu’s home shortly after the shooting.
7
3. The Investigation
Shortly after the shooting, police found a shotgun shell and a red bandana on the
ground near Kofu’s home. An autopsy showed that Kofu died from three shotgun
wounds to his legs,5 and that Kofu had methamphetamine, amphetamine, and marijuana
in his system.
4. S.A.’s Police Interview Statements and Trial Testimony
Police interviewed Rodriguez’s cousin, S.A., in August 2017, and a recording of
the interview was played before both juries. During her interview, S.A. said that
Rodriguez was from El Monte, but he had recently been staying at S.A.’s home with S.A.
and her family in Fontana. Rodriguez and Nunez, whom S.A. knew as “Gallo,” were
friends, and Nunez picked up Rodriguez from S.A.’s home on the morning of July 10.
S.A. did not like Nunez because he used methamphetamine.
Later during the morning of July 10, 2017, Rodriguez called S.A. and told her he
had shot someone. Rodriguez told S.A. that Nunez had started arguing with an African-
American man, and that Nunez got out of his car to fight with the man. Rodriguez told
Nunez to get back in the car, but Nunez would not listen, so Rodriguez also got out of the
car, then “three Black guys” tried to “jump” Rodriguez, one of the men “socked”
5 The coroner testified that the first shot was apparently fired while Kofu was
standing because one of Kofu’s three gunshot wounds had a downward trajectory. The
other two gunshot wounds had upward trajectories, with one hitting the front of Kofu’s
legs and the other hitting the back of his legs, suggesting that Kofu was on the ground
when these two shots were fired. The coroner conceded that upward trajectories could
have been caused if the shots ricocheted off the ground before hitting Kofu when he was
standing; but the coroner did not find any asphalt in Kofu’s wounds, which was expected
if the shots had ricocheted.
8
Rodriguez, and Rodriguez then shot the man who “socked” him. Rodriguez’s statements
to S.A. indicated that Rodriguez shot Kofu in self-defense or in defense of Nunez.
Later on July 10, 2017, Rodriguez called S.A. again and said that he and Nunez
needed money for gas, so S.A. and her mother met Rodriguez in the parking lot of the
Montclair Plaza and gave him gas money. Nunez waited in his car while S.A. spoke to
Rodriguez.6 After meeting with S.A. and her mother at the Montclair Plaza, Rodriguez
went to his mother’s home in El Monte and then returned to S.A.’s home in Fontana later
that night.
Rodriguez asked S.A. to drive past the location of the shooting, but when she went
there, she saw that the police had the area blocked. Nunez lived near the location of the
shooting, and it appeared to S.A. that Nunez had problems with the person whom
Rodriguez shot.
Rodriguez had a small shotgun that he carried with him in a guitar case. When he
returned to S.A.’s home on July 10, 2017, after going to his mother’s home in El Monte,
Rodriguez no longer had the shotgun with him. Sometime later, one of Rodriguez’s
friends from his gang brought the shotgun back to Rodriguez at S.A.’s home, and
Rodriguez sold the gun to someone who lived near S.A. S.A.’s father kept a full-size
shotgun in S.A.’s home. When police searched S.A.’s home, they found a full-size
6 Surveillance videos showed Nunez’s car at the Montclair Plaza at 11:57 a.m., on
July 10, 2017; Rodriguez talking to S.A. in her mother’s car at the Montclair Plaza; and
Rodriguez later making purchases from a nearby gas station.
9
shotgun and some shotgun ammunition in the master bedroom and some of Rodriguez’s
clothing under the living room table.
S.A. testified at trial under a grant of immunity. She remembered meeting
Rodriguez and Nunez at the Montclair Plaza to give Rodriguez gas money. At the time,
Rodriguez was “stranded” and was on his way back to his mother’s home in the El
Monte. S.A. also testified that Rodriguez was a member of the EMF gang and his “hood
name” was “Chano.” But S.A. claimed to not remember many of the details of her
conversations with Rodriguez and her police interview. She loved Rodriguez, would do
anything for him, and did not want to testify.
5. Expert Gang Testimony
El Monte Police Department Detective Peter Lopez testified separately before
each jury as an expert on criminal street gangs. He gave substantially the same testimony
before both juries regarding the EMF gang and the customs and habits of criminal street
gangs.
B. Evidence Admitted Only to Rodriguez’s Jury
1. Rodriguez’s Interview Statements
City of Fontana Police Department Detective Jose Ferreira interviewed Rodriguez
on August 7, 2017, and a recording of the interview was played for Rodriguez’s jury.
During the interview, Rodriguez consistently denied any involvement in the July 10
shooting. Details of Rodriguez’s police interview are discussed post, in section III.A.
10
2. Expert Gang Testimony
In testifying before Rodriguez’s jury, Detective Lopez explained that he had been
a police officer for nearly 20 years, and at the time of trial he was assigned to El Monte
Police Department’s gang unit. He had law enforcement-related training and experience
with criminal street gangs, including the EMF gang. He had personally spoken with
members of the gang and with other law enforcement agencies concerning the gang, and
he had read other law enforcement officers’ reports concerning the gang.
Respect is the “core” value or principle of any criminal street gang. Most gangs
are territorial and, when a gang member claims a particular territory or neighborhood, it
is considered a challenge to a rival gang member. In the gang culture, gang members are
prohibited from cooperating with law enforcement and from testifying in court. Nongang
members are also typically reluctant to cooperate with law enforcement or to testify in
court about a gang because they fear retaliation by the gang. Gang associates are not
gang members, but they hang out with the gang and are trusted by the gang.
Detective Lopez opined that EMF was a criminal street gang within the meaning
of section 186.22. The gang had approximately 400 active members, and its primary
activities included carjacking, robbery, unlawful firearm possession, drug distribution,
residential burglary, and auto theft. Members of the gang had several predicate offenses.
In 2015, one of its members was convicted of murder, and another was convicted of
being a felon in possession of a firearm. In 2016, a third EMF member was convicted of
auto theft and being a felon in possession of a firearm; and in 2017, a fourth EMF
member was convicted of unlawfully taking a vehicle for the benefit of the gang.
11
Rodriguez was an active EMF member at the time of the July 10, 2017 shooting.
On two prior occasions, in 2009 and 2013, Rodriguez admitted to Detective Lopez that he
was a member of EMF. Rodriguez also had several EMF tattoos, including the letters
“EMF” on his chin; a rose on his right cheek; and wildflowers on the back of his head,
signifying his EMF gang membership. Rodriguez’s cousin, S.A., had “openly stated”
that Rodriguez was an EMF gang member.7
The Bloods are a criminal street gang that is aligned with African-Americans,
Pacific Islanders, and Asians. Bloods are known to wear the color red on their right
sides. If an EMF member is challenged by a member of a rival gang, the EMF member
would be expected not to back down.
Detective Lopez opined that a hypothetical shooting committed under the
circumstances of the July 10, 2017 shooting would benefit the EMF gang by enhancing
the gang’s status because the shooting was committed against “a rival Black gang
member,” who had disrespected the EMF by telling an EMF gang member, Rodriguez,
and an EMF associate, Nunez, to do something—pick up trash. The shooting would be
“a classic gang shooting.” The point of firing two more rounds after the victim, Kofu,
apologized, was to deliver the message that the perpetrators were to be feared and
respected.
7 The parties stipulated that Rodriguez had a prior felony conviction for purposes
of count 2, in which he was charged with being a felon in possession of a firearm on July
10, 2017.
12
Detective Lopez further opined that the shooting would benefit the EMF gang
because the gun used in the shooting was taken to El Monte after the shooting and ended
up in the hands of another EMF gang member. In the EMF gang, guns that belong to the
gang are known as “ ‘hood’ ” guns or “ ‘neighborhood’ ” guns. Such guns are passed
around by EMF gang members, particularly if the gun has been used in a crime, in order
to avoid the gun’s being detected by law enforcement.
C. Evidence Admitted Only to Nunez’s Jury—(Nunez’s Interview Statements)
Detective Ferreira interviewed Nunez on August 6 and 7, 2017, after Nunez was
detained during a traffic stop. An audio and video recording of the interview was played
for Nunez’s jury.
Nunez initially claimed he was at the probation department all day on
July 10, 2017. When shown a photo of Kofu, he said he recognized Kofu from the
neighborhood. When Detective Ferreira told Nunez that Kofu was dead and that Nunez’s
car was used in the shooting, Nunez then said he was only at the probation office for half
the day on July 10.
Nunez said he had recently met “this guy,” an EMF gang member who was
staying in the same neighborhood and who knew Nunez’s cousins. He did not know the
guy’s name. He had called the guy (later identified as Rodriguez) to ask him if he knew
a place Nunez could rent because Nunez and his 14-year-old son were living on the
streets. Rodriguez told Nunez to come over and pick him up where he was staying at his
aunt’s house in the neighborhood. Once there, Rodriguez was confrontational and said,
“Don’t fuck with me.” When Nunez left to get in his car, Rodriguez suddenly jumped
13
into the front passenger seat, carrying a big bag containing a shotgun. He pointed the
shotgun at Nunez and told him to drive to where Nunez’s son was staying or he would
blow Nunez’s head off.
Rodriguez told Nunez that he had to drop the gun off somewhere, and that he
would give Nunez some money or buy some food for Nunez’s son. Nunez was scared.
They picked up Nunez’s son, bought him some food, and took him back to the house
where he was staying. Then they drove off in Nunez’s car, drinking beer that Rodriguez
had brought with him. Rodriguez threw the beer bottles out of Nunez’s car window.
Then an African-American male on the street started “talking shit,” said it was his street,
and told them they had better pick up their “fucking Corona” bottles right now. The
African-American male then started to approach Nunez’s car.
Nunez got out of the car, said to the African-American male, “What’s your
problem?” and told the man that he would pick up the bottles. But the man got in
Nunez’s face, like he wanted to fight. Nunez backed up and did not say anything.
Rodriguez then got out of the car and shot the man. The man then said, “ ‘You fucking
bitches,’ ” and Rodriguez shot him again. Rodriguez then pointed the gun at Nunez and
yelled at Nunez to get back into the car and drive. Nunez got back into his car and drove,
while Rodriguez continued to point the gun at him.
Nunez drove onto the I-10 freeway and was running out of gas. Rodriguez called
his aunt for help and told Nunez to drive to the Montclair Plaza, where his aunt said she
would meet him. Nunez was waiting for a chance to run, but Rodriguez still had the
shotgun pointed at Nunez’s head. Rodriguez’s aunt and cousin were waiting at
14
Montclair Plaza. Rodriguez told them that he had just killed someone and needed some
gas.
Rodriguez then directed Nunez to drive to a gas station. Rodriguez went inside
the gas station to pay for the gas, and left his gun in the car. Nunez could not leave
because he did not have any gas, and Rodriguez had already threatened to kill Nunez and
his family if he did not cooperate. Rodriguez then told Nunez to drive to Rodriguez’s
mother’s home in El Monte, and Nunez did so. When they arrived in El Monte,
Rodriguez reminded Nunez that he would kill his family, and made Nunez erase
Rodriguez’s cell phone number from his phone. He told Nunez he “ ‘should have just
killed [him] right now too,’ ” and that if the police got Nunez first, “ ‘you better say that
you did it.’ ” Nunez did not report the shooting because of Rodriguez’s threats.
III. DISCUSSION
A. Rodriguez Did Not Unequivocally Invoke His Right to Counsel During His Custodial
Interview with Detective Ferreira
Rodriguez claims he unequivocally invoked his right to counsel during his
custodial police interview, and that the trial court prejudicially erred in denying his
pretrial motion to suppress the statements he made following his right-to counsel
invocation. Although he concedes that he waived his Miranda8 rights at the beginning of
the interview, he claims the interviewing detective should have immediately terminated
8 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
15
the interview after he said to the detective, “ ‘I gotta call my mom about a lawyer because
this is bullshit.’ ” (Italics added.)
The trial court ruled, and we agree, that Rodriguez’s statement about calling his
mother about a lawyer was not an unequivocal invocation of his right to counsel. Thus,
Rodriguez’s motion to suppress his interview statements was properly denied.
Alternatively, we conclude any error in admitting Rodriguez’s post-invocation statements
was harmless beyond a reasonable doubt.
1. Background
On August 7, 2017, Rodriguez was taken into police custody and interviewed by
Detective Ferreira. A video and audio recording of the interview was played for both
juries. The detective read Rodriguez each of his Miranda rights, including that he had
“the right to an attorney before and during questioning”; and Rodriguez acknowledged
that he understood these rights.
The detective then said, “Alright. Listen, I’m not gonna bullshit you . . . . [D]id
anyone say anything to you about why . . . they [brought] you here?” Rodriguez said,
“No, I don’t even know why I’m here.” Next, the detective asked Rodriguez whether he
was at home when he was taken into custody on August 7, 2017. Rodriguez said he was
at home, and that he had lived “out here” for 40 days. When asked whether he was
“here” (that is, in Fontana) on July 10, Rodriguez said he was at his mother’s house in El
Monte. When asked whether he was sure about that, and, “What if I was to tell you that I
know you were here [on] July 10?” Rodriguez again denied he was in Fontana on
July 10.
16
The detective next asked Rodriguez whether he “would agree” that he was “a
pretty distinctive person” because he had a tattoo on his face and was five feet four inches
tall. Rodriguez agreed with the detective’s statements. Then, after the detective told
Rodriguez that he had a video of Rodriguez at the Montclair Plaza on July 10, Rodriguez
said he did not “even know” where the Montclair Plaza was, and he reiterated that he was
in El Monte on July 10.
The detective then challenged Rodriguez’s claim that he was in El Monte on
July 10, 2017, by saying, “You weren’t in El Monte. Look, somethin’ bad happened that
day”; then the detective asked Rodriguez whether he knew Nunez. Rodriguez initially
denied that he knew Nunez. The detective challenged the denial, saying he knew that
Rodriguez knew Nunez, told Rodriguez that Nunez had been arrested for murder, that the
detective had spoken with Nunez, and that Rodriguez was “with” Nunez. Rodriguez said,
“I was with him?” The detective said, “[On] the video, you were with him. . . . Like I
said, I’m not gonna bullshit you. . . . [Nunez] gave a statement. . . . Maybe he was telling
the truth, maybe he’s not. All right?”
Rodriguez responded: “What? I don’t know . . . . I don’t even know what you
guys [are talking] about right now. I gotta call my mom about a lawyer because this is
bullshit, you know? You know, like everybody got tattoos on their face. Everybody’s
5’4”. I’m not the only one in the whole wide world . . . . [¶] Not everybody, but most of
us. We’re short. Bald.” (Italics added.) The detective then asked, “Who’s most of us?”
and the interview continued.
17
During the rest of the interview, Rodriguez consistently denied that he was
involved in any murder, including the July 10, 2017 shooting. Although he initially
denied knowing Nunez, Rodriguez later said he knew someone named, “Gallo,” who was
“fat, sloppy,” and “a retard.” He did not “hang out” with Gallo but “asked him for a ride
one time.” After the detective said that Nunez and Gallo were the same person,
Rodriguez said that Nunez had given Rodriguez a ride to go “shopping,” that Rodriguez
bought clothes for his birthday, and then Nunez took Rodriguez “home” to Rodriguez’s
aunt’s house in Fontana.
The detective told Rodriguez that he had spoken to Nunez’s 14-year-old son, and
that he knew from talking to Nunez’s son, and from several surveillance videos, that
Nunez did not take Rodriguez to his aunt’s house after the two of them went shopping.
Instead, Rodriguez and Nunez brought food to Nunez’s son at a house near the scene of
the murder, and Rodriguez’s fingerprints were on Corona beer bottles that Rodriguez had
thrown from Nunez’s car. Rodriguez denied throwing any beer bottles from Nunez’s car
and again denied he was involved in any murder.
Before trial, the prosecution moved to admit all of Rodriguez’s custodial interview
statements in its case-in-chief. Rodriguez’s counsel moved to suppress the statements
that Rodriguez made following his invocation of his right to counsel, after he initially
waived his Miranda rights. The trial court denied the suppression motion on the grounds
that Rodriguez initially and implicitly waived his Miranda rights and did not thereafter
unequivocally invoke his right to counsel.
18
2. Invoking the Right to Counsel After Waiving Miranda Rights
“A defendant who has waived his Miranda rights may reinvoke them during the
interrogation. If he clearly and unequivocally does so, police must stop questioning.”
(People v. Henderson (2020) 9 Cal.5th 1013, 1022 (Henderson), citing Edwards v.
Arizona (1981) 451 U.S. 477, 478-479, 482, 485 (Edwards).) Any statements obtained
from a defendant in violation of the defendant’s Miranda or Edwards rights are
inadmissible in the prosecution’s case-in-chief. (People v. Weaver (2001) 26 Cal.4th
876, 918.)
In order to clearly and unequivocally invoke the right to counsel, a suspect “ ‘must
articulate his desire to have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a request for an
attorney.’ ” (People v. Cunningham (2015) 61 Cal.4th 609, 646 (Cunningham), quoting
Davis v. United States (1994) 512 U.S. 452, 459 (Davis).) Whether a suspect has
invoked his right to counsel “is an objective inquiry, identifying as ambiguous or
equivocal those responses that ‘a reasonable officer in light of the circumstances would
have understood [to signify] only that the suspect might be invoking the right to
counsel.’ ” (People v. Williams (2010) 49 Cal.4th 405, 428 (Williams), italics added,
quoting Davis, at p. 459.) “Faced with an ambiguous or equivocal statement, law
enforcement officers are not required under Miranda . . . either to ask clarifying questions
or to cease questioning altogether.” (People v. Stitely (2005) 35 Cal.4th 514, 535.)
In reviewing a trial court’s denial of a motion to suppress a defendant’s statements
under Miranda, we defer to the trial court’s resolution of disputed facts, including the
19
credibility of witnesses, if that resolution is supported by substantial evidence, and we
independently determine whether the challenged statements were obtained in violation of
Miranda. (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) But when, as here, the
interview is recorded, and the facts surrounding the defendant’s asserted Miranda or
Edwards violation are undisputed, we review the claim de novo. (Henderson, supra,
9 Cal.5th at p. 1023.) The question is whether, “ ‘in light of the circumstances, a
reasonable officer would have understood [the] defendant’s reference to an attorney to be
an unequivocal and unambiguous request for counsel, without regard to the defendant’s
subjective ability or capacity to articulate his or her desire for counsel, and with no
further requirement imposed upon the officers to ask clarifying questions of the
defendant.’ ” (Cunningham, supra, 61 Cal.4th at p. 646.)
3. Analysis
Rodriguez does not dispute that he initially waived his Miranda rights during his
August 7, 2017 interview with, or custodial interrogation by, Detective Ferreira. He
claims he subsequently and unequivocally invoked his right to counsel, and that the
interview should have ceased when he said, “I gotta call my mom about a lawyer because
this is bullshit.”
We conclude that Rodriguez’s statement about calling his mom about a lawyer
was not a clear and unequivocal invocation of his right to counsel. Rodriguez made the
statement in the context of arguing with Detective Ferreira about whether he, Rodriguez,
(1) was in Fontana on July 10, 2017, and (2) was the person seen on a surveillance video
with Nunez at the Montclair Plaza on July 10. A reasonable officer in Detective
20
Ferreira’s position would have understood the statement as meaning that Rodriguez
wanted to call his mother about a lawyer at some point, but not as meaning that
Rodriguez did not want to answer further questions without consulting a lawyer or
without having a lawyer present during the rest of the interrogation. (Cunningham,
supra, 61 Cal.4th at p. 646; Davis, supra, 512 U.S. at p. 459.)
When Rodriguez made the statement, he was telling the detective that he was not
in Fontana on July 10, 2017, he was not with Nunez at the Montclair Plaza on July 10,
and the detective’s information to the contrary was “bullshit.” At no point did Rodriguez
indicate to the detective that he did not want to answer any further questions without
consulting a lawyer or having a lawyer present. To a reasonable officer, it appeared that
Rodriguez wanted the assistance of a lawyer, at some point, to help him press his
argument, but not as a condition of answering further questions.
The context in which Rodriguez made the statement is “relevant” and important.
(Cf. Henderson, supra, 9 Cal.5th at pp. 1023-1024; People v. Flores (2020)
9 Cal.5th 371, 417 [“Whether or not a reasonable officer would perceive a suspect’s
statement as ambiguous may depend on context.”].) “In certain situations, words that
would be plain if taken literally actually may be equivocal under an objective standard, in
the sense that in context it would not be clear to the reasonable listener what the
defendant intends.” (Williams, supra, 49 Cal.4th at p. 429.) Thus, it is appropriate that
we interpret Rodriguez’s statement, not in isolation, but in light of the context in which
the statement was made. In that context, a reasonable officer would not have understood
Rodriguez’s statement as an unequivocal invocation of his right to counsel.
21
Rodriguez’s statement about calling his mother about a lawyer is similar to
statements that have been held not to constitute “a clear request for counsel’s assistance.”
(Henderson, supra, 9 Cal.5th at p. 1023 [“(See, e.g., Davis, supra, 512 U.S at p. 462
[‘ “Maybe I should talk to a lawyer” ’] . . .)”]; People v. Sauceda-Contreras (2012)
55 Cal.4th 203, 219 [“ ‘If you can bring me a lawyer . . . .’ ”]; People v. Bacon (2010)
50 Cal.4th 1082, 1105 [“ ‘I think it’d probably be a good idea for me to get an
attorney.’ ”].) Rodriguez’s statement is likewise distinguishable from statements that
have been held to constitute unequivocal invocations of the right to counsel. (See, e.g.,
Henderson, at pp. 1023-1024 [“ ‘ “[I] want to, speak to an attorney first.” ’ ”]; In re Art T.
(2015) 234 Cal.App.4th 335, 355-356 [“ ‘Could I have an attorney? Because that’s not
me.’ ”].)
As the trial court noted, and the People argue, Rodriguez’s statement is more
ambiguous than the statement in People v. Roquemore (2005) 131 Cal.App.4th 11, 19,
23-25. There the defendant, after waiving his Miranda rights and while speaking to an
officer, said he was confused and asked, “Can I call a lawyer or my mom to talk to you?”
(Roquemore, at pp. 19, 23-25.) The court held that the statement “did not constitute an
unequivocal request for counsel to be present.” (Id. at p. 25.) Rodriguez concedes that
the statement in Roquemore was ambiguous because the defendant was “alternatively
asking to have his mother talk to the police.” He argues, however, that his statement was
unequivocal because he made it “clear” that he wanted to call his mother “about a
lawyer.” We disagree. Rodriguez did not make it clear that he wanted to call his mother
about a lawyer before he answered any further questions. As we have stressed,
22
Rodriguez’s statement must be interpreted, not in isolation, but in the context in which it
was made, and in that context, it was not a clear invocation of the right to counsel.
Rodriguez argues that his statement “is thus more analogous to the unequivocal
request for counsel” in Mays v. Clark (9th Cir. 2015) 807 F.3d 968 (Mays), where the
defendant told the interrogating officer that he was not the person they were looking for,
and said, “My step-dad got a lawyer for me . . . can you call him and have my lawyer
come down here?” (Id. at pp. 971-972.) The Mays court concluded that there was
“nothing ambiguous or equivocal” about Mays’s statement, which was “plainly a request
for a lawyer.” (Id. at p. 978.) The court reasoned: “A reasonable officer would have
understood that Mays’s father had retained a lawyer, and [that] Mays wanted the lawyer
to be sent to the interrogation to represent him.” (Ibid.)
Rodriguez claims his statement was just as unequivocal as the right-to-counsel
invocation in Mays. He argues that, although he “asked” to call his mother rather than to
call a lawyer directly, “the reason” he wanted to call his mother was so that “she could
arrange for a lawyer for him.” Again, however, a reasonable officer would not have
understood Rodriguez’s statement as an unequivocal invocation of the right to counsel.
Rodriguez did not “ask” Detective Ferreira to let him call his mother about a lawyer.
Rather, he said he “[needed to] call my mom about a lawyer,” but he did not
unequivocally indicate that he did not want to answer further questions without
consulting a lawyer or having a lawyer present. In context, the statement was, at best,
ambiguous and reflected more on Rodriguez’s desire to combat the accusations and
defend the case rather than to have counsel present prior to any questioning.
23
4. Any Error in Admitting Rodriguez’s Interview Statements Was Harmless
The erroneous admission of a statement obtained in violation of a defendant’s
Miranda rights is reviewed for prejudice under Chapman v. Cal. (1967) 386 U.S. 18,
which requires reversal unless the prosecution can show that the error was harmless
beyond a reasonable doubt. (People v. Case (2018) 5 Cal.5th 1, 22.) “The proper test for
prejudice requires consideration of not only the evidence that would support the
judgment, but also the impact of the inadmissible evidence on the final outcome.”
(People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.) “The inquiry . . . is not whether,
in a trial that occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)
Rodriguez claims that the admission of his interview statements, in which he
denied having any involvement in the shooting, prejudiced his jury’s guilty verdict on the
first degree murder charge, because his interview statements “were inconsistent with his
statements to [S.A.] about how he shot Kofu in defense of himself and/or Nunez.” More
specifically, he claims his interview statements were inconsistent with his defense
theory—argued by his counsel during closing argument—that he either shot Kofu in self-
defense or in defense of Nunez, or that he was at most guilty of voluntary manslaughter
based on imperfect self-defense or defense of others. He points out that “[t]his defense
theory was based on the circumstances of the shooting and on [S.A.’s] statements about
what [Rodriguez] told her . . . .” But, he argues that his interview statements “severely
undermined the credibility” of his defense. He argues that, had his interview statements
24
been excluded, the only statements from him that his jury would have heard would have
been his statements to S.A.
We disagree that the admission of Rodriguez’s interview statements could have
affected the guilty verdict on the first degree murder charge for Rodriguez. To be sure,
Rodriguez’s interview statements, denying he had any involvement in the shooting, were
inconsistent with statements to S.A. on the day of the shooting that he shot Kofu in self-
defense or to defend Nunez from being beaten. S.A. told investigators that Rodriguez
called her after the shooting and told her that he had “ ‘messed up’ ” and shot someone—
one of “three Black guys”—after one of the three “Black” guys argued with Nunez and
then “socked” Rodriguez. S.A. also told investigators that Rodriguez was not “the type”
who would “let some person [(Nunez)] just get beat up.”
But other, overwhelming evidence showed that Rodriguez was guilty as charged
of the first degree premeditated murder of Kofu. In addition to telling investigators that
Rodriguez indicated to her that he shot someone in self-defense, or to defend Nunez from
being beaten, S.A. told investigators that Rodriguez had a small shotgun that he carried in
a “guitar bag,” and S.A. “guess[ed]” that Rodriguez used this gun to shoot and kill Kofu.
The only eye-witness to the shooting, Jose V., testified that he heard Nunez arguing with
Kofu, and he saw Nunez get out of his car and challenge Kofu to a fist fight, but then saw
Nunez back up a few steps and heard Nunez yell at Rodriguez to get his gun “out.”
Rodriguez then got out of the car and shot Kofu with what looked like a sawed-off
shotgun. And, before trial, Jose V. told a police detective that he heard Nunez say, “ ‘I
25
told you not to fuck with me.’ ” The 911 caller reported hearing someone say exactly the
same thing after the first shot was fired, but before two more shots were fired.
Additionally, Jose V.’s and Tali’s testimony completely discredited Rodriguez’s
statements to S.A. that “three Black guys” were arguing with Nunez and that Rodriguez
shot one of the “Black” guys after he “socked” Rodriguez. Jose V. did not testify that
three “Black” guys were involved in the altercation with Nunez. According to Jose V.,
only Kofu and Nunez were arguing, and no one “socked” Rodriguez before Rodriguez
shot Kofu. Tali, who heard gunshots and ran outside of Kofu’s house to help Kofu, also
did not testify that anyone was with Kofu at the time of the shooting.
In light of the entire record, we are persuaded that the admission of Rodriguez’s
interview statements, denying any involvement in the shooting, surely did not affect the
red jury’s guilty verdict on the first degree murder charge for Rodriguez.
B. Rodriguez’s Claims Concerning the Expert Gang Testimony Lack Merit
Rodriguez claims the trial court prejudicially erred in allowing the prosecution’s
gang expert, Detective Lopez, to testify to case-specific hearsay concerning Rodriguez’s
gang, EMF—namely, that EMF gang members (1) were under the control of the Mexican
Mafia, which required them to be hostile to African-Americans; (2) carried baseball bats,
which they called “N-word Beaters”; and (3) had previously targeted, in three specific
instances, African-Americans in and outside El Monte.
Rodriguez claims (1) all of this evidence constituted inadmissible, case-specific
hearsay under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); (2) the admission of
the evidence violated his federal due process right to a fair trial; and (3) the evidence
26
should have been excluded as unduly prejudicial under Evidence Code section 352.
Alternatively, Rodriguez claims his counsel rendered ineffective assistance, if and to the
extent that his counsel failed to preserve any of these claims of error for appeal.9
The People argue that Rodriguez forfeited these claims by failing to object to the
admission of the evidence on the specific grounds he raises in this appeal. Alternatively,
the People argue that none of the evidence amounted to case-specific hearsay because
none of it concerned the “particular events and participants alleged to have been involved
in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.)
The People further argue that the evidence was more probative than prejudicial
because it showed that Rodriguez had a motive for the shooting, explained why he would
shoot Kofu over a minor dispute about trash or beer bottles being thrown from Nunez’s
car, and explained why Jose V. and S.A. were reluctant to testify against Rodriguez.
Lastly, the People claim that any error in admitting the evidence was harmless.
We first summarize Detective Lopez’s testimony at the Evidence Code
section 402 hearing, Rodriguez’s objections to the proffered testimony, the trial court’s
rulings on those objections, and the detective’s testimony before Rodriguez’s jury. We
then address the parties’ arguments in turn. Finding no Sanchez, Evidence Code
section 352, or due process error, it is unnecessary to address the parties’ prejudice
arguments.
9 Rodriguez does not claim that any of Detective Lopez’s challenged testimony is
based on testimonial hearsay. (Crawford v. Washington (2004) 541 U.S. 36, 60-62
(Crawford); see Sanchez, supra, 63 Cal.4th at pp. 679-686 [discussing treatment of
testimonial hearsay when offered as basis for expert opinion testimony].)
27
1. Detective Lopez’s Relevant Evidence Code Section 402 Testimony
Before trial, the prosecutor moved to allow “a qualified gang expert” to testify
concerning the culture and habits of criminal street gangs, specifically to assist the jury in
assessing the credibility of unspecified witnesses who may not want to testify or
cooperate with law enforcement. Following some discussion between the court and
counsel concerning the anticipated testimony of the prosecution’s gang expert, the trial
court said it would determine the scope of the expert’s testimony at an Evidence Code
section 402 hearing.
Detective Lopez later testified at an Evidence Code section 402 hearing. Because
the detective had testified at defendants’ preliminary hearing and had written a report
summarizing his opinions, Rodriguez’s counsel limited his questioning of the detective to
specific areas of concern.
The detective opined that Rodriguez was an EMF gang member based on personal
contacts the detective had with Rodriguez in 2009 and 2013. On those occasions, the
detective was present when Rodriguez was being booked into jail and admitted he was an
EMF gang member. Rodriguez also had EMF-gang-related tattoos, which only EMF
gang members were permitted to have.
Based on his training and experience, and on his conversations with parole agents,
the detective opined that the EMF gang, like all Southern California Hispanic gangs, was
affiliated with the Mexican Mafia, a prison gang, and that all EMF gang members,
including Rodriguez, were “obligated” to follow the Mexican Mafia’s “code of conduct.”
This meant that EMF gang members were not allowed to associate with African-
28
Americans. Based on his personal contacts with EMF gang members and African-
Americans who lived in El Monte, the detective opined that the EMF “hates” African-
American gang members and African-American people “in general.”
The detective explained that he had personally contacted EMF gang members who
carried small “Dodger bats, mini bats” on which they had “etch[ed]” a racial slur—the
“ ‘N’ ” word, followed by the word “beater.” In addition, one African- American
resident of El Monte told the detective that he was concerned for his life because, while
walking his child to a local park one day, a carload of people who identified themselves
as EMF gang members pulled up next to him, called him a derogatory racial slur, and told
him that his “type” was not wanted in the city. They also told him he was going to get a
“pass” that day because he was with his child, but if they saw him on the city streets
again, they were going to shoot him on sight regardless of who he was with.
The detective also explained that he had personally investigated racial crimes in
which EMF gang members had “attacked” African-American residents in El Monte, one
of whom was an LAPD officer who had moved into the city in 2017. The LAPD officer
was called a racial slur and told he was not to be in the city because his “type” was not
allowed there. The detective had also read reports of other officers’ investigations of
crimes in which the EMF gang had targeted African-American gang members or
individuals. Based on his training and experience, the detective opined that, as an EMF
gang member, Rodriguez was “obligated” to “handle” the confrontation with Kofu in
accordance with the rules of the Mexican Mafia and the EMF.
29
2. The Trial Court’s Rulings on Rodriguez’s Counsel’s Objections
Rodriguez’s counsel objected to the detective’s proposed testimony that EMF
gang members, including Rodriguez, were obligated to do “whatever the Mexican Mafia
wants.” Counsel argued that this proposed testimony went “beyond general” background
information about the customs and habits of the EMF gang, and there was no evidence
that Rodriguez had personally followed the rules of the Mexican Mafia. Counsel further
objected to any testimony about the Mexican Mafia on the ground it would be case-
specific hearsay under Sanchez, testimonial hearsay under Crawford, and more
prejudicial than probative under Evidence Code section 352. In response to counsel’s
objections, the prosecutor argued that the detective’s proposed testimony that EMF gang
members were required to follow the rules of the Mexican Mafia would not amount to
case-specific hearsay under Sanchez because “general information about gangs is not
case-specific.”
The trial court agreed with the prosecutor and ruled that the detective could testify
based on his training and experience, personal knowledge, and hearsay that EMF gang
members were expected to comply with the rules of the Mexican Mafia. The court also
ruled that the probative value of the Mexican Mafia-related testimony was not
substantially outweighed by its prejudicial effect because Rodriguez’s counsel could ask
the detective on cross-examination whether he personally knew that Rodriguez had ever
personally targeted African-Americans.
30
3. Detective Lopez’s Challenged Testimony Before Rodriguez’s Jury
On direct examination before Rodriguez’s jury, Detective Lopez testified that he
had personally contacted African-Americans who had been targeted by the EMF gang;
and he had read other reports of other officers’ investigations involving EMF gang
members victimizing African-Americans. Based on this information, the detective
opined that the EMF gang, more so than other gangs, had “a particular discontent toward”
African-Americans.
The detective explained that, over the previous 13 years, he had personally
contacted numerous EMF gang members who were in possession of small bats on which
they had etched the “ ‘N’ ” word, followed by the word “ ‘Beater.’ ” EMF gang members
had openly expressed their dislike of African-Americans and their desire to keep African-
Americans out of El Monte. EMF gang members operated in the same way outside of the
city, and the detective was familiar with investigations in which the EMF gang had
targeted African-Americans outside of the city.
Detective Lopez briefly discussed the EMF gang’s connection to the Mexican
Mafia. The Mexican Mafia was a prison gang, and the EMF was a criminal street gang
with its own “rules on the street,” but the EMF “fe[d] into the bigger enterprise” of the
Mexican Mafia and was part of its culture. African- Americans comprised less than one
percent of the population of El Monte. In the detective’s training and experience, gangs
that were connected to the Mexican Mafia and that operated in areas where few African-
Americans lived, like the El Monte, were expected to be hostile to African-Americans.
31
The detective had “no specific information,” however, that Rodriguez had committed any
acts of aggression against African-Americans.
The detective gave four specific examples of the EMF’s custom or “pattern” of
targeting African-Americans. In the first example, he had personally investigated a case
in which an African-American Los Angeles Police Department (LAPD) police officer
who, shortly after moving into El Monte, was approached by an EMF gang member who
told him that his “type” was not wanted in the city, made racial slurs to him, and told him
to leave the city. In the second example, the same LAPD officer was confronted a second
time by the same EMF gang member. This time, the LAPD officer was with his wife,
who was also African-American, and their child. The EMF gang member told the officer
and his family that they were not allowed in the city and, with profanity, to get out of the
city.
In the third example, an EMF gang member, within hours of being released from
jail for serving time for grand theft auto, “went to the City of Covina where he, for no
reason, solicited a young African-American male without any provocation. He attacked
him with a stabbing instrument, chased him around, stabbed him a couple of times and
then eventually the [victim] was able to flee . . . and seek help.” This EMF gang member
was convicted of assaulting the young African-American male.
In the fourth example, the detective was working on patrol in El Monte when he
spoke with a young African-American male who told him that, when he was walking
with his child to a local park, a “carload” of EMF gang members pulled up next to him,
identified themselves, called him a racial slur, and told him he was not allowed in the
32
city. They also told him that “this time” they were giving him a pass because he was
with his child, but, “If we see you here again, next time, we’ll kill you on sight. You
better get the hell out of the City.”
4. Forfeiture
The People claim that Rodriguez forfeited his three claims of error regarding
Detective Lopez’s testimony because he did not object to the testimony on the grounds he
now raises in this appeal. As noted, Rodriguez claims the detective’s testimony that EMF
gang members (1) were under the control of the Mexican Mafia, which required them to
be hostile to African-Americans; (2) carried baseball bats which they called “n-beaters”;
and (3) had previously targeted, in specific instances, African-Americans, constituted
(1) inadmissible, case-specific hearsay under Sanchez, (2) should have been excluded as
unduly prejudicial under Evidence Code section 352, and (3) violated his due process
right to a fair trial.
As the People point out, trial counsel’s failure to object to claimed evidentiary
error on the same ground asserted on appeal results in a forfeiture of the issue on appeal.
(People v. Dykes (2009) 46 Cal.4th 731, 756.) Rodriguez’s counsel only objected to
Detective Lopez’s proposed testimony that the EMF gang was required to follow the
rules of the Mexican Mafia, which meant that EMF gang members had to be hostile to
African-Americans.
Counsel did not object, either during the Evidence Code section 402 hearing or
while Detective Lopez was testifying before Rodriguez’s jury, to the detective’s
33
testifying (1) that EMF members carried small baseball bats on which they had etched
racial slurs against African-Americans, or (2) to specific examples of EMF gang
members targeting African-Americans.10 Accordingly, Rodriguez has forfeited his
claims of evidentiary error regarding the detective’s testimony concerning the EMF
gang’s baseball bats and the specific examples in which the EMF gang had targeted
African-Americans, but he has preserved his claims regarding the detective’s Mexican
Mafia-related testimony.
5. Rodriguez Has Not Demonstrated Ineffective Assistance of Counsel
Rodriguez claims his counsel rendered ineffective assistance of counsel in failing
to preserve the forfeited claims of error for appeal. “ ‘In order to establish a claim of
ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that
counsel’s performance was deficient because it “fell below an objective standard of
reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a
defendant establishes the contrary, we shall presume that “counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
10 When Detective Lopez began testifying about the specific instances in which
the EMF gang targeted African-Americans, Rodriguez’s counsel objected on what
appeared to be relevancy grounds, saying, “This has nothing to do with Mr. Rodriguez.”
The objection was sustained. After the prosecutor rephrased the question in terms of a
pattern of EMF gang activity, counsel lodged the same relevancy objection, and the court
overruled it. As the People point out, a relevancy objection does not preserve a challenge
under Evidence Code section 352. (People v. Barnett (1998) 17 Cal.4th 1044, 1130.)
Nor is a relevancy objection sufficient to preserve a hearsay claim or a due process claim
for appeal. (See People v. Partida (2005) 37 Cal.4th 428, 434-435 [A party cannot argue
on appeal that the court erroneously failed to conduct an evidentiary analysis that the
court was not asked to conduct.].)
34
inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record
“sheds no light on why counsel acted or failed to act in the manner challenged,” an
appellate claim of ineffective assistance of counsel must be rejected “unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing
that counsel’s performance was deficient, he or she also must show that counsel’s
deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” ’ ”
(People v. Bell (2019) 7 Cal.5th 70, 125; see Strickland v. Washington (1984)
466 U.S. 668, 687-688.)
Rodriguez has not shown that his counsel’s performance was deficient for failing
to preserve his claims of error regarding Detective Lopez’s testimony that EMF gang
members carried so called “n-beater” baseball bats and targeted African-Americans. The
record indicates that Rodriguez’s counsel may have had tactical reasons for not objecting
to these parts of the detective’s testimony. The detective was not aware, and no other
evidence showed, that Rodriguez had ever carried a so-called “n-beater” baseball bat or
had targeted any African-Americans. Thus, and as the People point out, counsel may
have believed it would be tactically beneficial to allow Rodriguez’s jury to hear that some
EMF members openly expressed racial animus toward African-Americans, and carried so
called “n-beater” baseball bats, so counsel could highlight the lack of evidence that
Rodriguez had ever followed these practices.
35
In sum, because counsel may have had tactical reasons for not objecting to the
complained of evidence, and the record does not disclose why counsel did not object,
defendant has not demonstrated, on this record, that his counsel rendered ineffective
assistance in failing to object. In any event, and for the reasons we next explain, all of
Rodriguez’s claims about the detective’s testimony lack merit.
6. There Was No Sanchez Error
Rodriguez claims that Detective Lopez’s testimony concerning the EMF gang’s
ties to the Mexican Mafia, the EMF gang’s baseball bats, and the specific examples of the
EMF gang’s acts of targeting African-Americans was impermissibly based on case-
specific hearsay under Sanchez. Although we agree that much of the detective’s
testimony was based on hearsay, none of that hearsay was case-specific.
Sanchez drew a distinction between “an expert’s testimony regarding his general
knowledge in his field of expertise,” and “case-specific facts about which the expert has
no independent knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676; People v. Vega-
Robles (2017) 9 Cal.App.5th 382, 408 (Vega-Robles).) The former testimony is not
barred by the hearsay rule, even if it is “ ‘technically hearsay,’ ” while the latter
testimony is barred by state hearsay law, unless an exception applies. (Vega-Robles, at
p. 408, citing Sanchez, at p. 676.) “Case-specific facts are those relating to the particular
events and participants alleged to have been involved in the case being tried.” (Sanchez,
36
at p. 676.)11
Sanchez “made [it] clear that an expert may still rely on general ‘background
testimony about general gang behavior or descriptions of the . . . gang’s conduct and its
territory,’ which is relevant to the ‘gang’s history and general operations.’ ” (People v.
Meraz (2016) 6 Cal.App.5th 1162, 1175 (Meraz I), quoting Sanchez, supra, 63 Cal.4th at
p. 698; Vega-Robles, supra, 9 Cal.App.5th at p. 411.) Detective Lopez’s opinion that
EMF gang members were required to follow the rules of the Mexican Mafia, which
meant that the gang had to be hostile to African-Americans and could not associate with
African-Americans, was not based on case-specific hearsay. The detective’s testimony
about the EMF gang’s ties to the Mexican Mafia had nothing to do with the “particular
events and participants alleged to have been involved in the case” for which Rodriguez
was being tried. (Sanchez, 63 Cal.4th at p. 676.)
Detective Lopez’s testimony that numerous EMF gang members carried small
baseball bats on which they had etched the racial slur, “n-beater,” was based on the
detective’s personal knowledge—his numerous contacts with EMF gang members who
11 As noted, Rodriguez does not claim that any of Detective Lopez’s testimony
was based on testimonial hearsay, as opposed to case-specific hearsay. Regarding
testimonial hearsay, “the Sanchez court reaffirmed that ‘[i]f a hearsay statement is being
offered by the prosecution in a criminal case, and the Crawford limitations of
unavailability, as well as cross-examination or forfeiture, are not satisfied, . . .
[a]dmission of such a statement violates the right to confrontation if the statement is
testimonial hearsay, as the high court defines that term.’ (Sanchez, supra, 63 Cal.4th at
p. 680.) Synthesizing the high court’s numerous opinions following Crawford, Sanchez
defined testimonial hearsay as ‘statements about a completed crime, made to an
investigating officer by a nontestifying witness . . . unless they are made in the context of
an ongoing emergency . . . or for some primary purpose other than preserving facts for
use at trial.’ (Sanchez, at p. 694.)” (Vega-Robles, supra, 9 Cal.App.4th at p. 409.)
37
were in possession of such bats. Thus, this part of the detective’s testimony was not
based on hearsay, much less case-specific hearsay.
In contrast, the detective did not specify the sources of his testimony that EMF
gang members had openly expressed their dislike of African-Americans and their desire
to keep African-Americans out of El Monte, and that the EMF gang operated in the same
way outside of El Monte. None of this testimony was case-specific, however, because
none of it related to the particular events and participants allegedly involved in the case
being tried. (Sanchez, supra, 63 Cal.4th at p. 676.)
Lastly, the examples that the detective gave of the EMF gang targeting African-
Americans—the first two involving an LAPD officer, the third involving the stabbing of
a young African-American male in Covina, and the fourth involving the African-
American El Monte resident who was walking with his child to a local park—were each
based on hearsay, including the statements of the victims. But the examples were not
based on case-specific hearsay, as none of them related to any of the events or
participants alleged to be involved in the case being tried. (Sanchez, supra, 63 Cal.4th at
p. 676.)
Rodriguez claims that the detective’s testimony “is indistinguishable from other
types of gang testimony that has been found to be case-specific, such as expert testimony
relating an out-of-court statement that the expert heard from a gang member in which the
member admitted his gang membership,” citing People v. Ochoa (2017)
7 Cal.App.5th 575, at pages 588-589 (Ochoa), and “expert testimony relating facts about
other crimes that the expert had learned about from reading the police reports,” citing
38
People v. Lara (2017) 9 Cal.App.5th 296 at page 337 (Lara). Ochoa and Lara are
inapposite.
In Ochoa, a gang expert testified based on hearsay that at least 12 individuals, who
were not involved in the crimes for which the defendant was on trial, were the
defendant’s fellow gang members. (Ochoa, supra, 7 Cal.App.5th at pp. 582-583.) It was
unclear from the record in Ochoa whether the hearsay was testimonial (id. at pp. 584-
586); but Ochoa concluded that the hearsay was case-specific because it was relevant to
whether prior offenses committed by some of the same individuals qualified as predicate
offenses, and thus whether gang enhancement allegations on two of the charges against
the defendant on trial were true. (Id. at pp. 578, 582-583, 588-589 & fn. 6.)
In Lara, a gang expert testified, based on testimonial hearsay in police reports of
investigations of completed crimes, that the three defendants on trial had been contacted
in the company of gang members. (Lara, supra, 9 Cal.App.5th at p. 337.) The
testimonial hearsay established a necessary predicate offense against one of the
defendants and was relevant to whether all three of the defendants were guilty of an
active gang participation charge and whether gang enhancement allegations on another
charge were true. (Id. at pp. 327-329, 337.)
There is currently a split of authority on whether gang expert testimony about
predicate offenses constitutes “case-specific” information under Sanchez, and Ochoa and
Lara are on one side of this split. (Compare Menifee v. Superior Court (2020) 57
Cal.App.5th 343, 365; People v. Thompkins (2020) 50 Cal.App.5th 365, 411; Lara,
supra, 9 Cal.App.5th at p. 337; and Ochoa, supra, 7 Cal.App.5th at pp. 583, 588-589
39
with People v. Bermudez (2020) 45 Cal.App.5th 358, 377 & fn. 13; People v. Blessett
(2018) 22 Cal.App.5th 903, 944-945 & fn. 21, disapproved on another ground in People
v. Perez (2020) 9 Cal.5th 1, 14; Vega-Robles, supra, 9 Cal.App.5th at p. 411, and
Meraz I, supra, 6 Cal.App.5th at p. 1175.)
In this case, it is unnecessary to weigh-in on this split of authority because
Rodriguez does not challenge the detective’s testimony about the EMF gang’s predicate
offenses on any ground, including as being impermissibly based on case-specific hearsay.
Ochoa and Lara are distinguishable because they did not involve claims like
Rodriguez’s—namely, that a gang expert’s testimony about the customs and habits of a
gang are based on case-specific hearsay.
Rodriguez further argues that Detective Lopez’s testimony “[did] not qualify as
the type of background information that an expert is still allowed to relate to the jury
under Sanchez.” Instead, he argues, the detective’s testimony “went beyond discussing
generic background information, and instead testified about specific statements from
members of [Rodriguez’s] gang about how they are hostile to African- Americans, and
specific incidents the [detective] had heard about in which African- Americans had been
targeted by members of [Rodriguez’s] gang.” He asserts that “[t]his type of testimony is
indistinguishable” from the examples of case-specific facts given in Sanchez. We
disagree.
As we have stressed, facts are only case-specific under Sanchez when, in the
words of Sanchez, “they relate ‘to the particular events and participants alleged to have
been involved in the case being tried.’ ” (People v. Meraz (2018) 30 Cal.App.5th 768,
40
781 (Meraz II); Sanchez, supra, 63 Cal.4th at p. 676.) All of the examples of the case-
specific facts given in Sanchez met this standard. (Sanchez, at p. 677 [noting, e.g., “That
an associate of the defendant had a diamond tattooed on his arm would be a case-specific
fact . . . .”].) But none of Detective Lopez’s testimony was based on case-specific
hearsay, or case-specific facts of which the detective had no personal knowledge.
Further, Sanchez clarified “that an expert may still rely on general ‘background
testimony about general gang behavior or descriptions of the . . . gang’s conduct and its
territory,’ which is relevant to the ‘gang’s history and general operations.’ ” (Meraz II,
supra, 30 Cal.App.4th at p. 781; Sanchez, supra, 63 Cal.4th at p. 698.) Sanchez also
clarified that an expert, in supporting his opinion, “is entitled to explain to the jury the
‘matter’ upon which [the expert] relied, even if that matter would ordinarily be
inadmissible.” (Sanchez, at pp. 678-679; Evid. Code, § 802.)12
All of Detective Lopez’s challenged testimony about the EMF gang, including that
its members are required to follow the Mexican Mafia’s policy of being hostile to
African-Americans, that the gang has a custom and practice of targeting African-
Americans, and the specific examples of the gang’s acts of targeting African-Americans,
both in and outside El Monte, constituted background information about the gang, its
general behavior, descriptions of its conduct, and its territory. (Sanchez, supra, 63
12 There are, however, limits to the hearsay that an expert may relay to a jury in
explaining the basis of the expert’s opinion. As noted in Sanchez, Evidence Code section
352 authorizes trial courts “ ‘to exclude from an expert’s testimony any hearsay matter
whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative
value.’ ” (Sanchez, supra, 63 Cal.4th at p. 679.) We discuss this exception post, in
connection with Rodriguez’s section 352 and due process claims.
41
Cal.4th at pp. 678-679, 698.) In sum, none of the detective’s challenged testimony was
based on case-specific hearsay, as Sanchez defines the term. (Id. at p. 676.)
7. There Was No Evidence Code Section 352 or Due Process Error
Rodriguez next claims that Detective Lopez’s testimony about the EMF gang’s
custom and practice of following the Mexican Mafia’s edict of being hostile to African-
Americans, and his testimony about the specific examples of EMF gang members
targeting and making racist statements to African-Americans, had no “legitimate”
probative value, was unduly prejudicial, and should have been excluded under Evidence
Code section 352. He also claims that this testimony was so inflammatory and
prejudicial that its admission violated his due process right to a fair trial. We find no
merit to these claims.
We begin with Evidence Code section 352,13 which “requires the exclusion of
evidence only when its probative value is substantially outweighed by its prejudicial
effect. ‘Evidence is substantially more prejudicial than probative [citation] [only] if,
broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the
reliability of the outcome.” ’ ” (People. v. Tran (2011) 51 Cal.4th 1040, 1047.)
As the trial court ruled, the detective’s Mexican Mafia-related testimony was
probative because it showed that Rodriguez had a motive to shoot and kill Kofu. As an
13 Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
42
EMF gang member, Rodriguez was required to follow the Mexican Mafia’s edict of
being hostile to African-Americans. The detective’s testimony about the specific
examples of the EMF gang targeting and making racist statements to African-Americans,
both inside and outside El Monte, and the detective’s additional testimony that numerous
members of the EMF gang carried baseball bats they called “n-beaters,” was also
probative. It showed that the EMF gang had a particular custom and habit of being
hostile to African-Americans and of targeting African-Americans without provocation,
both inside and outside of El Monte.
Rodriguez argues that all of this evidence had no “legitimate probative value”
because, without it, the prosecution had sufficient evidence to argue that the shooting of
Kofu was gang related for purposes of the gang enhancement. He points out that his
membership in the EMF gang and the gang’s status as a criminal street gang were
“basically undisputed,” and his jury heard testimony from Tali that Kofu was a member
of an African-American gang. He also argues that, although the prosecution’s theory that
the shooting was gang-motivated required “some expert testimony” that the EMF gang
“ha[d] a habit of being hostile toward African-American gangs,” the detective “opined
about this fact in general terms,” and that should have been sufficient. He further argues
that the evidence posed “an extreme risk” of undue prejudice because it “consisted of
exceptionally inflammatory references to the Mexican Mafia and weapons called N-word
beaters,” together with specific examines of “unprovoked” threats and attacks by EMF
gang members on “African-American men and their families,” all of which had nothing
to do with the charged shooting of Kofu.
43
We disagree with Rodriguez’s Evidence Code section 352 analysis. The probative
value of the detective’s testimony was not substantially outweighed by its prejudicial
effect. As noted, the evidence showed that Rodriguez had a motive for shooting and
killing Kofu. Without the evidence, the jury likely would have wondered why Rodriguez
would shoot Kofu three times over a minor argument between Nunez and Kofu over beer
bottles being thrown from Nunez’s car. Standing alone, the detective’s general testimony
that the EMF gang, more so than other gangs, had conflicts with African- Americans,
would not have sufficiently informed Rodriguez’s jury that Rodriguez had a particular
motive for shooting and killing Kofu—that is, adhering to the rules, customs, and habits
of the Mexican Mafia and the EMF gang.
Nor was any the detective’s testimony unduly prejudicial in the sense that it would
have evoked an emotional bias against Rodriguez as an individual or would have caused
the jury to prejudge him based on extraneous factors. (People v. Cowan (2010)
50 Cal.4th 401, 475.) “[E]vidence should be excluded as unduly prejudicial when it is of
such nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but to reward or
punish one side because of the jurors’ emotional reaction. In such a circumstance, the
evidence is unduly prejudicial because of the substantial likelihood the jury will use it for
an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
Contrary to Rodriguez’s claim, the detective’s Mexican Mafia-related testimony
was brief and not inflammatory. It was limited to explaining that the EMF gang had its
own “rules on the street” but “fe[d] into the bigger enterprise” of the Mexican Mafia, a
44
prison gang; the EMF gang was part of the Mexican Mafia’s culture; and gangs, like the
EMF gang, that were connected to the Mexican Mafia and that operated in areas where
few African-Americans lived were expected to be hostile to African-Americans. The
detective also admitted he had “no specific information” that Rodriguez had committed
any acts of aggression against African- Americans. As the trial court ruled, this
admission mitigated any prejudicial effect that the detective’s Mexican Mafia-related
testimony may have had.
Additionally, although the court was not called upon to rule on the question, the
admission likewise mitigated any prejudicial effect of the detective’s testimony about the
EMF gang targeting African-Americans, making racist statements to African-Americans,
and carrying baseball bats that the gang called “n-beaters.” The jury also heard no
evidence that Rodriguez had ever carried such a bat and was instructed not to use any of
the gang evidence to conclude that Rodriguez was a person of bad character or had a
disposition to commit crime. (CALCRIM No. 1403.)
The detective’s challenged testimony also did not violate Rodriguez’s due process
right to a fair trial. In support of this claim, Rodriguez relies on People v. Albarran
(2007) 149 Cal.App.4th 214, which involved the admission of extensive, irrelevant, and
inflammatory gang evidence that the jury could have used for an improper purpose. (Id.
at p. 229.) The Albarran jury could have used the evidence to conclude that, even if the
defendant was not involved in the charged shootings, he had committed other crimes,
would commit crimes in the future, posed a danger to society, and should be punished.
(Id. at pp. 229-230.) In contrast here, Detective Lopez’s testimony was highly probative
45
of whether Rodriguez had a motive to shoot and kill Kofu. In sum, the challenged
testimony was not extensive, irrelevant, or inflammatory, and posed no risk of undue
prejudice to Rodriguez.
C. Kofu’s Prior Robbery Conviction Was Properly Excluded (Evid. Code, § 1103)
Several times during trial, the court and counsel discussed whether either
defendant wanted the court to admit evidence that Kofu had a prior second degree
robbery conviction for the purpose of showing that Kofu had a violent character and
acted in conformity with that character at the time of the shooting. (Evid. Code, § 1103.)
Ultimately, Rodriguez’s counsel asked the court to take judicial notice of Kofu’s prior
robbery conviction, but the court excluded the evidence on relevance grounds.
In excluding the evidence, the court noted that it had no information about the
facts underlying the robbery in order to determine its relevance. The prosecutor recalled
from Kofu’s rap sheet that the robbery occurred in Los Angeles County in 2014 or 2015,
but neither the prosecutor nor either defense counsel had any information about the facts
underlying the robbery.
The court reasoned that the mere fact that Kofu had a prior robbery conviction did
not support a reasonable inference that he acted with force or had the propensity to be
violent at the time of the shooting. The court also noted that there was other evidence
that the defense could use to show that Kofu acted aggressively at the time of the
shooting: Tali testified that Kofu was angry at the time of the shooting because he had
just had a “major argument” with his mother, and that Kofu tended to act aggressively
46
when he had controlled substances in his system, which, according to his autopsy, he had
at the time of the shooting.
Rodriguez claims the court erred under state law and violated his due process right
to present a defense in excluding the evidence that Kofu had a prior conviction for second
degree robbery. He claims the bare fact of the conviction was “relevant and material to
the defense theory of self-defense/defense of others by showing that Kofu was acting in
conformity with his character for violence.” (Evid. Code, § 1103.) He claims the error
requires reversal of his murder conviction, “since there is at least a reasonable chance that
at least some jurors would have given [him] the benefit of the doubt as to whether he was
acting in perfect or imperfect self-defense/defense of others if this evidence had properly
been admitted.” We disagree.
“Evidence Code section 1103 authorizes the defense in a criminal case to offer
evidence of the victim’s character to prove his conduct at the time of the charged crime.
Consequently, in a prosecution for a homicide or an assaultive crime where self-defense
is raised, evidence of the violent character of the victim is admissible to show that the
victim was the aggressor.” (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446, fns.
omitted, italics added.) The defense may prove that the victim had an aggressive and
violent character through the victim’s specific acts on third persons. (Id. at p. 447.)
“Robbery is a crime of violence committed against a person.” (People v. Scott (2009)
45 Cal.4th 743, 749.)
We review a trial court’s exclusion of evidence on relevance grounds for an abuse
of discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 828 (Gutierrez).) “The trial
47
court must always perform its gatekeeping function pursuant to Evidence Code section
350 to exclude evidence that is irrelevant.” (Id. at p. 828.) Here, we find no abuse of
discretion in the court’s exclusion of the evidence that Kofu had a prior conviction for
second degree robbery. As the trial court ruled, the bare fact of the conviction did not
support a reasonable inference that Kofu had a character or propensity for violence and
acted in conformity with that character at the time of the shooting.
As the court indicated, it could not be inferred from the fact of the conviction that
Kofu perpetrated any acts of violence or aggression in committing the robbery. (See §§
211, 212.5.) For all the court knew, Kofu could have committed the robbery by politely
asking his victim to hand over money or property, with an implicit threat of force, but
without any acts of aggression or violence.
Rodriguez claims the court excluded the evidence of the conviction under
Evidence Code section 352, and that a court’s discretion to exclude relevant defense
evidence is limited under that statute. To be sure, “Evidence Code section 352 must bow
to the due process right of a defendant to a fair trial and to his right to present all relevant
evidence of significant probative value to his defense.” (People v. Reeder (1978) 82
Cal.App.3d 543, 552.) But it is clear that the court excluded the evidence of the
conviction solely on relevance grounds (Evid. Code, §§ 210, 350) and not because its
admission would have consumed undue time, created a substantial risk of undue
prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)
Moreover, the bare fact of the conviction did not have substantial probative value
to the defense. Rodriguez maintains that “the jurors could not fairly evaluate” his claim
48
that he shot Kofu in self-defense or in defense of Nunez without hearing that Kofu had a
prior conviction for second degree robbery. He claims that the fact of the conviction
showed that Kofu had “a violent past,” and that the conviction accordingly had
“substantial probative value” to the defense.
Again, however, the bare fact of the conviction did not support a reasonable
inference that Kofu had a character or propensity for violence and acted in conformity
with that character at the time of the shooting. (Evid. Code, § 1103.) A person may be
convicted of robbery even if they committed no acts of force or violence. For example,
“a getaway driver who has no prior knowledge of a robbery, but who forms the intent to
aid in carrying away the loot during [the asportation element of the robbery], may
properly be found liable as an aider and abettor of the robbery.” (People v. Cooper
(1991) 53Cal.3d 1158, 1161.) Because the fact of the conviction in the instant case did
not support the inference that Kofu had a character or propensity for violence, the fact of
the conviction did not have substantial probative value to the defense, and its exclusion
was neither an abuse of the court’s discretion nor a violation of Rodriguez’s due process
right to a fair trial. (People v. Mincey (1992) 2 Cal.4th 408, 442 [“A defendant’s rights to
due process and to present a defense do not include a right to present to the jury a
speculative, factually unfounded inference.”].)
Any error in excluding the fact of the prior robbery conviction was also harmless.
The erroneous failure to admit evidence that a victim was the initial aggressor (Evid.
49
Code, § 1103, subd. (a)(1)) is reviewed for prejudice under the Watson14 standard.
(Gutierrez, supra, 45 Cal.4th at pp. 827-828.) Under that standard, there is no reasonable
probability that Rodriguez would have realized a more favorable result had he been
permitted to introduce the evidence that Kofu had a prior robbery conviction.
Ample other evidence indicated to the jury that Kofu acted aggressively at the
time of the shooting. Tali testified that Kofu was “mad a lot” and did not “ ‘take any
shit.’ ” Kofu would stand in front of his house and, when he felt someone was “
‘mugging’ ” him, that is, looking angrily at him, he would respond in kind. When he did
drugs, he would “get angry easier,” and his autopsy showed that he had
methamphetamine in his system at the time of his death, shortly after the shooting. At the
time of the shooting, he was “very mad” and “upset” because he had had an argument
with his mother earlier that morning. The court did not abuse its discretion in concluding
that the fact of Kofu’s prior robbery conviction would have added nothing of probative
value to this evidence, or to Rodriguez’s claim that he shot Kofu in self-defense or in
defense of Nunez. Instead, it would have allowed the jury to speculate that Kofu acted
violently during the prior robbery—inferences that the conviction itself did not support.
D. The 911 Caller’s Hearsay Statements Were Properly Admitted Before Both Juries
Rodriguez and Nunez both claim that the trial court prejudicially erred in
admitting the hearsay statements that the anonymous 911 caller reported hearing at the
14 People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
50
time of the shooting: “ ‘No, no, I’m sorry, I’m sorry,’ ” and “ ‘I told you not to fuck with
me.’ ” We find no merit to this claim.
1. Background
Before trial, the 911 caller had not been located, so the prosecutor sought to admit
the recording of the 911 call through the 911 dispatcher, whom the prosecutor said could
lay the foundation for the admission of the hearsay statements in the 911 call as
spontaneous statements of the 911 caller. (Evid. Code, § 1240.) The court ruled that the
statements were admissible on that ground.
A recording of the 911 call was played for both juries. The 911 caller reported
that, around three minutes earlier, he/she heard a gunshot, followed by someone saying, “
‘No, no, I’m sorry, I’m sorry,’ ” followed by another person saying, “ ‘I told you not to
fuck with me,’ ” followed by at least two more gunshots.
Jose V. and Tali testified before both juries and described what they heard and saw
at the time of and after the shooting. Detective Ferreira testified before both juries that,
before trial, Jose V. told him that he, Jose V., heard Nunez say, “ ‘I told you not to fuck
with me.’ ”
The prosecution’s gang expert, Detective Lopez, was asked on direct examination
“[w]hat, if anything,” he could say about the “exchange” reported in the 911 call, “as it
relate[d] to how the reputation” of the EMF gang could benefit “from that incident
happening that way.” Nunez’s counsel objected that the question called for speculation,
but the court overruled the objection.
51
Detective Lopez then testified that, in his opinion, the fact that one shot was fired,
that the victim then apologized, but that “somebody in the group” then said, “ ‘You
should have never fucked with me,’ ” before two more shots were fired, showed “how
violent and dangerous that gang member is.” The gang member was also showing
“dominance” by shooting Kofu again after Kofu apologized.
During closing argument before Nunez’s jury, the prosecutor played the 911
recording again, and attributed the, “ ‘I’m sorry,’ ” statement to Kofu, and the, “ ‘I told
you not to fuck with me,’ ” statement to either Nunez or Rodriguez. The prosecutor then
argued that the statements showed that both defendants, Nunez and Rodriguez, intended
to commit first degree premeditated murder.
During closing argument before Rodriguez’s jury, the prosecutor argued that
“what you heard on that 911 call” corroborated the pathologist’s testimony that the
trajectory of two of Kofu’s three bullet wounds showed that two of the wounds were
inflicted when Kofu was on the ground, and that these two “extra shots were an ambush.”
The prosecutor then played the 911 recording before Rodriguez’s jury, and argued
that the 911 call put the two extra shots “into context” and corroborated Tali’s testimony
that he heard one shot, then a pause, followed by two more shots. The prosecutor then
argued that Rodriguez was the shooter, and that the comment, “ ‘I told you not to fuck
with me,’ ” showed “how gang members handle situations,” regardless of whether Nunez
or Rodriguez made the statement. The prosecutor then argued, “That’s why your verdict
[for Rodriguez] is first degree murder.”
52
2. Analysis
Evidence Code section 1240 sets forth the spontaneous statement exception to the
hearsay rule. It provides: “Evidence of a statement is not made inadmissible by the
hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act,
condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while
the declarant was under the stress of excitement caused by such perception.”
Defendants concede that the 911 call was made within minutes of the shooting,
under the stress of the excitement caused by it. They argue, however, that the court erred
in admitting the 911 caller’s hearsay statements as spontaneous statements, without
establishing the “preliminary fact” of who made each statement. (Evid. Code, § 403,
subd. (a)(4).) They argue that the relevancy of the two statements, “No, no, I’m sorry . . .
,” and “I told you not to fuck with me,” depended on who made each statement, and the
court did not make that determination.
Defendants further argue that the admission of the two statements deprived them
of their due process right to a fair trial because the prosecution used the statements to
undermine their defense that the shooting was justified because Rodriguez shot Kofu in
self-defense or in defense of Nunez. They claim that the prosecution and its gang expert,
Detective Lopez, were erroneously allowed to assume or speculate that Kofu made the
first statement, and that either Nunez or Rodriguez made the second statement, and on
that basis opine and argue, respectively, that the shooting benefited the EMF gang and
was first degree murder. They maintain that both statements were irrelevant and
inadmissible because there was no showing of who made each statement.
53
To be sure, the relevance of evidence sometimes depends on the existence of a
preliminary fact. (Evid. Code, § 403, subd. (a); People v. Lucas (1995) 12 Cal.4th 415,
466 (Lucas), citing People v. Collins (1975) 44 Cal.App.3d 617 [“identity of person who
made threatening telephone call to witness is preliminary fact [the] proponent of
proffered testimony has burden of establishing before fact of telephone call is relevant”].)
But, “[t]he court should exclude the proffered evidence only if the ‘showing of
preliminary facts is too weak to support a favorable determination by the jury,’ ” and
“[t]he decision whether the foundational evidence is sufficiently substantial” to allow the
jury to make this determination is “a matter within the court’s discretion.” (Lucas, at
p. 466.)
In ruling that the two hearsay statements that the 911 caller reported hearing at the
time of the shooting were admissible as the caller’s spontaneous statements (Evid. Code,
§ 1240), the court did not expressly determine that the prosecution made a sufficient
foundational showing of the preliminary fact of who made each statement. (Evid. Code,
§ 403, subd. (a)(4).) But the prosecution’s proffered evidence, and the evidence that the
prosecution later presented to both juries, was sufficient to allow each jury to determine
that Kofu was the person who said, “No, no, I’m sorry, I’m sorry,” and that either Nunez
or Rodriguez said, “I told you not to fuck with me.”
Jose V. testified that he was driving past Kofu’s house, and he drove between
Kofu and Nunez’s car when he heard Nunez and Kofu arguing, saw them put their fists
up, and walk toward each other before Nunez yelled to Rodriguez to “ ‘Get it out.’ ” Jose
V. then saw Rodriguez get out of Nunez’s car with a shotgun and shoot Kofu once before
54
Jose V. drove away. Detective Ferreira later testified that, before trial, Jose V. told the
detective that he, Jose V., heard Nunez say, “ ‘I told you not to fuck with me.’ ” Tali
testified that he was inside Kofu’s house and that Kofu was outside when he heard one
gunshot, followed by a pause, then two more gunshots, before Kofu began calling to Tali
to help him.
All of this evidence allowed each defendant’s jury to reasonably determine that
Kofu was the person who said, “No, no, I’m sorry . . . ,” after he was shot the first time,
and that Nunez was the person who said, “I told you not to fuck with me.” Thus, the
potential relevancy of the two statements was established. (Evid. Code, § 403,
subd. (a)(4); Lucas, supra, 12 Cal.4th at pp. 466-467 [questions of preliminary facts are
ultimately decided by the jury; the court’s function is to determine whether there is
sufficient evidence to allow the jury to decide the preliminary fact in the proponent’s
favor].) Thus, neither Detective Lopez’s opinion nor the prosecutor’s argument that the
shooting benefited the EMF gang, and was first degree murder, were based on
speculation as to who made which statement.
E. The Prosecutor Did Not Misstate the Law of Premeditation and Deliberation During
Closing Argument Before Rodriguez’s Jury
Rodriguez claims the prosecutor gave misleading examples of premeditation and
deliberation during closing argument that amounted to prosecutorial error under state and
federal law. In arguing that Rodriguez was guilty of first degree premeditated murder,
the prosecutor compared premeditation and deliberation to decisions to drive through a
yellow traffic light and to swat a mosquito. We conclude that there is no reasonable
55
likelihood that Rodriguez’s jury construed the prosecutor’s comparisons in an
objectionable fashion. Thus, there was no prosecutorial error.
1. Background
In closing argument before Rodriguez’s jury, the prosecutor discussed the
requirements of premeditation and deliberation for purposes of first degree murder. He
argued that Rodriguez acted with premeditation when he shot and killed Kofu, in part
because Kofu was lying on the ground, defenseless, and with one bullet wound in his leg,
when Rodriguez shot him two more times. He noted that, “[a] decision to kill rashly,
impulsively, without careful consideration is not deliberate, premeditated. On the other
hand, a cold, calculated decision to kill [can] be reached quickly. The test is the extent of
the reflection; not the length of time.” (See CALCRIM No. 521 (first degree murder).)
The prosecutor then gave two hypothetical examples—the decision to run a yellow
traffic light and to swat a mosquito—to illustrate deliberation and premeditation: “So
here’s an example [that] we use in the courts. And it makes a lot of sense, right?
Deliberation and premeditation, concept[s] that you—words we don’t always use.
You’re supposed to be here at 9:30 this morning and maybe you had a little bit late start
to your day, whatever it is that got you a little bit off track on the time. You get on, let’s
say, the 210 Freeway. Your exit is on Haven. You’re looking at the time. It’s 9:15.
You’re thinking, ‘Jeez. Sometimes the elevators work; sometimes they don’t. I know
what parking’s like. I know what it takes to get into that courthouse. I better start going
a little faster.’ So you start getting faster. You’re getting closer to Foothill Boulevard.
56
You’re going South. You’re driving. ‘Awesome. I’m going to get right through there.
I’m going to make it.’ And the light turns yellow. What do you do?”
At this point, Rodriguez’s counsel objected to the argument as “improper,” and the
objection was overruled. The prosecutor continued: “If you’re anything like that, you
start looking around. Maybe you look in the rearview mirror to see is there a car behind
you. If you might hit the brakes really hard. Maybe you look at cross traffic to see if any
cars are coming fast [that are] going to hit you. If I go through this light when it might
turn red. Maybe you kind of glance forward at the Rancho Cucamonga Station down
there. ‘Am I going to get a ticket if I go through this light?’ . . .
“In your mind you’re thinking, ‘I don’t want to be the juror that’s late. We’re
supposed to start on time.’ All the thoughts go through your mind. You determine hit
the gas or hit the brakes. What are you doing there? You’re exercising deliberation and
premeditation. It can be that quick. It’s not a long, drawn out process. You’re reflecting
on the consequences of your actions and you’re making a choice. That’s deliberation and
premeditation. [¶] Another example—it’s not one that—probably not as good as the first
one—but you got a mosquito on your arm, and you have to determine, ‘Am I going to
show [sic] it or swat it?’ You might think, ‘You know, what am I wearing? Who’s
around? Is anyone going to see me do this?’ That might impact your decision, but
you’re going to make that decision. That thought process goes through your mind.
That’s deliberation.”
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2. Analysis
Claims of prosecutorial error are evaluated under the following standards: “A
prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution
when it infects the trial with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves the use of deceptive
or reprehensible methods to attempt to persuade either the trial court or the jury.
Furthermore, and particularly pertinent here, when the claim focuses upon comments
made by the prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
In the context of first degree murder, premeditated means considered beforehand,
and deliberate means formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course of action.
(People v. Lee (2011) 51 Cal.4th 620, 636 (Lee).) “Premeditation and deliberation
require ‘substantially more reflection; i.e., more understanding and comprehension of the
character of the act than the mere amount of thought necessary to form the intent to
kill.’ ” (People. v. Van Ronk (1985) 171 Cal.App.3d 818, 823.) But the process of
premeditation and deliberation does not require any extended period of time. (Lee, at
p. 636.) “ ‘ “The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .” ’ ” (Ibid.) A “preexisting reflection, of any
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duration,” distinguishes first degree premeditated and deliberate murder from second
degree murder. (People v. Solomon (2010) 49 Cal.4th 792, 813; People v. Boatman
(2013) 221 Cal.App.4th 1253, 1264-1265 (Boatman).)
The question here is whether there is a reasonable likelihood that Rodriguez’s jury
construed the prosecutor’s examples of a person deciding to run a yellow traffic light, and
to swat a mosquito, in an objectionable fashion, that is, as misleading examples of acting
with premeditation and deliberation. We conclude there was no such reasonable
likelihood because the examples were not misleading, either on their face or in the
context of the entire record, including the instructions on first degree murder.
The jury was properly instructed on the meanings of premeditation and
deliberation pursuant to CALCRIM No. 521. The prosecutor’s examples of a person
deciding to run a yellow traffic light, and to swat a mosquito, illustrated that those
decisions would be made (1) with premeditation, if the person considered the decisions
before making them; and (2) with deliberation, if the person made the decisions after
thinking about and weighing the considerations for and against the decisions. In keeping
with the legal definitions of premeditation and deliberation (CALCRIM No. 521), the
prosecutor emphasized that the test of premeditation and deliberation was not determined
by the amount of time that the person took to make the decisions, but whether the person
made the decisions following any period of reflection. Thus, the argument was proper.
Rodriguez claims that this court’s decision in Boatman shows that the prosecutor’s
comparisons to the decisions to run a yellow traffic light and to swat a mosquito
misstated the meanings of premeditation and deliberation. The defendant in Boatman
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was convicted of first degree willful, deliberate, and premeditated murder for shooting his
girlfriend in her face. (Boatman, supra, 221 Cal.App.4th at pp. 1257-1258.) Before trial,
he gave conflicting accounts of how the shooting occurred but testified at trial that the
gun accidentally went off. (Id. at pp. 1259-1260.) This court concluded that the evidence
was sufficient to support a finding of express malice, that is, that the defendant
intentionally shot and killed his girlfriend, but was insufficient to support the jury’s
finding that the defendant acted with premeditation and deliberation. (Id. at pp. 1257,
1274.)
This court explained that the Boatman defendant’s first degree murder conviction
required evidence that “the gunshot to the face was pursuant to a ‘ “preconceived design”
to take his victim’s life . . . .’ ” (Boatman, supra, 221 Cal.App.4th at p. 1268.) The
evidence that the defendant “took the time to pull back the hammer, point the pistol at
[the victim’s] face, and fire the weapon,” was insufficient to show that he acted with
premeditation and deliberation when he shot his girlfriend. (Id. at p. 1273.) We reasoned
that “cocking, aiming, and firing a revolver essentially describes the act of shooting with
a revolver. If these actions could, without more, constitute premeditation and
deliberation, we would effectively add killing perpetrated by a revolver to the list of
crimes specifically enumerated in section 189 and thereby substantially broaden the
scope of first degree murder . . . .” (Id. at p. 1274, fn. 4.)
Rodriguez compares the act of cocking, aiming, and firing a revolver, without
more, to the prosecutor’s examples of deciding to run a yellow traffic light and to swat a
mosquito. He suggests that such acts are never premeditated and deliberate but are
60
always impulsive and unconsidered. But this argument disregards critical details in the
prosecutor’s yellow traffic light and mosquito swatting examples; in both examples,
before acting, the person considered all of the consequences of running the yellow light
and of swatting the mosquito. The point of the examples was to illustrate that a
premeditated and deliberate decision can be made quickly. Again, the argument was
proper.
Rodriguez observes that in People v. Avila (2009) 46 Cal.4th 680 (Avila), our
Supreme Court “acknowledged that it would be improper to argue” that “ ‘the “cold,
calculated” judgment of murder is the equivalent of deciding whether to stop at a yellow
light or proceed through the intersection.’ ” (Id. at p. 715.) He claims that the members
of his jury “likely recognized” from their own personal experiences that “a yellow traffic
light lasts between three and six seconds,” and that “the act of swatting a mosquito is
reflexive and happens almost instinctively the instant the mosquito is noticed.”
But, as noted in Avila, the prosecutor there did not argue that the mental processes
of premeditation and deliberation were “equivalent” to deciding whether to run a yellow
traffic light. (Avila, supra, 46 Cal.4th at p. 715.) To the contrary, the prosecutor in Avila
expressly acknowledged that, “[d]eciding to and moving forward with the decision to kill
is similar, but I’m not going to say in any way it’s the same. There’s great dire
consequences that have a difference here.” (Ibid.) Similarly here, the prosecutor did not
trivialize the process of making a premeditated and deliberate decision to kill by
comparing it to the decision to run a yellow traffic light or to swat a mosquito. As noted,
the prosecutor merely used the examples to illustrate how the process of premeditation
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and deliberation can occur quickly. His examples showed that a premeditated and
deliberate decision to kill must be made “ ‘ “as the result of preexisting thought and
reflection rather than unconsidered or rash impulse.” ’ ” (Boatman, supra,
221 Cal.App.4th at p. 1264, quoting People v. Pearson (2013) 56 Cal.4th 393, 443.)
Thus, the prosecutor’s argument was not error under state or federal law.
F. Rodriguez’s Hearsay Statements to S.A Were Properly Admitted Against Nunez As
Declarations Against Rodriguez’s Penal Interest (Evid. Code, § 1230)
During her police interview with Detective Ferreira, S.A. said that Rodriguez told
S.A. that: (1) there were three “Black guys” on the street; (2) Nunez was arguing with
one of them; (3) Nunez had prior “drama” and “a beef” with them; (4) Nunez had been
“trying to fight them”; and (5) Nunez started the altercation. S.A. also told Detective
Ferreira that Rodriguez told her that Rodriguez told Nunez to get back into the car, but
Nunez would not listen to him, so Rodriguez also got out of the car and shot one of the
three men (in self-defense) after the man “socked” Rodriguez. All of these statements
were admitted against Nunez as statements against Rodriguez’s penal interest. (Evid.
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Code, § 1230.)15
Nunez claims the court abused its discretion and violated his due process right to a
fair trial in admitting three of Rodriguez’s hearsay statements to S.A—the ones we have
denominated ante as statements (3), (4) and (5)—that Nunez had been trying to fight with
the three “Black” guys, that Nunez had prior “ ‘drama’ ” and a prior “ ‘beef’ ” with them,
and that Nunez started the altercation with the “Black” guys, or one of them, that
culminated in Rodriguez shooting one of the “Black” guys.
Nunez argues that the statements did not qualify as statements against Rodriguez’s
penal interest because they were “highly incriminating” of Nunez and “minimizing and
exculpatory” of Rodriguez’s penal interest. He claims the statements “sought to shift
blame and finger” him “as more culpable for the crime” than Rodriguez. We find no
merit to these claims and conclude that the court did not abuse its discretion in admitting
the hearsay statements against Nunez as declarations against Rodriguez’s penal interest.
(Evid. Code, § 1230.)
15 Before trial, the prosecutor moved to admit S.A.’s interview statements in
which she reported the hearsay statements made to her by Rodriguez, which incriminated
both Rodriguez and Nunez. The prosecutor argued that Rodriguez’s hearsay statements
to S.A. were admissible against Nunez because the statements were (1) nontestimonial,
and thus did not implicate Nunez’s confrontation rights, (2) qualified under the hearsay
exception for declarations against Rodriguez’s penal interest (Evid. Code, § 1230), and
(3) were trustworthy and reliable. Nunez’s counsel objected to the admission of the
statements on the ground they implicated Nunez as the aggressor in the confrontation
with Kofu. The court ruled that the statements were nontestimonial, trustworthy, and
reliable, and thus admissible against Nunez as declarations against Rodriguez’s penal
interest.
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The applicable legal principles and our standard of review are summarily stated in
People v. Grimes (2016) 1 Cal.5th 698 at pages 710 to 711 (Grimes): “Although hearsay
statements are generally inadmissible under California law (Evid. Code, § 1200,
subd. (b)), the rule has a number of exceptions. One such exception permits the
admission of any statement that ‘when made, was so far contrary to the declarant’s
pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal
liability, or so far tended to render invalid a claim by him against another, or created such
a risk of making him an object of hatred, ridicule, or social disgrace in the community,
that a reasonable man in his position would not have made the statement unless he
believed it to be true.’ (Evid. Code, § 1230.) As applied to statements against the
declarant’s penal interest, in particular, the rationale underlying the exception is that ‘a
person’s interest against being criminally implicated gives reasonable assurance of the
veracity of his statement made against that interest,’ thereby mitigating the dangers
usually associated with the admission of out-of-court statements. [Citation.]
“[¶] To demonstrate that an out-of-court declaration is admissible as a declaration
against interest, ‘[t]he proponent of such evidence must show that the declarant is
unavailable, that the declaration was against the declarant’s penal interest when made and
that the declaration was sufficiently reliable to warrant admission despite its hearsay
character.’ [Citation.] ‘In determining whether a statement is truly against interest
within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy
to be admissible, the court may take into account not just the words but the circumstances
under which they were uttered, the possible motivation of the declarant, and the
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declarant’s relationship to the defendant.’ [Citation.] [¶] We review a trial court’s
decision whether a statement is admissible under Evidence Code section 1230 for abuse
of discretion.” (Grimes, supra, 1 Cal.5th at pp. 710-711.)
Nunez correctly points out that the declaration against interest exception (Evid.
Code § 1230) “generally does not extend to remarks that seek to shift or assign greater
blame to others, minimize, or curry favor—even when made as part of a broader
inculpatory statement.” (See, e.g., People v. Duarte (2000) 24 Cal.4th 603, 614-617 and
People v. Gallardo (2017) 18 Cal.App.5th 51, 71, 75.) He also correctly points out that
in People v. Leach (1975) 15 Cal.3d 419, our Supreme Court “construe[d] the exception .
. . to be inapplicable to evidence of any statement or portion of a statement not itself
specifically disserving to the interests of the declarant.” (Id. at p. 441.) But more
recently, in Grimes, our Supreme Court clarified that the exception extends to statements
“that, though not independently disserving of the declarant’s penal interests, also are not
merely ‘self-serving,’ but ‘inextricably tied to and part of a specific statement against
penal interest.’ ” (Grimes, supra, 1 Cal.5th at p. 715, quoting People v. Samuels (2005)
36 Cal.4th 96, 120-121.) That is the case here.
Grimes also noted that cases construing and applying an analogous exception to
the federal hearsay rule, and California cases construing and applying Evidence Code
section 1230, had taken “a contextual approach” in applying the exceptions and “the
Leach rule.” (Grimes, supra, 1 Cal.5th at pp. 713-715.) Grimes concluded that “the
nature and purpose of the against-interest exception does not require courts to sever and
excise any and all portions of an otherwise inculpatory statement that do not ‘further
65
incriminate’ the declarant. Ultimately, courts must consider each statement in context in
order to answer the ultimate question under Evidence Code section 1230: Whether the
statement, even if not independently inculpatory of the declarant, is nevertheless against
the declarant’s interest, such that ‘a reasonable man in [the declarant’s] position would
not have made the statement unless he believed it to be true.’ ” (Grimes, at p. 716.)
Here, the trial court did not abuse its discretion in concluding that Rodriguez’s
challenged hearsay statements were admissible against Nunez as declarations against
Rodriguez’s penal interest. We begin with Rodriguez’s core inculpatory statement: his
confession to S.A. that he shot someone. By all accounts, there was only one shooter in
this case. Thus, the inculpatory nature of the statement cannot be overstated. Rodriguez
directly inculpated himself in the shooting when he told S.A. that he shot a man after the
man “socked” him. Although the details of Rodriguez’s confession to S.A. indicated that
he shot the man in self-defense or in defense of Nunez, the trial court could have
reasonably concluded that the entire confession was nonetheless disserving of
Rodriguez’s penal interest because it directly implicated him as having shot someone.
(Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 758-759 [To come within
Evid. Code, § 1230, “a statement need not wholly confess guilt; it need only be ‘
“distinctly against [the declarant’s] interest.” ’ ”].)
Rodriguez’s additional hearsay statements to S.A about the shooting, including his
challenged hearsay statements implicating Nunez as the aggressor in the altercation that
preceded the shooting, were not “practically separable” from Rodriguez’s self-
inculpatory confession. (Grimes, supra, 1 Cal.5th at p. 717.) Indeed, the additional
66
statements were necessary to explain how Rodriguez came to shoot a man who “socked”
him: (1) there were three “Black guys” on the street; (2) Nunez was arguing with one of
them; (3) Nunez had had prior “drama” and “a beef” with them; (4) Nunez had been
“trying to fight them”; and (5) Nunez started the altercation. Rodriguez also told S.A.
that he told Nunez to get back in the car, but Nunez would not listen, so Rodriguez also
got out of the car and shot one of the three men after the man “socked” Rodriguez.
The court could have reasonably concluded that these additional statements, even
if not independently inculpatory of Rodriguez, were nevertheless against his penal
interest, because “ ‘a reasonable man in [Rodriguez’s] position would not have made the
statement[s] unless he believed [them] to be true.’ ” (Grimes, supra, 1 Cal.5th at p. 716.)
Further, none of the additional hearsay statements attempted to shift blame to Nunez for
the shooting, or for any other crime in connection with the shooting. (Cf., e.g., In re
Sakarias (2005) 35 Cal.4th 140, 154-155 [Portions of declarant’s confession implicating
his accomplice “could well have been held inadmissible as attempts to deflect culpability
away from the declarant.”].) In confessing to S.A., Rodriguez was effectively assuming
full criminal responsibility for the shooting. (Grimes, at p. 717.) Unquestionably,
Rodriguez appeared to be blaming Nunez for starting the altercation that preceded the
shooting and for getting Rodriguez into the situation in which he ended up shooting the
man who “socked” him. But the statements implicating Nunez for starting the altercation
were not an attempt to shift criminal liability to Nunez for the shooting. Nothing
Rodriguez said to S.A. indicated that Nunez aided and abetted Rodriguez in the shooting
or suggested that Nunez committed any other crime.
67
G. Substantial Evidence Supports Nunez’s First Degree Murder Conviction
Nunez was prosecuted for the first degree murder of Kofu based on the theory that
Nunez directly aided and abetted Rodriguez in the commission of the first degree
premeditated murder—that is, based on the theory that Nunez acted “willfully,
deliberately, and with premeditation as an aider and abettor.” (CALCRIM No. 521.)
Nunez claims that insufficient evidence supports his first degree murder conviction
because insufficient evidence shows that he “directly aided and abetted” the premeditated
murder of Kofu. We find no merit to this claim.
1. Applicable Legal Principles
“There are two distinct forms of culpability for aiders and abettors. ‘First, an aider
and abettor with the necessary mental state is guilty of the intended crime.’ ” (People v.
Chiu (2014) 59 Cal.4th 155, 158 (Chiu), superseded by statute in part as stated in People
v. Gentile (2020) 10 Cal.5th 830 (Gentile).) This first form of aider and abettor liability
is known as direct aider and abettor liability. (See Chiu, at pp. 166-167.) “ ‘Second,
under the natural and probable consequences doctrine, an aider and abettor is guilty not
only of the intended crime, but also “for any other offense that was a ‘natural and
probable consequence’ of the crime aided and abetted.” ’ ” (Id. at p. 158.)
In Chiu, our Supreme Court held that aiders and abettors can only be convicted of
first degree premeditated murder under a direct aiding and abetting theory; they cannot be
convicted of first degree premeditated murder under the natural and probable
consequences doctrine. (Chiu, supra, 59 Cal.4th at pp. 166-167.) Like second degree
murder, first degree premeditated murder is the unlawful killing of a human being with
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malice aforethought, but unlike second degree murder, first degree premeditated murder
has the additional elements of willfulness, premeditation, and deliberation. (Id. at
p. 166.)
As stated in Chiu, in order to convict a defendant of first degree premeditated
murder as a direct aider and abettor, “the prosecution must show that the defendant aided
or encouraged the commission of the murder with knowledge of the unlawful purpose of
the perpetrator and with the intent or purpose of committing, encouraging, or facilitating
its commission.” (Chiu, supra, 59 Cal.4th at p. 167, italics added.) That is, a direct aider
and abettor to first degree premeditated murder must aid or encourage the direct
perpetrator in the commission of the murder and act with his or her own willfulness,
premeditation, and deliberation. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
In accordance with these principles, Nunez’s jury was instructed that it could find
Nunez guilty of first degree premeditated murder “if the People have proved that he acted
willfully, deliberately, and with premeditation as an aider and abettor. The defendant
acted willfully if he also intended to kill. The defendant acted deliberately if he also
carefully weighed the considerations for and against his choice and, knowing the
consequences, intended to kill. The defendant acted with premeditation if he also
decided to kill before the acts that caused death were completed. The length of time the
person spends considering whether to kill does not determine whether the killing is
deliberate and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the circumstances. A
decision to kill made rashly, impulsively, or without careful consideration is not
69
deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be
reached quickly. The test is the extent of the reflection, not the length of time . . . .”
(CALCRIM No. 521.)
The applicable standard of review is well settled. In considering a claim that
insufficient evidence supports a criminal conviction, our task as a reviewing court is to
determine whether the entire record, viewed in the light most favorable to the judgment,
contains substantial evidence—evidence that is reasonable, credible, and of solid value—
from which a rational trier of fact could have found the defendant guilty of the crime
beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).)
We presume in support of the judgment the existence of every fact the trier of fact
could have reasonably deduced from the evidence. (People v Thompson (2010)
49 Cal.4th 79, 113.) We apply the same standard of review whether direct or
circumstantial evidence is involved. (People v. Prince (2007) 40 Cal.4th 1179, 1251.)
Reversal is required only if “upon no hypothesis whatever is there sufficient substantial
evidence” to support the verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
2. Analysis
Nunez claims there was insufficient evidence that he “knowingly and intentionally
instigated or assisted Rodriguez” to “deliberately, willfully, or with premeditation” shoot
and kill Kofu. He notes there was no evidence that he and Rodriguez “purposefully set
out together to the location with the intent of finding and killing Kofu, a member of a
rival gang, or anyone.” He also argues that “ ‘sacala,’ ” which J.V. heard him say to
Rodriguez after he got out of his car and challenged Kofu to a fight, means “ ‘get it out,’
70
” but does not mean, “ ‘Get it out and shoot.’ ” He concedes that his telling Rodriguez to
“ ‘get it out’ ” supports a reasonable inference that he wanted Rodriguez to brandish his
shotgun at Kofu, in order to instill fear in Kofu and to stop his confrontation with Kofu.
He claims, however, that his use of the word “ ‘sacala’ ” does not support a reasonable
inference that he directed Rodriguez to shoot and kill Kofu, and that he did so with
premeditation and deliberation.
Although we agree with Nunez that there was no evidence that Nunez and
Rodriguez premeditated and deliberated the shooting and killing of Kofu before Nunez
began arguing with Kofu, Nunez’s jury reasonably could have inferred that Nunez
intended for Rodriguez to shoot and kill Kofu, and that Nunez did so with premeditation
and deliberation, when Nunez told Rodriguez, “sacala,” meaning, in context, to get out
his shotgun. This inference is supported by the entire record, including the gang
evidence, Nunez’s status as an associate of the EMF gang, Nunez’s knowledge that
Rodriguez was an EMF gang member and was armed at the time of the shooting, and
Nunez’s actions and statements before and at the time of the shooting.
As the People point out, Nunez had family in El Monte and in the EMF gang. He
was an EMF gang associate. As such, he had reason to know about the EMF gang’s
values, and that respect was one of the EMF gang’s essential principles. Claiming a
neighborhood was an important way for a gang member to maintain respect. EMF gang
members carried firearms and were expected to use them to fend off rivals. EMF gang
members exhibited “particular discontent” and hatred toward African-Americans, and
EMF gang members would target and confront African-Americans. Kofu was a member
71
of an African-American-affiliated gang known as “the Bloods,” and Kofu routinely wore
a red bandana to signify his gang affiliation. Before the shooting, Nunez had “drama”
and “beef” with Kofu, and Nunez had “been trying to fight” Kofu.
In this context, Nunez’s actions and statements at the time of the shooting show
that, with premeditation and deliberation, he intended and directed Rodriguez to shoot
and kill Kofu. Nunez was driving by Kofu’s house with Rodriguez, an EMF gang
member, as his passenger, knowing Rodriguez was armed. After Kofu yelled at the two
of them to pick up beer bottles they had thrown from Nunez’s car, Nunez began arguing
with Kofu, stopped his car, got out, continued arguing with Kofu, and challenged Kofu to
a fight.16 At some point, Nunez aggressively told Kofu, “I’m not going to pick that
mother fucking shit up.” And, after Nunez got out of his car, J.V. saw that Nunez
appeared to be “challenging [Kofu] to a fight.” Then, after Nunez and Kofu had put up
their fists and Kofu began to approach Nunez, Nunez yelled to Rodriguez, “ ‘Sacala
huey,’ ” or “ ‘Get it out.’ ” Rodriguez then got out of the car and shot Kofu.
The 911 caller reported hearing one shot, then someone began yelling, “ ‘No, no,
I’m sorry, I’m sorry.’ ” Another person then said, “ ‘I told you not to fuck with me.’ ”
After that statement, the 911 caller heard two more shots. Although the People claim
16 The evidence showed that Nunez could have driven away from Kofu, but that
Nunez instead chose to get out of his car and engage in an altercation with Kofu, with
whom he had a prior “beef” and disliked. When asked multiple times during his police
interview why he got out of his car instead of driving away, Nunez gave weak and
inconsistent answers that the members of his jury reasonably could have discredited.
Nunez claimed he had to stop his car because other cars were passing him in both
directions, and because Kofu was threating him. He said he intended to “run” after he got
out of his car, and that he did want to get out of his car.
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it was never “conclusively established” who made the statements reported by the 911
caller, the evidence supports a reasonable inference that Kofu was the one who was
saying, “ ‘No, no, I’m sorry, I’m sorry,’ ” after he was shot the first time, and that Nunez
was the person who then said to Kofu, “ ‘I told you not to fuck with me.’ ” During his
police interview, J.V. told Detective Ferreira that J.V. heard Nunez say, “ ‘I told you not
to fuck with me.’ ” It also made sense that Kofu was the one who was apologizing and
begging for his life because he had just been shot in his leg, and Rodriguez still had the
gun.
In the context of the entire record, including the gang evidence, Nunez’s statement
to Kofu, “I told you not to fuck with me,” strongly indicated that Nunez knew and
intended that Rodriguez would shoot and kill Kofu when Nunez told Rodriguez to “get it
out” meaning get his gun out. The record also supported a reasonable inference that
Nunez carefully weighed the considerations for and against his choice of telling
Rodriguez to get his gun out and, knowing that Rodriguez would use the gun to shoot and
kill Kofu, directed Rodriguez to get his gun out. Indeed, almost immediately after Nunez
told Kofu, “ ‘I told you not to fuck with me,’ ” Rodriguez fired two more shots into
Kofu’s legs, killing him.
Nunez’s actions following the shooting were also consistent with the actions of a
person who had just willfully and with premeditation and deliberation, directed an EMF
gang member to shoot and kill a rival gang member. If Nunez had not shared
Rodriguez’s premeditated and deliberate intent to shoot and kill Kofu, Nunez might have
asked Rodriguez why he shot Kofu. Additionally, Nunez could have run away on foot or
73
sped away in his car before Rodriguez got back into his car. Instead, Nunez got in his car
and encouraged Rodriguez to “ ‘Hurry up. Get in fool. Get in. Let’s go.’ ” Rodriguez
was acting “nonchalant[ly]” and “taking a little bit of time to get into the car.” Thus,
Nunez could have separated himself from Rodriguez, but chose not to do so and
encouraged Rodriguez to get in his car. Then, after they drove away from the scene of
the shooting, Nunez drove Rodriguez to several different places, including the mall and a
gas station. Nunez also did not report the shooting to authorities, even after he was
outside of Rodriguez’s presence. Based on all of the evidence before it, Nunez’s jury
reasonably could have inferred that Nunez intended for Rodriguez to shoot and kill Kofu,
and that Nunez did so with premeditation and deliberation.
H. Neither the Instructions Nor the Prosecutor’s Arguments Allowed Nunez To Be
Convicted of First Degree Premeditated Murder Based on an Invalid Ground
Nunez’s jury was instructed on second degree murder pursuant to CALCRIM
No. 403. Nunez claims that this instruction, coupled with the prosecutor’s arguments, did
not adequately inform Nunez’s jury that it could not convict Nunez of first degree
premeditated murder based on an invalid legal theory—that is, based on a natural and
probable consequences theory, or based on Rodriguez’s willfulness, deliberation, and
74
premeditation, rather than on Nunez’s mental state.17
We find no merit to these claims. As we explain, the entire record shows there is
no reasonable likelihood that Nunez’s jury misconstrued the court’s instructions,
including CALCRIM No. 403, or the prosecutor’s arguments, as erroneously allowing it
to convict Nunez of first degree premeditated murder based on a legally invalid ground.
1. Background
As noted, under our Supreme Court’s 2014 decision in Chiu, an aider and abettor
cannot be liable for first degree premeditated murder based on a natural and probable
consequences theory; instead, aider and abettor liability for premeditated murder “must
be based on direct aiding and abetting principles.” (Chiu, supra, 59 Cal.4th at pp. 158-
159.) In keeping with Chiu, Nunez’s jury was instructed on first degree premeditated
murder pursuant to CALCRIM No. 521, which stated that Nunez was guilty of first
17 The People argue that Nunez has forfeited his claims that CALCRIM No. 403
was subject to an erroneous interpretation by Nunez’s jury, and that the prosecutor’s
argument compounded the error because Nunez’s counsel did not object to either the
instruction or to the prosecutor’s argument in the trial court. We agree.
Although claims that an instruction incorrectly states the law do not require an
objection because all such claims are treated as affecting the defendant’s substantial
rights, the distinct claim that an otherwise correct instruction was insufficiently clear is
forfeited unless a modifying or clarifying instruction was requested. (People v.
Capistrano (2014) 59 Cal.4th 830, 875, fn. 11; § 1259.) Nunez challenges CALCRIM
No. 403, not on the ground that it incorrectly stated the law, but on the ground that it was
insufficiently clear. Thus, Nunez has forfeited this claim by failing to request a
modifying or clarifying instruction. Likewise, claims of prosecutorial error during
closing argument are forfeited on appeal unless a timely and specific objection to the
argument, together with a request that the jury be admonished to disregard it, was made
below. (People v. Seumanu (2015) 61 Cal.4th 1293, 1339-1342.) Because Nunez did not
object to the prosecutor’s argument of which he now complains, he has forfeited this
claim. Despite the forfeitures, we find no merit to the claims.
75
degree premeditated murder if the People have proved that Nunez “acted willfully,
deliberately, and with premeditation as an aider and abettor.”
CALCRIM No. 521 further stated that “[t]he requirements for second degree
murder based on express or implied malice and/or the natural and probable consequence
theory are explained in CALCRIM No. 520. First or Second degree murder with malice
aforethought in CALCRIM No. 403. The People have the burden of proving beyond a
reasonable doubt that the killing was first degree murder rather than a lesser crime. . . .”
CALCRIM No. 520 defined the elements of murder, including express and implied
malice, and instructed that if the jury decided that Nunez committed murder, it was
second degree murder unless the People proved it was first degree murder, as defined in
CALCRIM No. 521.
CALCRIM No. 403 stated that Nunez was guilty of second degree murder if the
People proved: (1) Nunez was guilty of either one of two nontarget crimes, challenging a
person to fight in public (§ 415, subd. (a)), or aiding and abetting in brandishing a firearm
(§ 417, subd. (a)(2); (2) during the commission of either nontarget crime, a coparticipant
committed murder; and (3) under all of the circumstances, a reasonable person in
Nunez’s position would have known that murder was a natural and probable consequence
of the commission of either nontarget crime.
During his closing argument before Nunez’s jury, the prosecutor, while discussing
murder and Nunez’s “level of guilt” stated, “There’s first, which under this theory, I
would have to show you willful, deliberate, premeditated. There’s second degree murder,
which is going to be based on this theory. Remember these words. The hardest
76
instruction; the one we had to change yesterday when we were reading them, ‘natural and
probable consequences.’ I’m going to go through it. It’s going to take time.” Next, the
prosecutor briefly referred to the instructions on manslaughter and justifiable homicide
based on self-defense, and told the jury that it could consider the instructions in any order
it chose. (See CALCRIM No. 640.)
The prosecutor then offered the following “suggestion” as to how the jury might
consider the instructions in determining Nunez’s “level of guilt”: “Second degree
murder, sort of a default position for murder. Right. And then there’s ways to ratchet it
up to first degree murder, which is like willful, deliberate, premeditated. And there’s
ways to go down from a murder to a manslaughter, which is heat of passion or self-
defense. So maybe start at second degree murder in terms of looking at the instructions.
See whether or not I’ve met that. And if it isn’t second degree murder, you know that if
it’s not, you’re going downward to see which crime it is. Maybe lesser. If its’ possibly
more, you look upward. That’s just a suggestion. I always suggest that. You can
deliberate however you want. That’s your decision.”
The prosecutor next discussed the elements of murder (CALCRIM No. 520), and
argued that the evidence showed that Nunez was guilty of first degree premeditated
murder. The prosecutor later stated, “So how do we determine what the intent was in this
incident? Here, going back to first degree murder. Okay. I told you I’m going to go
through all these elements. I told you ratch[eting] it up to a second, which I told you we
proved minus self-defense, that’s coming. I ratche[t] it up to a first because of willful,
deliberate, and premeditated.”
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2. Applicable Legal Principles and Analysis
When, as here, a defendant claims that an instruction was subject to an erroneous
interpretation by the jury, the defendant must demonstrate a reasonable likelihood that the
jury interpreted the instruction in the way the defendant claims. (People v. Cross (2008)
45 Cal.4th 58, 67-68.) In addressing a claim of jury misinstruction, we assess the
instructions as a whole, viewing the challenged instruction in context with the other
instructions, to determine if there was a reasonable likelihood that the jury construed or
applied the challenged instruction in an impermissible manner. (People v. Jennings
(2010) 50 Cal.4th 616, 677.) Likewise, when a claim of prosecutorial error is based on
the prosecutor’s argument, we determine whether there is a reasonable likelihood that the
jury construed or applied any of the prosecutor’s remarks in an objectionable fashion.
(People v. Morales, supra, 25 Cal.4th at p. 44.)
Nunez claims that CALCRIM No. 403, the instruction on second degree murder
based on natural and probable consequences doctrine, did not “make it clear” that
Nunez’s jury “could not do as the prosecutor suggested: first, find second degree murder
. . . then ‘ratchet it up’ to first degree murder if the jurors found Nunez acted
‘deliberately’ by stopping his car, getting out, challenging the victim to fight, and telling
Rodriguez to ‘Get it out.’ ” This argument is unavailing for two reasons: (1) the
instructions as a whole prohibited Nunez’s jury from convicting him of first degree
premeditated murder based on a natural and probable consequences theory, or based on
Rodriguez’s rather than on Nunez’s willfulness, deliberation, and premeditation; and (2)
Nunez misconstrues the prosecutor’s arguments.
78
We begin with the instructions. CALCRIM No. 403 concerned liability for second
degree murder, not first degree premeditated murder, and accurately stated the applicable
law for second degree murder. CALCRIM No. 403 made it clear that the natural and
probable consequences doctrine applied only to second degree murder, not to first degree
premeditated murder.
Additionally, CALCRIM No. 521, the instruction on first degree premeditated
murder, and the instructions on aiding and abetting (CALCRIM Nos. 400, 401), correctly
informed the jury that, in order to convict Nunez as an aider and abettor to the first degree
premeditated murder of Kofu, Nunez’s jury had to find that (1) Nunez, knowing that
Rodriguez intended to shoot and kill Kofu, aided, facilitated, promoted, encouraged, or
instigated Rodriguez to shoot and kill Kofu, and that (2) Nunez did so with willfulness,
premeditation, and deliberation. CALCRIM No. 521 also told the jury that the People
had the burden of proving beyond a reasonable doubt that the killing of Kofu was first
degree murder rather than a lesser crime. Likewise, CALCRIM No. 520, which defined
the elements of murder, told the jury that, if it found Nunez guilty of murder, it was
“murder of the second degree, unless the People have proved beyond a reasonable doubt
that it is murder of the first degree as defined in CALCRIM No. 521.” Thus, the
instructions as a whole prohibited Nunez’s jury from convicting Nunez of first degree
premeditated murder based on a natural and probable consequences theory, or based on
Rodriguez’s rather than on Nunez’s state of mind.
Regarding the prosecutor’s arguments, the prosecutor did not suggest that Nunez’s
jury could find Nunez guilty of second degree murder based on a natural and probable
79
consequences theory and, without more, simply “ratchet it up” to first degree
premeditated murder. Rather, the prosecutor made it clear to the jury that it could
“ratchet” it up to first degree murder only if it found that Nunez acted with willfulness,
deliberation, and premeditation when he aided and abetted Rodriguez in committing the
murder.
Nor did the prosecutor suggest that Nunez was guilty of first degree premeditated
murder if the jury found that Rodriguez, but not Nunez, acted with willfulness,
deliberation, and premeditation. Nunez claims the prosecutor misleadingly suggested
that Nunez acted with deliberation when Nunez stopped his car, got out, and told
Rodriguez to “ ‘Get it out.’ ” To be sure, the prosecutor stated, “And how do we know . .
. Mr. Nunez aided and abetted Mr. Rodriguez? Well, he’s the one [who] told Mr.
Rodriguez to get it out. There’s no gun involved in this case until Mr. Nunez tells him,
‘Get it out.’ So it’s deliberate.”
But immediately thereafter, the prosecutor read part of CALCRIM No. 521 to the
jury and discussed, in some detail, the evidence that Nunez acted with deliberation:
“Defendant acted deliberately if he carefully weighed considerations for and against his
choice and knowing the consequences, intended to kill.” The prosecutor told the jury to
“keep the facts in mind” in determining whether Nunez deliberated “what he did,” and
urged the jury to focus on what Nunez knew, and the choices that Nunez had available to
him, when he told Rodriguez to “ ‘Get it out.’ ” He noted that Nunez started the fight
with Kofu, and that Nunez could have backed down from the fight, gotten back in his car,
and driven away, but that Nunez instead told Rodriguez to “ ‘Get it out.’ ” The argument
80
properly suggested that when Nunez told Rodriguez to “ ‘Get it out,’ ” Nunez knew that
Rodriguez would “get out” his shotgun and use it to shoot and kill Kofu.
The argument was proper, and there is no reasonable likelihood that Nunez’s jury
misconstrued it as allowing the jury to convict Nunez of first degree premeditated
murder, without finding that Nunez deliberated the choices for and against telling
Rodriguez to “get it out,” or to shoot and kill Kofu, before Nunez did so.
In a similar vein, Nunez claims the prosecutor “repeatedly argued” that Nunez’s
premeditation was shown by “acts of the shooter,” that is, by acts of Rodriguez. This
claim also misconstrues the prosecutor’s argument, particularly his discussion of
premeditation. After discussing deliberation, the prosecutor turned to premeditation,
telling the jury, in reference to CALCRIM NO. 521, that “[a]ll it says is decided to kill
before completing the acts which caused death.”
Next, the prosecutor pointed out that the fatal gunshot wounds to Kofu’s legs were
the acts that caused death, and asked, “So did he [Nunez] decide to kill before the acts
that caused death?” The prosecutor then argued that, regardless of whether Nunez or
Rodriguez said, “ ‘I told you not to fuck with me,’ ” after the first shot was fired, the
statement showed that the murder was considered before the statement was made. The
prosecutor said it was up to the jury to decide who made the statement, but after the
statement was made, Nunez waited for Rodriguez to get back into his car, and helped
Rodriguez “flee to gang territory, even helping pump the gas on the way there. It’s
willful, deliberate, and premeditated.”
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This part of the prosecutor’s argument merely urged the jury to infer that Nunez’s
statements and actions before, during, and after the shooting showed that Nunez aided
and abetted Rodriguez in committing the shooting with Nunez’s own willfulness,
deliberation, and premeditation. There is no reasonable likelihood that anything about
the prosecutor’s discussion of premeditation misled the jury to convict Nunez of first
degree premeditated murder based on a finding Rodriguez, but not Nunez, acted with
willfulness, deliberation, and premeditation.
Lastly, Nunez points out that, while discussing jury instructions with counsel, the
trial court said it intended to modify CALCRIM No. 521 to clarify, as Nunez puts it, “the
intent and deliberation required of an aider and abettor” to first degree premeditated
murder, but the clarifying language did not “make its way” into the instruction given to
Nunez’s jury. Indeed, the court said it would modify the pattern instruction, CALCRIM
No. 521, to state that defendant Nunez acted willfully if he, “along with the perpetrator,”
Rodriguez, intended to kill, and to further state defendant Nunez acted deliberately if he,
“along with the perpetrator,” Rodriguez, carefully weighed the considerations for and
against his choice, and, knowing the consequences, “intended to kill.”
These modifications were not made to the version of CALCRIM No 521 that was
given to Nunez’s jury. But the modifications were unnecessary because the instructions
on murder, and on aiding and abetting (CALCRIM Nos. 400, 401, 403, 521), prohibited
Nunez’s jury from convicting Nunez of first degree premeditated murder unless it found
that Nunez acted willfully, deliberately, and with premeditation in aiding and abetting
Rodriguez in committing the murder of Kofu.
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Thus, we find no merit to Nunez’s contention that the instructions, coupled with
the prosecutor’s argument, permitted Nunez’s jury to convict Nunez of first degree
premeditated murder based on an invalid legal theory—that is, based on a natural and
probable consequences theory, or based on Rodriguez’s willfulness, deliberation, and
premeditation, rather than on Nunez’s mental state.
I. Nunez Is Not Entitled to Have His First Degree Premeditated Murder Conviction
Reversed Based on Senate Bill No. 1437
On September 1, 2018, the Governor signed Senate Bill No. 1437 (Senate Bill
1437) into law, effective January 1, 2019. (People v. Martinez (2019) 31 Cal.App.5th
719, 722.) The bill was enacted to “amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act with the intent to kill, or
was not a major participant in the underlying felony who acted with reckless indifference
to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill 1437 amended section 188, which defines malice, amended section
189, which defines the degrees of murder, and added section 1170.95 to the Penal Code.
(Stats. 2018, ch. 1015, §§ 2, 3, 4; People v. Lombardo (2020) 54 Cal.App.5th 553, 556.)
The amendments to sections 188 and 189 eliminated liability for second degree murder
under the natural and probable consequences doctrine. (Lombardo, at p. 556.) Subject to
exceptions not applicable here, the amendments to sections 188 and 189 require that a
principal in a crime must act with malice in order to be convicted of murder. (Ibid.)
Section 1170.95 permits persons convicted of felony murder, or murder under a
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natural and probable consequences theory, to petition the sentencing court to vacate the
murder conviction and be sentenced on any remaining counts, where: “(1) A complaint,
information, or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3); People
v. Martinez, supra, 31 Cal.App.5th at p. 723.)
Nunez claims that, under the Estrada18 rule, Senate Bill 1437 applies retroactively
to all judgments of conviction and sentence that, like his, were not final on appeal when
the legislation became effective on January 1, 2019. He claims the bill entitles him to
reversal of his first degree premeditated murder conviction on this direct appeal from the
judgment because the record does not demonstrate beyond a reasonable doubt that his
jury relied on a legally valid theory to convict him of first degree premeditate murder,
rather than on a legally invalid natural and probable consequences theory. This claim is
unavailing for at least two reasons.
First, and for the reasons explained, the instructions to Nunez’s jury prohibited it
from convicting Nunez of the first degree premeditated murder of Kofu based on a
18 In re Estrada (1965) 63 Cal.2d 740 (Estrada).
84
natural and probable consequences theory. Instead, the instructions only allowed Nunez
to be convicted of first degree premeditated murder as a direct aider and abettor to
Rodriguez. (See CALCRIM No. 521.) Thus, the record shows beyond a reasonable
doubt that Nunez was not convicted of first degree premeditated murder based on a
natural and probable consequences theory.
Second, and even if Nunez could show entitlement to relief from his first degree
premeditated murder conviction in this direct appeal from the judgment of conviction,
since the parties filed their respective briefs in this appeal, our Supreme Court has held
that “the ameliorative provisions of Senate Bill 1437 do not apply on direct appeal to
nonfinal convictions obtained before the law became effective. Such convictions may be
challenged on Senate Bill 1437 grounds only through a petition filed in the sentencing
court under section 1170.95.” (Gentile, supra, 10 Cal.5th at pp. 851-859.) Thus,
Nunez’s sole remedy for relief under Senate Bill 1437 is to petition the sentencing court
to vacate his first degree premeditated murder conviction under section 1170.95. (Id. at
pp. 852, 859.) We express no view on the merits of such a petition.
J. Substantial Evidence Supports the Primary Activities Element of the Gang
Enhancements on Nunez’s Murder Conviction (§ 186.22, subds. (e), (f).)
Nunez claims insufficient evidence supports the gang enhancement on his murder
conviction, and the enhancement must be reversed because the prosecution failed to
adduce substantial evidence of the primary activities of the EMF gang. (§ 186.22, subds.
(e), (f).) We find no merit to this claim.
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1. Background
When Detective Lopez testified before Nunez’s jury, the prosecutor asked him to
describe the primary activities of the EMF gang. The detective responded: “The
membership is involved in a variety of crimes, but the more common crimes that we
investigate are robberies, carjackings, assaults with deadly weapons, drug dealing, . . .
illegal weapon possession, car burglaries, [and] residential burglaries. Those are just
some of the various crimes they commit.” The detective further testified that the EMF
gang had been involved in “shootings” and “murders.”
Based on certified court documents, the detective also testified that certain EMF
gang members had committed six predicate offenses: (1) an August 2015 murder;
(2) unlawful firearm possession in October 2015; (3) vehicle theft and unlawful firearm
possession in October 2016; (4) attempted carjacking in January 2017; (5) vehicle theft in
February 2017; and (6) vehicle theft in January 2010.
2. Applicable Legal Principles
Section 186.22 provides for sentencing enhancements on felonies committed “for
the benefit of, at the direction of, or in association with any criminal street gang.”
(§ 186.22, subd. (b)(1).) A “criminal street gang” means “any ongoing organization,
association, or group of three or more persons, whether formal or informal, having as one
of its primary activities the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a
common name or common identifying symbol, and whose members individually or
86
collectively engage in, or have engaged in, a pattern of criminal gang activity.” (Id. at
subd. (f).)
Thus, the “criminal street gang” component of a gang enhancement requires proof
of three essential elements: “(1) that there be an ‘ongoing’ association involving three or
more participants, having a ‘common name or common identifying sign or symbol’;
(2) that the group has as one of its ‘primary activities’ the commission of one or more
specified crimes; and (3) the group’s members either separately or as a group ‘have
engaged in a pattern of criminal gang activity.’ ” (People v. Vy (2004) 122 Cal.App.4th
1209, 1222.)
“The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes is one of the group’s
‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude
the occasional commission of those crimes by the group’s members.” (People v.
Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) “[E]vidence of either past
or present criminal acts listed in subdivision (e) of section 186.22 is admissible to
establish the statutorily required primary activities of the alleged criminal street gang.”
(Ibid.)
Sengpadychith offered two examples of evidence that might be sufficient to prove
the primary activities element: “Sufficient proof of the gang’s primary activities might
consist of evidence that the group’s members consistently and repeatedly have committed
criminal activity listed in the gang statute.” (Sengpadychith, supra, 26 Cal.4th at p. 324.)
Sufficient proof might also consist of expert testimony that the gang was primarily
87
engaged in one or more statutorily enumerated offenses—based on the conversations the
expert had had with the gang’s members, the expert’s personal investigations of crimes
committed by the gang’s members, or information from other law enforcement personnel
and agencies. (Ibid.)
In considering a sufficiency of the evidence claim, our task is to review the record
in the light most favorable to the judgment to determine whether it contains evidence that
is reasonable, credible, and of solid value—substantial evidence—such that a rational
trier of fact could have found the defendant guilty of the crime beyond a reasonable
doubt. (Johnson, supra, 26 Cal.3d at p. 578.) This standard of review also applies to
claims that insufficient evidence supports a gang enhancement. (See People v. Duran
(2002) 97 Cal.App.4th 1448, 1464-1465.)
3. Analysis
Nunez claims that Detective Lopez’s testimony was “too vague and conclusory” to
qualify as sufficient evidence that one or more of the EMF gang’s “primary activities”
was the commission of one or more of the criminal acts enumerated in section 186.22,
subdivision (e), paragraphs (1) to (25), or (31) to (33). We disagree.
At the outset, we consider the context of Detective Lopez’s response. The
detective’s answer came in response to a question about the EMF gang’s primary
activities. The detective noted that the gang was involved in a “variety of crimes,” but in
response to the question, only addressed the gang’s more “common crimes.” There is a
reasonable inference that, by not addressing the gang’s entire variety of crimes, the
detective was addressing the gang’s primary activities, as opposed to all of its activities.
88
More specifically, when asked to described “the primary activities” of the EMF
gang, the detective responded: “The membership is involved in a variety of crimes, but
the more common crimes that we investigate are robberies, carjackings, assaults with
deadly weapons, drug dealing, . . . illegal weapon possessions, car burglaries, [and]
residential burglaries. Those are just some of the various crimes they commit.” At least
five of the crimes that the detective mentioned—assaults with deadly weapons, robbery,
burglary, carjacking, and unlawful firearm possession—are enumerated offenses.
(§ 186.22, subd. (e)(1), (2), (11), (21), (31).)
Although the detective did not expressly state that the commission of one or more
of these five enumerated offenses was the EMF gang’s “ ‘chief’ ” or “ ‘principal’ ”
occupation (People v. Sengpadychith, supra, 26 Cal.4th at p. 323), the detective clearly
implied that the EMF gang consistently and repeatedly committed these crimes when he
said that the crimes he listed were among “the more common crimes” that the EMF
gang’s members committed, and that he and other law enforcement officers investigated.
Thus, the detective also clearly implied that he knew, from his own personal experience,
that the gang consistently and repeatedly engaged in the commission of these enumerated
offenses. His testimony thus sufficiently showed that the EMF gang’s primary activities
included the commission of one or more enumerated offenses. (§ 186.22, subds. (e), (f).)
Nunez compares Detective Lopez’s testimony to the expert gang testimony that
was held insufficient to support the primary activities element in In re Alexander L.
(2007) 149 Cal.App.4th 605 (Alexander L.). There, when asked about the gang’s primary
activities, the gang expert replied: “ ‘I know they’ve committed quite a few assaults with
89
a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know
they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic
violations.’ ” (Id. at p. 611.) Alexander L. reasoned that this expert testimony was
insufficient to support the primary activities element because it lacked an adequate
foundation. (Id. at p. 612.) The court explained that expert testimony must “be based on
matter that is reasonably relied upon by an expert in forming an opinion on the subject to
which his or her testimony relates” and “any material that forms the basis of an expert’s
opinion testimony must be reliable.” (Ibid.) The court could not determine whether the
basis of the expert’s testimony was reliable, because “information establishing reliability
was never elicited from [the expert] at trial. It is impossible to tell whether [the expert’s]
claimed knowledge of the gang’s activities might have been based on highly reliable
sources, such as court records of convictions, or entirely unreliable hearsay.” (Ibid.)
In contrast, Detective Lopez’s testimony was based on reliable sources. The
detective clearly indicated that his knowledge that the EMF gang’s primary activities,
including its members’ commission of at least five enumerated offenses, was based on his
and other officers’ investigations of EMF gang members’ commissions of the same and
similar offenses. The detective regularly spoke with and read the reports of other officers
about their gang crime investigations; he had shared “information, intelligence, and
current crime trends on various gangs” with other detectives; and he had also spoken with
victims and family members of gang members to learn information about the gang. The
“vast majority” of his gang experience was with EMF gang members. Thus, in contrast
to the expert testimony in Alexander L., the detective’s opinion that the EMF gang’s
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primary activities consisted of the consistent and repeated commission of several
statutorily enumerated offenses did not lack a reliable basis or a sufficient foundation.
K. Detective Lopez’s Testimony Concerning What Was Reasonably Foreseeable to a
Person in Nunez’s Position Was Harmless Beyond a Reasonable Doubt
Nunez claims the trial court prejudicially erred in instructing Nunez’s jurors that it
was for the jurors to decide, based on a hypothetical scenario posed to Detective Lopez
which tracked the circumstances of the shooting, whether it was reasonably foreseeable
that a murder would result. Nunez claims the court’s instruction “improperly invoked the
natural and probable consequences theory of liability for murder, which no longer
supports first or second degree murder verdicts.” (Chiu, supra, 59 Cal.4th at pp. 166-167
[natural and probable consequences doctrine does not support first degree murder
convictions]; Senate Bill 1437 (2017-1028 Reg. Sess.) [amending §§ 188 and 189 to limit
liability for first and second degree murder to persons who act with express or implied
malice].) We find no merit to this claim.
1. Background
(a) Detective Lopez’s disputed testimony before Nunez’s jury
When Detective Lopez testified before Nunez’s jury, the prosecutor posed a
hypothetical scenario that tracked the circumstances of the shooting: an EMF gang
member was armed with a shot-gun while a passenger in a car, an EMF associate was
driving the car, an African-American rival gang member told the associate to pick up
trash that had been thrown from their car, and the EMF associate argued with the rival
gang member, and challenged him to a fist fight. In this scenario, the detective agreed it
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was “reasonably foreseeable that when this challenge to fight is taking place, [the] armed
[EMF] member . . . might use [the] shotgun in order to make sure that the associate . . .
[did not] lose [the] fight and the respect of [EMF].” The detective explained that using
the shotgun would be a way of “demonstrating” the “dominance” of the EMF gang, and
that the EMF gang member would be expected to “confront that threat [from the rival
gang member] and show dominance.”
In response to further questions, the detective agreed that, if the EMF associate
“start[ed] backing off” from the fight, and the associate then used the phrase, “ ‘Get it
out,’ ” it was reasonably foreseeable that the EMF gang member, the passenger in the
associate’s car, might use the shotgun to shoot and kill the rival gang member.
Specifically, when the prosecutor asked the detective: “Is it reasonably foreseeable to a
person who’s an associate in this gang when they get out in that challenge to fight that
this could end up in a loss of life such as a homicide?,” Nunez’s counsel objected that the
question called for “speculation.” (Italics added.) The court overruled the objection.
The detective was then asked, and also agreed, that when the gang associate challenged
the rival gang member to a fight, it could have “end[ed] up in a loss of a life such as a
homicide.” (Italics added.)
(b) The court strikes the detective’s testimony concerning what was
reasonably foreseeable
At the close of the prosecution’s case, Nunez moved to dismiss the first degree
murder charge, in part on the ground that there was no evidence that Nunez acted
willfully, or with the intent to kill, and with premeditation and deliberation, at the time of
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the shooting, when Nunez simply told Rodriguez to “ ‘Get it out.’ ” Nunez’s counsel
emphasized that Nunez did not say, “ ‘take it out and shoot.’ ” Nunez’s counsel also
noted, that, “If the DA’s going [to rely] on the natural and probable consequence
doctrine, that can’t go to first degree; it would have to go to second degree,” citing
CALCRIM No. 403 and Chiu, supra, 59 Cal. 4th 155.
The court responded that it had modified CALCRIM No. 403 to provide that, if
Nunez’s jurors decided that Nunez did certain things that led to Kofu’s death under the
natural and probable consequence doctrine, then the jurors could only convict Nunez of
second degree murder, not first degree murder. The prosecutor then argued that ample
evidence supported a first degree murder verdict against Nunez based on a direct aiding
and abetting theory. The court denied Nunez’s motion.
Thereafter, the court told the prosecutor and Nunez’s counsel that it had made a
mistake in denying Nunez’s counsel’s objections to Detective Lopez’s expert opinion
testimony about what was reasonably foreseeable. The court noted that it had sent the
prosecutor and counsel an e-mail, expressing its concern that two of the prosecutor’s
questions to which Nunez’s counsel objected on speculation grounds, though they did not
call for speculation, called for legal conclusions that invaded the province of the jury.
The questions the court believed called for legal conclusions were: “ ‘Is it
reasonably foreseeable to a person who’s an associate in this gang when they get out in
that challenge to fight that this could end up in a loss of life such as a homicide?’ ” and
“ ‘How about in the loss of a life such as murder?’ ” The detective’s responses were “
‘very well could’ ” and “ ‘yes.’ ”
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The prosecutor argued that the detective’s opinion testimony about what was reasonably
foreseeable in the hypothetical scenario posed was proper under People v. Vang (2011)
52 Cal.4th 1038 and Evidence Code section 805. Citing People v. Medina (2009) 46
Cal.4th 913, Nunez’s counsel argued that the challenged questions called for factual
conclusions to be resolved by the jury, and the court agreed. The court reasoned that it
was for the jury to decide “factually what’s a reasonably foreseeable situation, not for the
gang expert to testify to that.”
The court later addressed Nunez’s jurors and told them that the court was striking
Detective’s Lopez opinion testimony concerning what was reasonably foreseeable.
Specifically, the court explained that it was striking the detective’s two affirmative
responses to the prosecutor’s two questions—the detective’s testimony that it was
reasonably foreseeable, in the hypothetical scenario posed, that an EMF gang member
might use a gun, resulting in a loss of life or a murder. The court told the members of
Nunez’s jury that it was for them to decide “what [was] reasonably foreseeable based on
the facts” and the court’s instructions.
2. Analysis
Although he did not raise the objection below, Nunez now claims that the court’s
order striking the detective’s testimony concerning what was reasonably foreseeable to a
person in Nunez’s position, a gang associate who backed off from a fight and told a
companion gang member to “get out” a gun, “did not cure the erroneous admission of the
evidence.” He notes that his jury heard the testimony on August 30, 2018, but the
testimony was not stricken until September 4, giving his jury “six days to process the
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information before learning they should not consider it.” This, he argues, was too late to
“unring the bell.” (See People v. Hill (1998) 17 Cal.4th 800, 845 [“constant and
outrageous” prosecutorial misconduct was difficult for jury to disregard and made it
difficult for jury to remain impartial].) He argues that the court’s “admonition to the
jurors that it was up to them to decide what was reasonably foreseeable, [was]
undoubtedly misused by the jurors, given the way the prosecutor argued” that the jury
could “ ‘ratchet up’ ” second degree murder to first degree murder. He points out that an
aider and abettor can only be convicted of first degree murder as a direct aider and
abettor, and not under the natural and probable consequences doctrine. (Chiu, supra, 59
Cal.4th at pp. 166-167.) He further asserts that that Senate Bill 1437 “completely
abolished” all liability for murder under the natural and probable consequences doctrine.
All of these claims concerning Detective Lopez’s stricken testimony about what
was reasonably foreseeable to a person in Nunez’s position are unavailing, even if Nunez
had preserved the claims for appeal. As explained, the record shows beyond a reasonable
doubt that Nunez’s jury convicted him of the first degree premeditated murder of Kofu as
a direct aider and abettor to Rodriguez, and not under a natural and probable
consequences theory. (See Chiu, supra, 59 Cal.4th at pp. 166-167.) Thus, Nunez’s jury
could not have relied on the detective’s stricken testimony about what was reasonably
foreseeable in convicting Nunez of first degree premeditated murder. As also explained,
Nunez’s sole avenue for relief under Senate Bill 1437 is to petition the sentencing court
to vacate his first degree murder conviction under section 1170.95; he is not entitled to
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any relief under Senate Bill 1437 in this direct appeal from his murder conviction.
(Gentile, supra, 10 Cal.5th at pp. 853, 859.)
L. No Cumulative Error for Either Defendant
Nunez and Rodriguez each claim that the cumulative effect of the trial court’s and
the prosecutor’s errors in their respective cases requires reversal of their respective
murder convictions, even if any of the individual errors were harmless. The cumulative
error doctrine does not apply to either defendant because there are no individual errors in
either defendant’s case. (Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 1053-1054.)
Thus, defendants’ claims of cumulative error lack merit.
IV. DISCUSSION/CLAIMS OF SENTENCING ERROR
A. Remand To Consider Imposing Lesser Firearm Enhancements Is Unwarranted
Defendants claim that their cases must be remanded for resentencing so the court
may exercise its discretion to impose lesser, uncharged firearm enhancements on their
respective murder convictions. When defendants were sentenced in December 2018, the
court imposed firearm enhancements of 25 years to life on their murder convictions,
based on the juries’ findings that a principal, namely, Rodriguez, personally and
intentionally discharged a firearm causing great bodily injury or death in the commission
of the murder. (§ 12022.53, subd. (d).)
“Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of enumerated offenses,” including murder: “a 10-
year enhancement for the personal use of a firearm (§ 12022.53, subd. (b)); a 20-year
enhancement for the personal and intentional discharge of a firearm (§ 12022.53,
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subd. (c)); and a 25-year-to-life enhancement for the personal and intentional discharge
of a firearm causing great bodily injury or death (§ 12022.53, subd. (d).)” (People v.
Yanez (2020) 44 Cal.App.5th 452, 458 (Yanez), review granted April 22, 2020, S260819.)
Effective January 1, 2018, the Legislature enacted Senate Bill No. 620 (2017-2018
Reg. Sess.) (Senate Bill 620), which amended section 12022.53, subdivision (h) (Stats.
2017, ch. 682, § 2), to grant courts discretion to “ ‘strike or dismiss’ ” a firearm
enhancement imposed under section 12022.53 “ ‘in the interest of justice pursuant to
[s]ection 1385.’ ” (People v. Tirado (2019) 38 Cal.App.5th 637, 642 (Tirado), review
granted Nov. 13, 2019, S257658.) Former section 12022.53, subdivision (h) prohibited
courts from striking or dismissing firearm enhancements found true under section
12022.53, “[n]otwithstanding [s]ection 1385 or any other provision of law.” (Stats. 2010,
ch. 711, § 5; Tirado, at p. 642 & fn. 6.)
There is currently a split of authority on the question of whether Senate Bill 620
gives trial courts discretion to strike a greater firearm enhancement found true under
section 12022.53 and impose a lesser included, uncharged firearm enhancement under the
statute, when, as here, no lesser enhancements were pled or found true. “It is undisputed
that if all three enhancements are charged and separately found true, a trial court can
strike the greater enhancement under subdivision (d), reducing the firearm- related term
to 20 years under subdivision (c), or also strike the subdivision (c) enhancement,
reducing the term to 10 years under subdivision (b). (See People v. Wang (2020)
46 Cal.App.5th 1055, 1090-1091 . . . [citation].) But if lesser enhancements are not
charged and found true, Courts of Appeal are split as to whether a trial court may strike a
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greater enhancement under amended section 12022.53(h) and impose one of the lesser
enhancements instead, and the issue is currently on review in [our] Supreme Court.”
(People v. Delavega (2021) 59 Cal.App.5th 1074, 1084.)
To date, this court has issued two published decisions concluding that Senate
Bill 620 did not authorize courts to strike and dismiss a greater firearm enhancement and
impose a lesser firearm enhancement that was neither pled nor found true: People v.
Valles (2020) 49 Cal.App.5th 156, 166-167 (Valles), review granted July 22, 2020,
S262757, and Yanez, supra, 44 Cal.App.5th at pages 459-460. At least two other
appellate courts have reached the same conclusion: Tirado, supra, 38 Cal.App.5th at
page 644, review granted November 13, 2019, S257658 and People v. Garcia (2020)
46 Cal.App.5th 786, 788-789 (Garcia), review granted June 10, 2020, S261772.
In People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) at pages 221-223,
the court concluded Senate Bill 620 gave courts discretion to strike a section 12022.53,
subdivision (d) enhancement and impose a lesser enhancement under section 12022.53,
subdivisions (b) or (c), even if the lesser enhancements were not pled or found true.
Morrison reasoned that case law had “recognized that the court may impose a ‘lesser
included’ enhancement that was not charged in the information when a greater
enhancement found true by the trier of fact is either legally inapplicable or unsupported
by sufficient evidence.” (Morrison, at p. 222, citing, e.g., People v. Fialho (2014)
229 Cal.App.4th 1389, 1395-1396.) The Morrison court remanded the matter for
resentencing because (1) the record did not indicate whether the court understood it had
discretion to impose a lesser firearm enhancement in lieu of a greater one, and (2) at the
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time of sentencing, no published decision had determined that the court had this
discretion. (Morrison, at pp. 223-224.)
Relying on Morrison, defendants claim that their cases must be remanded for
resentencing so the court may consider whether to strike their section 1202253,
subdivision (d) enhancements and impose lesser enhancements under section 12022.53
subdivisions (b) or (c). They point out that, at the time they were sentenced in
December 2018, no court had held that an uncharged lesser firearm enhancement could
be imposed in lieu of a greater enhancement under section 12022.53, subdivision (d), in
connection with striking the greater enhancement. (Morrison, supra, 34 Cal.App.5th at
p. 224.)
But in Yanez, this court followed Tirado, not Morrison. (Yanez, supra, 44
Cal.App.5th at p. 459 [“[N]othing in the plain language of sections 1385 or 12022.53,
subdivision (h) suggests an intent to allow a trial court discretion to substitute one
sentencing enhancement for another.”]; see also Valles, supra, 49 Cal.App.5th at pp. 165-
167 (plur. opn. of Ramirez, J.) [similarly concluding that “[t]he express language of
sections 1385 and 12022.53, subdivision (h)” does not “authoriz[e] the substitution of a
lesser enhancement for a greater enhancement, properly found true at trial, and for which
there is no legal impediment to imposition”]; but see Valles, at pp. 170-172 & fn. 1 (conc.
opn. of Menetrez, J.) [finding insufficient basis to depart from this court’s decision in
Yanez, but agreeing with Morrison, noting that Tirado and Yanez “frame[d] the issue
incorrectly by asking whether the amended statute ‘conveys the power to change, modify,
or substitute a charge or enhancement,’ ” and concluding that the correct question is
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whether the court, “having exercised its power under the amended statute to strike a
greater enhancement,” “still has its previously recognized power to impose an uncharged
lesser” enhancement].) Based on this court’s decision in Yanez, remand for resentencing
on each defendant’s section 12022.53, subdivision (d) firearm enhancement is
unwarranted.
B. The 10-year Term on Each Defendant’s Gang Enhancement On Count 1 Must Be
Stricken and Each Defendant’s Life Sentence Must Be Ordered Subject to a 15-year
MPEP
The court imposed 10-year determinate terms on the gang enhancements on each
defendant’s murder conviction in count 1, and stayed the 10-year term for Nunez but not
for Rodriguez. Each defendant claims that these 10-year terms were unauthorized and
must be stricken, and that this court must instead order that each defendant’s 25-year-to-
life term on count 1 be made subject to a 15-year MPEP. (§ 186.22, subds. (b)(1)(C),
(b)(5).) The People agree, and so do we.
Under section 186.22, if a defendant is convicted of a felony, the punishment for a
gang enhancement on the felony is 10 years, if the felony is a violent felony, defined in
section 667.5, subdivision (c) (§ 186.22, subd. (b)(1)(C)), but if the felony is punishable
by “imprisonment in the state prison for life,” the punishment is to impose an MPEP of
15 years on the life term. (§ 186.22, subd. (b)(5).)
In People v. Lopez (2005) 34 Cal.4th 1002, our Supreme Court held that first
degree murder, which is punishable by “ ‘imprisonment in the state prison for a term of
25 years to life’ ” (§ 190, subd. (a)) is an offense punishable by “imprisonment in the
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state prison for life,” and is therefore an offense described in section 186.22, subdivision
(b)(5), rather than section 186.22, subdivision (b)(1)(C). (Lopez, at pp. 1006-1011.)
Thus, the 10-year determinate terms imposed on each defendant’s murder
conviction were unauthorized and must be stricken, and the 25-year-to-life terms on
count 1 must instead be ordered subject to 15-year MPEPs. (People v. Valenti (2016)
243 Cal.App.4th 1140, 1173 [unauthorized sentence may be corrected on appeal, despite
failure to object below, and a sentence is unauthorized if “ ‘it could not lawfully be
imposed under any circumstances in the particular case’ ”].)19
C. Any Due Process or Dueñas20 Error in Imposing the Restitution Fines and Fees Were
Harmless Beyond a Reasonable Doubt for Both Defendants
The court ordered each defendant to pay a $300 restitution fine (Pen. Code,
§ 1202.4, subd. (b)) and $70 in court assessments on each of their convictions. (Pen.
Code, § 1465.8 [$40 per-conviction court operations assessment]; Gov Code, § 70373
[$30 per- conviction court facilities assessment].) Thus, in addition to their $300
restitution fines, Rodriguez was ordered to pay a total of $140 in court assessments on his
19 In a separate argument, Rodriguez asks this court to correct clerical errors in
his indeterminate and determinate abstracts of judgment concerning the length of his
determinate and indeterminate terms. We direct the court on remand to prepare
supplemental sentencing minute orders and amended abstracts of judgment for each
defendant, reflecting our decision to strike the 10-year terms on the gang enhancements
on count 1, and our imposition of 15-year MPEPs on each defendant’s 25- year-to-life
terms on count 1. In this way, the existing errors in each defendant’s abstracts of
judgment will be corrected on remand.
20 People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)
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convictions in counts 1 and 2, and Nunez was ordered to pay $70 in court assessments on
his conviction in count 1.
Relying on Dueñas, defendants claim the court violated their due process rights in
imposing the restitution fines and court assessments without first determining that they
had a present ability to pay them. They argue that the execution of their $300 restitution
fines must be stayed, and their per-conviction court assessments vacated, unless and until
the People prove they are able to pay them.
Dueñas was issued in January 2019, after defendants were sentenced in
December 2018. Dueñas held that due process principles require courts to conduct an
ability to pay hearing and to ascertain the defendant’s present ability to pay court
operations and court facilities assessments before the court may impose them. (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) And, in order to avoid an unconstitutional
interpretation of section 1202.4, Dueñas further held that courts must stay the execution
of a restitution fine “until and unless the People demonstrate that the defendant has the
ability to pay the fine.” (Dueñas, at pp. 1169-1172.)
A number of courts have held that Dueñas was wrongly decided. (E.g., People v.
Aviles (2019) 39 Cal.App.5th 1055, 1067-1068; People v. Hicks (2019) 40 Cal.App.5th
320, 322, review granted Nov. 26, 2019, S258946; People v. Kingston (2019)
41Cal.App.5th 272, 279; People v. Adams (2020) 44 Cal.App.5th 828, 831.) Our
Supreme Court is currently reviewing two questions that lie at the heart of Dueñas:
(1) whether the court is required to consider the defendant’s ability pay before it may
impose or execute fines, fees, and assessments; and (2) if, so, whether the defendant or
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the People bears the burden of proof regarding the defendant’s inability to pay. (People
v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
Here, it is unnecessary to weigh-in on the question of whether Dueñas was
wrongly decided because any due process or Dueñas error in imposing the restitution fine
and assessments, without determining defendants’ abilities to pay them, was harmless
beyond a reasonable doubt in each defendant’s case. (People v. Jones (2019)
36 Cal.App.5th 1028, 1035; People v. Aviles, supra, 39 Cal.App.5th at p. 1076.)
“ ‘ “Ability to pay does not necessarily require existing employment or cash on
hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a
restitution fine, the court is not limited to considering a defendant’s present ability but
may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the
defendant’s ability to obtain prison wages and to earn money after his release from
custody.’ ” (People v. Aviles, supra, 39 Cal.App.5th at p. 1076, quoting People v.
Hennessey (1995) 37 Cal.App.4th 1830, 1837.) The same reasoning applies to
determining a defendant’s ability to pay court assessments.
The record shows that Nunez will be able to pay the $370 sum, and that Rodriguez
will be able to pay the $440 sum, comprising their respective restitution fines and court
assessments, while serving their respective sentences. Defendants are young and have
job skills. Nunez was born in 1980, and Rodriguez was born in 1986. Although Nunez is
diabetic, he formerly held a manufacturing job and a forklift license. Rodriguez’s health
is good, and he was formerly employed as an electrician. Thus, the record shows that
each defendant will be able to earn prison wages while serving their sentences, and their
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wages will be sufficient to cover their restitution fines and court assessments. (See
People v. Jones, supra, 36 Cal.App.5th at p. 1035.) Nothing indicates that either
defendant will be unable to earn sufficient wages while in prison to pay their fines and
assessments.
As defendants point out, at sentencing in December 2018, the court found that
neither defendant had a present ability to pay court-appointed counsel fees or the costs of
conducting their presentence investigations. Nunez also observes that he was homeless at
the time of the murder. None of this means, however, that either defendant will be
unable to earn sufficient wages while in prison to pay their respective restitution fines and
assessments.
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V. DISPOSITION
The 10-year term imposed for the gang enhancement on each defendant’s first
degree murder conviction in count 1 is hereby stricken, and the 25-year-to-life term
imposed on each defendant for the murder in count 1 is hereby ordered subject to a 15-
year MPEP. (§ 186.22, subd. (b)(5).)
The matter is remanded to the superior court with directions to prepare
supplemental sentencing minute orders and amended abstracts of judgment, reflecting
these modifications to each defendant’s sentence. The court is further directed to
forward certified copies of defendants’ abstracts of judgment to the Department of
Corrections and Rehabilitation. In all other respects, each defendant’s judgment of
conviction and sentence is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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