People v. Prado CA2/1

Filed 8/25/21 P. v. Prado CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B306412
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA142993)
v.
EDUARDO PRADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
Deborah L. Hawkins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Eduardo Prado appeals from a judgment entered after a
jury found him guilty of first degree murder, conspiracy to
commit murder, attempted murder, and shooting at an occupied
motor vehicle. As to all four offenses, the jury found true the
special allegations that a principal to the crimes personally and
intentionally discharged a firearm. As to the attempted murder
offense only, the jury found true a gang enhancement allegation.
The trial court sentenced Prado to 50 years to life in prison. On
appeal, he contends: (1) the trial court erred in declining to
instruct the jury on self-defense; (2) the prosecutor committed
prejudicial misconduct during closing argument by arguing Prado
was guilty of the offenses charged in this case based on his prior,
recent conviction for attempted murder, which conviction was
admitted into evidence for the limited purposes of showing his
intent to commit the charged offenses and as a predicate offense
to prove the gang enhancement; and (3) the trial court should
have granted his motion to suppress his statements to the police
because he has an intellectual impairment which (a) prevented
him from making a knowing and intelligent waiver of his
Miranda1 rights and (b) rendered his statements to the police
involuntary. Rejecting Prado’s contentions, we affirm the
judgment.
1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2
BACKGROUND
Evidence presented at trial supports the following factual
account:2
I. Prosecution Case
A. On May 27, 2016, Defendant Prado Is Shot and
His Fellow Gang Member Is Killed by Gunfire
At all times relevant to this case, Prado was a member of
the 83rd Street BRS Clique of the Sur Trece criminal street gang,
and his moniker was Droopy. On the evening on May 27, 2016—
around 10 and a half months before the crimes in this case
occurred—Prado was standing on Raymond Street in Compton
(where he lived) with Martin Mendiola, a founding member and
leader of the 83rd Street BRS Clique, whose moniker was Diablo.
Someone opened fire on them, killing Martin Mendiola and
striking Prado in the neck with a bullet. At the time of the
shooting, Prado did not identify the shooter to the police. Around
a year later, when he was in custody on an attempted murder
charge that was not part of this case, Prado identified the May
27, 2016 shooter as Valentin Quintero, moniker “Psycho,” from
the Barrio Trece criminal street gang.
2Prado does not challenge the sufficiency of the evidence
supporting his convictions in this case.
3
B. In April 2017, Jose Mendiola, Martin Mendiola’s
Younger Brother, Is Jumped Into the Clique
and Begins Searching for Quintero3
Facebook messages between Prado and a fellow gang
member (admitted into evidence at trial),4 as well as Prado’s
statements to the police (also admitted into evidence at trial),
indicate that on or about April 10, 2017, Martin’s younger
brother Jose (aka Serio) was courted or jumped into the 83rd
Street BRS Clique of Sur Trece. A few days later, on April 13,
2017, at around 1:00 p.m., a man, later identified as Jose, and an
unidentified man went to an address on Raymond Street in
Compton (hereafter referred to as the Raymond Street address),
and Jose told a resident there that he was looking for Quintero
(Psycho).5 Jose lied and told the resident he was a member of
Quintero’s gang. The resident told Jose that Quintero no longer
lived at the address and provided Jose with Quintero’s phone
number. Jose and the unidentified man left in a white Honda
Accord, which Jose was driving. The resident of the Raymond
Street address called Quintero and told him a man was looking
for him.
Because they share the same surname, and to avoid
3
confusion, we will hereafter refer to Martin and Jose Mendiola by
their first names only.
Prado’s Facebook messages were extracted from a
4
Facebook account bearing the name Yonatan Valdovinos. Prado
confirmed to the police that this was his Facebook account, and
Yonatan Valdovinos was a name he used.
5 This resident of the Raymond Street address testified at
trial.
4
C. Later, on April 13, 2017, Quintero and His
Girlfriend, Alexiz Orona, Attempt to Kill Prado
and Jose’s Fellow Gang Member
As set forth below in the chronology of events, Quintero’s
girlfriend, Alexiz Orona is the murder victim in the present case.
Prado would later tell police that Orona used to be Martin’s
girlfriend, but she started dating Quintero prior to Martin’s
death. According to Prado’s statements to the police (which were
admitted into evidence at trial), the bad blood between Martin
and Quintero over the situation with Orona led Quintero to gun
down Martin on May 27, 2016, around 10 and a half months
before the events in this case.6 Prior to the May 27, 2016
shooting, Prado was unaware of any rivalry between his clique
and Quintero’s gang. Prado told the police that he and Quintero
had hung out together on Raymond Street—where Prado lived
until the May 27, 2016 shooting—several times before Quintero
and Martin began feuding.
Between 2:00 and 4:00 p.m. on April 13, 2017, Johnnyne
Ramirez, an 83rd Street BRS Clique gang member, whose
moniker was Froggy, was standing outside the home of her
girlfriend Melissa Sosa’s grandmother (where Ramirez and Sosa
were staying), with Sosa, a family friend of Sosa’s, and the family
friend’s young son. Quintero drove up to the home in his black
Acura vehicle and blocked the driveway, as Ramirez and her
companions were about to enter a car parked in the driveway.
Orona was in the front passenger seat of Quintero’s car.
According to Sosa’s trial testimony, on April 13, 2017, Sosa knew
6As of the dates of the trial in the present matter, Quintero
had not been arrested or charged with any crimes related to the
shooting of Martin and Prado on May 27, 2016.
5
Quintero as Psycho from Barrio Trece, and she knew Orona had
previously dated Martin, Ramirez’s (and Prado’s) fellow gang
member.
From inside Quintero’s car, Orona asked Ramirez and Sosa
“how [they] were going to handle this” and if they “were trying to
handle this in the alley,” according to Sosa’s trial testimony.
Sosa did not know what Orona was referring to, but she was
aware Orona and Ramirez had “had a situation” in the past.
Sosa believed Orona was challenging Ramirez to a “fair one-on-
one” fight. Sosa told her family friend to take her son to the
backyard.
Orona exited Quintero’s car, aimed a gun, and fired at
Ramirez and Sosa. As Ramirez and Sosa moved to safety, Sosa
heard Quintero say, “ ‘Finish her. Finish them.’ ” Orona fired
again. Then Quintero and Orona left. No one was struck by
gunfire.7
D. Jose Continues His Attempts to Locate
Quintero During the Evening on April 13, 2017
Beginning at 6:19 p.m. on April 13, 2017 and continuing to
6:18 p.m. the following day (the day Orona was killed), Jose’s cell
phone exchanged 71 text messages with Quintero’s cell phone,
attempting to ascertain Quintero’s location. Apparently, Jose
was continuing to pose as a fellow gang member or ally of
Quintero, and Quintero responded to the messages, stating where
7Quintero was later convicted of the April 13, 2017
attempted murders of Ramirez and Sosa, and we affirmed the
convictions on appeal. (People v. Quintero (Sept. 2, 2020,
B300920) [nonpub. opn.].) Orona was not charged with these
attempted murders, as she was killed the day after they occurred,
as explained below.
6
he was and where he would be at various times between April 13
and 14.
At around 7:00 p.m. on April 13, 2017, Orona’s
grandmother’s dog was shot in the face in the backyard of a home
in Buena Park where Orona lived with her grandmother.
Surveillance video taken near the time of the shooting showed a
white car, that looked like Jose’s Honda Accord, driving toward
the alley behind Orona’s grandmother’s home. A criminalist
testified at trial that in her opinion, the bullet removed from the
dog’s face was fired from a handgun later found in Jose’s bedroom
during the investigation conducted in this case.
Between 9:00 and 10:00 p.m. on April 12, 2017, Jose
returned to the Raymond Street address, looking for Quintero,
according to the resident who lived there.
E. On April 14, 2017, Orona Is Shot and Killed
In the late afternoon on April 13, 2017, Prado sent fellow
gang member Eduardo Lopez a Facebook message, stating, “You
got da thang thang foo [sic].” At around 10:00 a.m. on April 14,
2017, Lopez responded, “Yea yea.” Prado replied, “Yeah I might
use it today.” Prado further explained through Facebook
messages that he did not have a ride to take him to Lopez’s
location to pick up the item. Lopez indicated he would see if
Froggy (Ramirez) could pick it up, stating, “She needs it no!”
Prado replied, “Nah she got one already[.] I need one.” About an
hour later, Prado sent Lopez a Facebook message, stating, “I’m
outside.” The prosecution’s theory at trial was that this exchange
of Facebook messages between Prado and Eduardo Lopez was in
reference to a gun.
During an exchange of Facebook messages between Prado
and another associate at around 1:00 p.m. on April 14, 2017,
7
Prado informed the associate that he was “lurking around” with
Froggy (Ramirez).
Also around 1:00 p.m. on April 14, 2017, Jose returned to
the Raymond Street address to look for Quintero. The same
resident again informed Jose that Quintero did not live there.
The resident’s girlfriend took photos of Jose and the white Honda
Accord Jose was driving. Jose continued to exchange text
messages with Quintero, attempting to ascertain Quintero’s
location. At around 1:15 p.m.—15 minutes after Jose’s last visit
to the Raymond Street address—Quintero responded to one of
Jose’s text messages, stating he (Quintero) would be heading over
to the Raymond Street address. For the next several hours, Jose
periodically texted Quintero to find out where he was and when
he would be outside the Raymond Street address.
At around 5:00 p.m. on April 14, 2017, Melissa Moreno,
who had a friend in common with Quintero’s girlfriend Alexiz
Orona, went to the Raymond Street address to meet Orona about
purchasing a phone Orona wanted to sell.8 When Moreno pulled
up in her white, two-door Toyota, Orona and Quintero were
standing outside, and Quintero’s black Acura was parked in front
of the Raymond Street address. Upon seeing Moreno’s car, Orona
appeared frightened, and she said to Moreno, “ ‘Oh, shit, I
thought you were Janine [sic],” apparently referring to Johnnyne
Ramirez, whom Orona had shot at the day before.
Moreno drove Orona and Quintero to a cell phone store
where she (Moreno) was employed to determine if the cell phone
Orona wanted to sell was locked or could be used. Moreno
discovered the cell phone was locked, so she decided not to buy it.
8 Melissa Moreno testified at trial.
8
She asked Orona and Quintero if they wanted her to take them
back to the Raymond Street address, and they responded
affirmatively. As they walked back to Moreno’s car, Moreno
heard Orona say to Quintero, “ ‘Baby, didn’t she have a white
car?’ ” Quintero climbed into the backseat, and Orona the front
passenger seat, of Moreno’s car.
When Moreno turned onto Raymond Street, she heard
Orona tell Quintero, “ ‘Babe, babe, baby, that’s the car,’ ”
referring to a white car (that appeared to Moreno to be a Honda
or a Camry) parked near the Raymond Street address. Moreno
heard Quintero respond, “ ‘Shoot, mama, shoot.’ ” Orona fired a
gun at the white car. “[A]lmost at the same time,” according to
Moreno’s trial testimony, return gunfire came from inside the
white car. Orona was shot, and she slumped onto the dashboard.
Moreno immediately raced Orona to the hospital, where Orona
died from two fatal gunshot wounds.9
Sosa testified at trial that when Ramirez (Froggy) returned
to Sosa’s grandmother’s house at around 8:00 p.m. on April 14,
2017, Ramirez was crying and appeared distraught. Ramirez
told Sosa that Orona was dead and added, “ ‘I did something.’ ”
After Ramirez was arrested for Orona’s murder, Ramirez asked
Sosa during a phone call to delete her (Ramirez’s) Facebook
messages and, specifically, messages containing gang-related
photographs.
9 A woman who lived on Raymond Street identified Jose as
the driver of one of the vehicles involved in the April 14, 2017
shootout. She stated during her trial testimony that she did not
see anyone else in the car Jose was driving. The same woman
identified Jose as a person she had seen at the Raymond Street
address at 1:00 p.m. on April 13, 2017.
9
One of the investigating officers in this case, Los Angeles
County Sheriff’s Department (LASD) Detective Eduardo Aguirre,
testified at trial that when he interviewed Sosa during his
investigation, Sosa told him that when Ramirez returned home at
around 8:00 p.m. on April 14, 2017, she appeared upset, and she
said she (Ramirez) was present when Orona was shot and killed.
F. Prado Gives Statements to the Police About the
May 27, 2016 and April 14, 2017 Shootings While
He Is in Custody on a Charge in Another Case
On April 26, 2017, Prado was arrested on an attempted
murder charge that was brought in another case. The same day,
while Prado was in custody for that other charge, Detective
Aguirre, the investigating officer in this case, and LASD
Detective Alberto Hernandez, the investigating officer in that
other attempted murder case, interviewed Prado. Aguirre
testified at the trial in this case that Prado admitted to the
detectives during the April 26, 2017 interview that he was a
member of the BRS Clique of Sur Trece. He also told the
detectives that Ramirez (Froggy) and Jose (Serio) were members
of the BRS Clique of Sur Trece and that Jose had a .32 caliber
revolver.
The following day, on April 27, 2017, LASD Detective Ray
Lugo and Sergeant Joe Ramirez interviewed Prado regarding the
May 27, 2016 shooting of Martin and Prado in which Martin was
killed. The interview was video recorded, and the prosecutor
played the video for the jury at the trial in this case. A transcript
of the interview is included in the record on appeal. During this
April 27, 2017 interview, Prado identified Quintero (Psycho) in a
six-pack photographic lineup as the person who shot him and
Martin on May 27, 2016. Prado stated that Quintero killed
10
Martin over a dispute regarding a female who used to be Martin’s
girlfriend but was dating Quintero at the time of this shooting.
Prado knew her by the name “Nanis.” Prado told the officers he
did not identify Quintero as the shooter at the time the shooting
occurred because he was afraid for his life. He explained that he
and Quintero had hung out near his (Prado’s) house on Raymond
Street four or five times, drinking and smoking, before the feud
between Martin and Quintero began. According to Prado, the
members of his gang and Quintero’s gang used to get along before
the dispute over Nanis.
Detective Aguirre also testified at trial about a May 5, 2017
interview he conducted with Prado. During this interview, Prado
told Aguirre that Martin was the founder and a leader of the 83rd
Street BRS Clique of Sur Trece, and Martin had courted or
jumped him into the gang.
On November 8, 2017, Detective Aguirre and his partner
Detective Camarillo interviewed Prado regarding the shooting at
issue in this case—the April 14, 2017 shooting in which Orona
was killed. The interview was audio recorded, and the prosecutor
played the audio recording for the jury at the trial in this case. A
transcript of the interview is included in the record on appeal.
Before questioning Prado about the April 14, 2017 shooting,
Aguirre advised Prado of his Miranda rights.
During this November 8, 2017 interview, Detective Aguirre
reviewed with Prado the Facebook messages summarized above,
and Prado confirmed the messages were from his Facebook
account. He did not deny Aguirre’s assertion that the Facebook
messages between him and Eduardo Lopez on April 14, 2017
were about him (Prado) arranging to pick up a gun from Lopez.
11
Prado initially denied he was present when Orona was
killed on April 14, 2017. He told the detectives he had been with
Ramirez (Froggy) earlier that day, “lurking” in South Central Los
Angeles, but then she left to go out with Jose (Serio). Prado said
he was in South Central Los Angeles with an associate when
Ramirez called and told him about the shooting and her and
Jose’s involvement in it. Ramirez indicated to Prado that she had
killed Orona. Detective Camarillo told Prado his cell phone
records established he was with Jose and Ramirez at the time
Orona was killed.10 Prado maintained he was not with them, and
he did not fire a gun at Quintero or Orona that day. Camarillo
asked Prado if he left his cell phone in Jose’s car. Prado said he
did not remember; then he said he thought he left his phone in
Jose’s car; and then he again said he did not remember.
Prado admitted he had obtained a gun from Eduardo
Lopez, a .38 revolver. He said he learned the gun did not work
when he and Ramirez tried to shoot it in an alley on April 13 or
14, 2017, prior to Orona’s killing. He said he gave that gun to
Ramirez. Prado also told the detectives that Ramirez had
obtained a nine-millimeter gun from an associate named Racoon
prior to the April 14, 2017 shooting, and Jose had a .22 caliber
revolver.
Detective Camarillo asked Prado if he shot a gun from
inside Jose’s car, and Prado denied it. Then Camarillo asked him
who shot from inside Jose’s car. Detective Aguirre interjected
and asked Prado if he knew “what ballistics are.” Prado
responded, “Alright man, Serio [Jose] shot.” From that point in
10To the extent such cell phone records existed, they were
not introduced at trial.
12
the interview, Prado conceded he was present when Orona was
killed, and he provided the detectives with his account of what
happened.
Prado told the detectives that he, Jose, and Ramirez were
parked on a corner of Raymond Street in Jose’s car for 30 to 40
minutes before the car carrying Quintero and Orona arrived.
Jose was in the driver seat, Prado was in the front passenger
seat, and Ramirez was in the backseat. They were hanging out
smoking.
A white car pulled around the corner. Jose alerted Prado
and Ramirez that Quintero (Psycho) was in that car. Prado told
the detectives there were two males and a female in the white
car. Prado saw Quintero in the backseat. Orona was in the front
passenger seat. Prado did not know who was driving that car.
He believed he had seen the car near Ramirez’s house some
months before.
According to Prado, Quintero jumped out of the car and
began shooting at the driver side window of Jose’s car where Jose
was sitting. Quintero shot out the window. Prado believed
Orona exited the car with Quintero. Jose jumped out of his car
and returned fire, shooting six to eight times. Prado did not
shoot because the gun he obtained from Eduardo Lopez did not
work. Ramirez stuck her arm out the driver side window of
Jose’s car and fired her gun at Quintero and Orona. Prado
conceded Jose was angry that Quintero killed his brother Martin,
and Jose “wanted to get him [Quintero].”
Jose drove away. Prado believed the other car was behind
them. Jose drove to South Central Los Angeles, where he,
Ramirez, and Prado smoked and hung out for several hours
before Prado went home.
13
Toward the end of the November 8, 2017 interview, Prado
asked the detectives, “So I got a new case?” Detective Aguirre
told Prado the District Attorney would decide what to do with the
information the detectives gathered about the April 14, 2017
shooting. Prado told the detectives he was not present during the
February 12, 2017 shooting for which he was in custody and
charged with attempted murder.
G. The Prosecution’s Gang Evidence
On appeal, Prado does not challenge the gang
enhancement, so our discussion of the prosecution’s gang
evidence will be brief. Detective Hernandez, the investigating
officer on a February 2017 attempted murder for which Prado
was charged and convicted before the trial in this case, testified
as the prosecution’s gang expert in this case. The trial court
allowed the prosecution to present evidence of the February 2017
attempted murder for the limited purposes of showing Prado’s
intent to commit the offenses charged in this case and as a
predicate offense to prove the gang enhancement.11
Detective Hernandez testified that on February 12, 2017,
someone opened fire on two people, one of whom was an associate
of a rival gang of Prado’s gang. When Hernandez interviewed
Prado about this shooting, Prado denied involvement. He
initially told Hernandez that the persons who committed the
shooting called him and told him about it. Later, he told
Hernandez that the persons who committed the shooting came to
his home and told him about it. Prado identified the shooter as
Miguel Sanchez, a fellow Sur Trece gang member. Sanchez and
On appeal, Prado does not challenge the trial court’s
11
admission of evidence of this prior conviction.
14
Prado were convicted of attempted murder with a gang
enhancement in the case arising from the February 12, 2017
shooting.
After testifying to his expertise regarding Prado’s gang and
rival gangs, Detective Hernandez opined that a hypothetical
shooting committed under the circumstances present here would
be committed in association with, at the direction of, and for the
benefit of the perpetrators’ criminal street gang.
II. Defense Case
Detective Lugo, the investigating officer in the May 27,
2016 shooting of Martin and Prado, testified that after Prado’s
arrest in April 2017, he received a call from Prado’s mother,
requesting that Prado be given two medications for bipolar
disorder. Lugo contacted the jail and relayed Prado’s mother’s
request. He did not know if the jail provided the medication to
Prado. Lugo contacted the jail solely at Prado’s mother’s request
and not because he observed signs indicating that Prado needed
bipolar medication.
Susie Morris, a psychiatrist at Los Angeles County USC
Medical Center, testified she was appointed by the trial court at
defense counsel’s request to examine Prado to determine if he
had any mental health problems. She found Prado met the
clinical criteria for intellectual disability and cannabis use
disorder in remission. She believed Prado had a moderate
intellectual impairment. She did not test his I.Q. or conduct any
neuropsychological testing.
15
III. Verdicts and Sentence
The jury found Prado guilty of the first degree murder of
Orona (Pen. Code, § 187, subd. (a)),12 conspiracy to commit
murder (§ 182, subd. (a)(1)), the willful, deliberate, and
premedicated attempted murder of Quintero (§§ 664 & 187, subd.
(a)), and shooting at an occupied vehicle (§ 246). As to all four
offenses, the jury found true the special allegations that a
principal personally and intentionally discharged a firearm.
(§ 12022.53, subds. (b)-(d) & (e)(1).) The jury found the gang
enhancement allegation (§ 186.22, subd. (b)) to be true as to the
attempted murder of Quintero and not true as to the other
offenses.
The trial court sentenced Prado to 50 years to life in prison:
for the murder, 25 years to life; and for the attempted murder, a
consecutive life term, plus 25 years to life for the firearm
enhancement. The court stayed the gang and other firearm
enhancements on the attempted murder count. The court
imposed and stayed the sentence for conspiracy to commit
murder and imposed a concurrent term of seven years (the high
term) for shooting at an occupied vehicle.
DISCUSSION
I. The Trial Court Did Not Err in Declining to Instruct
the Jury on Self-Defense
A. Proceedings below
Prado requested the trial court instruct the jury on self-
defense. Specifically, defense counsel focused his argument to
the trial court on CALJIC No. 5.50.1, which provides: “Evidence
has been presented that on [a] prior occasion[s] the alleged victim
12 Undesignated statutory references are to the Penal Code.
16
[threatened] [or] [assaulted] [or participated in an assault or
threat of physical harm upon] the defendant. If you find that this
evidence is true, you may consider that evidence on the issues of
whether the defendant actually and reasonably believed [his]
[her] life or physical safety was endangered at the time of the
commission of the alleged crime. [¶] In addition, a person whose
life or safety has been previously threatened, or assaulted by
[another] [others] is justified in acting more quickly and taking
harsher measures for self protection from an assault by [that
person] [those persons], than would a person who had not
received threats from or previously been assaulted by the same
person [or persons].” After hearing argument by both parties and
considering the facts presented at trial, the court ruled there was
no substantial evidence supporting a self-defense theory.
B. Applicable law and analysis
“The trial court is charged with instructing upon every
theory of the case supported by substantial evidence, including
defenses that are not inconsistent with the defendant’s theory of
the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “ ‘In
determining whether the evidence is sufficient to warrant a jury
instruction, the trial court does not determine the credibility of
the defense evidence, but only whether “there was evidence
which, if believed by the jury, was sufficient to raise a reasonable
doubt.” ’ [Citation.] ‘On appeal, we likewise ask only whether
the requested instruction was supported by substantial evidence
– evidence that, if believed by a rational jury, would have raised a
reasonable doubt as to’ an element of the crime in question.”
(People v. Mitchell (2019) 7 Cal.5th 561, 583.)
There is no substantial evidence in the record indicating
any occupant of Jose’s car fired a gun at Quintero or Orona in
17
self-defense on April 14, 2017. For 24 hours prior to the shooting,
Jose exchanged 71 text messages with Quintero, attempting to
ascertain Quintero’s whereabouts. Quintero informed Jose he
would be at the Raymond Street address. Jose, Ramirez, and
Prado armed themselves with firearms and headed to the
Raymond Street address, where Quintero’s car was parked
outside. They waited in Jose’s car for 30 to 40 minutes. Evidence
presented at trial indicated each of them was angry with
Quintero: Jose, because Quintero had shot and killed his brother
Martin; Prado, because Quintero had shot him in the neck; and
Ramirez, because Quintero had ordered Orona to open fire on her
and her girlfriend just the day before. If Prado feared for his
safety based on Quintero’s past actions, as Prado’s counsel
argued to the trial court, it would make no sense for him to go
and sit at a location where he had good reason to know Quintero
would be.
Prado argues the fact he conspired to murder Quintero does
not mean he and his coconspirators lost their right to self-defense
once they arrived at Quintero’s location.13 He asserts they did
nothing to provoke Quintero’s or Orona’s aggression, and Moreno
testified Orona fired the first shot on April 14, 2017. Therefore,
according to Prado, substantial evidence demonstrates Jose and
Ramirez fired at Quintero and Orona in self-defense after Orona
fired the first shot. We disagree. Moreno also testified that the
return fire was basically simultaneous with Orona’s first shot,
indicating Jose and Ramirez were not ambushed or taken by
surprise; they were armed and ready to strike Quintero as soon
13Prado concedes his self-defense theory does not apply to
the conspiracy charge.
18
as he appeared. The trial court did not err in declining to
instruct the jury on self-defense.
II. The Prosecutor Did Not Commit Prejudicial
Misconduct
Prado contends the prosecutor committed prejudicial
misconduct during closing argument by using Prado’s prior
attempted murder conviction for a purpose for which it was not
admitted.
A. Proceedings below
Over Prado’s objection, the trial court admitted evidence of
Prado’s prior attempted murder conviction arising from the
February 2017 shooting of a rival gang associate for the limited
purposes of showing his intent to commit the charged offenses
(Evid. Code, § 1101, subd. (b)) and as a predicate offense to prove
the gang enhancement. Prado does not challenge this ruling on
appeal.14
Prado concedes that at times during closing argument, the
prosecutor properly referred to the prior conviction as evidence
tending to show Prado’s intent to commit the charged offense:
“Now every time you see this intent to kill, you can consider what
Mr. Prado did just two months before this murder, two months
14In asking the trial court to allow the prosecution to
present evidence of Prado’s prior conviction for attempted murder
with a gang enhancement, the prosecutor argued “the striking
similarity” between the prior offense and the charged offenses.
The prosecutor informed the court that Prado was the driver of a
car in which three other members of his gang were passengers,
and one of them exited the car and committed “a walkup”
shooting. At trial, evidence of these specific circumstances of the
prior February 12, 2017 shooting was not presented to the jury.
19
before this shooting, where he attempted to murder another
person.”
Prado argues, however, that the prosecutor improperly
used the prior conviction in closing argument in the following
instances:
(1) “This was the time when he had told the detectives I
heard about it. First, I heard about it on the phone. No, they
actually told me about it, but we knew he actually did it because
he was convicted of it, an attempted murder which includes an
intent to kill similar to how we heard in this case [sic]. He talked
about I heard about it, they told me about it, they called me, they
came over, whatever it was when we know he was actually there
and he was in on it the whole time.”
(2) “As you saw from the instructions, it doesn’t matter
whether or not he’s the one that pulled the trigger, whether or
not he was being truthful after downplaying his role many times,
‘Oh, no. No, it was actually Serio and Froggy and my gun didn’t
work,’ whether or not that was one of many times where he was
still trying to minimize his role, just like how he had said, ‘No,
no, I heard that they did this, but I wasn’t actually there,’ until
we know that he was. Just like when he had said, ‘Oh, I heard
about this attempted murder just two months earlier,’ when we
know that he did it too.”
(3) [Referring to the certified dockets in the criminal case
arising from the prior February 12, 2017 shooting] “This is with
Miguel Angel Martinez Sanchez, Weasel, the person that Mr.
Prado had said was a member of his gang, the person that Mr.
Prado had said was a member of his clique, the person that Mr.
Prado had said was the one that actually did the shooting on
February the 27th [sic], 2017, when Mr. Prado said initially, ‘I
20
heard about it,’ ‘I was called about it,’ ‘somebody came over and
they told me about it.’ We actually know that he did it.”
(4) “This man’s a murderer, straight up, no doubt, this man
committed attempted murder, absolutely on multiple occasions.”
In short, Prado challenges the prosecutor’s arguments that
Prado’s denials of the prior crime were just like his denials of the
charged offenses and therefore tend to show his guilt of the
charged offenses.15
B. Applicable law and analysis
“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; People v. Cash (2002) 28 Cal.4th 703, 733.)
15 Prado only objected to one of the prosecutor’s arguments
that he now challenges on appeal (number 2 set forth above), and
the trial court overruled his objection. We conclude this objection
was sufficient to preserve his claim of prosecutorial misconduct.
In any event we would address the merits of the claim because
Prado raises an ineffective assistance of counsel claim to the
extent we were to conclude his claim was forfeited.
21
The trial court correctly instructed the jury on the proper
consideration of other crimes evidence—a fact Prado does not
dispute. The court’s instructions informed the jury:
“Evidence has been introduced for the purpose of showing
that the defendant committed a crime other than that for which
he is on trial.
“This evidence, if believed, may not be considered by you to
prove that defendant is a person of bad character or that he has a
disposition to commit crimes. It may be considered by you only
for the limited purpose of determining if it tends to show:
“The existence of the intent which is a necessary element of
the crime charged.
“For the limited purpose for which you may consider such
evidence, you must weigh it in the same manner as you do all
other evidence in the case.
“You are not permitted to consider such evidence for any
other purpose.”
In light of the trial court’s instructions, we have no reason
to believe the jury construed the prosecutor’s arguments to mean
it could find Prado guilty of the charged offenses simply because
he denied committing a prior crime for which he was convicted, or
because he had a disposition to commit these sorts of crimes.
Accordingly, Prado’s claim of prosecutorial misconduct fails.
III. The Trial Court Did Not Err in Denying Prado’s
Motion to Suppress His November 8, 2017 Statements
to Police
Prado contends the trial court should have suppressed his
November 8, 2017 statements to police (summarized above)
because he has an intellectual impairment which (1) prevented
him from making a knowing and intelligent waiver of his
22
Miranda rights and (2) rendered his statements to the police
involuntary.
In support of his motion to suppress the statements, Prado
submitted to the trial court a November 12, 2018 report prepared
by Susie Morris, the psychiatrist who testified for the defense at
the trial in this case (as set forth above). Dr. Morris was
appointed by the trial court in Prado’s other attempted murder
case to determine if Prado had a mental illness and, if so, what
were the appropriate treatment recommendations. Consistent
with her trial testimony in this case, Dr. Morris stated in the
report that she found Prado met the clinical criteria for
intellectual disability and cannabis use disorder in remission.
She also stated in the report that Prado’s “emotional range was
superficial and immature, consistent with someone much younger
than his stated age of 22.” Dr. Morris concluded Prado did not
have depression, bipolar disorder, a mood disorder, or
schizophrenia. Notwithstanding this conclusion, she
recommended Prado continue taking the psychotropic
medications prescribed to him in jail because “psychotropic
medications are often used to target behavioral symptoms of
intellectual disabilities.”
Prado also submitted to the trial court with his motion to
suppress his statements a June 2013 report prepared by a
community services agency when Prado was 16 years old. After
conducting a battery of tests to assess Prado’s intellectual
capacity, the agency concluded, “he qualifies for a diagnosis of
Moderate Mental Retardation, as his intellectual functioning falls
in the Deficient range.”
At the hearing on Prado’s motion to suppress his
statements, the trial court stated it had reviewed recordings of
23
Prado’s five interviews with police. We, too, have reviewed the
five recordings: a 26-minute interview on April 26, 2017, an 18-
minute interview on April 27, 2017, a 14-minute interview on
April 28, 2017, a one-hour interview on May 5, 2017, and a one-
hour interview on November 8, 2017.
The trial court stated that while listening to the recordings
the court did not observe “an intellectual impairment prohibiting
the understanding of the rights or understanding what’s going
on.” The court noted that during the April 26, 2017 interview,
Prado asked the detective if he was going to be charged with a
gang enhancement based on his answers to questions. The court
also noted that during the interviews Prado often corrected
detectives when they cited incorrect information, such as a date
when something occurred. Specifically with respect to the
November 8, 2017 interview that Prado argues the court should
have suppressed, the court commented, “he is not simply
agreeing to everything that the officers were saying. He’s
stopping them. He’s correcting certain answers.”
In denying Prado’s motion to suppress his statements to
police, the trial court concluded: “I think it’s very clear that the
statements were of a voluntary nature and that there was no
intellectual impairment, at least to these -- to the interview [sic]
that would impair him answering questions or understanding his
rights so much so to not even assess the -- if the officers had
repetitive, threatening, or deceptive, or suggestive questions, but
I will, and there was no evidence of that. It was -- much of the
questioning was very friendly in nature and there was laughter
back and forth. So with the line of cases that discuss what is not
voluntarily [sic], it seemed absolutely clear beyond any doubt
24
that the statements were voluntarily [sic] based upon what I
have seen thus far.”
A. The Record Does Not Show Prado Lacked the
Intellectual Capacity to Make a Knowing and
Intelligent Waiver of His Miranda Rights
A “valid waiver of Miranda rights may be express or
implied. [Citations.] A suspect’s expressed willingness to answer
questions after acknowledging an understanding of his or her
Miranda rights has itself been held sufficient to constitute an
implied waiver of such rights.” (People v. Cruz (2008) 44 Cal.4th
636, 667.)
“First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception.
Second, the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the
consequences of the decision to abandon it. Only if the ‘totality of
the circumstances surrounding the interrogation’ reveal both an
uncoerced choice and the requisite level of comprehension may a
court properly conclude that the Miranda rights have been
waived.” (Moran v. Burbine (1986) 475 U.S. 412, 421.)
“ ‘ “The scope of our review of constitutional claims of this
nature is well established. We must accept the trial court’s
resolution of disputed facts and inferences, and its evaluations of
credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the undisputed
facts, and those properly found by the trial court, whether the
challenged statement was illegally obtained.” ’ ” (People v.
Jenkins (2004) 122 Cal.App.4th 1160, 1170.)
25
We note the record contains no opinion from a medical
professional stating Prado lacked the intellectual capacity to
make a voluntary, knowing, and intelligent waiver of his
Miranda rights. Dr. Morris’s report does not speak to this
question. “Neither a low I.Q. nor any particular age of minority
is a proper basis to assume lack of understanding, incompetency,
or other inability to voluntarily waive the right to remain silent
under some presumption that the Miranda explanation was not
understood.” (In re Brian W. (1981) 125 Cal.App.3d 590, 603.)
Prado’s appellate counsel argues Prado “viewed the world
as a child. Childishly, he would be motivated to please officers,
who were authority figures who were treating him kindly. His
intellectual disability would not allow him to reason critically as
an adult in order to understand that their interests were adverse
to his.” After reviewing the recordings of the interviews, we
agree with the trial court that there is no indication Prado
suffered from an intellectual impairment that interfered with his
ability to voluntarily, knowingly, and intelligently waive his
Miranda rights. Absent an expert medical opinion to the
contrary, we have no cause to disturb the trial court’s ruling.
B. The Record Does Not Show Prado’s November
8, 2017 Statements to Police Were Involuntary
“A defendant’s admission or confession challenged as
involuntary may not be introduced into evidence at trial unless
the prosecution proves by a preponderance of the evidence that it
was voluntary. [Citations.] A confession or admission is
involuntary, and thus subject to exclusion at trial, only if it is the
product of coercive police activity. [Citations.] On appeal, we
review independently the trial court’s determination on the
ultimate legal issue of voluntariness. [Citation.] But any factual
26
findings by the trial court as to the circumstances surrounding an
admission or confession, including ‘ “the characteristics of the
accused and the details of the interrogation” [citation],’ are
subject to review under the deferential substantial evidence
standard. [Citation.]
“In deciding the question of voluntariness, the United
States Supreme Court has directed courts to consider ‘the totality
of circumstances.’ [Citations.] Relevant are ‘the crucial element
of police coercion [citation]; the length of the interrogation
[citation]; its location [citation]; its continuity’ as well as ‘the
defendant’s maturity [citation]; education [citation]; physical
condition [citation]; and mental health.’ [Citation.]” (People v.
Williams (1997) 16 Cal.4th 635, 659-660.) “The question is
whether defendant’s will was overborne.” (People v. Mays (2009)
174 Cal.App.4th 156, 164.)
The totality of the circumstances demonstrates Prado’s
statements were voluntary. There was nothing coercive about
any of the five interviews. None was burdensome in length. The
questioning was friendly. Throughout, Prado was actively
engaged and demonstrated an understanding of the process and
what was at stake.
Prado’s appellate counsel asserts Prado’s intellectual
disability rendered his November 8, 2017 statements to police
involuntary. The record is devoid of evidence supporting this
assertion. Counsel argues the detectives’ refusals to accept
Prado’s denials that he was at the scene of the April 14, 2017
shooting constituted a coercive interrogation tactic in light of
Prado’s intellectual disability. Counsel added: “But when it
became clear that the officers would not accept his denials,
appellant then began to recite inaccurate facts about the incident,
27
to please the interrogators. This demonstrates how the mentally
disabled will agree to and offer inaccuracies in order to please
their interrogators and how they will childly seek to please
authority figures.” The theory that Prado eventually confessed
his involvement due to his intellectual disability is based on pure
speculation. Nothing in our review of the record indicates this
was the case. The trial court did not err in denying Prado’s
statements to police.
In support of his argument the trial court should have
suppressed his November 8, 2017 statements to police, Prado
relies on U.S. v. Preston (9th Cir. 2014) 751 F.3d 1008, in which
the Ninth Circuit explained “ ‘the increased vulnerability of a
mentally disabled suspect, and his or her naiveté, ignorance,
confusion, suggestibility, delusional beliefs, extraordinary
susceptibility to pressure, and similar considerations may make
it possible for law enforcement officers to induce an involuntary
statement by using techniques that would be acceptable in cases
involving mentally typical suspects.’ ” (Id. at p. 1022.) There, the
Ninth Circuit concluded: “Considered all together, the various
factors here—Preston’s severe intellectual impairment; the
police’s repetitive questioning and the threats that it would
continue without end; the pressure placed on Preston to adopt
certain responses; the use of alternative questions that assumed
his culpability; the officers’ multiple deceptions about how the
statement would be used; the suggestive questioning that
provided details of the alleged crime; and the false promises of
leniency and confidentiality—leave us convinced that Preston’s
will was overborne and his statement involuntary.” (Id. at pp.
1027-1028.) Here, as set forth above, mindful of the evidence of
Prado’s intellectual impairment, and based on our review of the
28
recordings of his police interviews, we conclude Prado’s waiver of
his Miranda rights was voluntary, knowing, and intelligent, and
his statements were voluntary and not the product of coercive
tactics by the detectives.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
29