People v. Sanchez and Meza CA6

Filed 12/18/15 P. v. Sanchez and Meza CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040172
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. Nos. WF01199, WF01196)
v.
JOEL SANCHEZ and JOSE MEZA,
Defendants and Appellants.
I. INTRODUCTION
Codefendants Joel Sanchez and Jose Meza appeal after a jury convicted Sanchez
of first degree murder and convicted Meza of second degree murder. (Pen. Code, § 187,
subd. (a).)1 The jury also found both defendants guilty of active participation in a
criminal street gang. (§ 186.22, subd. (a).) As to both defendants, the jury found true the
allegation that the murder was committed for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)) and the allegation that a
principal personally and intentionally discharged a firearm in the commission of the
offense (§ 12022.53, subds. (b)-(e)(1)). The jury did not reach a verdict as to a third
codefendant, Angel Torres.
1
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced Sanchez to a prison term of 50 years to life, consisting of
an indeterminate term of 25 years to life for the first degree murder and an indeterminate
term of 25 years to life for the firearm count, with the terms for the gang count and gang
allegation stayed. The trial court sentenced Meza to a prison term of 40 years to life,
consisting of an indeterminate term of 15 years to life for the second degree murder and
an indeterminate term of 25 years to life for the firearm count, with the terms for the gang
count and gang allegation stayed.
Defendants’ convictions were based on evidence that the murder was committed
as part of Meza’s initiation into a gang. The prosecution’s theory was that Sanchez drove
Meza, Torres, and Jose Gonzalez to find a member of a rival gang to shoot, and that
Meza and Torres both shot the victim. Both Sanchez and Meza were prosecuted on the
theory that they were aiders and abettors of Torres, who fired the lethal shot. Gonzalez
testified at trial pursuant to a plea agreement.
On appeal, Sanchez contends: (1) the jury instructions erroneously stated that an
aider and abettor could be guilty of first degree murder so long as the direct perpetrator
committed a willful, premeditated, and deliberate murder; (2) the trial court erred by
refusing to instruct the jury that an aider and abettor may be convicted of a lesser crime
than the direct perpetrator; (3) there was insufficient evidence of the “primary activities”
element of section 186.22, subdivision (f); (4) inadmissible testimonial hearsay was
admitted to prove the “pattern of criminal gang activity” element of section 186.22,
subdivisions (e) and (f); (5) there was cumulative prejudice; and (6) the abstract of
judgment must be corrected to delete the reference to a waiver of appellate rights.
Sanchez also joins in Meza’s appellate arguments.
Meza contends: (1) the trial court failed to instruct the jury that Sanchez was an
accomplice as a matter of law; (2) the trial court erred by admitting his codefendants’
statements against him; (3) the trial court gave incorrect, confusing, and conflicting
2
instructions regarding the use of his codefendants’ statements; and (4) there was
cumulative prejudice. Meza also joins in Sanchez’s appellate arguments.
We will affirm the judgment as to both defendants but order the abstracts of
judgments modified.
II. BACKGROUND
A. The Campos Shooting
Richard Campos was 21 years old on September 15, 2009. Campos was affiliated
with a Norteño gang, and he had a XIV tattoo on his right forearm as well as other gang
tattoos.
At about 9:45 p.m., Campos was in the driveway of his family’s house on Roache
Road in Watsonville, talking on a cell phone with Jessica Lopez. Lopez heard a male
voice say, “where are you from,” and she heard Campos reply that he did not “bang.”
Witnesses in the neighborhood heard gunshots and called the police, who responded and
found Campos dead, near two cars. The cause of Campos’s death was a gunshot that hit
his neck and transected the carotid artery, apparently from a 9-millimeter bullet. 9-
millimeter bullet casings were found at the scene, and bullet fragments were found in one
of the cars.
On September 17, 2009, two days after Campos’s shooting, Watsonville Police
Officer Skip Prigge contacted Meza, who was walking with Gonzalez and other Sureño
gang members on the street. Officer Prigge took a newspaper from the back pocket of
Meza’s pants. The front page of the newspaper contained an article about the Campos
shooting. Gang members sometimes keep newspaper articles about crimes they have
committed as a “badge of honor.”
B. Gang Testimony
The prosecution presented gang testimony through several witnesses, including
Officer Prigge, Officer Juan Trujillo and Sergeant Morgan Chappell. Officer Trujillo had
3
served as a gang enforcement officer for the City of Watsonville, and he had spent his
“whole career” investigating gang crimes. Sergeant Chappell’s gang experience included
working for the Watsonville Police gang unit since January of 2008. He had participated
in several hundred gang investigations and over 100 gang arrests during the course of his
law enforcement career. He spoke with Watsonville gang members every day on the job.
He had spoken with other law enforcement officers regarding gang crimes, and he had
reviewed reports of gang crimes.
Watsonville has two main gangs: Norteños, or northerners, and Sureños, or
southerners. Sureños identify with the color blue, the number 13, and the word “sur,”
which is short for southern. Norteños identify with the color red, the number 14, and the
Huelga bird. Norteños and Sureños are rivals. Sureños will use the term “Busters” to
show disrespect towards Norteños. In Watsonville, the Poorside Watsonville gang is one
of the two Sureño subsets.
Sanchez, Meza, Torres, and Gonzalez were members of Poorside Watsonville.
Meza’s gang moniker was “Little Psycho.” Gonzalez’s gang moniker was “Grifo.” Prior
to the Campos shooting, Torres was called “Moco,” but afterwards, he was called
“Spider.” Sanchez’s moniker was “Perico.” Torres and Sanchez were cousins.
A person can become a member of a gang through a “jump in,” during which the
prospective gang member is physically assaulted by other gang members. For Sureños,
the assault lasts for 13 seconds. To complete the jump-in process, a person must also
perform a “jale,” which is a gang term meaning “a mission.” The jale can be a stabbing,
a beating, or a shooting. Officer Trujillo believed that Poorside Watsonville required a
person to perform the jale within 72 hours or three weeks of the jump in.
The structure of gangs often includes a person who collects money for the gang
and may be referred to as the treasurer, a person who holds the gang’s firearms and may
be called the sergeant-at-arms, someone who enforces the gang’s guidelines, someone
who collects the gang dues, and someone who coordinates gang meetings.
4
According to Sergeant Chappell, the primary activities of Watsonville Sureños are
“[s]tabbing, shooting, burglaries, weapons possessions, group attacks,” and similar
activities. He defined “primary activity” as “whatever the gang exists to do.”
Sergeant Chappell testified about two predicate offenses for the purpose of
establishing the “pattern of criminal gang activity” element of section 186.22,
subdivisions (e) and (f).
First, Angel Magana, a Poorside Watsonville gang member, was convicted of
being a felon in possession of a firearm and being an active participant in a criminal street
gang. The convictions were established by certified court records, but Sergeant Chappell
had learned about the details of the offenses from the officers who were involved in the
investigation and from reading the police reports. The underlying incident had occurred
in June of 2009. Magana and another Poorside Watsonville member had been in a
vehicle that was searched by police, who found a firearm.
Second, Frederico Contreras, another Poorside Watsonville gang member, was
convicted of assault with a deadly weapon and being an active participant in a criminal
street gang. Again, the convictions were established by certified court records. Sergeant
Chappell had been directly involved in the investigation of the offenses: he had spoken
to one of the victims right after the offenses. Contreras and some companions had driven
up to the victims and asked, “que varrio,” meaning, “What hood are you from.”
Contreras and some of his companions had gotten out of the car and chased the victims,
then stabbed one of them.
Sergeant Chappell testified that both Magana and Contreras were both active
members of Poorside Watsonville at the time they committed the predicate offenses.
C. Evidence Obtained Via Julian Melgoza
Poorside Watsonville gang member Julian Melgoza had become a police
informant in the spring of 2009, following a probation search of his home that revealed
his possession of drug paraphernalia. Melgoza provided the police with information that
5
led to arrests of Poorside Watsonville gang members: one who was a “wanted parolee”
and two who were in possession of a firearm.
Based on information provided by Melgoza, police set up a motion-activated
camera at a location where members of the Poorside Watsonville gang often met. Meza,
Torres, and Gonzalez were among those present at a recorded gang meeting held on May
24, 2009. During a recorded gang meeting held on June 29, 2009, a car was burglarized
and then set on fire. After Melgoza was identified as a participant in the vehicle arson, he
agreed to further help the police.2 He subsequently assisted with two controlled buys of
heroin; one was from a Poorside Watsonville gang member.
On September 16, 2009, the day after the Campos shooting, Melgoza contacted
Officer Trujillo. Melgoza claimed to have information about the Campos shooting, and
he agreed to wear a wire and attend a meeting of the Poorside gang that was held a few
days later, at Sanchez’s home. Melgoza and Sanchez had a conversation that was
recorded and transcribed.3
Sanchez talked about buying guns and about having money from the “hood.” He
referred to a .38-caliber gun that had been loaned to him and a 9-millimeter gun that had
been purchased for around $250.
Sanchez and Melgoza then discussed the Campos shooting. Sanchez referred to
Campos as “the victim.” Sanchez said that according to the newspaper, Campos had
been “talking to the chick on the phone” when “they did something to him.” Sanchez
referred to “the jale that happened”4 and stated that four people had been involved:
himself, “Spider” (Torres), “Lil Psycho” (Meza), and “Grifo” (Gonzalez). Sanchez
stated, “I drove the car and those guys threw down.” Sanchez then clarified that both he
2
Melgoza was ultimately convicted of arson. At the time of trial, he was in
custody due to a robbery conviction from an incident in March of 2012.
3
Two different transcripts of the conversation were prepared for trial, by Officer
Trujillo and a defense interpreter.
4
The defense interpreter translated this phrase as “seriously, right?”
6
and Gonzalez had stayed in the car while the others “went for it.” When Melgoza
commented, “that’s how . . . you do a mission,” Sanchez responded that “everything
came out really nice.” Melgoza asked, “Just the way it should be, man; that’s how,
homie?” Sanchez responded, “With two homies and it has to be done with two guns,
man.” Sanchez also noted that Campos had been inside of his car when the group first
saw him. He described how he had parked the car, the doors had opened, and “boom.”
D. Testimony of Christian Lopez Ramirez
Christian Lopez Ramirez (hereafter referred to as Lopez) was a member of
Poorside Watsonville. He testified at trial pursuant to an immunity agreement, which he
entered into after being arrested with Meza for burglary in December of 2009.5
When he was active in the Poorside Watsonville gang in 2008, Lopez had been the
gang’s drug dealer. He would also buy guns for the gang. In September of 2009,
Sanchez had “the keys” to the gang, meaning that he collected money from the drug
dealer and was “in charge of the whole hood.”
Lopez testified about Sureño gang protocol, which included a rule against drive-by
shootings. Sureños are required to get out of a car and shoot someone from close range.
Another rule requires someone who is jumped into the gang to do a jale (“shoot someone
or stab someone”) by the time of the next meeting. It was not required that the person be
killed, but a killing would bring more respect. An older gang member must go with the
person performing the jale, or the incident has to be reported in the newspaper, in order to
“vouch that you did it.”
Lopez was present when Meza was jumped into Poorside. Meza wanted to do his
jale that day, saying he wanted to go shoot someone, “but nothing happened.” Lopez was
also present when Sanchez, Meza, Torres, and Gonzalez went to go on the mission that
5
Lopez dropped out of the gang and was placed in protective custody, then placed
in the witness relocation program.
7
resulted in the Campos shooting. Lopez heard Torres volunteer to go “to show him how
it’s done.”
Lopez spoke to Sanchez after the Campos shooting. Lopez remarked, “you guys
got down,” and Sanchez replied, “Ya, we got him.” Sanchez indicated that he had a
conflict with one of Campos’s brothers while in high school, that the Campos family was
all Norteños, and that Campos had “got what he deserved.” Sanchez described how he
drove to Roache Road and stayed in the car while Meza and Torres “took care of it.”
Lopez also spoke with Torres about the Campos shooting. Torres stated that he
had walked up to Campos’s car and asked him “Where are you from?” Torres stated that
he had shot Campos first, and that he had shot Campos in the face. Meza had been
scared, but he had also shot Campos after Torres told him, “Shoot him. Shoot him.”
Torres said he had used a 9-millimeter, and he showed Sanchez that he was carrying a
.22-caliber revolver, saying that it had been used as well.
Lopez also spoke with Meza about the Campos shooting. Lopez congratulated
Meza, noting that “he got down,” meaning that he had gained Lopez’s respect. Meza
stated, “ya, ya, we got him.”
E. Testimony of Gonzalez
Gonzalez testified at trial pursuant to a plea agreement related to his conduct in the
Campos shooting.6 Gonzalez considered himself a Poorside Watsonville associate; he
had never been formally jumped into the gang.
About a week before the Campos shooting, a gang meeting was held at Sanchez’s
house. Sanchez, Meza, Torres, and Gonzalez all attended. At the meeting, Sanchez took
out a 9-millimeter gun and passed it around. Sanchez said that the gun sometimes
jammed up, but that he had test fired it and found that it worked. Torres brought out a
6
Gonzalez pleaded guilty to conspiracy to shoot at an occupied vehicle with a
gang enhancement, as well as active participation in a criminal street gang.
8
.22-caliber revolver at the same meeting. The guns were returned to Sanchez and Torres
during the meeting.
After Meza was jumped into Poorside Watsonville, he asked Gonzalez to
accompany him on his jale. Meza asked if Gonzalez wanted to go “look for some
busters,” meaning Norteños. Gonzalez agreed to go with Meza, and Meza came over
about 15 minutes later. Meza arrived on a bicycle, carrying a scooter. Meza showed
Gonzalez a .22-caliber revolver and said that they were going to go down the street to
look for someone and “shoot ‘em.” When Gonzalez saw the .22-caliber revolver, he
recognized it as the one that Torres had at the meeting. Gonzalez said that Meza should
have taken the 9-millimeter gun instead. Meza said he did not take the 9-millimeter
because it might jam up on him. Gonzalez knew that the .22-caliber revolver had only
five shots in it, and he said that five shots were not enough, but Meza said it would be
fine.
Gonzalez and Mesa walked around for about 30 minutes, but they did not find any
Norteños. They walked back to Gonzalez’s house, then rode the bicycle and scooter to
Meza’s house, where Meza called Sanchez to ask for a ride. Sanchez arrived about 10
minutes later, driving an SUV, with Torres in the front passenger seat. Gonzalez and
Torres got into the back of the SUV, and the group drove around looking for Norteños.
They saw someone who looked like a Norteño, but Sanchez said “let’s not shoot him”
because the person was with a girlfriend.
The group then drove to Roache Road, where they saw Campos talking on his cell
phone near a car. Meza said that Campos was a “buster” and noted that he had a XIV
tattoo on his arm. Sanchez stopped the car three houses away. Gonzalez heard Torres
cock a gun. Meza and Torres then got out of the car and walked towards Campos, but
they came back, saying that someone else was out there. Meza and Torres got back into
the car. Sanchez turned the car around and stopped it on the other side of the street.
Meza and Torres again got out of the car and walked towards the place where Campos
9
had been standing. Gonzalez heard gunshots, then saw Meza and Torres running back to
the car. After they got in the car, Torres said “that for sure he had shot him in the head.”
The group then drove to Sanchez’s house, where another gang member took the shells
out of Meza’s revolver.
Gonzalez participated in another gang mission in November of 2009. Gonzalez
had been the driver when another gang member shot at a Norteño but missed. Gonzalez
pled guilty to assault with a firearm in that case.
When Gonzalez was first contacted by the police regarding his participation in the
instant case, he did not want to talk to them. He eventually agreed to talk, but he initially
“[m]ade up a story” about driving around trying to buy drugs. He later told the police the
truth.
F. Defense Testimony
The defense witnesses were Denise Choate, the interpreter who had prepared a
second transcription of the Melgoza-Sanchez conversation, her husband Glenn, who had
digitally enhanced and cleaned up the recordings of that conversation, and Scott
Armstrong, an expert on bullets and bullet fragments who was called by Meza.
Armstrong examined some of the bullet fragments found at the scene of the Campos
shooting and opined that while there was no question that a 9-millimeter gun was used,
some of the bullet fragments might also have been from a .22-caliber gun.
None of the defendants testified at trial.
G. Charges, Verdicts, and Sentencing
Sanchez and Meza were charged with murder (§ 187, subd. (a)) and active
participation in a criminal street gang (§ 186.22, subd. (a)). As to each defendant, the
information alleged that the murder was committed for the benefit of, at the direction of,
or in association with a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal
personally and intentionally discharged a firearm in the commission of the offense
(§ 12022.53, subds. (b)-(e)(1)). Special circumstance allegations were also alleged
10
pursuant to section 190.2, subdivision (a)(22). The same charges and special allegations
were alleged as to Torres, and a joint trial was held as to all three defendants.
The jury convicted Sanchez of first degree murder, and it convicted Meza of
second degree murder. The jury convicted both Sanchez and Meza of active participation
in a criminal street gang. As to both Sanchez and Meza, the jury found that the murder
was committed for the benefit of, at the direction of, or in association with a criminal
street gang and that a principal personally and intentionally discharged a firearm in the
commission of the offense.
The jury was unable to reach a verdict on first degree murder as to Torres, and the
trial court declared a mistrial as to him.
At the sentencing hearing, the trial court imposed a prison term of 50 years to life
for Sanchez, and it imposed a prison term of 40 years to life for Meza.
III. DISCUSSION
A. Jury Instructions on Aiding and Abetting
Sanchez contends the jury instructions erroneously stated that an aider and abettor
could be guilty of first degree murder so long as the direct perpetrator committed a
willful, premeditated, and deliberate murder, instead of requiring the jury to determine
“whether each aider and abettor personally acted with malice and a willful, premeditated
and deliberated intent to kill.” Sanchez contends that the error violated his due process
rights under the Fifth and Fourteenth Amendments and his rights to present a defense and
to have each element of the offense determined beyond a reasonable doubt at a jury trial
under the Sixth Amendment. Meza joins in this argument. (See Cal. Rules of Court, rule
8.200(a)(5).)
1. Relevant Instructions Given
CALCRIM No. 400 was given as follows: “A person may be guilty of a crime in
two ways. One, he may have directly committed this crime. He may have directly
11
committed the crime. I will call that person the direct perpetrator. [¶] Two, he may
have aided and abetted a perpetrator who directly committed the crime. I will call the
person the aider and abettor. [¶] A person is guilty of a crime whether he committed it
personally or aided and abetted the direct perpetrator.”
CALCRIM No. 401 was given as follows: “To prove that a person is guilty of a
crime based on aiding and abetting that crime, the People must prove that, one, the direct
perpetrator committed the crime. [Two,] the person knew that the direct perpetrator
intended to commit the crime. Three, before or during the commission of the crime the
person intended to aid and abet the direct perpetrator in committing the crime; and, four,
the person’s words or conduct did in fact aid and abet the direct perpetrator’s commission
of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator’s
unlawful purpose and he specifically intends to and does in fact aid, facilitate, promote,
encourage or instigate the direct perpetrator’s commission of that crime. . . .”
CALCRIM No. 520 was given as follows: “Each defendant is charged in Count 1
with murder in violation of Penal Code Section 187. To prove a defendant is guilty of
this crime, the People must prove that as a direct perpetrator[,] . . . a defendant committed
an act that caused the death of another person. And when that defendant acted, he had a
state of mind called malice aforethought. . . .”7
CALCRIM No. 521 was given as follows: “Each defendant has been prosecuted
for first degree murder under the theory that the murder was willful, deliberate and
premeditated. [¶] You may not find any of the defendants guilty of first degree murder
7
The trial court’s modifications to the standard version of CALCRIM No. 520
included changing the phrase “the defendant” to the phrases “each defendant,” “a
defendant,” and “that defendant.”
12
unless all of you agree that the People have proved that one of the defendants committed
a willful, deliberate and premeditated murder.”8 (Italics added.)
2. Analysis
Sanchez acknowledges that his trial counsel did not object to these instructions,
but he contends that this court should address the merits of his claim because it involves
“a pure question of law” that affected his “substantial constitutional rights.” (See § 1259
[an appellate court may “review any instruction given, refused or modified, even though
no objection was made thereto in the lower court, if the substantial rights of the defendant
were affected thereby”].) Alternatively, Sanchez contends this court should address the
merits of his claim because “any forfeiture was a result of ineffective assistance of
counsel.” We will assume that the modified instructions affected Sanchez’s substantial
rights if they permitted the jury to find him guilty of first degree murder without finding
that he personally acted with malice and a willful, premeditated and deliberate intent to
kill, and therefore we will consider the merits of his claim.
In arguing that the instructions were flawed because they did not require the jury
to determine “whether each aider and abettor personally acted with malice and a willful,
premeditated and deliberated intent to kill,” Sanchez relies primarily on People v. McCoy
(2001) 25 Cal.4th 1111 (McCoy). In McCoy, the court explained that “outside of the
natural and probable consequences doctrine, an aider and abettor’s mental state must be
at least that required of the direct perpetrator” in order for the aider and abettor to be
vicariously liable. (Id. at p. 1118.) Thus, when the charged offense is murder, “the aider
and abettor must know and share the murderous intent of the actual perpetrator.” (Ibid.)
8
The trial court’s modifications to the standard version of CALCRIM No. 521
included changing the phrase “the defendant” to the phrases “each defendant,” “any of
the defendants,” and “one of the defendants.”
13
“Aider and abettor liability is premised on the combined acts of all the principals, but on
the aider and abettor’s own mens rea.” (Id. at p. 1120, italics added.)9
Sanchez points out that while CALCRIM Nos. 400 and 401 told the jury that the
aider and abettor must know that the direct perpetrator intended to commit “the crime”
and intend to aid and abet the perpetrator in committing “the crime,” the instructions did
not specify what “the crime” was or indicate that an aider and abettor could be less
culpable than the direct perpetrator. Sanchez also points out that the modified version of
CALCRIM No. 520 only told the jury how to find a direct perpetrator guilty of murder
and that the modified version of CALCRIM No. 521 stated that the jury could not find
“any of the defendants guilty of first degree murder” unless it found that “one of the
defendants committed a willful, deliberate and premeditated murder.” According to
Sanchez, these instructions combined to tell the jury that “the aider[s] and abettors were
equally guilty as the direct perpetrator, while never requiring [the jury] to find that the
aiders and abettors personally acted with malice or a premeditated, deliberate intent to
kill.”
We apply the independent or de novo standard of review when assessing whether
jury instructions correctly state the law “and also whether instructions effectively direct a
finding adverse to a defendant by removing an issue from the jury’s consideration
[citations].” (People v. Posey (2004) 32 Cal.4th 193, 218.) “[I]n determining the
correctness of jury instructions, we consider the instructions as a whole. [Citation.]”
(People v. Friend (2009) 47 Cal.4th 1, 49 (Friend).) We presume that jurors are “able to
understand and correlate instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852
(Sanchez).) The relevant question is “whether there is a reasonable likelihood that the
9
In fact, the McCoy court held, an aider and abettor may even be guilty of “greater
homicide-related offenses than those the actual perpetrator committed.” (McCoy, supra,25 Cal.4th at p. 1114.)
14
jury misconstrued or misapplied” the instructions. (People v. Clair (1992) 2 Cal.4th 629,
663 (Clair).)
Sanchez points out that CALCRIM No. 521 contained an incorrect statement,
telling the jury that it could not find any of the defendants guilty of first degree murder
unless “the People have proved that one of the defendants committed a willful, deliberate
and premeditated murder. . . .”
As Sanchez argues, he could not be found guilty of first degree murder based only
on a jury finding that one of the other defendants committed first degree murder. In order
to convict Sanchez of first degree murder, the jury had to find that Sanchez “knew that
the direct perpetrator intended to commit” first degree murder, that Sanchez “intended to
aid and abet” the direct perpetrator in committing first degree murder, and that Sanchez
“did in fact aid and abet the direct perpetrator’s commission of” first degree murder. (See
CALCRIM No. 401.)
However, when we consider modified CALCRIM No. 521 in conjunction with the
other instructions (see Friend, supra, 47 Cal.4th at p. 49), we conclude the instructions
did not permit the jury to convict Sanchez of first degree murder based only on a finding
that the direct perpetrator committed first degree murder. CALCRIM No. 400 informed
the jury that a person could be guilty of a crime as an aider and abettor. CALCRIM No.
520 informed the jury that the charged crime was murder, and CALCRIM No. 521
specified that each defendant was charged with first degree murder and that “[a]
defendant is guilty of first degree murder if the People have proved that he acted
willfully, deliberately and with premeditation.” CALCRIM No. 401 informed the jury
that in order to be convicted as an aider and abettor, Sanchez had to know that the direct
perpetrator intended to commit “the crime”—i.e., first degree murder—and had to intend
to aid and abet the commission of “the crime.” As noted above, we must presume that
the jurors were able to correlate the relevant instructions. (Sanchez, supra, 26 Cal.4th at
p. 852.) Because the instructions, together, informed the jury that Sanchez could not be
15
convicted of first degree murder unless he “intended to aid and abet” a first degree
murder, there is no “reasonable likelihood that the jury misconstrued or misapplied” the
instructions so as to convict Sanchez of first degree murder without considering his
individual mental state. (Clair, supra, 2 Cal.4th at p. 663.)
Our conclusion is buttressed by the fact that, during argument to the jury, the
prosecutor never argued that Sanchez or Meza could be convicted of first degree murder
based on Torres’s mental state alone. The prosecutor clearly identified “premeditated
murder” as the target offense when discussing aiding and abetting liability. In addition,
as Sanchez even acknowledges, the jury’s verdicts strongly indicate that the jury
understood each defendant’s liability was independent rather than dependent on the
mental state of the direct perpetrator. The jury convicted Sanchez, who was not one of
the shooters, of first degree murder. The jury convicted Meza, one of the shooters, of
second degree murder. And the jury failed to reach a verdict on first degree murder as to
Torres, the other shooter and the person who apparently fired the bullet that killed
Campos.
In sum, after reviewing the instructions given, the prosecutor’s argument, and the
jury’s verdicts, we find no merit to Sanchez’s challenge to the instructions on aiding and
abetting.
B. Failure to Give Requested Instruction on Aiding and Abetting
Sanchez contends the trial court erred by refusing to instruct the jury that an aider
and abettor may be convicted of a lesser crime than the direct perpetrator. Sanchez
contends the error violated the due process clauses of the Fifth and Fourteenth
Amendments as well as the compulsory process and confrontation clauses of the Sixth
Amendment. Meza joins in this argument.
The requested but refused instruction provided in part: “When the actual
perpetrator of an offense commits a crime, or a degree of a crime, that is not a reasonably
foreseeable consequence of the act aided and abetted, the aider and abettor cannot be
16
convicted of the crime, or the degree of the crime, committed by the actual perpetrator.
However, the aider and abettor can be convicted of a lesser degree of crime, or a lesser
crime, than the one committed by the actual perpetrator, if that lesser degree of crime, or
lesser crime, was a reasonably foreseeable consequence of the act aided and abetted. [¶]
Thus, if all of you find that an aider and abettor is not guilty of a greater charged crime,
or a greater degree of a charged crime, you may find him guilty of a lesser crime, or a
lesser degree of crime, if you are convinced beyond a reasonable doubt that the aider and
abettor is guilty of that lesser crime, or lesser degree of crime. A defendant may not be
convicted of both a greater and lesser crime for the same conduct. The charge affected
by this instruction is the charge of murder which can be either in the first or second
degree.”
The trial court refused to give the instruction, finding that it was argumentative
and duplicative of other instructions. (See People v. Moon (2005) 37 Cal.4th 1, 30
(Moon) [“a trial court may properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or potentially confusing . . . , or
if it is not supported by substantial evidence”].) We review the trial court’s ruling under
the de novo standard of review. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
Sanchez points out that his proposed instruction was an accurate statement of the
law under People v. Woods (1992) 8 Cal.App.4th 1570 (Woods). In Woods, one
defendant (Windham) was prosecuted on the theory that he aided and abetted the other
defendant (Woods) in committing assaults with a firearm. (Id. at p. 1579.) Both
defendants were convicted of first degree murder of a separate victim, who Woods killed
during the getaway, on the theory that the murder was a reasonably foreseeable
consequence of the assaults. (Id. at pp. 1577-1578.) The appellate court held that the
trial court “had a duty to inform the jurors they could convict Windham of second degree
murder as an aider and abettor even though they found Woods was guilty of first degree
17
murder,” since the evidence raised a question as to whether first degree murder was a
reasonably foreseeable consequence of the assaults. (Id. at p. 1578.)
Sanchez acknowledges that the Woods case involved application of the natural and
probable consequences doctrine of aiding and abetting (see id. at p. 1584) whereas this
case was not prosecuted under that theory. He argues the proposed instruction was
nevertheless necessary because “no other instruction set forth the rule that an aider and
abettor . . . cannot be held liable for a crime which was not a reasonably foreseeable
consequence of the acts aided and abetted.” Sanchez contends that the evidence
supported the instruction because the jury could have found that Sanchez intended to aid
and abet a drug purchase or an unintentional shooting.
As the Attorney General points out, the California Supreme Court has held that
“an aider and abettor may not be convicted of first degree premeditated murder under the
natural and probable consequences doctrine. Rather, his or her liability for that crime
must be based on direct aiding and abetting principles. [Citation.]” (People v. Chiu
(2014) 59 Cal.4th 155, 158-159 (Chiu).) Here, the jury was properly instructed only on
direct aiding and abetting liability principles, because the charged offense was first
degree premeditated murder. As this case was not prosecuted on a natural and probable
consequences theory, giving the requested instruction would have been “potentially
confusing” to the jury. (See Moon, supra, 37 Cal.4th at p. 30.) The requested instruction
was also not “supported by substantial evidence.” (Ibid.) There was no substantial
evidence supporting a finding that Sanchez intended to aid and abet a drug purchase.
While Gonzalez initially told the police that the group was just looking for marijuana, he
subsequently informed the police and testified that the group was looking for a Norteño
to shoot. There was also no substantial evidence supporting a finding that Sanchez
intended to aid and abet a mere assault, rather than a homicide. Sanchez’s own
statements before and after the shooting reflected that he knew the intent of the mission
was to shoot a Norteño and thus that he acted with, at a minimum, implied malice. (See
18
People v. Sarun Chun (2009) 45 Cal.4th 1172, 1205.) When the group first identified a
possible victim, Sanchez suggested they “not shoot” the person because he was with a
girlfriend. Sanchez later commented that the mission “came out really nice,” indicating
that rather than being surprised by Campos’s death, the homicide was consistent with
what he had intended.
On this record, since the proposed instruction would have been “potentially
confusing” and was not “supported by substantial evidence” (Moon, supra, 37 Cal.4th at
p. 30), the trial court did not err by refusing to give the instruction.
C. Gang Evidence
Sanchez advances two contentions concerning the evidence supporting the gang
count (§ 186.22, subd. (a)), the gang enhancement (id., subd. (b)(1)), and the firearm
enhancement (§ 12022.53, subds. (b)-(e)). First, he contends there was insufficient
evidence that the “primary activities” of Poorside Watsonville included crimes
enumerated in section 186.22, subdivision (e). Second, he contends the trial court
erroneously admitted inadmissible testimonial hearsay to prove that Poorside Watsonville
had engaged in the “pattern of criminal gang activity” required by section 186.22,
subdivision (f). Meza joins in these arguments.
1. Relevant Statutes
Section 186.22, subdivision (a) applies to “[a]ny person who actively participates
in any criminal street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in
any felonious criminal conduct by members of that gang . . . .”
Section 186.22, subdivision (b)(1) applies to “any person who is convicted of a
felony committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members . . . .”
19
Section 12022.53, subdivision (e) provides for enhancements that “apply to any
person who is a principal in the commission of an offense” when the person “violated
subdivision (b) of Section 186.22” and “any principal in the offense” personally used or
discharged a firearm.
The phrase “criminal street gang” is defined in section 186.22, subdivision (f) as
“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 sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (Emphasis added.)
The phrase “pattern of criminal gang activity” is defined in section 186.22,
subdivision (e) as “the commission of, attempted commission of, conspiracy to commit,
or solicitation of, sustained juvenile petition for, or conviction of two or more
[enumerated] offenses, provided at least one of these offenses occurred after the effective
date of this chapter and the last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions, or by two or more
persons . . . .”
2. Primary Activities
The trial court instructed the jury that in order to find that Poorside Watsonville
was a criminal street gang, it had to find that the primary activities of the gang were the
commission of assault with a deadly weapon or felon in possession of a firearm, both of
which are enumerated offenses in section 186.22, subdivision (e). Sanchez contends the
evidence was insufficient to establish that committing those crimes was a primary activity
of Poorside Watsonville, and he contends that the failure of proof violated his right, under
the Fifth, Sixth, and Fourteenth Amendments, to have a jury determine each element of
the crime beyond a reasonable doubt.
20
In addressing this claim, “ ‘we review the whole record in the light most favorable
to the judgment to determine whether it discloses substantial evidence—that is, evidence
that is reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]’ ” (People v.
Cravens (2012) 53 Cal.4th 500, 507; see People v. Catlin (2001) 26 Cal.4th 81, 139
[same standard applies to review of evidence to support a gang enhancement finding],
overruled on another ground in People v. Nelson (2008) 43 Cal.4th 1242.)
“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.]” (People v. Sengpadychith (2001) 26
Cal.4th 316, 323.) “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.” (Id. at p. 324.) “Also sufficient [to show the gang’s
primary activities] might be expert testimony,” i.e., testimony by a gang expert based on
the expert’s conversations with gang members, the expert’s personal investigations of
gang crimes, and information the expert has obtained from other law enforcement
officers. (Ibid.; see People v. Gardeley (1996) 14 Cal.4th 605, 620 (Gardeley).)
In this case, the prosecution’s main gang expert—and the witness who rendered an
opinion about Poorside Watsonville’s primary activities—was Sergeant Chappell. As
noted above, he had participated in several hundred gang investigations and over 100
gang arrests, spoken with gang members every day on the job, spoken with other law
enforcement officers regarding gang crimes, and reviewed reports of gang crimes. He
testified that the primary activities of Watsonville Sureños were “stabbing, shooting,
burglaries, weapons possessions, group attacks,” and similar activities.
Sanchez contends that the instant case is similar to In re Alexander L. (2007) 149
Cal.App.4th 605 (Alexander L.), in which a gang expert testified that he knew that the
minor’s gang had “ ‘committed quite a few assaults with a deadly weapon, several
21
assaults,’ ” and that they had been “ ‘involved in murders’ ” as well as “ ‘auto thefts,
auto/vehicle burglaries, felony graffiti, narcotic violations.’ ” (Id. at p. 611.) The court
concluded that this testimony did not constitute substantial evidence, because the expert’s
testimony “lacked an adequate foundation.” (Id. at p. 612.) The expert in Alexander L.
had not given “specifics” as to the circumstances of any crimes, nor had he explained
“where, when, or how [he] had obtained the information.” (Ibid.) It was thus
“impossible to tell whether his 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., fn. omitted.)
Alexander L. is distinguishable because here, Sergeant Chappell did provide the
basis for his opinion, which included the hundreds of gang crime investigations he had
personally participated in. Sergeant Chappell also provided specifics about a prior
assault with a deadly weapon committed by Poorside Watsonville gang members, which
he had personally investigated, and he testified about a Poorside Watsonville gang
member’s conviction of the crime of being a felon in possession of a firearm, which was
shown by certified court records. Thus, the expert testimony here was reliable. (See
Alexander L., supra, 149 Cal.App.4th at p. 612.)
The evidence in this case was similar to the evidence that supported a primary
activities finding in People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez). In
Martinez, the gang expert was familiar with the defendant’s gang “based on regular
investigations of its activity and interaction with its members.” (Id. at p. 1330.) He
testified that the gang’s primary activities included “robbery, assault—including assaults
with weapons, theft, and vandalism,” and he testified about two prior gang offenses, both
robberies, which had occurred in separate years. (Ibid.) The Martinez court held that the
gang expert’s testimony was sufficient “to prove the gang’s primary activities fell within
the statute.” (Ibid.)
22
We conclude that in this case, Sergeant Chappell’s testimony provided substantial
evidence that the primary activities of the Poorside Watsonville gang were the
commission of assault with a deadly weapon or felon in possession of a firearm, as
provided in the trial court’s instruction.
3. Pattern of Criminal Gang Activity
Sanchez contends the trial court erred by allowing the “pattern of criminal gang
activity” element of section 186.22, subdivision (e) to be proven by the Magana and
Contreras guilty pleas and by extrajudicial statements gathered by police officers during
criminal investigations. Sanchez contends that this evidence constituted testimonial
hearsay, the use of which violated his confrontation rights under the Sixth and Fourteenth
Amendments.10
We begin by reviewing applicable confrontation clause principles and case law.
The Sixth Amendment to the United States Constitution guarantees the accused in
criminal prosecutions the right “to be confronted with the witnesses against him [or her].”
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme
Court held that this provision prohibits the admission of testimonial hearsay unless the
witness is unavailable or there was a prior opportunity for cross-examination. (Id. at
p. 68.) The Crawford court did not provide a definition of “ ‘testimonial’ statements” but
noted that there were “[v]arious formulations” of the term, including: “ ‘ex parte in-court
testimony or its functional equivalent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably expect to be used prosecutorially,’
[citation]; ‘extrajudicial statements . . . contained in formalized testimonial materials,
10
Sanchez raised this issue below by moving, in limine, for a ruling precluding the
prosecution from proving the “pattern of criminal gang activity” by certified court
records of other people’s guilty pleas, and for a ruling precluding the gang expert from
relying on hearsay. Sanchez also filed a motion for a new trial in which he raised this
issue.
23
such as affidavits, depositions, prior testimony, or confessions,’ [citation]; ‘statements
that were made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial,’ [citation].” (Id. at
pp. 51-52; see also Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 310
(Melendez-Diaz).)
The United States Supreme Court also declined to “attempt[]to produce an
exhaustive classification” of testimonial statements in Davis v. Washington (2006)
547 U.S. 813 (Davis). The court did explain the difference between testimonial and
nontestimonial statements made to the police: “Statements are nontestimonial when
made in the course of police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.” (Id. at
p. 822, fn. omitted; see also Michigan v. Bryant (2011) 562 U.S. 344, 349.)
The United States Supreme Court considered whether “basis evidence” —that is,
evidence that provides a basis for an expert opinion—is admissible under the
confrontation clause in Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221]
(Williams). In Williams, the question was, “does Crawford bar an expert from expressing
an opinion based on facts about a case that have been made known to the expert but about
which the expert is not competent to testify?” (Id. at p. ___ [132 S.Ct. at p. 2227].) The
Williams court examined whether a laboratory expert could rely on a DNA report from a
prior criminal case in rendering his opinion that the defendant’s DNA profile matched the
prior sample. In a 4-1-4 opinion, the court held that admission of the expert’s testimony
did not violate the confrontation clause.
A plurality of the Williams court found that the DNA report was not offered for its
truth, but that even if the “basis evidence” was offered for its truth, it was not testimonial.
24
(Williams, supra, 567 U.S. at p. ___ [132 S.Ct at p. 2228] (plur. opn. of Alito, J., joined
by Roberts, C. J., Kennedy & Breyer, JJ.).) The DNA report was “produced before any
suspect was identified,” it was sought “for the purpose of finding a rapist who was on the
loose” rather than to obtain evidence against the defendant, and it was “not inherently
inculpatory.” (Id. at p. ___ [132 S.Ct at p. 2228].) Justice Thomas agreed with the
plurality on this point, finding that the “basis evidence” was not testimonial because it
“lack[ed] the solemnity of an affidavit or deposition” and, “although the report was
produced at the request of law enforcement, it was not the product of any sort of
formalized dialogue resembling custodial interrogation.” (Id. at p. ___ [132 S.Ct. at
p. 2260] (conc. opn. of Thomas, J.).) The remaining four justices joined in a dissent
authored by Justice Kagan; they rejected the idea that the expert's testimony was not
offered for its truth. (Id. at pp. ___ [132 S.Ct. at pp. 2265, 2268] (dis. opn. of Kagan, J.).)
Neither the United States Supreme Court nor the California Supreme Court has yet
considered whether the Confrontation Clause prohibits a gang expert from relying on
hearsay to provide evidence that a particular crime was committed for the benefit of a
gang.11 In Gardeley, supra, 14 Cal.4th 605, the California Supreme Court reasoned that,
“[c]onsistent with [the] well-settled principles” concerning expert witness testimony, a
detective “could testify as an expert witness and could reveal the information on which he
had relied in forming his expert opinion, including hearsay.” (Id. at p. 619.) Gardeley
reasoned that a gang expert can rely on inadmissible hearsay in rendering an opinion,
because such evidence is not offered as “ ‘independent proof’ of any fact.” (Ibid.)
However, Gardeley did not address a Confrontation Clause claim nor the question
whether testimonial hearsay can be admitted through a gang expert to prove elements of
11
The California Supreme Court is currently considering whether the Sixth
Amendment right to confrontation bars a gang expert’s reliance on testimonial hearsay.
(People v. Sanchez (2013) 223 Cal.App.4th 1, review granted Feb. 24, 2014, S216681;
see also People v. Archuleta (2014) 225 Cal.App.4th 527, review granted June 11, 2014,
S218640 [briefing deferred pending consideration and disposition of Sanchez].)
25
the gang enhancement such as the “pattern of criminal gang activity.” (See § 186.22,
subd. (f).)
We proceed to consider Sanchez’s arguments and the evidence. As noted above,
the evidence of prior criminal offenses by Poorside Watsonville gang members was
presented during Sergeant Chappell’s testimony. The first predicate offense was
Magana’s convictions of being a felon in possession of a firearm and being an active
participant in a criminal street gang. The convictions were established by certified court
records, but Sergeant Chappell had learned about the details of the offenses from the
officers who were involved and from reading the police reports. The second predicate
offense was Contreras’s convictions of assault with a deadly weapon and being an active
participant in a criminal street gang. Again, the convictions were established by certified
court records, but Sergeant Chappell had been directly involved in the investigation of the
offenses. Sergeant Chappell testified that Magana and Contreras were both active
members of Poorside Watsonville at the time they committed the offenses.
Sanchez contends that the certified court records from the Magana and Contreras
cases constituted testimonial hearsay. He relies primarily on Kirby v. United States
(1899) 174 U.S. 47 (Kirby) and People v. Cummings (1993) 4 Cal.4th 1233, 1294, 1321
(Cummings). Neither case supports Sanchez’s position. In Kirby, the defendant was
convicted of receiving stolen property. To prove that the property was stolen, the
prosecution presented a record from a prior trial involving different defendants, who had
pleaded guilty to stealing the property. In holding that admission of that evidence
violated Kirby’s confrontation clause rights, the court distinguished between the fact of
the prior convictions, which “could only be established by a record” (Kirby, supra,
174 U.S. at p. 54) and “the fact that the property was stolen,” which was an element of
the offense (id. at p. 55). In Cummings, the court records were similarly held to be
inadmissible hearsay to the extent that they were introduced as substantive evidence of a
defendant’s guilt. (Cummings, supra, 4 Cal.4th at pp. 1294-1295 [evidence showing one
26
defendant’s wife had been convicted of being an accessory], 1321-1322 [evidence that
codefendant had pleaded guilty].) Here, the court records were not introduced to show
that Sanchez was guilty but rather to show the fact that Magana and Contreras had been
convicted of certain crimes.
Sanchez’s position is also not supported by another case he cites, People v. Hill
(2011) 191 Cal.App.4th 1104, which held that the admission of a federal plea agreement
containing a gang member’s statements violated the confrontation clause. (Id. at
p. 1136.) The conviction records admitted here did not include the statements of any
gang members.
As the Attorney General points out, several California Courts of Appeal have held
that records of conviction are nontestimonial, and thus outside the scope of the Sixth
Amendment’s confrontation clause, when offered to prove the fact of the conviction.
(See People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [records that are “prepared to
document acts and events relating to convictions and imprisonments” are beyond the
scope of Crawford]; see also People v. Moreno (2011) 192 Cal.App.4th 692, 710-711
[following Taulton]; People v. Morris (2008) 166 Cal.App.4th 363, 373 [same].) In this
case, the conviction records of Magana and Contreras were offered only to prove the
facts of those convictions, including the conviction dates, and thus the records fell outside
the scope of the confrontation clause.
Here, the only evidence that arguably constituted testimonial hearsay was Sergeant
Chappell’s testimony about the facts of the Magana offenses, which he learned about by
reviewing police reports and speaking to the officers who had been involved in that case.
(See Bullcoming v. New Mexico (2011) 564 U.S. ___, ___ [131 S.Ct. 2705, 2710, 2717]
[holding that a document “created solely for an ‘evidentiary purpose,’ . . . made in aid of
a police investigation, ranks as testimonial”].) However, the trial court instructed the jury
27
not to consider that evidence for its truth.12 Further, as Sanchez acknowledges, the
“details of the predicate crimes” were not necessary. Moreover, the Magana offense was
not necessary for proof of the requisite “pattern of criminal gang activity” (§ 186.22,
subds. (e) & (f)), since the charged crime can be one of the two predicate offenses, and
Sergeant Chappell’s testimony about the Contreras offenses came from his own personal
knowledge. (Gardeley, supra, 14 Cal.4th at p. 625.) Any error was thus harmless
beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).)
In sum, we conclude that the trial court did not commit reversible error by
admitting testimonial hearsay to show that Poorside Watsonville members engaged in a
“pattern of criminal gang activity.” (§ 186.22, subds. (e) & (f).)
D. Accomplice Corroboration Instruction
Meza contends the trial court failed to instruct the jury that Sanchez was an
accomplice as a matter of law and that therefore Sanchez’s statements implicating Meza
could only be considered if those statements were corroborated by other evidence. (See
CALCRIM No. 335.)13 Meza contends that without the statements of Sanchez, Lopez,
and Gonzalez, “the remaining evidence is insufficient to establish Meza’s participation in
12
During Sergeant Chappell’s testimony, the trial court instructed the jury: “So
what you need to understand . . . is that because [Sergeant Chappell] has no personal
knowledge of these facts, because the individuals who are referenced . . . are not here to
be cross-examined and there’s . . . no testimony under oath by the persons who do have
personal knowledge, I’m permitting you to hear this only because this is information that
experts are permitted to rely on in forming expert opinion. So you may not consider . . .
what he’s testifying to for the truth; namely, that these events occurred on this date. He
reviewed this information in the reports and it’s forming in part the basis for his
rendering his opinion testimony to you. So don’t consider what he’s telling you for its
truth. You can consider it in evaluating the underlying reasons as to why he’s reaching
the opinions he’s reaching in this case.”
13
The jury was instructed that before it could consider Sanchez’s statements to
Gonzalez and Lopez, it had to determine whether Sanchez was an accomplice, and that if
Sanchez was an accomplice, his statements required corroboration. (See CALCRIM No.
334.)
28
this crime.” Meza contends that by failing to instruct the jury that Sanchez was an
accomplice of law, the trial court violated Meza’s rights under state law and under the
due process clause of the federal constitution.
Section 1111 provides that “[a] conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.” Section 1111
defines an accomplice as “one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.”
“ ‘Testimony,’ as used in section 1111, includes ‘ “all out-of-court statements of
accomplices . . . used as substantive evidence of guilt which are made under suspect
circumstances.” ’ ” (People v. Brown (2003) 31 Cal.4th 518, 555 (Brown).)
In Brown, the California Supreme Court held that there was no need to instruct the
jury that a coparticipant named Fields was an accomplice as a matter of law for purposes
of the accomplice corroboration requirement, despite the fact that Fields was subject to
prosecution for the same criminal offenses as Brown, because Fields’s out-of-court
statements to a police detective were “properly found to be declarations against penal
interest.” (Brown, supra, 31 Cal.4th at p. 555; see Evid. Code, § 1230.) The court
explained, “ ‘The usual problem with accomplice testimony—that it is consciously self-
interested and calculated—is not present in an out-of-court statement that is itself
sufficiently reliable to be allowed in evidence.’ [Citation.]” Since Fields’s statements
“were themselves made under conditions sufficiently trustworthy to permit their
admission into evidence despite the hearsay rule,” . . . no corroboration was necessary,
and the court was not required to instruct the jury to view Fields’s statements with
caution and to require corroboration.” (Id. at p. 555-556.)
29
Meza acknowledges that some of Sanchez’s out-of-court statements were against
Sanchez’s penal interest, but he contends that other out-of-court statements by Sanchez
were not “ ‘specifically disserving’ ” of Sanchez’s penal interest because they also
implicated Meza. (See People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte).) For
instance, Sanchez told Melgoza that Meza had been one of the four people involved, and
although Sanchez admitted he had been the driver, he told Melgoza that he and Gonzalez
had stayed in the car while “those guys threw down.”
Even assuming that not all of Sanchez’s out-of-court statements were
“ ‘specifically disserving’ ” of Sanchez’s penal interests so as to qualify as declarations
against interest (Duarte, supra, 24 Cal.4th at p. 612), the trial court was not required to
instruct the jury that Sanchez was an accomplice as a matter of law because, as the
Attorney General contends, Sanchez’s out-of-court statements were not made under
“ ‘ “suspect circumstances.” ’ ” (Brown, supra, 31 Cal.4th at p. 555.) “ ‘ “The most
obvious suspect circumstances occur when the accomplice has been arrested or is
questioned by the police.” ’ [Citation.]” (Ibid.) Here, Sanchez’s out-of-court statements
were not made under police questioning or other suspect circumstances but rather to
members of his gang, in informal settings. (See People v. Maciel (2013) 57 Cal.4th 482,
526 [statements made by a gang member during a secretly videotaped gang meeting were
not made under “ ‘suspect circumstances’ ” and did not require instruction on accomplice
corroboration].)
Contrary to Meza’s claim, the fact that Melgoza was working as a police
informant at the time Sanchez made certain statements to him does not change our
analysis. (See People v. Jeffery (1995) 37 Cal.App.4th 209, 218 [defendant’s statements
made to an undercover police officer during a drug sale, without defendant’s knowledge
that the person was an undercover police officer, were not “testimony” within the
meaning of section 1111 and did not require corroboration].)
30
We conclude the trial court correctly did not instruct the jury that Sanchez was an
accomplice as a matter of law because Sanchez’s out-of-court statements did not
constitute “testimony” within the meaning of section 1111. Because those statements
were not “testimony” within the meaning of section 1111, they did not require
corroboration and could be used to corroborate the testimony of Lopez and Gonzalez.
Thus, contrary to Meza’s claim, the evidence at trial was not insufficient to connect him
with the charged offenses.
E. Admission of Codefendants’ Statements
Meza next contends that the trial court improperly admitted the out-of-court
statements of Sanchez and Torres that implicated Meza in the shooting, violating Meza’s
Sixth Amendment rights of confrontation and cross-examination, his Fifth Amendment
rights to due process and a fair trial, and state law.
1. Aranda-Bruton
We first address Meza’s claim that the Sanchez and Torres statements were
inadmissible under the Aranda-Bruton rule.14 (People v. Aranda (1965) 63 Cal.2d 518;
Bruton v. United States (1968) 391 U.S. 123.) The Aranda-Bruton rule provides that the
confrontation clause generally prohibits the admission, at a joint trial, of one defendant’s
confession “that is ‘powerfully incriminating’ as to a second defendant when determining
the latter’s guilt.” (People v. Fletcher (1996) 13 Cal.4th 451, 455.)
Meza contends that the Aranda-Bruton rule applies even when the codefendant’s
confession amounts to a non-testimonial statement under Crawford, supra, 541 U.S. 36.
Other California Courts of Appeal have concluded otherwise, holding that the Sixth
Amendment prohibits only the admission of testimonial statements, even when the
14
This issue was raised below in the context of the defendants’ severance motions.
The trial court ultimately denied the motion for separate trials, finding that the statements
the defendants had identified as posing Aranda-Bruton problems were not testimonial
under Crawford, supra, 541 U.S. 36.
31
statement at issue is the confession of a codefendant. (See People v. Arceo (2011) 195
Cal.App.4th 556, 575 (Arceo); People v. Arauz (2012) 210 Cal.App.4th 1394, 1401-1402
(Arauz).) Federal courts are generally in accord. (See, e.g., United States v. Johnson (6th
Cir. 2009) 581 F.3d 320, 326 [“Because it is premised on the Confrontation Clause, the
Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial
statements.”]; U.S. v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85.) And the
California Supreme Court has recognized that “[o]nly the admission of testimonial
hearsay statements violates the confrontation clause . . . .” (People v. Gutierrez (2009)
45 Cal.4th 789, 812.)
In Arceo, the court rejected the defendant’s argument “that the Bruton line of cases
represents a ‘special rule’ that applies to extrajudicial statements of unavailable
codefendants who make incriminating statements, ‘a rule that survives the “testimonial
vs. nontestimonial” classification.’ ” (Arceo, supra, 195 Cal.App.4th at p. 574.) Thus,
non-testimonial inculpatory statements made by the defendant’s coparticipants were not
inadmissible under the confrontation clause. (Id. at p. 575.) Likewise, in Arauz, the
confrontation clause did not bar the admission of inculpatory statements made by one of
the defendants to a fellow inmate/informant. (Arauz, supra, 210 Cal.App.4th at p. 1397.)
We agree with the courts holding that the Aranda-Bruton rule does not apply when
the codefendant’s confession amounts to a non-testimonial statement under Crawford,
supra, 541 U.S. 36, because the Sixth Amendment applies only to testimonial statements.
Thus, Meza’s confrontation clause rights were not violated by the trial court’s admission
of the out-of-court statements of Sanchez and Torres that implicated Meza in the
homicide because those statements were non-testimonial.
2. Declarations Against Interest
We next address Meza’s claim that the admission of the Sanchez and Torres
statements violated state law, because those statements were not admissible under
32
Evidence Code section 1230 as declarations against interest, or under any other exception
to the hearsay rule.15
Evidence Code section 1230 provides: “Evidence of a statement by a declarant
having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if
the declarant is unavailable as a witness and the statement, when made, was so far
contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him [or
her] to the risk of civil or criminal liability, or so far tended to render invalid a claim by
him [or her] against another, or created such a risk of making him [or her] an object of
hatred, ridicule, or social disgrace in the community, that a reasonable man [or woman]
in his [or her] position would not have made the statement unless he [or she] believed it
to be true.”
In addition to showing that the declarant is unavailable and that the declaration
was against the declarant’s penal interest when made, the proponent of the evidence must
show “that the declaration was sufficiently reliable to warrant admission despite its
hearsay character” before a statement can be admitted under Evidence Code section
1230. (Duarte, supra, 24 Cal.4th at pp. 610-611.) On appeal, we review the admission
of a statement under this hearsay exception for abuse of discretion. (People v. Valdez
(2012) 55 Cal.4th 82, 143 (Valdez).)
Meza contends that the out-of-court statements made by Sanchez and Torres were
unreliable and that, to the extent the statements implicated Meza, the statements were not
against Sanchez and Torres’s penal interests. Meza asserts that the statements were only
partially inculpatory, pointing out that Sanchez “placed the greatest responsibility for the
shooting on Meza and Torres” by stating that he was merely the driver, and that Torres
“spread the blame” by stating that both he and Meza shot at Campos. (See Duarte,
supra, 24 Cal.4th at p. 612 [“a hearsay statement ‘which is in part inculpatory and in part
15
During motions in limine, the trial court found the challenged statements
admissible as declarations against interest and as statements of co-conspirators.
33
exculpatory (e.g., one which admits some complicity but places the major responsibility
on others) does not meet the test of trustworthiness and is thus inadmissible’ ”].) Meza
also contends that the statements were unreliable because they were made to fellow gang
members and thus not likely to subject Sanchez and Torres to criminal liability, although
he acknowledges that the California Supreme Court has found that statements made in
confidence to other gang members are trustworthy. (See Valdez, supra, 55 Cal.4th at p.
144.)
Similar arguments were rejected in Arceo, where the court held that certain out-of-
court statements made by a codefendant were admissible as to Arceo as declarations
against interest. In the statements, one codefendant described the offenses (murders) to a
relative of another codefendant. The declarant was described as “ ‘bragging’ ” about his
conduct, which included shooting one of the victims and handing the gun off to Arceo,
who shot a second victim. (Arceo, supra, 195 Cal.App.4th at p. 576.) The portion of the
statement that portrayed Arceo as the shooter was “specifically disserving” of the
declarant’s penal interests because, by admitting that he had handed Arceo the gun prior
to the second shooting, the declarant was “clearly subjecting [himself] to criminal
liability” for that murder. (Id. at p. 577.) The statement was also trustworthy under the
circumstances, because it was “not made in a custodial context” or in the context of
blame-shifting or spreading, but rather in a conversation between friends. (Ibid.)
Even more similar were statements found admissible as declarations against
interest in Arauz. In that case, an accomplice to a gang shooting incident made
statements to a person jailed in an adjacent cell, not knowing that the person was a
confidential police informant. (Arauz, supra, 210 Cal.App.4th at p. 1399.) The declarant
admitted that “he and his ‘homies’ ” had committed the shooting, explaining that he had
driven the car and that the two codefendants had committed the actual shootings. (Ibid.)
The declarant also admitted knowing that the drive-by shooting had been committed in
violation of Mexican Mafia rules. (Ibid.) The declarant’s statements were held to be
34
specifically disserving of his penal interests rather than exculpatory in any way, and,
because he named the actual shooters, trustworthy. (Id. at p. 1401.)
In this case, all of the challenged statements were made by Sanchez and Torres to
other gang members, in noncoercive settings, and they included details such as the names
of the participants. (See Arceo, supra, 195 Cal.App.4th at p. 577; Arauz, supra, 210
Cal.App.4th at p. 1401.) Thus, the trial court did not abuse its discretion by finding that
the statements were reliable. (See Valdez, supra, 55 Cal.4th at p. 143.)
The statements were also specifically disserving of each declarant’s penal interest.
Sanchez’s statements to Lopez included “we got him” and a description of how Sanchez
had driven to Roache Road and stayed in the car while Meza and Torres “took care of it.”
Despite disclaiming that he had been one of the shooters, Sanchez was admitting
participation rather than blame-shifting, and thus “clearly subjecting [himself] to criminal
liability” when making the statements. (Arceo, supra, 195 Cal.App.4th at p. 577; see also
Arauz, supra, 210 Cal.App.4th at p. 1401.) Sanchez’s statements to Melgoza were very
similar: Sanchez admitted driving the car while the others “threw down,” and he
indicated that the homicide was what he had intended, by saying “everything came out
really nice.” Torres’s statements to Lopez included a description of how he had
volunteered to go on the mission to show Meza “how it’s done;” how he had shot
Campos first, in the face; and how he had subsequently encouraged Meza to shoot
Campos also. In these statements, Torres clearly subjected himself to criminal liability
for the murder; he did not simply “admit[] some complicity but place[] the major
responsibility on others.” (See Duarte, supra, 24 Cal.4th at p. 612.)
We conclude the trial court did not abuse its discretion by admitting the Sanchez
and Torres statements as declarations against interest.
F. Instructions on Codefendants’ Statements
Meza contends that the trial court gave incorrect, confusing, and conflicting
instructions regarding the use of his codefendants’ statements. Meza contends the
35
instructions violated his rights to due process, a fair trial, and a reliable jury verdict,
under the Fifth, Sixth, and Fourteenth Amendments as well as under the state
constitution. Sanchez joins in this argument.
1. Accomplice Testimony Instructions
Meza’s first claim is that the instructions on accomplice testimony were erroneous
because the instructions “left it to the jurors to determine whether [Sanchez and Torres]
were accomplices.” Meza contends that the trial court should have instructed the jury
that Sanchez and Torres were accomplices as a matter of law, such that their testimony
had to be corroborated and their statements viewed with caution.
The relevant instructions provided as follows: “You have heard evidence that
defendant Angel Torres made oral statements before the trial to Jose Gonzalez and/or
Christian Lopez. You must decide whether he made any such statement in whole or in
part. [¶] . . . [¶] If you decide that Angel Torres made an oral statement or statements
before trial, in reaching a verdict as to defendant Joel Sanchez or defendant Jose Meza,
you must first decide whether Angel Torres is an accomplice.” The instruction told the
jury how to determine whether Torres was an accomplice, then stated: “If you decide
that Angel Torres was an accomplice, then you may not convict Joel Sanchez or Jose
Meza based on Mr. Torres’ out-of-court statement alone. . . .” The instruction also
reiterated the accomplice corroboration requirements. This instruction was then repeated
with the references to Torres replaced by references to Sanchez. The instruction was also
repeated another time, with regard to Sanchez’s oral statements to Melgoza.
Meza relies extensively on People v. Robinson (1964) 61 Cal.2d 373 (Robinson).
In Robinson, three defendants (Robinson, Hickman, and Guliex) were convicted of first
degree murder at a joint trial. Each of the defendants had confessed to the crime, and at
trial, Hickman had admitted that his confession was true. The jury instructions had
permitted the jury to determine whether Hickman was an accomplice. (Id. at p. 394.)
The appellate court held that Hickman’s testimony admitting the truth of his confession
36
“made Hickman an accomplice, as a matter of law, and the court should have so
instructed the jury.” (Ibid.) The Robinson court explained the significance of the error:
“By telling the jury that corroboration of his testimony was required only if they found
[Hickman] to be an accomplice, the court impliedly and erroneously authorized the jury
to find him not an accomplice, thereby making corroboration unnecessary.” (Ibid.)
Robinson is distinguishable for several reasons. First, Robinson involved
“testimony” subject to section 1111, since the accomplice in that case testified. In the
present case, we have previously concluded that, for purposes of the accomplice
testimony requirement of section 1111, the trial court properly declined to instruct the
jury that Sanchez was an accomplice as a matter of law, because Sanchez’s out-of-court
statements did not constitute “testimony” within the meaning of section 1111. (See part
III.D, ante.) The same analysis applies to Torres’s out-of-court statements, which were
not made under “ ‘ “suspect circumstances” ’ ” and thus did not constitute “testimony”
(Brown, supra, 31 Cal.4th at p. 555), since they were made to fellow gang members, in
informal settings, as opposed to police questioning or similar circumstances.
Robinson is also distinguishable because it involved a codefendant’s admission of
guilt during trial. In the instant case, none of the codefendants confessed to the charged
offenses at trial. “[I]f the facts are disputed or susceptible of different inferences, the
question whether the witness is an accomplice should be submitted to the jury.
[Citations.]” (People v. Mayberry (1975) 15 Cal.3d 143, 159.) Here, although the
evidence very strongly supported a finding that Sanchez and Torres were accomplices to
Meza, they disputed their roles in the homicide and argued that they did not aid and abet
the homicide. For instance, during arguments to the jury, Torres suggested that he had
been misidentified by his nickname, and he argued that there was no corroboration of his
participation. Since the evidence was at least arguably susceptible of the inference that
the codefendants were not accomplices, that question was properly submitted to the jury.
37
Finally, even if Sanchez and Torres were accomplices as a matter of law, the trial
court did not err by leaving that determination to the jury. Had the trial court instructed
the jury that Sanchez and Torres were accomplices as a matter of law, that instruction
would have “unfairly prejudice[d]” those codefendants by imputing their guilt. (People
v. Hill (1967) 66 Cal.2d 536, 555-556.) Such an instruction would have effectively told
the jury that the codefendants were guilty of the charged offenses, “thereby invading the
province of the jury with respect to the determination of [his] guilt or innocence.”
(People v. Valerio (1970) 13 Cal.App.3d 912, 924.) Under these circumstances, the trial
court was “compelled to leave the matter to the jury,” and it correctly did not instruct the
jury that the codefendants were accomplices as a matter of law. (Ibid.)
2. Instruction on Coconspirator’s Statements
Meza next contends the instruction on coconspirator statements was confusing.
CALCRIM No. 418 was given as follows: “In deciding whether the People have proved
any of the defendants committed the crime of murder, you may not consider any
statement made out of court by any of the defendants unless the People have proved by a
preponderance of the evidence. Preponderance of the evidence [is] the one time you’d
have a different burden of proof than beyond a reasonable doubt. [¶] So in deciding
whether the People have proved that any of the defendants committed the crime of
murder, you may not consider any statement made out of court by any of the defendants
unless the People have proved by a preponderance of the evidence that (1) some evidence
other than the statement itself establishes that a conspiracy to commit that crime existed
when the statement was made[,] (2) any two of the defendants or any one defendant and
Jose Gonzalez and/or Christian Lopez were members of and participating in the
conspiracy when a defendant made the statement[, (3)] a defendant made the statement in
order to further the goal of the conspiracy; and, [(4)], the statement was made before or
during the time that a defendant was participating in the conspiracy. . . .”
38
After reading CALCRIM No. 418, the trial court instructed the jury on conspiracy
to commit assault with a deadly weapon. (See CALCRIM No. 415.) The trial court then
noted, “Some of you may be confused by why we’re talking about conspiracy. None of
the defendants are charged with conspiracy. We give you these instructions so you can
evaluate how to use any of the alleged out-of-court statements of the defendants or other
alleged conspirators.”
In arguing that CALCRIM No. 418 was confusing as given, Meza references only
the first two sentences of the challenged instruction, contending that the trial court
permitted the jurors to “use the uncorroborated statements of the co-defendants as
substantive evidence of Meza’s guilt, if they found the statement was made by a
preponderance of the evidence.” This argument takes the first two sentences of the
instruction out of context. As we previously noted, “in determining the correctness of
jury instructions, we consider the instructions as a whole” (Friend, supra, 47 Cal.4th at
p. 49), we presume that jurors are “able to understand and correlate instructions”
(Sanchez, supra, 26 Cal.4th at p. 852), and we examine “whether there is a reasonable
likelihood that the jury misconstrued or misapplied” the instructions (Clair, supra,2 Cal.4th at p. 663). When the first two sentences are considered in the context of the
rest of the instruction, there is no reasonable likelihood that the jury would have believed
it could consider a codefendant’s statement against another codefendant merely because
it found, by a preponderance of the evidence, that the statement was made. The full
instruction clearly informed the jury that the preponderance of the evidence standard
applied to all four requirements for considering the statement.
We conclude the instruction on coconspirators’ statements was not confusing.
3. Instructions on Sanchez’s Statements
Meza next contends that the instructions on Sanchez’s statements to Melgoza
permitted the jury to consider those statements “without any requirement of
corroboration,” even if they found Sanchez to be an accomplice.
39
Meza specifically points to the modified version of CALCRIM No. 358, which
was read to the jury as follows: “You have heard evidence that defendant Joel Sanchez
made an oral statement and/or statements to Julian Melgoza before the trial. You must
decide whether the defendant Joel Sanchez made any such statement or statements in
whole or in part. [¶] If you decide that the defendant Joel Sanchez made such a
statement to Julian Melgoza, consider the statement along with all the other evidence. It
is up to you to decide how much importance to give to the statement. Julian Melgoza is
not an accomplice as defined in the previous instruction. [¶] Consider with caution any
statement made by a defendant tending to show his guilt unless the statement was written
or otherwise recorded.”
CALCRIM No. 358 informed the jury how to consider an out-of-court statement
generally, but it was given along with the more specific instructions on accomplice
testimony and the requirement of corroboration. When the instructions are considered
“as a whole” (Friend, supra, 47 Cal.4th at p. 49), and correlated with one another
(Sanchez, supra, 26 Cal.4th at p. 852), there is no “reasonable likelihood that the jury
misconstrued or misapplied” the instructions (Clair, supra, 2 Cal.4th at p. 663) to permit
consideration of Sanchez’s statements to Melgoza without a corroboration requirement, if
the jury found that Sanchez was an accomplice.
4. Instructions on Accomplices
Meza contends that the jury had to be confused by the instructions requiring the
jury to determine whether Sanchez and Torres were accomplices because other
instructions stated that Gonzalez and Lopez were accomplices as a matter of law.
However, as noted above, one of the reasons that the trial court properly declined to
instruct the jury that Sanchez and Torres were accomplices as a matter of law, was that
such an instruction would have effectively told the jury that the codefendants were guilty
of the charged offenses. Gonzalez and Lopez, by contrast, were not on trial, and the jury
was aware that Gonzalez had pleaded guilty to certain offenses related to his conduct in
40
the Campos shooting. We presume the jurors were able to understand that this distinction
was the reason for the different accomplice instructions. (See Sanchez, supra, 26 Cal.4th
at p. 852.)
5. Corpus Delicti and Single Witness Instructions
Meza contends the corpus delicti instruction (CALCRIM No. 359) was confusing
in light of the accomplice testimony instructions and the instruction on the testimony of a
single witness (CALRIM No. 301).
CALCRIM No. 359 was given as follows: “A defendant may not be convicted of
any crime based on his out-of-court statements and his codefendants[’] out-of-court
statements alone. You may only rely on the defendant’s out-of-court statements and his
codefendants[’] out-of-court statements to convict him if you conclude that the other
evidence shows the charged crime was committed. The other evidence may be slight and
need only be enough to support a reasonable inference that a crime was committed. [¶]
The identity of the person who committed the crime and the degree of the crime may be
proved by the defendants[’] statements alone. You may not convict a defendant unless
the People have proved his guilt beyond a reasonable doubt.”
CALCRIM No. 301 was given as follows: “Except for the testimony of Jose
Gonzalez and Christian Lopez, which requires supporting evidence and any out-of-court
statements made by any of the defendants to Jose Gonzalez and Christian Lopez, which
also requires supporting evidence, the testimony of only one witness can prove any fact.
[¶] Before you conclude that the testimony of one witness proves a fact, you should
carefully review all the evidence.”
Meza contends that these instructions were confusing because they told the jury
that the codefendants’ out-of-court statements required corroboration if the statements
were made to Gonzalez or Lopez or if the jury found that the codefendants were
accomplices, but that corroboration was not required if the statements were made to
someone else or if the codefendants were not accomplices. We disagree that these
41
concepts were necessarily confusing. Although the jury had to digest and correlate a
large number of instructions concerning out-of-court statements by the codefendants, we
presume the jury was able to do so. (See Sanchez, supra, 26 Cal.4th at p. 852.) The
record does not contain any indicia that the jury was confused in the manner suggested by
Meza.
6. Instruction on Meza’s Statements
Meza contends the instruction on his own admissions was confusing and legally
incorrect.
CALCRIM No. 358 was given as follows: “You have heard evidence that
defendant Jose Meza made oral statements before the trial to Jose Gonzalez and/or
Christian Lopez. You must decide whether he in fact made any such statements in whole
or in part. If you decide that Jose Meza made such an oral statement or statements before
trial, in reaching a verdict as to Jose Meza, consider the statements and consider them
subject to . . . [CALCRIM No.] 335, which is the [instruction] about viewing the
testimony of an accomplice[] with caution. And view it along with all of the other
evidence. [¶] It is up to you to decide how much importance to give to the statement or
statements. [¶] Consider with caution any statement made by a defendant tending to
show his guilt unless the statement was written or otherwise recorded.”
Meza argues that the trial court should not have modified CALCRIM No. 358 to
refer the jury to CALCRIM No. 335, claiming that the instruction permitted the jury to
use Meza’s statements against him only if they were corroborated. Again, however, the
record does not indicate any of the jurors were unable to understand these instructions,
and we presume the jury was able to correlate the various instructions on out-of-court
statements. (See Sanchez, supra, 26 Cal.4th at p. 852.)
42
7. Conspiracy Instructions
Finally, Meza contends the conspiracy instructions were legally incorrect and
confusing, since they did not tell the jury that a defendant cannot be found to be a
conspirator based on the uncorroborated testimony of an accomplice.
Meza again relies on Robinson, supra, 61 Cal.2d 373. However, in that case, the
prosecution did not offer any of the codefendants’ out-of-court statements against the
other codefendants. Instead, the codefendants’ statements were “admitted solely as
against the individual.” (Id. at p. 396.) Also, in Robinson, the trial court gave “14
instructions on the law of conspiracy,” which was “more instructions than were given on
any other issue in the case.” (Ibid.) Additionally, “the entire issue of conspiracy was
moot.” (Id. at p. 397.) None of those factors is present in the instant case. Thus, we
conclude that the conspiracy instructions were not erroneous or confusing.
G. Cumulative Prejudice Arguments
Both Sanchez and Mesa contend that even if none of the asserted trial errors
individually compel reversal of their convictions, there was cumulative prejudice
stemming from the aggregation of errors. Sanchez contends that the cumulative effect of
the errors violated his right to due process under the Fourteenth Amendment and his
Sixth Amendment rights to present a defense, confront the evidence against him, and
have a jury determine the elements of the offense beyond a reasonable doubt.
We have found no error with respect to the aiding and abetting instructions. We
have found that there was sufficient evidence to support the jury’s findings regarding the
“primary activities” requirement of section 186.22, subdivision (f), and we have found
that any error in admitting testimonial hearsay to prove the “pattern of criminal gang
activity” (id., subds. (e) & (f)) was harmless beyond a reasonable doubt. We have found
that the trial court did not err by not instructing the jury that Sanchez was an accomplice
as a matter of law and that the trial court did not err by admitting the out-of-court
statements of Sanchez and Torres against Meza. We have also found that the jury
43
instructions regarding the use of the codefendants’ statements were not incorrect,
confusing, and conflicting. Thus, there was no prejudicial error to cumulate.
H. Abstracts of Judgment
Sanchez contends his abstract of judgment must be corrected to delete the
reference to a waiver of appellate rights. The Attorney General agrees that Sanchez
waived only the reading of his appellate rights, and that the abstract of judgment should
be corrected. In addition, Meza’s abstract of judgment incorrectly reflects he was
convicted of first degree murder. We will order the trial court to correct the abstracts of
judgment.
IV. DISPOSITION
The judgment is affirmed. As to defendant Sanchez, the trial court is ordered to
correct the abstract of judgment to delete the reference to a waiver of appellate rights. As
to defendant Meza, the trial court is ordered to correct the abstract of judgment to reflect
his conviction of second degree murder rather than first degree murder.
44
___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MIHARA, J.
__________________________
GROVER, J.