People v. Flores CA2/8

Filed 2/1/23 P. v. Flores CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B322682
Plaintiff and Respondent, (Merced County
v. Super. Ct. Nos. 18 CR-03528C,
18 CR-03528D)
JOAQUIN FLORES et al.
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Merced
County, Jeanne Schechter, Judge. Convictions affirmed; gang
enhancement findings vacated and matter remanded for further
proceedings.
Spolin Law and Aaron Spolin for Defendant and Appellant
Joaquin Flores.
Victor Blumenkrantz, under appointment by the Court of
Appeal, for Defendant and Appellant Eric Cruz Madero.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Louis M. Vasquez, Lewis A. Martinez, Jennifer
Oleska, Robert K. Gezi and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
_______________________
Joaquin Flores and Eric Cruz Madero were convicted of
attempted murder (Pen. Code,1 § 187/664) and assault with a
deadly weapon (§ 245, subd. (a)(1)), with gang enhancements
under section 186.22 found true. On appeal, they argue (1) the
judgments must be vacated and the matter remanded for retrial
in light of new provisions of law permitting the bifurcation of
trials involving gang evidence; and (2) the gang enhancements
must be vacated due to changes in section 186.22. Individually,
Madero argues the court erred when it denied his motion for a
mistrial. Flores contends (1) his conviction for attempted murder
must be reversed because he may have been convicted on a
theory of natural and probable consequences; (2) the court erred
in denying his motion for a continuance without a hearing; (3) the
court erred when it did not dismiss the indictment pursuant to
section 995; and (4) cumulative error requires reversal. We
vacate the gang enhancements and remand them for further
proceedings; in all other respects, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2018, Sureño gang member Madero stabbed
fellow Sureño Luis Prado inside a dedicated Sureño cell block of
the Merced County jail. Surveillance cameras in the cell block
captured the events leading up to the stabbing and the incident
itself.
Santiago Martinez was the most influential Sureño
member on the cell block; however, he was not the leader of the
block because he was housed there temporarily only for a court
proceeding. Juan Gonzalez was the leader of the cell block and
1 Undesignated statutory references are to the Penal Code.
2
was referred to as the “key holder,” or the person “running the
politics” on the cellblock. Appellant Flores was the highest status
gang member in one of the cells, Cell 4-1, and was the leader of
that cell. Flores had enough standing within the Sureños that he
had control over decisions involving firearms for the gang and
influence over younger members. Appellant Madero was an
active member of the gang but had no status.
Victim Prado was not in good standing with the gang as of
the time of the attack. He was housed in Cell 4-1, which
consisted of two bunk areas (4-1A and 4-1B) connected by a
dayroom. Flores, Madero, and Fabian Rodriguez were among the
other inmates housed in this cell.
In the minutes before the stabbing, Madero was seen
speaking with Angel Guzman, an inmate in the adjacent cell.
Guzman spoke with cell block leader Gonzalez, then wrote a
“kite,” or note, on a piece of paper. Guzman showed the kite to
Gonzalez before handing it to Madero. As Gonzalez was the key
holder of the cellblock, a gang expert witness opined that this set
of events was the process of consulting with upper-echelon
members of the gang to obtain permission to carry out the attack.
Appellant Madero took the kite and resumed his
conversation with appellant Flores. In the adjacent cell, Guzman
spoke with Martinez and then went behind the shower curtain to
the shower area with another inmate, Omar Jimenez. Jimenez
and Guzman’s feet were perpendicular to the toilet and facing
each other, indicating they were engaged in conversation or
passing contraband rather than using the facilities.
Prado washed a food bowl in the shower area of the cell and
then sat down to eat. Rodriguez, spoke briefly with appellants,
then left that bunk area and went to the other bunk area, where
3
Prado was eating. The gang expert opined Rodriguez was letting
Madero and Flores know that Prado was in a vulnerable position.
He was then standing near Prado to be able to communicate
when Prado was in a position of disadvantage.
Appellant Madero approached the wall between two cells
and retrieved a white washcloth-type rag from Guzman, who had
used a mirror to ensure he was handing the item to the proper
recipient. Based on the lay of the fabric, it appeared a rigid
object was concealed within the washcloth. Madero took the item
to the bunk and resumed his conversation with Flores. Flores
moved to sit with Madero in a spot where a hanging uniform
blocked them from view.
Soon after Madero retrieved the package in the white
washcloth, Guzman retrieved a similarly wrapped item in a black
cloth and handed it over to Flores. Flores gave that item to
Madero. The gang expert opined Flores was coaching Madero.
Victim Prado entered the shower area of the cell.
Rodriguez glanced over his shoulder at Prado; in the shower,
Prado had his back to the dayroom and was in a position of
disadvantage. Rodriguez then walked into the bunk area where
Flores and Madero were sitting, picked up a chair, and set it
down in the dayroom, but he did not sit down on it. The gang
expert understood this otherwise purposeless action was an
excuse to enter the bunk area where Flores and Madero were.
As soon as Rodriguez moved the chair, Madero and Flores
stood up. Flores walked up to the wall dividing the cell from the
next cell and handed the white washcloth back to Guzman.
Martinez put it in a trash can outside the cell. The gang expert
opined they did this to throw evidence several cells away from the
incident.
4
Madero headed toward the dayroom where Prado was, and
as soon as Madero entered the dayroom, Rodriguez left the room.
Madero moved to the shower area where Prado was and
began to stab him. The first strike was overhand and aimed at
Prado’s neck and head area; he continued stabbing Prado for
more than 30 seconds. Flores came to the doorway where he
could see the attack. Several uninvolved inmates rushed to get
out of the area when the attack began, but Flores remained in the
doorway of the dayroom, arching his neck and turning his head to
watch what was happening.
The gang expert opined that Flores, the cell block leader,
was watching to make sure Madero carried out his assigned task.
The Mexican Mafia were frustrated that hits they ordered were
not being properly carried out, and “so it became the process that
people within the cell had to vet what actually happened and
send a report back stating, yes, we actually carried it out. I
personally saw what happened. This is what happened. This is
the way it happened. And these are the results of what
happened.” The person carrying out the orders would understand
from being watched by a high-ranking gang member that if he
did not complete the task, a report would be sent up the chain of
command that he did not properly carry out orders he was given.
Not following orders leads to negative consequences.
Madero continued to stab Prado, who was bleeding
profusely. Blood was spattering. The surveillance video showed
Flores looking down at his shirt and then changing his clothes.
Flores went to the wall between the cells and appeared to be
communicating with the adjacent cell while looking back toward
the attack several times. Flores pointed at blood on the floor, at
5
which point other inmates began to clean up the blood with a
spray bottle and towel.
As the struggle continued, Madero and Prado were losing
energy. Madero went to the bunk room, retrieved the second
shank, and resumed stabbing Prado, striking with both hands.
Correctional officers who had heard an ominous laugh and
a person saying, “help,” investigated and discovered the
altercation. Madero was using both hands and at least one
weapon to strike Prado, who was crouching and trying to protect
himself with his hands. Madero continued to stab Prado rapidly
and with determination even after the officers arrived; officers
tased him twice to get him to stop. Prado, seeing Madero on the
ground, picked up a shank and stabbed Madero a few times.
The attack lasted about five minutes. For the entire
duration of the attack and the subsequent investigation, an
inmate in Gonzalez’s cell, Manuel Vera, stood at the bars with a
mirror pointed toward the cell where the attack took place. The
only time Vera stopped watching was when Gonzalez took the
mirror and looked for himself before returning the mirror to Vera.
It is common practice for higher-level gang members to order
lower-level gang members to gather intelligence.
Prado sustained numerous stab wounds to his head, neck,
shoulders, arms, chest, and side and was taken to a trauma
hospital.
The Mexican Mafia controlled the Sureño gang. A special
agent from the Department of Corrections and Rehabilitation
testified that every local jail was controlled by a Mexican Mafia
member. The gang member in charge of the jail reported to his
higher-up in the Mexican Mafia. If the highest ranking gang
member within the jail wanted to assault someone in the jail, he
6
had to consult the Mexican Mafia member to seek approval.
Sometimes approval would be given immediately; other times,
the Mexican Mafia member would want to “do some research,”
meaning to determine whether the potential victim could be
assaulted. The ultimate response could be yes, no, or “try to
educate them” that whatever they had done was “not what we’re
trying to do.” Before a murder would be attempted or committed,
the plan would be vetted inside the Sureño organization.
Flores, Madero, and many of the other inmates allegedly
involved in the coordinated attack were indicted. A jury
convicted both Flores and Madero of attempted murder. The jury
separately found each defendant had committed the attempted
murder “willfully, deliberately, and with premeditation, in
violation of Penal Code section 189.” For each defendant, as to
the attempted murder, the jury found true a gang enhancement
allegation pursuant to section 186.22, subdivision (b)(1)(c).)
The jury also found Flores and Madero guilty of assault
with a deadly weapon and found true a gang enhancement
allegation (§ 186.22, subd. (b)(1)(a)). Additionally, the jury found
Madero had inflicted great bodily harm in the commission of both
the attempted murder and the assault with a deadly weapon
(§ 12022.7).
On the attempted murder, Flores was sentenced to life in
prison with the possibility of parole, plus a consecutive 10-year
sentence for the gang enhancement; his 8-year sentence for the
assault and its associated enhancements was stayed pursuant to
section 654. Madero was sentenced to 18 years to life in prison
for the attempted murder and great bodily injury enhancement,
plus a stayed sentence of 17 years on the assault with a deadly
weapon count and enhancements. Both appeal.
7
DISCUSSION
I. Both Appellants: Impact of Section 1109
Appellants argue that recently-added section 1109, which
requires that a gang allegation be tried separately at the request
of a defendant and only after the defendant is found guilty of the
substantive offense (Stats. 2021, ch. 699, § 5), must be applied
retroactively. They contend the introduction of gang evidence
during trial amounted to structural error warranting a reversal
on all counts. Alternatively, they argue reversal is warranted
even if harmless error analysis applies, because the prejudicial
evidence contributed to the verdicts.
The question whether section 1109 applies retroactively is
the subject of split authority among the Courts of Appeal.
(Compare People v. Burgos (2022) 77 Cal.App.5th 550, 566–568,
review granted Jul. 13, 2022, S274743 [section 1109 is
retroactive]; People v. Ramos (2022) 77 Cal.App.5th 1116, 1129–
1131 [retroactive]; with People v. Perez (2022) 78 Cal.App.5th
192, 206–207, review granted Aug. 17, 2022, S275090 [not
retroactive]; People v. Ramirez (2022) 79 Cal.App.5th 48, 64–65,
review granted Aug. 17, 2022, S275341 [not retroactive].) The
California Supreme Court granted review in many of these cases
pending the resolution of a related issue in People v. Tran (2022)
13 Cal.5th 1169 (Tran). However, the Supreme Court ultimately
“decline[d] to resolve this split” in the Tran opinion because any
asserted error in failing to bifurcate was harmless as to Tran’s
guilty verdicts and penalty judgment. (Id. at p. 1208.)
The Tran court did reject the contention that failure to
bifurcate constitutes structural error and concluded that the
People v. Watson (1956) 46 Cal.2d 818, standard for state law
error applies when examining whether the failure to bifurcate
8
was prejudicial with respect to an appellant’s guilty verdicts.
(Tran, supra, 13 Cal.5th at pp. 1208–1209.) We follow the Tran
court’s lead and examine whether the failure to bifurcate was
prejudicial under Watson. Although appellants acknowledge that
some of the evidence might have been admissible in a bifurcated
trial to show motive and personal relationships, they contend
that “it is inconceivable” that the amount and type of gang
evidence offered at trial would have been presented if the trial
had been bifurcated. They argue “there was a great deal of
prejudicial gang evidence which would have been inadmissible at
a bifurcated trial on the charged offenses,” such as evidence of the
10 predicate offenses offered by the prosecutors; expert testimony
that murder was a primary activity of the gang; evidence that
murders and attempted murders helped Sureño and Mexican
Mafia members gain status and power within the gangs; and
evidence that committing murders in and out of custody
benefitted gang members by showing “dominance via fear.”
While not all the evidence pertaining to gangs would have
been admissible in a bifurcated trial, the majority of it would
have been admissible because of its relevance to the substantive
charges. “[E]vidence of gang membership is often relevant to,
and admissible regarding, the charged offense. Evidence of the
defendant’s gang affiliation—including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, rivalries, and the like—can help prove
identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the
charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040,
9
1049.) Even if count 52 and the gang enhancement allegations
had been tried separately, gang evidence would have remained at
the center of this case because it involved a violent crime
committed by one gang member against another in a cell block
where all the prisoners were members of that same gang.
Evidence of the participants’ respective status within the gang,
the culture of the gang, the means of advancement within the
gang, the value to the gang and its members of instilling fear,
and the status and power members obtain by committing
murders and attempted murders would have remained relevant
to provide context and to establish issues such as motive and
intent. The cooperative conduct, consultations, and behavior of
the various inmates seen on the surveillance footage could not be
explained without understanding the internal politics, leadership
structure, chains of command, incentives, communication
practices, discipline, rules, and operation of the gang. Given the
overwhelming level of gang and gang violence evidence
necessarily presented in the context of this case, as well as the
strength of the evidence against appellants in this video-recorded
attack, we find no reasonable probability they would have
obtained a more favorable result if their trials had been
bifurcated. Therefore, even if section 1109 is considered to
operate retroactively, it does not warrant reversal here.
2 Both defendants were also charged in count 5 with active
participation in a criminal street gang (§ 186.22, subd. (a)); this
charge was dismissed at the prosecutor’s request at the close of
evidence.
10
II. Both Appellants: Gang Enhancement Findings
The People and appellants agree, as do we, that the gang
enhancement findings must be reversed due to postconviction
legislative changes to section 186.22.
“In 2021, the Legislature passed Assembly Bill No. 333
(2021–2022 Reg. Sess.) (Assembly Bill 333), which became
effective on January 1, 2022. Assembly Bill 333 made the
following changes to the law on gang enhancements: First, it
narrowed the definition of a ‘criminal street gang’ to require that
any gang be an ‘ongoing, organized association or group of three
or more persons.’ (§ 186.22, subd. (f), italics added.) Second,
whereas section 186.22, former subdivision (f) required only that
a gang’s members ‘individually or collectively engage in’ a pattern
of criminal activity in order to constitute a ‘criminal street gang,’
Assembly Bill 333 requires that any such pattern have been
‘collectively engage[d] in’ by members of the gang. (§ 186.22,
subd. (f), italics added.) Third, Assembly Bill 333 also narrowed
the definition of a ‘pattern of criminal activity’ by requiring that
(1) the last offense used to show a pattern of criminal gang
activity occurred within three years of the date that the currently
charged offense is alleged to have been committed; (2) the
offenses were committed by two or more gang ‘members,’ as
opposed to just ‘persons’; (3) the offenses commonly benefitted a
criminal street gang; and (4) the offenses establishing a pattern
of gang activity must be ones other than the currently charged
offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333
narrowed what it means for an offense to have commonly
benefitted a street gang, requiring that any ‘common benefit’ be
‘more than reputational.’ (§ 186.22, subd. (g).)” (Tran, supra,
13 Cal.5th at p. 1206.) These ameliorative changes apply
11
retroactively to defendants whose convictions are not yet final.
(Id. at pp. 1206–1207.)
“When a substantive change occurs in the elements of an
offense and the jury is not instructed as to the proper elements,
the omission implicates the defendant’s right to a jury trial under
the Sixth Amendment, and reversal is required unless ‘it appears
beyond a reasonable doubt’ that the jury verdict would have been
the same in the absence of the error.” (Tran, supra, 13 Cal.5th at
p. 1207.) Here, as the Attorney General concedes, reversal is
necessary because Madero and Flores’s convictions are not final;
one of the predicate offenses presented at trial is no longer
eligible for use to establish a pattern of criminal gang activity;
and evidence presented at trial failed to establish that the
predicate offenses commonly benefited a criminal street gang,
and the common benefit was more than reputational, as now
required by section 186.22.
Accordingly, all gang findings and enhancements must be
reversed. On remand, the prosecution shall have the opportunity
to retry the gang allegations under the amended requirements of
section 186.22. (People v. Lopez (2021) 73 Cal.App.5th 327, 346;
People v. Eagle (2016) 246 Cal.App.4th 275, 280 [when a
statutory amendment adds an additional element to an offense,
the prosecution must be afforded the opportunity to establish the
additional element upon remand].)
III. Madero: Denial of Mistrial Motion
Before trial, Madero filed a motion in limine to exclude a
statement made by Detective Matthew Vierra about investigating
a homicide in which Madero was a suspect. At the hearing on the
motion in limine, the prosecutor agreed not to “admit evidence or
testimony regarding the pending—the arrest on the homicide for
12
Mr. Madero.” The court noted that counsel had reached an
agreement but that it would have granted the motion in limine
with respect to mentioning the homicide.
During trial, on cross-examination by Madero’s counsel,
Officer Jason DaSilva described his past contacts with Madero
and testified that the large “A” tattoo on Madero’s face had not
been there in the past. He said, “That tattoo is new. I haven’t—I
haven’t seen it until now.” Madero’s counsel asked DaSilva when
his last contact with Madero was, and DaSilva responded, “I can’t
recall an exact day. It was before he got arrested for homicide.”
Madero’s counsel said, “Okay. Nothing further. I’d make a
motion to strike the last portion of his testimony, [Y]our Honor.”
The court struck the testimony and said, “Ladies and
gentlemen, what that means is you’re not to consider that last
portion of the officer’s testimony for any reason. Just disregard
that.”
Outside the presence of the jury, Madero’s counsel moved
for a mistrial “based on DaSilva’s gratuitous testimony yesterday
saying that he had arrested my client for a homicide.” She
argued that because the current case was an attempted murder
case, hearing Madero had been “arrested for murder” created
prejudice that she thought could not be dispelled by an
admonition. Madero’s counsel acknowledged that case law
consistently found curative admonitions to be sufficient to
address the improper testimony under most circumstances, but
expressed that she personally felt differently. She argued, “But
personally it seems to me that it’s like, you know, an infection
spread and that it’s very hard for an admonition to un-ring the
bell, especially when we’re talking about issues of attempt[ed]
murder and the mental state of attempt[ed] murder to hear
13
that. . . my client had been arrested for murder, even though it’s
not a conviction, just the very specter that there is an arrest
would, I believe, be toxic” to the jury.
The court observed that DaSilva did not actually say
“murder,” he said “homicide,” which is more vague. The court
suspected the jurors knew there are various forms of homicide
and that not every homicide is a murder. The court contrasted
this “very serious case,” in which evidence of other serious crimes
had been admitted and reference had been made to other
individuals who had been convicted of murder, with the
statement DaSilva made, which, while improper, was “just
reference to an arrest.”
The court noted the jury already knew Madero was in
custody for something—this had been disclosed during voir dire—
and the jurors had all been asked “whether or not . . . they would
consider somebody guilty just because they were arrested for
something. They understand the presumption of innocence.
They’ve all agreed they’re not going to hold those types of things
against anyone.”
The court also discussed its observations of the impact of
the testimony on the jury. “Everybody did remain calm” when
the improper testimony was given. The jury had been very
attentive and had not engaged in emotional displays despite
seeing footage depicting a very violent attack, some injuries, and
a lot of blood—“[T]hey’ve all been just pretty even tempered
about everything.” The court concluded, “I haven’t seen any
emotions, so I really don’t find that this rises to the level where
the trial has been so [affected] and . . . your client’s situation has
been irreparably harmed.” Noting that it would again instruct
14
the jury in closing instructions that jurors could only consider the
evidence presented to them, the court denied the motion.
Madero asserts the court erred in denying his motion for a
mistrial. He argues that because the jury knew he was a Sureño;
that murder was a primary activity of the Sureños; and that
Madero was in jail at the time of the incident, the jury, upon
hearing that he had been arrested for homicide, “must have
immediately drawn the logical conclusion that—when appellant
attacked Prado on June 1, 2018—appellant was in jail for having
recently murdered another person.” He characterizes the
prejudice as extreme, obvious, and incurable because a major
contested issue at trial was whether Madero committed
attempted murder or assault with a deadly weapon.
“In general, ‘a motion for mistrial should be granted only
when “ ‘a party’s chances of receiving a fair trial have been
irreparably damaged.’ ” ’ [Citation.] ‘We review a ruling on a
mistrial motion for an abuse of discretion. [Citations.] A trial
court should declare a mistrial only “ ‘if the court is apprised of
prejudice that it judges incurable by admonition or instruction.’ ”
[Citation.] “In making this assessment of incurable prejudice, a
trial court has considerable discretion.” ’ ” (People v. Bell (2019)
7 Cal.5th 70, 121.)
Whether a particular incident is so prejudicial that it
warrants a mistrial “requires a nuanced, fact-based analysis,”
which is best performed by the trial court. (People v. Chatman
(2006) 38 Cal.4th 344, 370.) Here, the court identified a number
of observations supporting its conclusion that its admonitions
were sufficient to cure any prejudice. The officer’s mention of a
homicide arrest, while entirely improper, was not a declaration
that Madero had been arrested for murder, as Madero claimed.
15
The mention was brief, and it was immediately followed by a
motion to strike, a ruling striking the testimony, and a timely
admonition to the jury. The jury had not reacted in a way that
suggested the reference had impacted them at all, let alone
incurably prejudiced them. The jurors had known Madero was in
custody from the beginning—the incident took place in a jail—
and they had already expressly agreed in their responses to a
screening questionnaire that the fact that the defendants were in
custody at the time of the charged crimes would not affect their
ability to be fair. Additionally, the court intended to, and
subsequently did, instruct the jury in closing instructions to
disregard any testimony that had been stricken. Under these
circumstances, the court could reasonably conclude any potential
for prejudice was cured by the admonition, Madero’s chances of
receiving a fair trial had not been irreparably damaged, and a
mistrial should not be granted. The court did not abuse its
discretion.
IV. Flores: Natural and Probable Consequences
Flores argues his conviction for attempted murder should
be reversed because the jury was instructed it could convict him
on multiple theories, one of which was a natural and probable
consequences theory. A defendant may no longer be convicted of
attempted murder under the natural and probable consequences
doctrine in light of the passage of Senate Bill Nos. 1437 and 775.
(Pen. Code, § 188, subd. (a)(3); see People v. Sanchez (2022)
75 Cal.App.5th 191, 197.) The instruction Flores refers to is
CALCRIM No. 417.
16
CALCRIM No. 417 provides in relevant part, “A member of
a conspiracy is criminally responsible for the crimes that he or
she conspires to commit, no matter which member of the
conspiracy commits the crime.
“A member of a conspiracy is also criminally responsible for
any act of any member of the conspiracy if that act is done to
further the conspiracy and that act is a natural and probable
consequence of the common plan or design of the conspiracy.
This rule applies even if the act was not intended as part of the
original plan. [Under this rule, a defendant who is a member of
the conspiracy does not need to be present at the time of the act.]
“A natural and probable consequence is one that a
reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is
natural and probable, consider all of the circumstances
established by the evidence.
“A member of a conspiracy is not criminally responsible for
the act of another member if that act does not further the
common plan or is not a natural and probable consequence of the
common plan.
“To prove that the defendant is guilty of the crime[s]
charged in Count[s] ______, the People must prove that:
“1. The defendant conspired to commit one of the following
crimes: ______;
“2. A member of the conspiracy committed ______ to further the conspiracy;
“AND
“3. ______ (was/were) [a]
natural and probable consequence[s] of the common plan or
design of the crime that the defendant conspired to commit.”
17
CALCRIM No. 417 was barely mentioned when the court
and counsel conferred on jury instructions. The court, which had
sent a set of proposed instructions to the parties, said, “417,
liability for co-conspirator’s acts. That’s pretty standard. Just
list it as attempted murder, assault with a deadly weapon.” None
of the attorneys commented or objected.
The court read CALCRIM No. 417 to the jury here. The
court said, “To prove a defendant is guilty of the crimes charged
in Counts One and Two, the People must prove that, one, the
defendant conspired to submit [sic] one or both of the following
crimes, attempted murder and assault with a deadly weapon.
Two, a member of the conspiracy committed an act to further the
conspiracy; and, three, you know what? I’m sorry, ladies and
gentlemen. I—there seems to be something omitted on my
instruction here. Give me just one second. I apologize.” The
court had just realized the instruction was inapplicable:
CALCRIM No. 417 concerns situations in which a nontarget
offense was committed, but here, there were no nontarget
offenses.
After a pause, the court continued, “All right. And the
attempted murder and assault with a deadly weapon were
natural and probable consequences of the common plan or design
of the crime that the defendants conspired to commit.” The court
continued instructing the jury.
At the next break in the proceedings, the court told the
parties it had given CALCRIM No. 417 but as it was reading the
instruction, it “hit that roadblock in [CALCRIM No.] 417, liability
for co-conspiracy, [because] I think that instruction[] deals with if
there [w]as [a] non-target offense that ends up being committed.
I don’t really think that instruction should have been given.
18
They’ve already heard it. I could leave it in, but it’s not really an
applicable instruction.” The prosecutor and both defense
attorneys consented to the instruction being removed, and the
court withdrew the instruction. Flores did not request the court
re-instruct the jury or otherwise address the mistaken
instruction with the jury.
The trial court was correct that this instruction was
inapplicable. CALCRIM No. 417 only applies when there is a
conspiracy to commit a target offense and additional non-target
offenses are committed along the way. (See People v. Gentile
(2020) 10 Cal.5th 830, 838 [“When an accomplice aids and abets a
crime, the accomplice is culpable for both that crime and any
other offense committed that is the natural and probable
consequence of the aided and abetted crime. Natural and
probable consequences liability can be imposed even if the
accomplice did not intend the additional offense”], italics added.)
“ ‘Giving an instruction that is correct as to the law but
irrelevant or inapplicable is error. [Citation.] Nonetheless,
giving an irrelevant or inapplicable instruction is generally “ ‘only
a technical error which does not constitute ground for reversal.’ ” ’
[Citation.] Such error does not implicate the defendant’s
constitutional rights and is subject to harmless error review
under People v. Watson, supra, 46 Cal.2d at page 837.” (People v.
Falaniko (2016) 1 Cal.App.5th 1234, 1247 (Falaniko),
disapproved on another ground in People v. Canizales (2019)
7 Cal.5th 591, 607–608, fn. 5.)
We conclude the error in reading CALCRIM No. 417 was
harmless. Flores asserts reversal is required because the verdict
does not show whether the jury convicted him on an aiding and
abetting theory or based on the natural and probable
19
consequences doctrine, but he has not identified, nor can we, any
way the jury could have convicted him of attempted murder on a
true natural and probable consequences theory. In closing
argument, the prosecutor argued Flores could be convicted in one
of two ways: either as an aider and abetter or as a member of a
conspiracy to attempt to kill Prado. The prosecutor did not rely
on, and in fact never mentioned, natural and probable
consequences in closing arguments. There was no evidence or
argument in this case suggesting Flores lacked the intent to kill
Prado but was convicted of attempted murder as a natural and
probable consequence of some other actually-intended offense.
And the jury expressly found that Flores committed the
attempted murder willfully, deliberately, and with premeditation,
meaning that he intended to kill Prado.
Even if the jury had tried to apply CALCRIM No. 417—
which did not appear in the packet of instructions provided to
them—the instruction would have led to a tautology: the jury
would have been deciding whether the target offenses were the
natural and probable consequences of the target offenses. Given
the jury’s determination that Flores intended to kill, convicting
Flores of attempted murder for participating in a conspiracy to
try to kill Prado could not have involved impermissibly imputing
malice to him or imposing vicarious liability for an offense other
than the crime he intended. (See People v. Johnson (2020)
57 Cal.App.5th 257, 267 [culpability under the natural and
probable consequences doctrine is not premised upon the
defendant’s intention to commit the nontarget offense because
the nontarget offense was not intended; doctrine imposes
vicarious liability for any offense committed by the direct
20
perpetrator that is a natural and probable consequence of the
target offense].)
We are not convinced the error in reading CALCRIM
No. 417 to the jury allowed it to convict appellant under a natural
and probable consequences theory or any incorrect legal theory.
We conclude the “ ‘instruction on the [natural-and-probable-
consequence] rule must have been understood, and dismissed, by
the jury as mere surplusage. [Citation.] It cannot be held to
have resulted in a “miscarriage of justice.” (Cal. Const., art. VI,
§ 13.) It was too insignificant to have affected the outcome within
a “reasonable probabilit[y]” ’ ” (Falaniko, supra, 1 Cal.App.5th at
p. 1248.) As Flores was convicted of the attempted murder either
for aiding and abetting Madero or as part of a conspiracy to
attempt to kill Prado, and not as a natural and probable
consequence of some crime other than the one he intended, Flores
is not entitled to reversal of his attempted murder conviction.
V. Flores: Denial of Requested Continuance
On June 3, 2019, the day before trial, Flores’s counsel
orally moved for a continuance. Counsel said, “As the Court’s
aware, I had filed a motion requesting additional funds for a gang
expert. It was initially denied. I filed a supplemental declaration
addressing that, Your Honor. At this time, I would be requesting
additional time. I think that given the gang components of this
case, I think that a[n] expert is very appropriate to provide an
adequate defense for Mr. Flores and I’d ask at this time to
continue so that I can secure that expert.”
The court reminded Flores’s counsel it had granted her
initial request for funds for a gang expert the previous year, and
in doing so she had “vouched for the abilities of that particular
expert and the credentials and very extensive [curriculum vitae]
21
was submitted.” Her request the prior fall “clearly showed that
that expert had experience that would be pertinent to this case
now, and money was expended, a substantial amount of money
was expended with respect to that expert. And then now at the
11th hour, now you’re requesting even more funds, a lot more
funds, for a different expert.”
“Yes,” said Flores’s counsel.
The court told counsel her request was “certainly untimely.
This is something that should have been done months ago,
especially before funding was expended.” The court continued,
“[Y]ou vouched for the initial expert and so the Court is going to
deny your motion. If you choose to use that expert, that’s up to
you.” The court confirmed trial would begin the next day.
Section 1050, subdivision (b), requires that continuances be
requested by written notice served and filed at least two court
days before the hearing sought to be continued. If that
requirement is not followed, “the court shall hold a hearing on
whether there is good cause for the failure to comply with those
requirements.” (§ 1050, subd. (d).) If the moving party is unable
to show good cause for the failure to give notice, the motion for
continuance shall not be granted. (Ibid.) If the moving party
shows good cause for failing to request a continuance using the
procedure in section 1050, subdivision (a), then the court
considers whether the party has demonstrated good cause for the
requested continuance. (§ 1050, subds. (e) & (f).)
Flores contends his convictions must be reversed because
the trial court did not hold a hearing before denying the request
for a continuance. He cites no authority for the principle that a
defendant is entitled to a reversal if no hearing is held on
whether counsel had good cause for failing to file a proper written
22
continuance motion. Nor are we aware of any such authority.
Even when a court abuses its discretion in denying a requested
continuance, reversal of a conviction is not required unless there
is a showing of prejudice to the defendant. (People v. Samayoa
(1997) 15 Cal.4th 795, 840 [“In the absence of a showing of an
abuse of discretion and prejudice to the defendant, a denial of his
or her motion for a continuance does not require reversal of a
conviction”].) We cannot conceive any reason that a court’s abuse
of discretion in failing to hold a hearing on whether the moving
party had good cause for failing to give proper notice would
require reversal without a showing of prejudice when an abuse of
discretion in denying the continuance itself is reversible error
only if the defendant can demonstrate prejudice. Here, Flores
has not demonstrated any way he was prejudiced by the court’s
choice to proceed directly to the merits of the continuance request
rather than concern itself with why he did not follow the
procedural requirements of section 1050, subdivision (b).
Flores also claims the court did not decide whether good
cause existed for a continuance. Although the court did not make
express findings, its comments amount to a conclusion that there
was no good cause to continue the trial. “A continuance in a
criminal case may be granted only for good cause. (§ 1050,
subd. (e).) Whether good cause exists is a question for the trial
court’s discretion. [Citation.] The court must consider ‘ “ ‘not
only the benefit which the moving party anticipates but also the
likelihood that such benefit will result, the burden on other
witnesses, jurors and the court and, above all, whether
substantial justice will be accomplished or defeated by a granting
of the motion.’ ” ’ [Citation.] While a showing of good cause
requires that both counsel and the defendant demonstrate they
23
have prepared for trial with due diligence [citation], the trial
court may not exercise its discretion ‘so as to deprive the
defendant or his attorney of a reasonable opportunity to
prepare.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 450.)
Here, there was no abuse of discretion. Flores’s request for
a continuance hinged on the approval of funds for a new expert
witness—counsel asked for additional time to “secure th[e]
expert” that would be hired with the additional funds she was
seeking. The court decided not to change its prior ruling and not
to approve supplemental funds for another expert—because the
request was untimely and Flores had been given funds for a gang
expert months before. This ruling meant there was no need to
continue the trial.
Flores has not established otherwise: in his opening brief
he did not demonstrate the court’s ruling on the request for
additional funds was erroneous or he had good cause for the
requested continuance. He asserted for the first time in his reply
brief that he had no opportunity to present evidence of good cause
because the court did not hold a hearing, but section 1050 does
not require any particular formalities for a hearing on a motion
to continue trial. Flores’ counsel had the opportunity to state
why she believed a continuance was necessary, and she did. The
court, which had previously denied Flores’s request to hire
another gang expert, reiterated that the request for an additional
expert was untimely and unjustified; that determination
eliminated the stated necessity to continue trial.
Flores also argues in his reply brief that denying his
requested continuance to obtain a new gang expert was
prejudicial because the case centered on the gang expert’s
subjective and speculative interpretation of silent security video.
24
This argument ignores the fact that Flores had been granted
funds to hire a gang expert the prior year. He does not explain
why not being allowed to delay the trial to obtain a second expert
on the same subject was or could be prejudicial to him. The court
did not abuse its discretion in refusing to grant a continuance.
VI. Flores: Denial of Motion to Dismiss Indictment
Before trial, Flores unsuccessfully moved to set aside the
indictment on the ground that insufficient evidence had been
presented to the grand jury to convict him. Flores contends on
appeal that the trial court erred when it refused to dismiss the
indictment pursuant to section 995.
In his opening brief, Flores discussed at length what he
claims to be the insufficiency of the evidence presented to the
grand jury. He did not assert he was prejudiced at trial in any
way by the denial of his motion to dismiss the indictment.
“[E]ven an erroneous denial of a section 995 motion justifies
reversal of a judgment of conviction only when a defendant is
able to demonstrate prejudice at trial flowing from the
purportedly inadequate evidentiary showing at the preliminary
hearing.” (People v. Crittenden (1994) 9 Cal.4th 83, 136–137,
impliedly overruled on another ground by People v. Yeoman
(2003) 31 Cal.4th 93.)
Belatedly, in his reply brief, Flores asserts he was
prejudiced by the denial of his motion to dismiss the indictment
because the same deputy who testified before the grand jury also
testified at trial. Arguing the “same evidence” used to indict him
was used to convict him, he claims that deputy’s “testimony was
insufficient to support an indictment, and it was insufficient to
support the convictions. Therefore, Appellant was prejudiced by
the trial court’s failure to set aside the indictment.”
25
This conclusory assertion in the reply brief is inadequate to
challenge the sufficiency of the evidence to support the
convictions. “[W]hen a criminal defendant claims insufficiency of
the evidence on a particular element of the crime of which he was
convicted, we presume the evidence of that element was
sufficient, and the defendant bears the burden of convincing us
otherwise. To do so, the defendant must present his case to us in
a manner consistent with the substantial evidence standard of
review. That is, the defendant must set forth in his opening brief
all of the material evidence on the disputed element in the light
most favorable to the prosecution, and then must persuade us
that that evidence cannot reasonably support the jury’s verdict.”
(People v. Battle (2011) 198 Cal.App.4th 50, 62.) Flores did not
allege any prejudice or insufficiency of the evidence at trial in his
opening brief, and even in his reply brief he did not discuss or cite
to any trial evidence or make any argument to support his
contention that the evidence at trial was insufficient to support
the convictions and enhancement allegation findings. “ ‘[E]very
brief should contain a legal argument with citation of authorities
on the points made. If none is furnished on a particular point,
the court may treat it as waived, and pass it without
consideration. [Citations.]’ [Citations.] This principle is
especially true when an appellant makes a general assertion,
unsupported by specific argument, regarding insufficiency of
evidence.” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Alternatively, Flores argues “there is a good faith basis to
modify the Supreme Court’s holding” in Crittenden. Flores
misunderstands our authority. We are bound by the rulings of
the California Supreme Court. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
26
VII. Flores: Cumulative Error
In a conclusory argument in his reply brief, Flores alleges
that the cumulative effect of the errors he asserts irreparably
prejudiced his right to a fair trial. This argument is forfeited
because Flores did not raise it in his opening brief. (People v.
Clayburg (2012) 211 Cal.App.4th 86, 93.)
Even if we were to consider this argument, Flores’s claim
presents no basis for reversal. The gang enhancements must be
vacated and the matter remanded so that Flores may obtain the
benefit of a subsequent ameliorative change in the substantive
law. Even assuming section 1109 is retroactive, the failure to
bifurcate was harmless, and there was no conceivable prejudice
from the court’s reading of one inapplicable jury instruction that
could not have been applied to Flores’s detriment.
DISPOSITION
The gang enhancement allegation findings under section
186.22 are vacated, and the gang enhancements are remanded to
the trial court for retrial, should the People so decide. In all
other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J. WILEY, J.
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