People v. Flores CA4/1

Filed 6/8/23 P. v. Flores CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079965
Plaintiff and Respondent,
v. (Super. Ct. No. JCF003636)
JOSHUA ARTURO FLORES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel
Rogers and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury found Joshua Arturo Flores guilty of first degree murder (Pen.
Code, § 187, subd. (a)),1 with a true finding on the special circumstance
allegation that the murder involved the infliction of torture (§ 190.2,
subd. (a)(18)). The trial court sentenced Flores to life in prison without the
possibility of parole.
Flores contends (1) the trial court prejudicially erred in overruling an
objection to a witness’s testimony about a text message sent by Flores;
(2) insufficient evidence supports the verdict because the witness who
identified Flores as the murderer was an accomplice whose testimony was
(a) inadequately corroborated, and (b) inherently improbable; and (3) the true
finding on the special circumstance of torture (§ 190.2, subd. (a)(18)) was not
supported by substantial evidence because there was an insufficient
connection between the torture and the murder.
We conclude that Flores’s arguments lack merit, and we accordingly
affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of October 1, 2018, Antonio Roldan was
killed, and his body was dumped in an irrigation canal in Imperial County.
An autopsy showed that Roldan had been stabbed 12 times, with the fatal
wounds consisting of a cut to his throat and a stab wound to his chest that
punctured his lung.
Flores was prosecuted for Roldan’s murder based, in part, on a
statement that Angie M. gave authorities, identifying Flores as the person
who killed Roldan.
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
Angie M. testified that, around the time of the murder, she was using
drugs and was working for her friend Monica Lemus to help smuggle
undocumented individuals into the United States from Mexico. Some of the
activity included “stealing” smuggled individuals from other operators, with
the goal of collecting payment when the individuals were delivered to their
final destination. Flores also worked in the smuggling operation and was
dating Lemus.
On the night of September 30, 2018, Angie M. was with Lemus in the
living room of Lemus’s house on Fourth Street in Calexico, getting high on
methamphetamine. At some point that night, Roldan arrived at the house.
Roldan was homeless, but Lemus was letting him stay at the house. Angie
M. testified that before she found out that Lemus was letting Roldan stay at
the house, Angie M. told Roldan to leave because he was a persona non grata
in the gang culture in which she and Lemus were involved. Roldan’s
diminished standing resulted from the fact that he was known to have
“protective custody” status when he was in jail.
Later that night, Flores arrived at the house. Flores called Roldan to
the living room, and he and Lemus started questioning Roldan. Angie M. did
not know what the questioning was about, but she heard them asking Roldan
“did he see anybody and stuff like that.” Roldan told Flores and Lemus that
“he went inside the house and that he seen two illegals inside the house.”
Flores and Lemus told Roldan that they did not believe he was telling the
truth. Roldan insisted that he was telling the truth. Roldan said that the
people in the house had hit him with a chain, and he lifted up his shirt to
show the injury. Angie M. inferred from the conversation that since Roldan
had lower status in the gang culture, he had to do what he was ordered to do.
3
Therefore, he may have been sent to a house “to see if there’s . . . any people
there that they could go pick up.”
Flores and Lemus continued to pressure Roldan to tell the truth and
then walked him into a bedroom, where they sat him in a chair. Roldan went
with them willingly. Flores tried to tie Roldan’s legs to the chair. Roldan did
not resist, but the ties later came loose. When Roldan continued to say that
he was telling the truth, Flores began punching Roldan in the face.
Flores next took out a knife and started stabbing Roldan in the arm.
Roldan flinched but did not fight back, saying “Dude, I’m telling you the
truth.” Flores stabbed Roldan additional times, but Angie M. turned away
and did not watch all of the stabbing. Roldan still did not resist. Flores
appeared to be “really mad.” Angie M. believed that Roldan did not resist
because he thought he was only going to be beaten, not killed, and in light of
the fact that he “didn’t have nowhere to go,” he may have thought he would
be permitted to stay in the house if he submitted to Flores. Roldan was
bleeding and asked to go to the hospital, but Flores refused.
Flores then left the bedroom, and Angie M. told Roldan he should go to
the bathroom to shower off the blood. While continuing to say he wanted to
go to the hospital, Roldan went into the bathroom, and Angie M. and Lemus
went into the living room. Roldan started to make a lot of noise in the
shower and then came to the bathroom door and said he could not see.
Roldan fell backward and started having a seizure.
After going to see what was happening to Roldan in the bathroom,
Angie M. returned to Lemus in the living room, where she spoke with Lemus
and asked what they were going to do. According to Angie M.’s testimony,
Lemus said to her, “ ‘Dude,’ like, ‘what?’ Like, ‘Why?’ Like—it didn’t—like, it
didn’t have to—it didn’t have to get—like, it didn’t have to go to this point.
4
You know?” Lemus then showed Angie M. a text that Angie M. testified was
from Flores. The text said, “I’ma finish him.” Angie M. understood the text
to mean that Flores was going to kill Roldan.2
Flores entered the house and went directly to the bathroom. Angie M.
heard “body movement in there.” While that was happening, Lemus left the
house. Flores walked out of the bathroom holding a knife, which he dropped
on the floor. Angie M. went into the bathroom and saw that Roldan’s throat
had been slit and that the bathroom was “full of blood.” 3
Angie M. helped Flores put Roldan’s body into the back seat of Flores’s
car. Flores then drove away. After Lemus returned to the house, she gave
Angie M. money to buy cleaning supplies. To purchase those supplies, Angie
M. got a ride to Walmart from another resident of the house, who she
believed was in his bedroom during the incident. Angie M. hid the knife that
Flores used to kill Roldan by driving to “where the fields are at in back of
Walmart.”4 Angie M. returned to the house and cleaned the bathroom.
Roldan’s body was found on October 1, 2018, at the bottom of an
irrigation canal.
2 Although Angie M. testified about the text message’s content, the text
message itself was not recovered and thus was not available as evidence.
3 The autopsy showed that there were two fatal wounds: a slit to
Roldan’s throat and a stab wound that punctured his lung. It was not clear
from the evidence presented at trial whether the fatal stab wound to Roldan’s
lung was inflicted during Flores’s initial round of stabbing Roldan in the
bedroom or during Flores’s subsequent assault on Roldan in the bathroom.
4 Law enforcement later searched for the knife but did not locate it.
5
An information charged Flores with the murder of Roldan (§ 187,
subd. (a)), with the further allegation that the murder was intentional and
involved the infliction of torture (§ 190.2, subd. (a)(18)).
At trial, the People presented evidence of the location of Flores’s cell
phone during the early morning hours of October 1, 2018. The phone
registered as being within 200 meters of Lemus’s house at 12:37 a.m.,
1:08 a.m., and 1:27 a.m. At 1:42 a.m. and 1:45 a.m., the phone registered as
being near the location where Roldan’s body was discovered. The phone was
used many times between midnight and 4:00 a.m. on October 1, 2018, with
both incoming and outgoing texts and calls. The six phone numbers
associated with those texts and calls were numbers that Flores regularly
contacted in the prior month. Many of the text messages that Flores sent in
the early morning hours of October 1, 2018, had been deleted by the time the
People attempted to recover them.
The People also presented evidence of two locations where traces of
Roldan’s blood were discovered. First, Roldan’s blood was found behind the
baseboard in the bathroom of Lemus’s house. Second, Roldan’s blood was
found in Flores’s car. The car itself was located in a large vacant lot, and it
had been stripped of its seats, carpet, and upholstery.
Flores testified in his own defense. He denied being involved in
Roldan’s murder. Flores explained that on the night of the murder, he rented
out his car to someone who worked in the same smuggling operation. He left
his cell phone in his car, either because (1) it fell out of his pocket, or (2) he
intended to leave a different cell phone in the car to track the location of his
car but mistakenly left his personal cell phone. Flores testified that his car
ended up in the vacant lot because it was vandalized while parked at a
friend’s mobile home park, so he asked someone to move it to a different
6
location, where it was apparently stripped without his knowledge. Flores did
not know why Angie M. lied about his involvement in Roldan’s murder, but
he thought Angie M. may have been jealous of his relationship with Lemus.
Flores testified that Roldan was a friend with whom he had grown up and
with whom he had worked in a smuggling operation several years earlier.
Flores also admitted to having beaten Roldan a couple of weeks before
Roldan’s death.
During closing argument, defense counsel argued that Angie M.’s
identification of Flores as the person who murdered Roldan was not credible
because, among other things, “she was in a methamphetamine psychosis”
during the relevant events.
The jury found Flores guilty of first degree murder (§ 187, subd. (a)),
and made a true finding on the torture special circumstance (§ 190.2,
subd. (a)(18)). Flores was sentenced to a term of life in prison without the
possibility of parole.
II.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Overruling the
Objection to Angie M.’s Testimony About Flores’s Text Message
Flores’s first contention is that the trial court prejudicially erred in
overruling defense counsel’s objection to Angie M.’s testimony about the text
message from Flores that Lemus showed to her.
We begin our analysis with a review of the relevant proceedings.
Regarding Angie M.’s testimony about her interaction with Lemus in the
living room, the reporter’s transcript reflects the following:
“[ANGIE M.:] [Lemus]—at first, she was, like, ‘Dude,’ like,
‘what?’ Like, ‘Why?’ Like—it didn’t—like, it didn’t have to—it
didn’t have to get—like, it didn’t have to go to this point. You
7
know? [¶] And then she showed me a text that he send—that he
sent her.
“[PROSECUTOR:] Okay. Wait. [¶] [Lemus] showed you a text
on her phone?
“[ANGIE M.:] Uh-huh.
“[PROSECUTOR:] Is that right?
“[ANGIE M.:] Yeah.
“[PROSECUTOR:] And did she tell you that—when you say ‘he’
sent it, who? Who’s ‘he’?
“[ANGIE M.:] [Flores].
“[PROSECUTOR:] And did she tell you that [Flores] sent it?
“[DEFENSE COUNSEL:] Objection. Can we approach?
“THE COURT: We’ll note—what’s your legal basis for your
objection?
“[DEFENSE COUNSEL:] Hearsay.
“THE COURT: Overruled.
“BY [PROSECUTOR]: And what did the text say?
“[ANGIE M.:] She showed me the text. It said, ‘I’ma finish
him.’ ”
At a break in the proceedings, the trial court allowed defense counsel to
make a record about his objection to Angie M.’s testimony regarding the text
message. Defense counsel stated, “[Angie M.] . . . is telling us hearsay what
Monica Lemus said. And there’s a problem with authentication. It is
certainly a hearsay statement, and it’s not really verified. I don’t think it’s
8
admissible.” After hearing from the prosecutor, the trial court overruled the
objection. The trial court explained, “I think [it] comes in under [a]
coconspirator-type rationale as well as it explains subsequent conduct. And
it’s authenticated by the subsequent actions and observations of the witness.
So . . . it comes in for several different purposes—some not hearsay, some for
the truth of the matter. What was his intent or state of mind at the time.”
Defense counsel then asked for a limiting instruction “[i]f it comes in not for
the truth of the matter.” The trial court rejected the request, explaining that
the evidence was coming in for the truth of the matter.
“ ‘We review claims regarding a trial court’s ruling on the admissibility
of evidence for abuse of discretion.’ ” (People v. Henriquez (2017) 4 Cal.5th 1,
31.) “ ‘ “Under the abuse of discretion standard, ‘a trial court’s ruling will not
be disturbed, and reversal . . . is not required, unless the trial court exercised
its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’ ” ’ ” (People v. Chhoun (2021)
11 Cal.5th 1, 26.) Moreover, on our review, the question is whether the
evidence was properly admitted, not whether the trial court identified the
correct basis for admitting it. “If a judgment rests on admissible evidence it
will not be reversed because the trial court admitted that evidence upon a
different theory, a mistaken theory, or one not raised below.” (People v.
Brown (2004) 33 Cal.4th 892, 901.)
To analyze Flores’s challenge to the trial court’s overruling of his
objection, it is first important to understand the scope of that objection. The
objection raised by defense counsel during Angie M.’s testimony was clearly
only as to a single question asked by the prosecutor. Specifically, defense
counsel objected to the question, “And did she tell you that [Flores] sent it?,”
which referred to the text message that Lemus showed Angie M. Defense
9
counsel immediately specified that his objection was based on hearsay,
presumably because the question called for Angie M. to relate an out-of-court
statement made by Lemus. The trial court overruled the objection.
Significantly, however, the prosecutor did not ask the question again or direct
Angie M. to answer the question that had already been posed. Instead,
without ever obtaining an answer to the question of whether Lemus said that
Flores sent the text message, the prosecutor moved on to a new question.
Specifically, the prosecutor asked, “And what did the text say?” Defense
counsel made no objection to that question, and Angie M. answered by
relating the content of the text message Lemus showed her.
Defense counsel’s later statements to the trial court, in which he
explained the basis for his objection, are somewhat confusing. Without the
context set forth above, defense counsel’s statements might be interpreted as
touching on additional parts of Angie M.’s testimony regarding the text
message, such as her description of its contents, her description of it being
from Flores, or her description of the statements that Lemus made before
bringing up the text message. Flores’s appellate brief paints with a broad
brush by challenging the admissibility of everything that Angie M. testified to
about the text message.5 Significantly, however, defense counsel made no
objection to anything other than the question that called for Angie M. to say
5 For example, Flores’s reply brief summarizes his intention to challenge
the admissibility of all of the testimony that Angie M. gave regarding the text
message, including Angie M.’s description of what Lemus said before she
brought up the subject of the text message. Flores contends that the trial
court erred “by admitting for the truth of the matter and without a limiting
instruction, through the testimony of [Angie M.], the content of a text
message and identity of Flores as the sender of the message along with the
hearsay of a non-testifying accomplice’s statements [i.e., Lemus’s statements]
objecting to the plan.”
10
whether Lemus told her that Flores sent the text message. Specifically,
defense counsel made no objection to the following testimony by Angie M.:
“[A]t first, [Lemus] was, like, ‘Dude,’ like, ‘what?’ Like, ‘Why?’ Like—it
didn’t—like, it didn’t have to—it didn’t have to get—like, it didn’t have to go
to this point. You know? [¶] And then she showed me a text that he send—
that he sent her.” Defense counsel also made no objection when the
prosecutor asked Angie M. to clarify who she was referring to as having sent
the text message, to which Angie M. answered that it was Flores. Finally,
defense counsel made no objection when Angie M. recounted the content of
the text message that she looked at: “She showed me the text. It said, ‘I’ma
finish him.’ ”
To preserve an evidentiary challenge for appeal, counsel must raise an
objection in the trial court that is “so stated as to make clear the specific
ground of the objection.” (Evid. Code, § 353, subd (a); see also People v.
Rundle (2008) 43 Cal.4th 76, 116.) Thus, the only objection preserved by
defense counsel was the objection to the question of whether Lemus told
Angie M. that Flores sent the text message. Our task on appeal is
accordingly limited to deciding only whether the trial court abused its
discretion in overruling the objection to the question, “And did she tell you
that [Flores] sent it?”
Turning to that single task, we need not, and do not, decide whether
the trial court abused its discretion in overruling defense counsel’s objection.
Even assuming the ruling was erroneous, it was indisputably harmless under
any standard because the prosecutor did not prompt Angie M. to give an
answer after defense counsel’s objection was overruled. Because Angie M. did
not answer the question, the jury did not find out, and we still do not know,
whether Lemus did tell Angie M. that the text message was from Flores. Put
11
simply, because no evidence was admitted as a result of the trial court’s
decision to overrule defense counsel’s objection, the ruling could not have
been prejudicial.
Flores tries to expand the scope of defense counsel’s objection by
focusing on defense counsel’s later statement to the trial court that he
believed there was “a problem with authentication.” Specifically, in his later
comments to the trial court, defense counsel said, “And there’s a problem
with authentication. It is certainly a hearsay statement, and it’s not really
verified.” (Italics added.) Flores contends that defense counsel must have
meant to say there was “a problem with foundation,” and accordingly defense
counsel was asserting an objection to “the admission of [Angie M.’s] testimony
about the content of the text message as hearsay without proper foundation
and authentication.” (Italics added.)
We reject Flores’s characterization of defense counsel’s objection. As we
have explained, during Angie M.’s testimony defense counsel clearly made no
objection to Angie M.’s description of the text message’s content. His sole
objection was to the question calling on Angie M. to state whether Lemus
identified Flores as the person who sent the text. In that context, when he
stated there was “a problem with authentication,” defense counsel could not
have been elaborating on an objection directed to Angie M.’s testimony about
the content of the text message.
Flores points out that the prosecutor failed to elicit testimony that
would have established whether Angie M. was able to tell, by looking at
Lemus’s phone, that the text message Lemus showed her was sent by Flores.
According to Flores, without such testimony there was no “foundation” to
allow Angie M. to testify about the content of the text message and to
describe it as having been sent by Flores. Importantly, however, defense
12
counsel made no objection to Angie M.’s testimony about the content of the
text message or to her statement that Flores was the person who sent it. Had
defense counsel interposed an objection, the prosecutor would have been on
notice that she should follow up with Angie M. about whether it was
apparent to her, from looking at the screen of Lemus’s phone, that the text
message was from Flores. Having not made a timely objection, Flores may
not now, on appeal, argue that the prosecutor failed to elicit sufficient
testimony to support the admissibility of Angie M.’s testimony.
Flores also argues that, to the extent the evidence to which he objected
was admitted for a nonhearsay purpose, the trial court should have granted
his request for a limiting instruction. (Evid. Code, § 355 [“When evidence is
admissible . . . for one purpose and is inadmissible . . . for another purpose,
the court upon request shall restrict the evidence to its proper scope and
instruct the jury accordingly.”].) However, because the jury did not hear any
testimony in response to the question to which defense counsel objected,
including any evidence admitted for a nonhearsay purpose, there was no
evidence that would need to be addressed by a limiting instruction.
B. Flores’s Challenge to the Sufficiency of the Evidence
We next consider Flores’s challenge to the sufficiency of the evidence to
support a finding that Flores killed Roldan in a first degree murder. Flores
presents two separate arguments as to the sufficiency of the evidence. First,
he contends that we may not consider Angie M.’s testimony in support of the
verdict because Angie M. was an accomplice whose testimony was not
sufficiently corroborated. Second, Flores argues that even if Angie M.’s
testimony was adequately corroborated, we should reject it as inherently
improbable. We address each argument in turn.
13
1. Angie M.’s Testimony Was Sufficiently Corroborated
Under section 1111, “[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.” “This statute reflects the Legislature’s
determination that ‘ “because of the reliability questions posed by” ’
accomplice testimony, such testimony ‘ “by itself is insufficient as a matter of
law to support a conviction.” ’ ” (People v. Rodriguez (2018) 4 Cal.5th 1123,
1128 (Rodriguez).)
The People do not dispute that Angie M. qualifies as an accomplice, and
the jury was so instructed.6 Thus, we may not consider Angie M.’s testimony
in assessing the sufficiency of the evidence to support the verdict unless that
testimony was corroborated by other evidence within the meaning of section
1111.
Our Supreme Court has “interpreted section 1111 to require ‘evidence
tending to connect [the] defendant with the crimes “without aid or assistance
from the testimony of” ’ the accomplice. . . . [E]vidence corroborating
accomplice testimony ‘ “need not independently establish the identity of the
victim’s assailant” [citation], nor corroborate every fact to which the
accomplice testifies [citation], and “ ‘may be circumstantial or slight and
entitled to little consideration when standing alone.’ ” ’ . . . But the evidence
6 Section 1111 defines “[a]n 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.” As the People
do not challenge the description of Angie M. as an accomplice, we need not,
and do not, consider whether the record contains factual support for that
description.
14
must nonetheless connect the defendant to the crime itself, rather than
simply connect the accomplice to the crime.” (People v. Perez (2018) 4 Cal.5th
421, 452 (Perez).) “[T]he corroboration must connect the defendant to the
crime independent of the accomplice’s testimony” (People v. Romero and Self
(2015) 62 Cal.4th 1, 36), but “ ‘ “[t]he corroborating evidence need not by itself
establish every element of the crime” ’ ” (People v. Gomez (2018) 6 Cal.5th
243, 308). “ ‘ “The entire conduct of the parties, their relationship, acts, and
conduct may be taken into consideration by the trier of fact in determining
the sufficiency of the corroboration.” ’ ” (Rodriguez, supra, 4 Cal.5th at
p. 1128.)
Thus, for example, in Perez, an accomplice’s testimony was sufficiently
corroborated when the evidence (1) placed the defendant near the scene of the
robbery and murder during the relevant timeframe; (2) showed that the
defendant tried to sell stolen property from the crime scene immediately
afterwards; and (3) showed that a vehicle taken from the crime scene was
abandoned near where the defendant checked into a motel. (Perez, supra,
4 Cal.5th at p. 453.) Although that evidence “did not ‘corroborate every fact
to which the accomplice testifie[d]’ and could perhaps be characterized as
‘circumstantial or slight and entitled to little consideration when standing
alone,’ it tend[ed] to connect [the defendant] to much of the narrative
established by [the accomplice’s] testimony.” (Ibid.)
Here, ample evidence provides corroboration that connects Flores to the
murder of Roldan, independent of Angie M.’s testimony. Among other things,
the blood evidence supports Angie M.’s testimony that the murder took place
at Lemus’s house, and other evidence established that Flores’s cell phone was
in that vicinity during the relevant time frame and at the location where
Roldan’s body was found. Further, Roldan’s blood was found in Flores’s car.
15
This evidence tends to connect Flores with Roldan’s murder “ ‘ “without aid or
assistance from the testimony of” ’ ” Angie M. (Perez, supra, 4 Cal.5th at
p. 452.) We therefore reject Flores’s contention that we should not consider
Angie M.’s testimony in assessing the sufficiency of the evidence.
2. Because Angie M.’s Testimony Was Not Inherently Improbable, It
Provides Substantial Evidence to Support a Finding That Flores
Murdered Roldan
Flores contends that even if we determine there was adequate
corroboration for Angie M.’s testimony, we should nevertheless conclude that
insufficient evidence supports the verdict because Angie M.’s testimony was
“inherently improbable.”
“ ‘ “In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we ‘examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from
the evidence. [Citation.] [¶] The same standard of review applies to cases in
which the prosecution relies primarily on circumstantial evidence and to
special circumstance allegations. [Citation.] ‘[I]f the circumstances
reasonably justify the jury’s findings, the judgment may not be reversed
simply because the circumstances might also reasonably be reconciled with a
contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a
witness’s credibility.” ’ ” (People v. Ramirez (2022) 13 Cal.5th 997, 1117-
1118.) “[U]nless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a
conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181, italics added.)
16
“ ‘ “Although an appellate court will not uphold a judgment or verdict
based upon evidence inherently improbable, testimony which merely discloses
unusual circumstances does not come within that category. [Citation.] To
warrant the rejection of the statements given by a witness who has been
believed by [the trier of fact], there must exist either a physical impossibility
that they are true, or their falsity must be apparent without resorting to
inferences or deductions. [Citations.] Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it
is the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination
depends.” ’ ” (People v. Maciel (2013) 57 Cal.4th 482, 519 (Maciel), italics
added.) “The inherently improbable standard addresses the basic content of
the testimony itself—i.e., could that have happened?—rather than the
apparent credibility of the person testifying. . . . In other words, the
challenged evidence must be improbable ‘ “on its face” ’ . . . . The only
question is: Does it seem possible that what the witness claimed to have
happened actually happened?” (People v. Ennis (2010) 190 Cal.App.4th 721,
729.)
Flores argues that Angie M.’s “recount of the incident was fraught with
improbabilities.” According to Flores, “it is highly improbable that an
unrestrained man, who was bigger than Flores, would simply sit in a chair
allowing Flores to punch him in the face and repeatedly stab him without any
attempt to fight back or protect himself from injury,” or that Roldan “did not
make sufficient noise to cause one of Lemus’[s] housemates, who was in the
adjacent bedroom to hear and come out.” Flores also contends it is
improbable that “Flores walked directly into the bathroom and slit Roldan’s
throat . . . yet there was no scream, yelling, or other noise other than ‘body
17
movement.’ ” Finally, pointing to other evidence that seems to be
inconsistent with Angie M.’s account, Flores contends (1) it is improbable
that Angie M. hid the knife in a field behind Walmart because law
enforcement did not find the knife during a subsequent search; and (2) it is
improbable that Flores would have stabbed Roldan “to extort the ‘truth,’ ”
since Angie M. described Roldan as raising his shirt to show Flores that he
had been hit with a chain.
None of these items satisfy the definition of inherently improbable
testimony. Angie M’s testimony does not describe any “ ‘ “physical
impossibility.” ’ ” (Maciel, supra, 57 Cal.4th at p. 519.) Nor is its “ ‘ “falsity
. . . apparent without resorting to inferences or deductions.” ’ ” (Ibid.)
Instead, Flores’s argument amounts, in substance, to a claim that Angie M.’s
account of the incident was not credible for various reasons. But testimony
that lacks credibility is not the same as testimony that is inherently
improbable. (Ibid.)
We further find Flores’s argument to be unpersuasive because the
record reveals perfectly reasonable explanations for much of the testimony
that Flores describes as inherently improbable. Flores contends it is
improbable that Roldan would have submitted to Flores’s assault without
fighting back. However, Angie M. testified that because Roldan had low
status in the gang culture and was homeless, he may have submitted to
Flores so he would be able to stay in the house. Angie M. also explained that
there was a good reason why Lemus’s housemate stayed in his bedroom
during the incident. As Angie M. testified, the housemate was a field worker
who might not have had “papers” and thus would not want to get involved.
In addition, because Roldan had already passed out and was having a
seizure, it is completely reasonable that Angie M. did not hear any screams or
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yelling coming from Roldan in the bathroom when Flores slit Roldan’s
throat.7
The purportedly inconsistent evidence identified by Flores also does not
create any inherent improbability in Angie M.’s testimony. First, the
inability of law enforcement to locate the knife Flores used to kill Roldan does
not conclusively prove the falsity of Angie M.’s contention that she hid the
knife in the fields behind Walmart. This is especially true because there was
minimal evidence at trial about (1) the exact location where Angie M. hid the
knife; (2) what Angie M. disclosed to law enforcement about the knife’s
location; and (3) when and where law enforcement personnel conducted their
search for the knife. Second, Angie M.’s testimony that Roldan lifted his shirt
to prove he had been hit with a chain does not render it improbable that
Flores would have continued to stab Roldan to get him to tell the truth.
Flores could have thought that Roldan was being dishonest about any
number of things that had nothing to do with whether or not Roldan had
been hit with a chain, or Flores may not have believed Roldan about the
cause of his injuries.
As there is no merit to Flores’s contention that we should disregard
Angie M.’s testimony as inherently improbable, there is ample evidence to
support a finding that Flores killed Roldan. Angie M.’s corroborated and
detailed testimony was more than sufficient to support a finding that Flores
committed first degree murder.
7 Indeed, in connection with a different argument in his appellate brief,
Flores states that the evidence “provides a reasonable inference that Roldan
was not conscious when the fatal wounds were inflicted.”
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C. Flores’s Challenge to the True Finding on the Torture Special
Circumstance Lacks Merit
Finally, Flores challenges the jury’s true finding on the special
circumstance allegation that Roldan’s murder involved the infliction of
torture. (§ 190.2, subd. (a)(18).) Specifically, arguing that there was “a gap
in time” between his torturous stabbing of Roldan and the murder, and that
he had separate intents during the two time periods, Flores contends that the
evidence is insufficient to support a true finding on the special
circumstance.8
The special circumstance of torture set forth in section 190.2,
subdivision (a)(18) authorizes a prison term of life without the possibility of
parole if “[t]he murder was intentional and involved the infliction of torture.”
(§ 190.2, subd. (a)(18).) “Proof of a murder committed under the torture-
murder special circumstance requires (1) proof of first degree murder,
(2) proof that the defendant intended to kill and torture the victim, and
(3) proof of the infliction of an extremely painful act upon a living victim.”
(People v. Jennings (2010) 50 Cal.4th 616, 647.) It applies “where the death
involved the infliction of torture, regardless of whether the acts constituting
the torture were the cause of death.” (Ibid., italics added.) Instead of a
causal connection between the act of torture and the victim’s death,
section 190.2, subdivision (a)(18) “requires ‘some proximity in time [and]
space between the murder and torture.’ . . . The statute obviously does not
8 Flores does not dispute the jury’s finding that the act of repeatedly
stabbing Roldan to get him to tell the truth and then refusing his request for
medical attention satisfies the definition of torture under section 190.2,
subdivision (a)(18). Specifically, a finding of torture under that provision
“requires an ‘ “intent to cause cruel or extreme pain and suffering for the
purpose of revenge, extortion, persuasion, or for any other sadistic
purpose.” ’ ” (People v. Edwards (2013) 57 Cal.4th 658, 718.)
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apply where ‘no connection’ between the two events appears.” (People v.
Bemore (2000) 22 Cal.4th 809, 843 (Bemore).) “[T]orture can consist of a
course of conduct[,] and the intent to kill need not be conjoined with every act
within that continuum.” (People v. Odom (2016) 244 Cal.App.4th 237, 250.)
The Legislature “intended to encompass (within the torture-murder special
circumstance) acts of torture occurring within a larger time frame, including
those that would not have caused death.” (People v. Crittenden (1994)
9 Cal.4th 83, 142 (Crittenden), italics added.)
Case law from our Supreme Court demonstrates the type of temporally
attenuated connection between the act of torture and the act of murder that
is sufficient to support a special circumstance true finding. In People v.
Barnett (1998) 17 Cal.4th 1044, the victim was first “torturously nicked and
stabbed” by the defendant. (Id. at p. 1162.) The evidence suggested that the
defendant then left the scene, leaving the victim “tethered to a tree to suffer
from his injuries,” but the defendant later returned and fatally stabbed the
victim. (Ibid.) Our Supreme Court held that the defendant’s act of leaving
and then returning to inflict the fatal stab wounds “was not sufficient to
separate the torture from the murder.” (Ibid.) The connection between the
torture and the murder was also sufficient in Bemore, where, in the course of
a robbery, the defendant tortured the victim by repeatedly stabbing him to
try to get him to open a safe, and then inflicted fatal wounds at the end of the
robbery because the victim was a witness. (Bemore, supra, 22 Cal.4th at
pp. 842-844.)
In challenging the sufficiency of the evidence to support the true
finding on the torture special circumstance, Flores focuses on Angie M.’s
testimony that after he punched and stabbed Roldan, he briefly left the house
while Roldan was in the shower, sent a text to Lemus, and then returned to
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inflict the fatal wounds on Roldan. Based on this scenario, he argues that
“[b]ecause the record here reflects the stabbing act relied upon by the
prosecution to prove torture was temporally separate from the murder, with
each act having separate intents, the evidence was insufficient to support a
finding that the murder was committed by torture.” He contends that “the
evidence presented at trial was insufficient to prove Flores had the requisite
intent to kill at the time acts relied upon to prove torture were committed
and/or had tortu[r]ous intent at the time of the killing.”
Flores’s argument appears to be premised on a misunderstanding of the
applicable legal standard. The relevant case law has never required that the
defendant formulate an intent to kill at precisely the same time that he is
carrying out the acts constituting torture. Instead, the intent to kill and the
infliction of torture need only have “ ‘some proximity in time [and] space.’ ”
(Bemore, supra, 22 Cal.4th at p. 843.) The torture may occur “within a larger
time frame” than the murder itself. (Crittenden, supra, 9 Cal.4th at p. 142,
italics added.) There need only be a “ ‘connection’ between the two events.”
(Bemore, at p. 843.)
Here, substantial evidence supports a finding that Flores inflicted
torture upon Roldan in a time frame that was sufficiently proximate to
Flores’s act of intentionally killing Roldan. A reasonable trier of fact could
conclude that the entire incident took place as a continuous transaction in
which Flores cruelly punched and stabbed Roldan, refused Roldan’s request
for medical attention, left Roldan to bleed out for a short period of time, and
then killed Roldan with additional knife wounds. The torture and the
murder, which took place in the same location and within a few minutes of
each other, were sufficiently connected in both “ ‘time [and] space,’ ” as
required by our Supreme Court’s case law. (Bemore, supra, 22 Cal.4th at
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p. 843.) Flores’s challenge to the sufficiency of the evidence to support the
jury’s true finding on the torture special circumstance accordingly lacks
merit.
DISPOSITION
The judgment is affirmed.
IRION, Acting P. J.
WE CONCUR:
DATO, J.
BUCHANAN, J.
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