Filed 1/15/14 P. v. Merino CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B240253
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA361158)
v.
GERMAN M. MERINO JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Rand S. Rubin, Judge. Affirmed.
Richard C. Neuhoff, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle
and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
INTRODUCTION
A jury convicted German Merino, Jr. of special circumstance murder, with true
findings on related gang, firearm and dangerous weapon allegations, as well as one count
each of making a criminal threat and grand theft. The trial court sentenced Merino to
state prison for life without the possibility of parole on the special circumstance murder,
plus an additional term of 25 years to life for the personal firearm use enhancement, with
additional consecutive terms of 8 months on the criminal threat count and another 7 years
on the grand theft count.
Merino appeals, claiming multiple errors. We find all of Merino’s claims to be
meritless and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On April 3, 2009, Eddy Munoz, his girlfriend Elizabeth and his brother Carlos
Valencia attended a party near 75th and Figueroa in Los Angeles. Munoz drove there in
his red Ford Mustang with chrome rims.
Munoz and his brother (Valencia) saw German Merino, Jr. (known to them as
“Menace”) at the party. Merino was bald and had SDK gang tattoos. SDK stands for
“Surenos Do Kill.” Merino asked Munoz whether he was “still down with the ‘hood.’”
Valencia did not know Munoz to be an SDK gang member but had seen him spend time
with Merino and other SDK members two or three times a week before Munoz and
Valencia moved out of their apartment complex about 18 months earlier. Valencia
understood Merino was asking Munoz whether he was still “rolling,” meaning active
with the gang. Munoz said he was not, explaining he had a little girl and a family.
Merino told Munoz the only way out of the gang was a bullet to the head. Munoz
looked to Valencia to be shocked and scared in response to Merino’s statement. Merino
disappeared for a few minutes, but when he returned, Merino started “mad-dogging”
Munoz’s group—pacing and giving them a “bad face.” Merino gestured to his friends,
using his thumb and fingers to simulate a handgun. He told Munoz he had a .45 in his
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trunk, and the only way to get out of the gang was a bullet to the head; then Merino told
Munoz, because Munoz was his “homie,” Merino said: “We’re going to jump you out.”
At about 11:30 p.m., Merino stopped Munoz, Valencia and Elizabeth when they
tried to leave the party. Merino asked Munoz where he was going. When Munoz said he
was going home, Merino told him to stay or to promise to come back. Munoz gave his
word that he would return. Once they got home, Valencia got out of the Mustang while
Munoz and Elizabeth appeared to argue. A few minutes later, Elizabeth left the car
crying. Valencia never saw or heard from Munoz again. He and his mother reported
Munoz missing two days later. When police interviewed him, Valencia identified Merino
in a photographic lineup.
On the morning of April 4, Griselda Sillas was walking down an alley by West
40th Place in Los Angeles. As she passed a rolling gate that was open about 10 inches
and looked into the courtyard of the residential property, Sillas could see a bald man
struggling to lift a large and apparently heavy black bag into the back of a red car with a
horse emblem. Sillas believed she could see the silhouette of legs; the contents of the bag
appeared to her to be a body. Sillas also saw a woman, standing about 25 feet from the
man. The man was laughing; “[h]e seemed to be having fun.”
That evening, Merino telephoned Karla Ramirez who was his girlfriend; she and
Merino had a daughter together. Ramirez knew Merino was an SDK gang member
known as “Menace.” Merino told her he wanted some money he said he had lent her and
told her he had some “road kill.” When Merino arrived at Ramirez’s home in Lancaster,
he told Ramirez he had a gift or a surprise. “Kind of giggling,” Merino opened the trunk
of a red car she had never seen before and showed her a body wrapped in black plastic
and yellow tape from thighs to feet. The body was not moving. Ramirez was scared.
Merino then showed Ramirez several credit cards, including a blue Bank of
America card with a photograph of a Hispanic male with a moustache on it. Merino
grabbed Ramirez by the arm and told her he was taking her shopping. At that point,
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Ramirez’s mother came outside; Merino let go of Ramirez’s arm, and she ran inside her
house and called the sheriffs. Ramirez could see Merino drinking in the car, and when
the sheriffs arrived and tried to approach him, he drove off.
That evening, deputies responded to a report of a vehicle fire in Lancaster. The
car was the red 1998 Mustang registered to Munoz. After the fire was extinguished, the
car was towed to a secured lot. Upon opening the car’s trunk, an arson investigator found
a burned male body inside. The body was later identified as Munoz.
The next day (April 5), Merino again telephoned Ramirez, and he was angry. He
said Ramirez was a “bitch,” and she had betrayed him. He said he was going to kill her
and her family. After seeing the body in the trunk, she was scared and remained afraid
until Merino was in custody.
Merino also called his mother Miriam that day, telling her he was going to be
moving. When she asked if he had done something bad, he started laughing and told her
he “killed somebody” and “burn[ed] the car.” She said, “You say like that? I don’t know
you. . . . [Y]ou don’t come from me.” Merino started laughing again. When she tried to
ask more questions, he said he was not going to tell her anything else and hung up.
That same day, Abraham Garcia was at the house Merino shared with his brother
Edwin (who was also known as Chico). Garcia was a “close” family friend “for 17
years.” Garcia was “like a brother” to Merino and Edwin, and he had known Merino
since he was a “little kid.” Merino’s mother Miriam owned the property located at 1343
West 40th Place in Los Angeles. There was one house on the north side of 40th Place and
a second house separated from the front house by a patio or courtyard. Merino and his
brother lived in the back house. A fence surrounded the entire property, but there was a
rolling gate on the west side between the courtyard area and the alley.
4
When Garcia arrived, only Edwin was there, but Garcia overheard a telephone
conversation between Edwin and Merino on the speakerphone.1 Edwin told Merino he
was “acting weird” and asked what he had done. Merino said he had “killed someone.”
“I slit his throat.” Merino was “acting funny” and said he had “painted the room.”
Garcia and Edwin started “putting two and two together” when they looked into the
details and “could see the blood that [Merino] tried to cover . . . .” Garcia urged the
police to go to Merino’s house because he believed “that’s where it took place.” Garcia
told police Merino said “it was a rival gang member, and he drove him in the car” and
“burned the car with the body in it.” According to Garcia, Merino “even” described
“what he’s going to be charged with”—he said it would be “‘kidnapping, arson and
murder.’”
When Garcia went inside the house, he saw that one of the back bedrooms
(previously white) had been partially—“barely half” of the room—painted green. Also,
the room was empty, and the bed was missing. Garcia also saw red spots that appeared to
be dried blood drops on a TV stand.
On April 7, Los Angeles Police Detective Brian Calicchia served a search warrant
on the house Merino and Edwin shared. During the search, Detective Calicchia
recovered a spent shell casing at the doorway between the courtyard and west bedroom of
the house in the back. When he entered the bedroom, he noticed fresh green paint
haphazardly applied to a wall. The wall had not been completely covered, and there was
green paint on the carpet. The green paint had not completely covered some red droplets
on the wall. The red droplets on the wall and other red droplets found near the TV stand,
1 Garcia described the conversation in a recorded police interview in which he told
police he did not want to be involved but wanted to do the right thing. At trial, however,
he claimed had had not actually heard the conversation and was only repeating what
Edwin had told him.
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a shirt and a towel appeared to be consistent with blood, and droplets throughout the
room tested positive for blood.2
Three days later (on April 10), Merino was detained for jaywalking. A warrant
check indicated he was wanted for murder, and he was arrested. Although the arresting
officer had only stated that Merino had a warrant and purposely had not otherwise stated
the reason for the arrest, Merino spontaneously stated, “Murder’s no big deal.”
The following day, from jail, Merino called his sister Jacqueline, and their
conversation was recorded. Merino admitted he had killed someone and had put the body
in the trunk of a car. He also admitted he had threatened Ramirez, telling her he was
going to kill her and her parents. Regarding Munoz, Merino told his sister the person he
killed was a MS gang member who had been trying to “gun” him—not a friend. Merino
said they had a “beef” with MS and people from MS had been looking for him. He said
he and his “homies” had been drinking and “caught that fool slipping,” meaning he had
his guard down. Merino said they brought him back to Merino’s “pad” where they beat
the man and “did it.” He seemingly agreed when Jacqueline said someone else had fired
the fatal shot but later said, “It’s either me or him. So I took him out.” When she asked
Merino how he could wrap, drive off with and dispose of the body, Merino said,
“Honestly, I didn’t even give a fuck.” He thought, “Well, this motherfucker’s dead.
Fuck him. He’s a mierda,” meaning “piece of shit.”
Merino told Jacqueline: “[W]hen I go and do a mission,” “I get away with it . . . .”
“I took three of these fuckin’ fools out already.” Unlike those times, Merino said: “This
one . . . . It was messy. I didn’t even do it smart.” He also said he had walked by
undercover officers with his gun before his arrest and told his sister he would have “just
shot” if they had tried to stop him.
2 DNA testing then matched the blood to Munoz.
6
A grand jury indicted Merino on charges of murder (Pen. Code, § 187, subd. (a)
[all further undesignated statutory references are to the Penal Code]; count 1), making a
criminal threat (§ 422; count 2) and robbery (§ 211; count 3). On count 1, the indictment
alleged as a special circumstance that Merino had committed the murder to further the
activities of his criminal street gang. As to counts 1 and 3, it was further alleged the
crimes were committed for the benefit of, at the direction of or in association with a
criminal street gang (§ 186.22, subd. (b)), that a principal personally and intentionally
used a firearm (§ 12022.53, subds. (b)-(d)) and Merino personally used a deadly weapon
(a knife) (§ 12022, subd. (b)(1)).
At trial, the People presented evidence of the facts summarized above. In
addition, a pathologist testified that Munoz had died before his body was burned in the
Mustang; he had suffered a fatal gunshot wound to the center of his nose. Before he died
from this gunshot wound, Munoz sustained at least four other non-fatal stabbing
wounds—one to the side of his face and three to his neck.
Los Angeles Police Officer Guillermo Espinoza testified as a gang expert. He said
MS 13 was a large criminal street gang with more than 2000 active members, and the
gang had many subsets or cliques, including SDK. Officer Espinoza testified SDK began
as a tagging crew, primarily engaged in graffiti and vandalism, but they were recruited or
adopted into MS 13 to expand its reach after a gang injunction was issued against MS 13
in 2007. Officer Espinoza said it was his opinion SDK was a subset of MS 13 based on
interviews he had conducted with MS SDK gang members, information in arrest reports
from a Santa Monica shooting and his own observation of graffiti linking the two gangs.
For example, he had seen graffiti of “MS 13” followed by “Sur Do Kill” and an arrow
pointing down toward the street.
According to Officer Espinoza’s testimony, the primary activities of MS 13 are
murder, robbery, kidnapping, extortion, shooting and vandalism. When he was shown
certified copies of minute orders indicating Albert and William Ramirez had been jointly
7
convicted of assault with a deadly weapon based on a shooting the two brothers
committed on August 21, 2008, Officer Espinoza testified he had contact with William
Ramirez on a prior occasion where he “self-admitted his gang affiliation to MS 13, SDK
13 Clique.”
Officer Espinoza testified Merino was “an established gang member belonging to
MS 13, SDK clique.” Officer Espinoza said he had had contact with Merino on two
occasions preceding the charged shooting. On the first occasion in March 2008, Merino
admitted being part of SDK 13 and said he was known as Mr. Menace. He did not
mention MS 13 at that time. In 2009, however, Merino said he was both SDK and MS
13.
Merino had several gang tattoos on his body, including the number 7-3-5 (the
keypad numbers corresponding to the letters S-D-K) tattooed on the left side of his face.
He also had a teardrop tattooed under his right eye, indicating he had either killed or
attempted to kill a rival gang member. He had another SDK tattoo that appeared to be an
attempt to cover an “MS” tattoo.
According to Officer Espinoza’s testimony, the only way a person could typically
leave MS was by getting killed or by suffering a beat down. Given a number of
hypotheticals with facts tracking the prosecution’s theory of the case, Officer Espinoza
testified a homicide in such circumstances was “carried out in furtherance of the gang.”
Officer Espinoza said it was a sign of disrespect when the victim said he was no longer
part of the gang, warranting either a beat down or death. The homicide benefitted the
gang by instilling fear and respect while reducing the number of others who would
attempt to leave the gang in the future. Further, anyone who participated in the killing
would increase his status within the gang as a result of the homicide. In the alternative,
Officer Espinoza said, if the victim was a rival gang member, the homicide would also be
in furtherance of the gang.
8
Merino testified in his own defense. He admitted he killed Munoz, put Munoz’s
body in the trunk of Munoz’s own red Mustang and then set the car on fire. Merino
claimed he initially attacked Munoz to prevent him from sexually assaulting Nadia
Garcia who was heavily intoxicated at the time and said he shot Munoz during the fight
that followed in an effort to stop, not kill, Munoz.
Merino acknowledged he was an SDK member but said he had socialized with MS
members without ever joining that gang. He claimed SDK and MS had become rivals
and some MS members had tried to kill him prior to the incident involving Munoz. He
did not recall telling police he was a member of MS.
Merino said he knew Munoz well as the two had lived in the same neighborhood
and Merino had brought Munoz into SDK, but Munoz had not been around SDK for
several years and had not put in any “work.” According to Merino, it was not acceptable
for a gang member to “disappear” from his fellow gang members. When he saw Munoz
at the party on April 3, 2009, Merino told Munoz he needed to be “checked” or beaten up
for 19 seconds—one second for each letter of the alphabet through the letter “S—as
discipline. According to Merino, Munoz understood the punishment and never said he
wanted out of the gang so the conversation was “friendly.” He claimed he never said
anything about getting a bullet to the head or simulated the handgun gesture with his
hand. He said he and Munoz made arrangements to meet later.
After he spoke with Munoz, Merino said he left with a group including Francisco,
Buck, Nadia Garcia, Valeria Medina, Kristin Daganpat, Ashley and Amanda. Garcia was
15 and an SDK member. Although he had only known Garcia for less than two months,
Merino said he had a special relationship with her and protected her as if she were his
younger sister. Because their friendship was so close, Merino testified, Garcia had given
Merino a gold Quinceanera ring her grandmother had given her.
According to Merino, when he and his friends left the party, they saw Munoz in
his car. He joined them in driving to Merino’s house where they all drank beer, smoked
9
marijuana, ate and listened to music. Merino testified Munoz and Garcia both got very
drunk while Merino was in a bedroom with Medina.
When Merino later came out of the bedroom, he said, Munoz was being an
obnoxious drunk, annoying Francisco and making unwanted advances toward Daganpat
who was sitting on the couch. Merino said he saw Munoz put his arm around Daganpat
and place his hand on her thigh but did not say or do anything. He (Merino) returned to
the bedroom.
Ten minutes later, Merino testified, he heard a female voice screaming for
Medina. He saw Garcia “knocked out” on the couch. The others decided they wanted to
leave and Merino escorted them to the front gate. When he got back to the house, Merino
claimed, he saw Munoz try to grab Garcia and kiss her. She was “pushing him off to the
best of her ability,” Merino said. Merino grabbed Munoz and escorted him outside.
Merino said Munoz struggled against him but was trying to be apologetic. Munoz just
told him to “get the fuck out” and locked the gate with Munoz on the other side. Merino
said he went back inside, only to hear Munoz outside again. He did the same thing,
telling Munoz to “get the fuck out” and locking him outside the property—this time he
actually did lock the gates; they were not actually locked before that. He said he walked
up to Munoz and smacked him and kicked him out for the third time.
According to Merino, he then heard a noise and saw Munoz had fallen to the
ground by the gate. Merino was annoyed, he testified, but decided to let Munoz stay. He
and Munoz went into the living room where Garcia was still “knocked out” on the couch.
He left Garcia alone with Munoz and went outside for at least five minutes to smoke a
cigarette. Merino claimed when he got back inside, he saw Munoz on the couch next to
Garcia, grabbing her around the waist and trying to pull. Garcia appeared to be passed
out. Merino said he “snapped”—angry Munoz was trying to take advantage of Garcia.
“[T]hat to me is not acceptable, especially somebody that I care about.”
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Merino said he punched Munoz, kicked him and dragged him to the bathroom. He
slammed Munoz into the toilet area, and then continued dragging him to a bedroom.
Merino continued to beat Munoz who did nothing other than struggle to get up.
Eventually, Merino said, he stopped the attack and left Munoz on the floor. Merino
claimed Munoz then hit Merino on the back of his head. Stunned, Merino said he then
grabbed a nearby rifle and tried to use it to shove Munoz away. Merino said he backed
up, “tipped over” and fired a shot. He said he had not intended to kill Munoz; he said the
shooting was an accident, but also said he fired the shot to stop Munoz and put him
down.
Merino testified that after Munoz was shot, he (Munoz) remained standing and
started screaming. Merino claimed he panicked and grabbed a machete and attempted to
shut him up by swinging the blade at Munoz, hitting him in the face at least twice before
he fell to the floor. Merino watched him die.
Merino said he then went to the living room where he drank and smoked until he
passed out. In the morning, Merino said, he showed Munoz’s body to Garcia. She
vomited immediately and left. He said he wrapped Munoz’s body in trash bags, retrieved
Munoz’s Mustang, put Munoz in the trunk and drove to Ramirez’s house. He said he
showed her Munoz’s cards but did not recall showing her Munoz’s body. He tried to get
Ramirez to take a ride with him, but she went inside and called the police. He drove
away when police responded and later set the Mustang on fire. When he got home, he
tried to remove any evidence Munoz had been killed there, cleaning and painting the
walls with the only paint he had.
When he was arrested, Merino initially told detectives he did not know Munoz.
Later, he admitted he knew Munoz, but lied about his death, falsely claiming Munoz was
from a rival gang; an SDK member known as “Big Rocky” brought Munoz to Merino’s
house; Merino joined “Big Rocky” and others in assaulting Munoz; and “Big Rocky”
unexpectedly killed Munoz while Merino was in another room. Merino said he made up
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the name “Big Rocky” and lied about the circumstances to distance himself from
Munoz’s death.
Merino said he did not tell his brother about killing Munoz in any phone call,
denied laughing during the telephone conversation with his mother and said he had lied
when he discussed killing Munoz on the phone with his sister Jacqueline.
Similarly, Merino’s brother Edwin said Merino made no admissions to him over
the telephone; he said the two spoke only briefly, Merino said nothing about killing
anyone and he did not use the speakerphone feature at all.
At the time of his death, Munoz’s blood alcohol level was .13; there was no
indication of any methamphetamine, cocaine, marijuana or other drugs in his system.
In rebuttal, Los Angeles Police Officer Jose Covarrubias testified he and his
partner responded to a report of vandalism in progress on Browning Boulevard in Los
Angeles on July 20, 2008. Officer Covarrubias saw Merino and another man leave an
alley and cross the street so as to require cars to stop to avoid hitting them. In the alley
where Merino and the other man had been, Officer Covarrubias saw fresh black graffiti
painted on some walls along with several black spray paint cans. Among the gang
markings on the walls, the fresh graffiti said “MS,” “MS 13,” and “MS X 13.” When he
was told he was being arrested for vandalism, Merino said he was from MS and he had
written it all. He had “MS 13” tattooed on his body at the time.
In addition, Detective Calicchia testified that when he interviewed Merino on
April 10, 2009, he saw no wound to the back of Merino’s head or any other injury.
Defense investigator Alice Villalobos testified she interviewed Garcia, but she
never said she had seen Munoz’s body. She said she had vomited in the morning because
of the excessive amount of alcohol she had consumed.
Further, when Villalobos interviewed Medina, she said nothing about Munoz
making any attempt to “hit on” Daganpat.
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The jury found Merino guilty as charged on counts 1 (special circumstance
murder) and 2 (terrorist threats). On count 3 (robbery), the jury found Merino guilty of
the lesser included offense of grand theft, also with a true finding on the gang allegation.
The trial court sentenced Merino to state prison for life without the possibility of parole
for the special circumstance murder, plus an additional term of 25 years to life for the
firearm enhancement. (§ 12022.53, subd. (d).) The trial court sentenced Merino to an
additional and consecutive state prison terms of 8 months on the terrorist threat count and
another 7 years on the grand theft count.
Merino appeals.
DISCUSSION
We Reject Merino’s Claim of Prejudicial Error in the Trial Court’s Conduct of
Voir Dire.
Citing isolated excerpts from the reporter’s transcript, Merino says reversal is
required because the trial court had an “unduly limited understanding of what it meant to
be fair and impartial” so “there is a significant likelihood that prospective jurors did not
disclose their biases.” After reviewing the transcript in its entirety, we disagree.
The trial court informed the prospective jurors of the charges, the parties, potential
witnesses and their responsibilities as potential jurors. In its preliminary remarks, the
trial court stressed and repeatedly reiterated the importance of having jurors who would
be fair and impartial and who would decide the case solely on the evidence presented at
trial and “not based on anything you think outside this building.”
The trial court inquired whether any of the prospective jurors anticipated any
difficulty in being fair and impartial, followed up with anyone so indicating and allowed
counsel to inquire further.
Juror P8514, an attorney, said he did not think he could be fair because of his
exposure to gang violence, the fact his wife had lived in a very bad neighborhood and
because one of his closest friends was a police officer who would discuss his work in a
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gang unit. The trial court inquired further, emphasizing the juror’s obligation to consider
only the evidence presented and to follow the law and to decide the case without regard
to other circumstances. When the juror began to describe problems with gangs, the trial
court interjected, “The bottom line is that’s not this case,” and continued on. This
prospective juror (among others) was excused by stipulation.
Juror B1191 said a childhood friend of his was murdered in 2004, and he (Juror
B1191) had served as a juror on an attempted murder trial in 2006. He said the nature of
the case before the court was “uncomfortable” for him and brought “it all back.” Merino
claims impropriety in the trial court’s statement that: “The bottom line is, if the People
don’t prove it beyond a reasonable doubt, Mr. Merino deserves a not guilty verdict. . . .
It’s not, [‘]the People didn’t prove it beyond a reasonable doubt but . . . my friend was
murdered in 2004, so guilty.’” Asked whether he would do his very best to evaluate the
case based on the evidence alone, the prospective juror said he was “going to give it a
shot.” He said he knew the law required a fair trial and he had to be open-minded.
Defense counsel used a peremptory challenge on Juror B1191.
At sidebar, Juror C5908 disclosed that he had been stabbed during a carjacking in
1980 and said he did not know how he would judge the case. The trial court noted
Merino had not been involved in the prior crime and that crime should not be held against
him. The juror agreed, indicating he would “try to be fair” and would do his best and
would be able to vote not guilty if the prosecution did not prove the charges beyond a
reasonable doubt. In response to defense counsel’s questioning, he said he thought he
could properly fulfill his obligations as a juror. Defense counsel used a peremptory
challenge to excuse Juror C5908.
Juror M2451 said she had been robbed by gang members, her brother had been
beaten by gang members, and she had seen other crimes committed by gang members,
and all of these experiences affected her perception of them. Merino faults the trial
court’s following statement (in the context of clarifying statements the prospective juror
14
had made and indicating the expectation that the juror would vote guilty if the People’s
evidence proved the defendant guilty beyond a reasonable doubt of the charges against
him, and not guilty if the evidence did not prove guilt beyond a reasonable doubt): “Do
not say, well, maybe there’s not enough evidence, but I have these perceptions about
gang members so I’m going to vote guilty anyway. I mean, is that what you’re telling us
you might do if there’s not enough evidence? . . . So the bottom line is, in your heart of
hearts you know if you’re going to be able to evaluate the evidence or not.” She
responded, “I do have certain biases, but I’ll do my best.” When defense counsel
questioned her further, she said she had not made up her mind about the case and was
willing to sit back and listen to the evidence. She said she was open to considering the
testimony, whether it came from a gang member or a police officer. Defense counsel
exercised another peremptory challenge to this juror.
“Trial courts possess broad discretion over both ‘[d]ecisions concerning the
qualifications of prospective jurors to serve’ and the manner of conducting voir dire.”
(People v. Whalen (2013) 56 Cal.4th 1, 29, internal citations omitted.)
Notably, Merino does not assert the trial court erred in failing to exclude any
prospective juror who was biased. Because he did not exhaust his peremptory
challenges, such a challenge would be barred. (See People v. Taylor (2010) 48 Cal.4th
574, 606.) Instead, Merino speculates that other prospective jurors were improperly
influenced not to disclose their own biases because the trial court’s view of bias was
“grossly underinclusive” such that reversal is required.
Actual bias is “the existence of a state of mind on the part of the juror in reference
to the case, or to any of the parties, which will prevent the juror from acting with entire
impartiality, and without prejudice to the substantial rights of the party.” (Code Civ.
Proc., § 225, subd. (b)(1)(C).) Where a juror gives conflicting responses, however, a trial
court may “reasonably conclude the juror was trying to be honest in admitting his
preconceptions but was also sincerely willing and able to listen to the evidence and
15
instructions and render and impartial verdict based on that evidence and those
instructions.” (People v. Hillhouse (2002) 27 Cal.4th 469, 488.) “An impartial juror is
someone ‘capable and willing to decide the case solely on the evidence’ presented at
trial.” (People v. Nesler (1997) 16 Cal.4th 561, 581.) As our Supreme Court has
observed, a juror irrevocably committed to the abolition of the death penalty could still
subordinate his personal views to his perceived duty to abide by his oath as juror.
(People v. Whalen, supra, 56 Cal.4th at p. 30.)
Having reviewed the entire transcript, we find Merino’s speculative challenge to
the trial court’s conduct of voir dire to be meritless. The trial court repeatedly and clearly
stated the prospective jurors’ obligations, explored any indications of potential biases,
allowed counsel’s further questioning of prospective jurors as counsel saw fit and indeed,
not all available peremptory challenges were used. A criminal defendant is entitled to an
impartial jury, but the “Constitution does not indicate a catechism for voir dire.” (People
v. Cleveland (2004) 32 Cal.4th 704, 737.) “Unless the voir dire by a court is so
inadequate that the reviewing court can say that the resulting trial was fundamentally
unfair, the manner in which voir dire was conducted is not a basis for reversal.” (People
v. Holt (1997) 15 Cal.4th 619, 661.)
We Reject Merino’s Claim Reversal Is Required as to Counts 1 and 3 Because the
Trial Court Did Not Allow the Defense to Present Evidence Nadia Garcia Had Told
Merino She Had Been Molested in the Past.
Merino claims his testimony that Nadia Garcia confided in him that she had been
molested in the past was the “most compelling aspect of their relationship” of only a
month to six weeks and explained why a reasonable person with this knowledge would
have been provoked to react violently as he did when he said he saw Munoz grab (an
intoxicated) Garcia around the waist, “trying to pull.” Therefore, he says, the trial court
prejudicially erred in excluding such evidence. We disagree.
16
A trial court has broad discretion to exclude relevant evidence if its probative
value is substantially outweighed by the probability its admission will necessitate the
undue consumption of time or create substantial danger of undue prejudice, of confusing
the issues or of misleading the jury. (Evid. Code, § 352; People v. Riccardi (2012) 54
Cal.4th 758, 808-809.) Discretion is abused only when the trial court’s ruling falls
“outside the bounds of reason.” (People v. Alexander (2010) 49 Cal.4th 846, 912-913.)
Here, Merino did testify to a special and close relationship with Garcia such that
he treated her like a younger sister. He said the two were so close that she gave him the
gold ring her grandmother had given her for her quinceanera. He testified to a
relationship of a nature that he would have reacted in the same way whether she had been
molested in the past or not; in fact, defense counsel apparently conceded as much.
In this context, he was not deprived of the right to present a defense in violation of the
constitution, and he has not shown an abuse of discretion. (People v. Alexander, supra,
49 Cal.4th at pp. 912-913.)
Moreover, Merino claimed he had killed Munoz because he had to stop him from
sexually assaulting Garcia for the first time at trial. According to the record, he laughed
as he forced Munoz’s body into the trunk of Munoz’s own car, when he showed Munoz’s
body to Ramirez, describing it as “roadkill” and when he told his mother what he had
done. He never said anything about Munoz attempting to assault Garcia. His
conversation with his sister described an entirely different context for the killing; he was
only sorry that he had been messy in this case, unlike when he killed the three other
“fuckin’ fools.” When an officer approached him at the time of his arrest, he said,
“Murder’s no big deal.” The jury was entitled to find that his story at the time of trial
was inconsistent and unbelievable. For example, he testified he had been hit on the back
of the head so hard he was dazed and stunned, but his testimony was contradicted by
testimony indicating he had no sign of any injury the week after the killing. Notably, the
jury found the gang allegation true, meaning they rejected the defense claim Munoz had
17
been preventing a sexual assault (prior molestation or not). Munoz cannot establish
prejudice in any event. (See People v. Cain (1995) 10 Cal.4th 1, 45.)
Merino Has Failed to Demonstrate Prejudicial Error Based on the Trial Court’s
Understanding of the Hearsay Rule.
According to Merino, the trial court lacked a basic understanding of the hearsay
rule. Although he does not identify prejudice as to any one statement in particular, he
says errors interrupted the flow of the evidence presentation and added to the prejudice
flowing from the exclusion of further testimony about Garcia’s alleged prior
molestation—a claim we have already rejected.
Nevertheless, we examine Merino’s claims of evidentiary error. First, he says the
trial court refused to allow him to testify to the specific content of his conversations with
Munoz at the party which he says was not offered to prove the truth of the matters
asserted in the conversation but rather to show the friendly nature of the conversation and
to rebut the prosecution’s claim Munoz was fearful or concerned. Similarly, he says, he
denied he ever told Munoz he “had better return to the party (as prosecution witness
Carlos Valencia had testified),” but the trial court refused to let him testify to what the
conversation actually involved. Even assuming the trial court erred in rejecting Merino’s
claim he offered such testimony for a non-hearsay purpose, Merino cannot demonstrate
prejudice in the exclusion of this testimony. As he necessarily concedes, the trial court
did allow him to testify that the “tenor” of the conversation was “friendly” and does not
explain what more would have been gained had more detail been elicited, or that the trial
court was not entitled to find such added detail cumulative and properly excluded
pursuant to Evidence Code section 352.
Next, Merino complains that when he testified he heard a female screaming a
name while he was in the bedroom with Valerie, the trial court erroneously agreed with
the prosecutor that the name called out was hearsay. However, the trial court overruled
the prosecutor’s objection based on the hearsay exception for excited utterances.
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Therefore, he was able to present the testimony and was not prejudiced by a
misapplication of the hearsay rule.
Merino also says the trial court erroneously struck as hearsay his testimony that
when Munoz returned to Merino’s house after being turned away the first time, Munoz
said he wanted to “kick it” which he says would have shown Munoz was not afraid of
Merino. Even assuming the trial court erred in excluding Merino’s testimony Munoz said
he wanted to “kick it” (or anything else he said that Merino claimed prompted him to
allow Munoz to stay), the jury nevertheless did receive Merino’s testimony claiming that
he had to forcibly remove Munoz from his home three times because he kept coming
back, supporting Merino’s claim Munoz was not afraid of him and necessarily defeating
his claim of any resulting prejudice.
Merino says the trial court improperly excluded certain testimony from Medina
that her friend (Daganpat) complained about Munoz which he says would have shown
Merino’s non-gang-related purpose in his interactions with Munoz, but Medina did
expressly testify that she left the party with her friends because Munoz was hitting on
Daganpat like an obnoxious drunk. Again, it follows that the ruling of which he
complains did not prejudice Merino.
Finally, he says he was not allowed to testify that when he spoke to Garcia in the
morning after Munoz was killed, he told her to leave, but fails to identify the probative
value of the excluded testimony and once again has failed to demonstrate prejudice as a
result of the ruling. Because Merino has failed to demonstrate prejudice in any of these
separate instances as well as the fact the jury rejected his version of events, we reject his
claim based on the aggregation of these rulings as well. (See People v. Geier (2007) 41
Cal.4th 555, 582; People v. Cain, supra, 10 Cal.4th at p. 45.)
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We Find No Prejudicial Error in Detective Calicchia’s Testimony Regarding the
Recorded Witness Statements.
In Merino’s view, Detective Calicchia was permitted to vouch for the “facts and
the truth” of the prosecution’s recorded statements when he testified that it was his
experience that if witnesses know they are being recorded, “a lot of times witnesses will
not be as forthcoming with the information because they fear that there is being a record
taken and they may be called to testify and they are generally more forthcoming and
provide more complete disclosure. You have facts and the truth when they do not know
they’re being recorded.” We disagree.
Our Supreme Court has rejected such a claim to generalized testimony like that
presented through Detective Calicchia although it “invariably” supports the credibility of
another witness. (People v. Ward (2005) 36 Cal.4th 186, 210-211.) Moreover, the
testimony to which he objects, including his mother’s testimony about his laughing it
telling her what he had done, was cumulative of other evidence to which he has no
objection. Further, he and his sister Jacqueline were repeatedly informed throughout
their own conversation when he called her from jail that “calls may be recorded,” and he
specifically said to her, “You do know they’re recording the fuckin’ conversation, right?”
She said, “I know that.” Yet, he continued speaking. Merino has failed to demonstrate
prejudicial error.
Merino Was Not Prejudiced by the Prosecutor’s Closing Argument.
Merino says the trial court improperly allowed the prosecutor to dilute the
reasonable doubt standard. We disagree.
Again, carving out a piece of the prosecutor’s closing argument, Merino claims the
prosecutor misstated the reasonable doubt standard. Having reviewed the argument, it
was not only consistent with the circumstantial evidence presented and the applicable law
(People v. Stewart (2004) 33 Cal.4th 425, 508), but the jurors were properly instructed
with CALCRIM No. 225, and we presume the jurors followed the court’s instructions.
20
Meanwhile, the evidence of Merino’s guilt was overwhelming. We find no error, and no
prejudice in any event. (People v. Thornton (2007) 41 Cal.4th 391, 441.)
The “Primary Activities” Evidence Underlying the Gang Enhancements Was Not
Improper.
According to Merino, reversal is required because the jury was given an improper
theory on which to find the “primary activities” element of the gang allegations true
(because evidence of MS 13 activities does not suffice as evidence of SDK and vice
versa). We disagree.
Merino ignores the fact that, three months before he killed Munoz, Merino
admitted he was both SDK and MS 13, consistent with Officer Espinoza’s testimony
Merino was an established member of MS 13, SDK clique and that SDK had become a
clique or subset of MS 13 in 2007; graffiti also evidenced the link between these two
identified gangs. Consequently, Merino’s argument the primary activities evidence was
insufficient necessarily fails by his own admissions.
Given our resolution of the preceding arguments, it follows that Merino’s
ineffective assistance of counsel and cumulative error claims necessarily fail as well.
DISPOSITION
The judgment is affirmed.
WOODS, Acting P. J.
We concur:
ZELON, J. SEGAL, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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