Filed 10/1/14 P. v. Valencia CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B249006
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA363995)
v.
JOSE MARIA VALENCIA et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County. David
B. Gelfound, Judge. Affirmed and remanded with instructions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant Jose Maria Valencia.
Corona & Peabody and Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant Jose Manuel Moreno.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Jose Maria Valencia and Jose Manuel Moreno
(defendants)1 appeal from judgments entered after they were convicted of conspiracy to
commit murder. Valencia contends that the trial court erred in denying Moreno’s
Wheeler-Batson motion;2 Moreno contends that the court erroneously admitted improper
expert testimony; both defendants contend that the trial court erred in refusing to remove
a juror for misconduct or in the alternative to declare a mistrial; Moreno requests that we
review the sealed record of the trial court’s in camera Pitchess hearing;3 Valencia
contends that the imposition of a $280 restitution fine violated the ex post facto clauses of
the federal and state constitutions; and each defendant joins in any contention of the other
defendant to the extent that it might accrue to his benefit. Respondent notes that although
the trial court ordered Valencia to pay a restitution fine, it did not orally impose an
amount, and respondent asks for a limited remand for that purpose. We conclude that
defendants’ contentions are without merit and that none accrues to the benefit of the
other. We remand the matter for the sole purpose of allowing the trial court to determine
the amount of the restitution fine. In all other respects, we affirm the judgment.
BACKGROUND
Procedural history
The third amended information charged defendants and codefendant David Robles
(Robles) with two counts of conspiracy to commit a crime, in violation of Penal Code
section 182, subdivision (a):4 murder in count 1 and kidnapping in count 2. It was also
alleged that Moreno had three prior convictions within the meaning of the “Three
1 When referring to defendants individually we use just their last names, Valencia
and Moreno.
2 See People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky
(1986) 476 U.S. 79 (Batson).
3 See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Penal Code
sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.
4 All further statutory references are to the Penal Code, unless otherwise indicated.
2
Strikes” law (§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i)); one prior serious felony
conviction within the meaning of section 667, subdivision (a)(1); and one prior
conviction with a prison term within the meaning of section 667.5, subdivision (b).
Count 2 was later dismissed. The defendants were tried jointly, and the jury found
Valencia and Moreno guilty as charged in count 1. The jury was deadlocked as to Robles
and the trial court declared a mistrial as to him.
On May 24, 2013, the trial court sentenced Valencia to a term of 25 years to life in
prison, ordered him to pay mandatory fines and fees and to provide print impressions and
a DNA sample. The court awarded 1,558 days of presentence custody credit, comprised
of 1,355 actual days in custody and 203 days of conduct credit.
The trial court found true the prior conviction allegations against Moreno
following a court trial. The court denied Moreno’s motion to strike the priors alleged
pursuant to the Three Strikes law, but granted the People’s motion to strike the prior
conviction allegations under sections 667, subdivision (a)(1), and 667.5, subdivision (b).
On May 31, 2013, Moreno was sentenced to 25 years to life in prison, tripled pursuant to
the Three Strikes law to 75 years to life. The trial court ordered him to pay mandatory
fines and fees and to provide print impressions and a DNA sample, and awarded him
1,567 days of presentence custody credit, comprised of 1,363 actual days of custody and
204 days of conduct credit.
Defendants filed timely notices of appeal from the judgments.
Prosecution evidence
Conversations relating to the plan
In 2009, a joint task force of the Los Angeles County Sheriff’s Department
(LASD) and the federal Drug Enforcement Agency (DEA) conducted wiretapping and
surveillance operations targeting suspected major drug traffickers. The task force
intercepted and recorded hundreds of cell phone conversations between various people,
including defendants, Robles, and a person identified as “Secuestro” by law enforcement
3
and as “La Loca” or “Loquita” by others.5 The calls were translated from Spanish, and
excerpts from more than 50 of them were admitted into evidence. In addition,
surveillance cameras were set up near some residences. Photographs and video taken in
July and August 2009 showed many meetings involving Robles, Valencia, and Secuestro
at Robles’s house. Robles kept a semi-tractor rig at his home, and investigators suspected
that he hauled narcotics for Valencia to Secuestro in Kansas City.
LASD Detective John Mundell was part of the task force. He testified that drug
traffickers often developed their own coded language in addition to a more generally
understood jargon. In his 25 years of law enforcement experience, including five years
on the task force, Detective Mundell had learned to understand much of the jargon and
code. He gave some examples, such as “girl” as sometimes meaning methamphetamine,
and the expression, “My girl is pretty and she’s 12 years old,” meaning a good quality
pound of methamphetamine priced at $12,000. In the course of this investigation,
Detective Mundell discerned the possible meanings of words and expressions used in the
recorded conversations, for example: “title for the car” for payment; “toys” and “tools”
for firearms; “buttons” for bullets; “four-five” for .45-caliber; “nine” for nine-millimeter;
“exhaust” for silencer; “work” for dealing drugs; and “accident” for the loss of drugs,
either by theft or interdiction by law enforcement. Detective Mundell also determined
the various nicknames and relationships of defendants and other participants in the
conversations. Robles was called “Potrecito” and “El Aguacate.” Valencia was
variously called “Primo,” “Guero,” or “Chema,” and used the alias, Raul Alvarez.
Moreno was called “Malo.”
Detective Mundell testified that in late August 2009, he began to suspect a plan to
murder someone named “Macho,” who was also called “Machillo,” and “Ocho” in the
monitored telephone conversations. Detective Mundell read to the jury the conversations
5 In their briefs, the parties alternate between the names, choose one, or use both
names. Law enforcement referred to him as Secuestro, but parties to the conversations
and other witnesses called him La Loca. For convenience, we refer to him just as
Secuestro.
4
he believed to be most probative of his suspicion, and he explained his interpretation of
them.
On August 31, 2009, Valencia spoke to “UM 162” (unknown male No. 162) in
Kansas City. Valencia asked whether “that guy” was around. He then asked UM 162 to
find him “because we already have one or two silencers available around there,” and to
“notify us with his location in order for them to go directly for him and avoid any failures
like the last time they went over there.” UM 162 agreed, and in another call the same
day, the same voices spoke about a $900 money transfer. Later, Valencia spoke to
another unknown male (UM 195) about the efforts to find “him,” whom Detective
Mundell took to mean Macho.
On September 2, Valencia spoke to Moreno in the early afternoon and arranged to
meet him about a “compressor.” In another call a few minutes later, Secuestro spoke to
Moreno and asked whether he was willing to “go and take care of some things that we
need to take care of over there.” When Moreno asked where, Secuestro said, “Where
those gossipers told you. Don’t mention names.” Asked which gossiper, Secuestro said,
“The big one. The one El Cha.” Moreno replied, “Oh, all the way over there?”
Secuestro said he would “go there first to prepare the whole land,” that it would take
Moreno just three hours to get there, and that they would “buy round trip” so that Moreno
could go on Saturday and come back the same day. The men arranged to meet the next
day so that Secuestro could give Moreno details, documents, and title for the car.
Valencia then spoke to Secuestro and another man, Miguel Chavez, also known as
“Babas,” regarding the whereabouts of Ocho. Chavez said that Ocho had moved and
changed cars, but could still be found at the billiard place on Central. They spoke of
debts for a half onion and some work, and Ocho’s threat against Chavez. During the
conversation, Valencia said such things as, “I’m not going to kill him but I’m going to
fuck him up so bad, so bad,” and, “All I want to know is where he is because we’re ready
to go and get him,” and “I’m well prepared, cousin. I have a fucking bitchen exhaust,
one of those that don’t make a noise to play races.” Valencia then said that Secuestro
was heading there: “I want for him to go so that -- since we don’t know where to locate
5
him we’re going to shoot him at the menudo place.” Valencia added that since he went
for menudo on Saturday, “that’s what we have planned. But to avoid having this guy
leave any trace in a hotel, it’s better for him to go to your house instead.”
After Secuestro entered the conversation, he and Chavez discussed debts, an offer
of repayment by giving Ocho work, and Ocho’s threat against Chavez. Secuestro then
asked whether Chavez had buttons there for a four-five. Chavez replied, “If you pick him
up alive then give it to me so I can confront that mother fucker.” Secuestro again
inquired about buttons for a four-five, and Chavez replied, “No, no, I got a toy over there,
a nine.” Secuestro said he would arrive with only Potrecito, not to say anything to “Jim,”
and to buy a new cell phone for Jim.
About an hour later, Valencia and Secuestro spoke to Moreno. Secuestro told
Moreno that he would “hit the road” and “head out to where I told you [and] prepare the
way for you to arrive.” Moreno was insistent that he leave and return in one day, because
he “just got out barely a week ago” and had not been with his family that long. Moreno
also said that “if it is going to be done in one day and you give me your word that in one
day, then I’ll go, and you must have the guy there and I will do it.” He also asked, “Are
you going to have it all there,” and “all ready right there?” Valencia said “Yeah,” and he
and Secuestro both assured Moreno it would be round trip, that he would soon be back
with his family. Moreno replied, “Okay. Because this is a violation taking off, you
know.”
Detective Mundell explained that Moreno had been released from prison on
August 22, 2009. As Detective Mundell interpreted the conversation, Moreno agreed to
“do it” in one day, if Valencia had everything ready to go, including the intended target.
Valencia assured him that the advance team would go there and make the necessary
preparations. Asked for his opinion of the meaning of “doing it,” based upon his
investigation, training, and experience with regard to coded language, Detective Mundell
replied, “He’s gonna kill him.”
In the next call a few minutes later, Valencia told Moreno that it was “going to be
done early in the morning when he goes to eat around there.” Valencia explained that
6
there were no flights that would arrive early enough so Moreno might need to leave the
day or night before. Soon after that call, Valencia and Secuestro discussed departure
options and getting a ticket for Saturday with a return the same day. At 3:16 p.m.
Valencia spoke to a Manual [sic], also known as “Meno,” saying that he was sending
someone over there; that someone told him where “he” ate; and said, “We’re going to go
there to see if we can also order a menudito as well.”
At 3:25 p.m., Secuestro informed Valencia that there was no way to get “there”
Saturday morning, but told him about several Friday night arrivals with Saturday
departures. Valencia then informed Moreno. They also discussed Moreno getting a
passport-type photograph taken so Valencia could have an identification made for him
with “the name you would like, something that you would not forget.” When Moreno
wondered whether this would be a “worthless dash,” Valencia replied, “That is the reason
why I wanted this one to go first. This one would go first and in a day you would find
out where he lives. In the case that it does not go where he is supposed to go you would
go to where he lives.” After some unintelligible sound in the background, Valencia said,
“Look, this cannot be talk [sic] over the phone.” Moreno said, “Tomorrow I will go to
meet with you. . . . Bye, Chema.”
At about 4:00 p.m. on September 2, Valencia spoke to another unknown male
(UM 479). Valencia asked where “Fernando” was, and UM 479 replied that “they were
over there . . . in Kansas City, but they had moved from one place to another.” Over the
course of the conversation, Valencia said: “The one over there is the other guy that they
are going to go visit on Saturday”; “I want to go visit Machillo on Saturday . . . and it
seems they have located him over there. And so I’ll see if I can invite him to eat some
menudo on Saturday”; “I gave him a fistful, the son of a bitch. And I only got one haul
through. With the next one he screwed me. . . . I had 18 wheelers that I work with. They
took one of those from me and just got another one to keep going. And since I know
where the guy is . . . I’m gonna go over there tonight . . . . I think that on Saturday he’s
gonna meet with some friends and maybe I’ll show up there”; “we’ll see who comes out
on top. And I don’t think that I’m the only one that is after them.” UM 479 told
7
Valencia, “Keep at it” and “Hopefully you find the guy so you can make menudo out of
him.” Valencia replied, “Hopefully God willing. And Momo, if I bump into him I’m
gonna remind him of the deceased, of Piolin . . . . I’ll try to remind him of that friend so
that he cleans up his act.”
The next day, Valencia was heard in a call telling Moreno about taking the Jeep
Cherokee to the shop because it had broken down. On September 6, Valencia told
Moreno to come in the morning with his identification, and that he would get Moreno the
ticket. Moreno replied that his brother would “take me to the bird so I can leave.”
Valencia responded, “That’s fine. Don’t talk so much.” The next morning, Moreno left a
message on Valencia’s telephone: “Well, I’m here and now I’m leaving because there is
no one here.”
Kansas City
Juan Manzo Chamale (Chamale) testified that Robles hired him just before the
Labor Day weekend in 2009 to drive Secuestro in a white Jeep Cherokee to Kansas City.
Chamale had a commercial truck driver’s license, for tractor-trailer rigs. Chamale had
made the same trip with Secuestro the preceding month. Chamale, joined by his friend
Henry Ortega picked up Robles at his house on September 3, and drove to San Bernardino
where they met Secuestro and Valencia. Because the white Cherokee was there but was
not working properly, their trip to Kansas City was postponed until the next day. The next
day, Chamale saw Moreno at Robles’s house. Chamale, Ortega, and Robles again met
Secuestro in San Bernardino, where Secuestro told Chamale that the Cherokee had been
repaired and instructed him to drive it to Kansas City. Secuestro added that they would
follow in a few hours. Secuestro and Robles drove in a blue GMC Envoy. Chamale
communicated with them on the road through his cell phone’s walkie-talkie. They met for
food and rest in Denver. Once he and Ortega arrived in Kansas City, Chamale rented a
room at the American Inn Hotel. Secuestro and Robles arrived about six hours later.
In the meantime, On September 4, 2009, Detective Mundell contacted Kansas City
Police Officer Eric Jones, a member of the DEA joint task force in Kansas City, Kansas,
and asked for assistance in the investigation. Detective Mundell furnished Officer Jones
8
with the license number of the Cherokee and GPS tracking information for Chamale’s
and Secuestro’s monitored cell phones. Officer Jones found their cell phone signals in
Denver and was able to track them into Kansas City. By the time the Cherokee arrived in
Kansas City on September 6 at about 7:00 a.m., officers had established surveillance of
the highway and the American Inn. At approximately 4:00 p.m. that afternoon, Officer
Jones spotted the blue Envoy being driven in a manner suggesting a counter-surveillance
purpose. He followed it to the American Inn Hotel.
The Envoy had been delayed by an unrelated traffic stop just before 10:00 a.m.,
conducted by Kansas Highway Patrol Trooper James McCord who saw the Envoy
following another car too closely. Trooper McCord stopped the Envoy and spoke to the
occupants, who appeared to be very nervous. Robles was the driver, and the passenger
presented a Mexican driver’s license in the name of Abel Ayala Hernandez. Trooper
McCord became suspicious and searched the car at a police garage. The spare tire was
not removed or searched. Since nothing out of the ordinary was discovered, the Envoy
was released and Robles and Secuestro continued their journey.
Robles told Chamale about the traffic stop and said there would be a change in
plans; now Chamale was to drive back to Los Angeles in the Cherokee without its spare
tire. On the way to meet Robles to give him the spare tire, Chamale made an illegal U-
turn, and was stopped by police. The Cherokee was taken to the police station and
searched, but officers did not open the spare tire and found no contraband. At the
American Inn Hotel the next day, Officer Jones spoke to Chamale and searched his room.
Chamale then contacted Valencia and told him about the police searches. Valencia
instructed him to get a new telephone and to abandon the Cherokee. Before leaving the
Cherokee, Chamale stopped along the highway in an unsuccessful attempt to open the
spare tire to see if anything was inside. Finding nothing, Chamale threw the tire away.
Chamale and Ortega then left the Cherokee in an airport parking lot and took a flight
back to Los Angeles.
Upon his return to Los Angeles, Chamale spoke to Detective Mundell and then
flew back to Kansas City a few days later, where he was met at the airport by Officer
9
Jones. Chamale directed Officer Jones to the place he had disposed of the spare tire.
After the tire was located they took it to a tire shop. Both Chamale and Officer Jones
testified that they observed a gun wrapped in a yellow towel be removed from the tire.
Officer Jones testified that it was a .45-caliber Glock handgun, with an empty magazine
and silver duct tape on the muzzle. The aftermarket barrel was threaded to accommodate
a silencer or suppressor.
In the meantime, on September 8, 2009, a search warrant was executed on a house
in San Bernardino where officers searched the bedroom containing papers belonging to
Raul Alvarez, the alias used by Valencia. There they recovered an object which Officer
Jones later identified as a muzzle flash suppressor. During his testimony, Officer Jones
demonstrated how the flash suppressor fit on the gun found in the spare tire.
Defense evidence
Robles and Moreno each presented evidence; Valencia did not. DNA analyst
Matthew Farr testified that defendants were not identified as contributors to the DNA
recovered from the Glock pistol or the duct tape found on the muzzle.
Chamale’s friend Ortega testified that he thought they were going to Kansas City
to sell a car, and did not know how they were going to return. He denied being part of
an advance team to hunt, capture and kill Macho.
Robles admitted that he had known Secuestro for about three years and that he had
driven trucks for Valencia, but denied transporting drugs in the trucks. Robles denied
going to Kansas City to kidnap or kill Macho and denied hearing anyone talking about a
mission to kill Macho. Robles went on the trip in order to fix a semi-truck tractor in
Kansas City by removing the gas tank so that money could be hidden. Robles admitted
that he knew the plan was drug related, but denied any plan to kill Macho. He thought the
police were following them because of drugs.
DISCUSSION
I. Wheeler-Batson motion
Valencia contends that the trial court erred in denying Moreno’s Wheeler-Batson
motion, made on the ground that the prosecutor used peremptory challenges to
10
systematically exclude Hispanics from the jury. The trial court found that Moreno had
not made a prima facie showing of discrimination after the prosecutors exercised three of
their first four peremptory challenges to excuse prospective jurors who appeared to be
Hispanic.
The use of peremptory challenges to remove prospective jurors solely on the basis
of a presumed group bias violates both the state and federal Constitutions. (Wheeler,
supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at p. 89.) In reviewing a
Wheeler-Batson motion, the trial court ordinarily engages in a three-step inquiry: the first
step requires the objecting party to make a prima facie showing of prohibited group bias;
in the second step, reached only if the objecting party has successfully made a prima facie
showing, the burden shifts to the party who exercised the peremptory challenge to give a
nondiscriminatory reason; and in the third step, the court determines whether the
objecting party has proven purposeful discrimination. (People v. Silva (2001) 25 Cal.4th
345, 384; Purkett v. Elem (1995) 514 U.S. 765, 767.) “The ultimate burden of persuasion
regarding [discriminatory] motivation rests with, and never shifts from, the opponent of
the strike. [Citation.] The three-step procedure also applies to state constitutional claims.
[Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 612-613.)
Respondent contends that Valencia forfeited this contention by failing to join in
Moreno’s motion below. Valencia counters that if the issue has been forfeited, we should
nevertheless reach the merits to avoid a claim of ineffective assistance of counsel in
violation of the Sixth Amendment. “‘Generally, failure to join in the objection or motion
of a codefendant constitutes a waiver of the issue on appeal.’ [Citations.] [¶] A litigant
need not object, however, if doing so would be futile. [Citation.]” (People v. Wilson
(2008) 44 Cal.4th 758, 793.) As we explain, we agree with the trial court that Moreno
made no prima facie showing of intentional discrimination. Thus, Valencia’s joinder
would have been futile, and although there would then be no forfeiture, “[t]he Sixth
Amendment does not require counsel to raise futile motions. [Citations.]” (People v.
Solomon (2010) 49 Cal.4th 792, 843, fn. 24.) Counsel’s representation does not become
11
defective by failing to join a meritless objection. (See People v. Ochoa (1998) 19 Cal.4th
353, 463.)
It is presumed that the prosecution uses its peremptory challenges in a
constitutional manner. (Wheeler, supra, 22 Cal.3d at pp. 278-281.) To rebut that
presumption and establish a prima facie case of discrimination, the moving party is
required to produce sufficient evidence to show that “‘the totality of the relevant facts
gives rise to an inference of discriminatory purpose.’ [Citation.]” (Johnson v. California
(2005) 545 U.S. 162, 168, 170 (Johnson); see also People v. Thomas (2012) 53 Cal.4th
771, 793-794.)
Valencia argues that the defense made a prima facie showing because 75 percent
of the challenges made were of jurors who appeared to be Hispanic. This was 75 percent
of four people early in jury selection, however, and four other apparently Hispanic
prospective jurors remained in the jury box. Further, Valencia does not refer to the
record to show how many other Hispanic jurors there were in the venire, or how many
were questioned, challenged, or ultimately seated. A numerical showing alone generally
falls short of a prima facie showing unless the number is large enough to suggest a
pattern of impermissible exclusion. (People v. Harris (2013) 57 Cal.4th 804, 835
(Harris).) A defendant could conceivably be able to make a prima facie showing with a
percentage of a large number of jurors; but a very small “sample makes drawing an
inference of discrimination from this fact alone impossible. ‘[E]ven the exclusion of a
single prospective juror may be the product of an improper group bias. As a practical
matter, however, the challenge of one or two jurors can rarely suggest a pattern of
impermissible exclusion.’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 598, fn.
omitted; see also People v. Bonilla (2007) 41 Cal.4th 313, 342-343 (Bonilla).)
Valencia’s numerical argument is particularly inadequate here, where the
prosecutor gave facially race-neutral reasons for the excusals. (See Harris, supra, 57
Cal.4th at p. 835.) After the trial court ruled that no prima facie case had been
established, the prosecutor nevertheless asked to make a record. He explained that one
juror was excused because he disagreed with the concept of equal liability for
12
accomplices. Another prospective juror stated that he had been mistakenly arrested in
1983 and treated very badly by the police. The third presumptive Hispanic juror had
worn a black T-shirt to court, had a large tattoo of what appeared to be a dragon or a
demon, and he was due in court himself on a custody matter.
Although Valencia does not dispute that the prosecutor’s reasons were facially
race-neutral, he contends that the trial court made an inadequate evaluation of the
explanations. He argues that when subjected to a comparative analysis, the prosecutor’s
reasons appear to have been pretextual, not genuinely race-neutral. This contention is
more appropriate in step three of a Wheeler-Batson analysis, as the existence of a prima
facie showing does not hinge upon the prosecutor’s sincerity. (Bonilla, supra, 41 Cal.4th
at p. 350.) Thus the trial court was not required to evaluate the sincerity of the
prosecutor’s reasons, and did not err by simply agreeing to hear them after the court had
already ruled. (See People v. Taylor (2010) 48 Cal.4th 574, 616-617.) Since the defense
did not make a prima facie showing of purposeful discrimination, a comparative analysis
was not relevant in the trial court; further, as we agree with the trial court that no prima
facie showing was made, it is equally irrelevant here. (See People v. Howard (2008) 42
Cal.4th 1000, 1019-1020.) We conclude that the trial court did not err in denying the
motion.
II. Expert testimony
Moreno contends that Detective Mundell’s testimony that Moreno intended to kill
Macho was an improper expert opinion which lessened the prosecution’s burden of proof,
resulting in a denial of due process and a fair trial.
The challenged opinion followed the reading of the transcript where Moreno said
that “if it is going to be done in one day and you give me your word that in one day, then
I’ll go, and you must have the guy there and I will do it.” Asked for his opinion of the
13
meaning of “doing it,” based upon his investigation, training, and experience with regard
to coded language, Detective Mundell replied, “He’s gonna kill him.”6
Respondent contends that Moreno failed to preserve the issue for review, as
Moreno’s counsel objected without stating a ground. We agree. A judgment may not be
reversed by reason of the erroneous admission of evidence unless a timely objection was
made and the specific ground of the objection was made clear to the court. (Evid. Code,
§ 353.) Despite having failed to state any ground for his objection, Moreno now
challenges the evidence not only as improper expert opinion, but also as a constitutional
violation. His failure to state a ground for objection forfeits his constitutional contention,
as well. (See People v. Partida (2005) 37 Cal.4th 428, 433-434 (Partida).)7
Moreno claims that the court’s ruling gave him no opportunity to state his ground.
He relies on People v. Kitt (1978) 83 Cal.App.3d 834, overruled on another ground in
People v. Cooper (1991) 53 Cal.3d 771, 836, in which the appellate court found that the
particular facts in the record of that case made it “abundantly clear” that an adequate
objection to one photograph was understood as an objection to two similar photographs.
The court did not hold that merely overruling a general objection forecloses all
opportunity to add the specific ground of the objection.
Moreno also claims that the court and the prosecutor “had to have” understood the
basis for the objection because the court did not ask for clarification and “quickly”
overruled the objection. He relies on People v. Diaz (1992) 3 Cal.4th 495, 528 (Diaz), in
which the California Supreme Court noted that “‘where the record shows . . . that all the
6 “A witness may not express an opinion on a defendant's guilt. [Citations.] The
reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion
testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or
innocence are inadmissible because they are of no assistance to the trier of fact. To put it
another way, the trier of fact is as competent as the witness to weigh the evidence and
draw a conclusion on the issue of guilt.’ [Citation.]” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 77.)
7 Moreno has also failed to preserve his claim that counsel was ineffective by failing
to timely state a ground for the objection, as it was made for the first time in his reply
brief. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
14
parties, including the court, must have understood the purpose of the objection, it will not
be said that the objection failed of its purpose.’ [Citation.]” (Ibid., quoting People v.
Scott (1978) 21 Cal.3d 284, 290, italics added.) In Diaz, the court found that the record
was inadequate to show that either the prosecution or the trial court understood the
intended ground of the objection. (Diaz, at p. 528.)
Here too Moreno’s contention is unsupported by the record. We reject the
characterization of the court’s ruling as quick, as it cannot be determined from the
transcript how quickly the trial court ruled. Further, the absence of a request for
clarification is equally consistent with misunderstanding as it is with understanding.
“‘Trial judges are not supposed to have the numerous, varied, and complex rules
governing the admissibility of evidence so completely in mind and of such ready
application that under an omnivagant objection to a question they can apply with legal
accuracy some particular principle of law which the objection does not specifically
present.’ [Citations.]” (Partida, supra, 37 Cal.4th at p. 434.)
Moreover, if we held that the failure of the court to request clarification was
sufficient to establish that it understood the ground for a general objection, we would
effectively eliminate the requirement of stating any ground, thereby judicially rewriting
Evidence Code section 353. The separation of powers doctrine precludes such a result.
(See Cal. Const., art. III, § 3; People v. Bunn (2002) 27 Cal.4th 1, 16-17.)
In any event, we agree with respondent that any error was harmless. The
erroneous admission of expert testimony warrants reversal of a judgment only if it is
reasonably probable that a result more favorable to the appellant would have been
reached absent the error. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); People
v. Pearson (2013) 56 Cal.4th 393, 446; People v. Watson (1956) 46 Cal.2d 818, 836
(Watson).) When the evidence is so strong that the jury could easily have come to the
same conclusion as the expert, and the jury is properly instructed in evaluating expert
testimony, any error in admitting the opinion is harmless. (People v. Davis (2009) 46
Cal.4th 539, 605.) Here, the trial court read CALCRIM No. 332 to the jury, instructing
them regarding the evaluation of expert opinions. Among other things, the court
15
instructed the jury that it was not required to accept the opinions as true or correct, that it
should follow the court’s instructions regarding the believability of witnesses in general,
and that it should consider whether facts on which the expert relied were true and
accurate. The court concluded: “You may disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the evidence.”
That Moreno intended to kill Macho was more than adequately supported by the
evidence. Also there is no merit to Moreno’s suggestion that without Detective
Mundell’s opinion, the jury could have concluded that Moreno might have intended to go
to Kansas City to kidnap, rob, or beat Macho, or commit some other crime. Indeed
evidence that Valencia planned to have Macho killed and he hired Moreno to do the job
was overwhelming. In a flurry of code-filled telephone calls over just a few days,
Valencia told an acquaintance that he and Secuestro were “going to shoot him at the
menudo place,” that he had silencers available, and that he needed bullets for a .45-
caliber weapon.
During that time, Secuestro asked Moreno whether he was willing to “go and take
care of some things that we need to take care of over there.” Secuestro would “go there
first to prepare the whole land,” that it was a three-hour trip for which he would get a
round-trip ticket, and that Moreno could go on Saturday and come back the same day.
When Moreno received instructions from Valencia on obtaining false identification,
Moreno wondered whether the trip would be a “worthless dash.” Valencia assured him,
“This one would go first and in a day you would find out where he lives.” Valencia then
warned Moreno that this could not be discussed over the telephone. On September 6,
Valencia told Moreno to come in the morning with his identification and that he would
get Moreno the ticket. Moreno agreed; his brother would take him to “the bird” so he
could leave. Valencia again warned him, “Don’t talk so much.” Meanwhile, Secuestro
and others arrived in Kansas City with a .45-caliber handgun, an empty cartridge
magazine, and an aftermarket gun barrel that would accommodate a silencer or
suppressor. The involvement of law enforcement then forced a change in plans. Moreno
arrived for his flight but no one met him.
16
We conclude that there is no reasonable probability that the result would have
been different absent Detective Mundell’s opinion, and that its admission was thus
harmless under the standard of Watson, supra, 46 Cal.2d at page 836.
III. Juror misconduct
Defendants contend that the trial court erred in refusing to remove Juror No. 9 for
misconduct or in the alternative to declare a mistrial due to improper juror contact.
A criminal defendant has a constitutional right to a fair trial by an impartial jury.
(See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Duncan v. Louisiana
(1968) 391 U.S. 145, 149; In re Hamilton (1999) 20 Cal.4th 273, 293-294 (Hamilton).)
“An impartial jury is one in which no member has been improperly influenced [citations]
and every member is ‘“capable and willing to decide the case solely on the evidence
before it.”’ [Citations.]” (Hamilton, supra, at p. 294.) “A sitting juror’s involuntary
exposure to events outside the trial evidence, even if not ‘misconduct’ in the pejorative
sense, may require similar examination for probable prejudice.” “[A] nonjuror’s
tampering contact or communication with a sitting juror, usually raises a rebuttable
‘presumption’ of prejudice. [Citations.]” (Id. at pp. 294-295.)
However, “due process does not require a new trial every time a juror has been
placed in a potentially compromising situation . . . ; it is virtually impossible to shield
jurors from every contact or influence that might theoretically affect their vote.” (Smith
v. Phillips (1982) 455 U.S. 209, 217; see also In re Price (2011) 51 Cal.4th 547, 560
(Price).) “Any presumption of prejudice is rebutted, and the verdict will not be
disturbed, if the entire record in the particular case, including the nature of the
misconduct or other event, and the surrounding circumstances, indicates there is no
reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors
were actually biased against the defendant. [Citation.]” (Hamilton, supra, 20 Cal.4th at
p. 296.)
Section 1089 permits the trial court to remove a juror at any time upon a showing
of good cause, such as where the juror is shown to be unable to perform his or her
functions due to bias. (People v. Beeler (1995) 9 Cal.4th 953, 975 (Beeler).) “‘A juror’s
17
inability to perform his or her functions . . . must appear in the record as a “demonstrable
reality” and bias may not be presumed.’ [Citations.]” (Ibid.) Whether a party has made
a sufficient showing is one within the discretion of the trial court, “‘and if there is any
substantial evidence supporting that decision, it will be upheld on appeal.’ [Citation.]”
(Ibid.)
Moreno contends that the questioning of jurors established that Juror No. 9
initially lied to the court, withheld information, and was forthcoming with the truth only
when the court questioned her a second time. Contrary to Moreno’s characterizations,
the trial court found that the difference in Juror No. 9’s answers was the result of
confusion, not misconduct. We must give great weight to the court’s credibility
determinations. (Price, supra, 51 Cal.4th at p. 563.) “We accept the trial court’s factual
findings and credibility determinations if supported by substantial evidence. [Citation.]”
(People v. Tafoya (2007) 42 Cal.4th 147, 192 (Tafoya).) Here, substantial evidence
supports the trial court’s determinations and decision.
Sometime during the trial Detective Mundell reported that Juror No. 9 had spoken
to him in line in the cafeteria. Detective Mundell told the court that he did not think she
knew it was him when she first spoke, because she then turned, looked at him and said,
“I’m not supposed to talk with you.” When Juror No. 9 was questioned, she told the
court that she was buying coffee in the cafeteria, saw money on the counter, and before
she saw who she was talking to, said, “Oh my God, I almost grabbed your money.” Juror
No. 9 then said, “Oh I can’t talk to you,” and nothing more was said. She apologized to
the court. The court found no misconduct, and Moreno’s counsel stated that he was
satisfied with Juror No. 9’s response and no longer asked that she be dismissed.
Later, during deliberations, Juror No. 12 informed the bailiff that someone had
spoken to him outside the courtroom and asked him to vote “not guilty.” When Juror
No. 12 was called into the court for questioning, he reported that while he sat on the
bench waiting to enter the courtroom, an older Hispanic lady he had never seen before
asked whether she could ask him a question. Thinking that she was lost, he approached
her, and the woman said, “Can you please say not guilty.” Juror No. 12 asked her about
18
which case she was referring to and the woman gave the name of an unrelated case. Juror
No. 12 told her that he was not involved in that case. The women said, “Oh,” and there
was no further conversation. Juror No. 12 told Juror No. 6 and an alternate juror with a
goatee what had happened. He told the court that his ability to be fair would not be
affected by this event.
The court questioned each juror individually about what they heard. Juror No. 6
confirmed what Juror No. 12 said and added that she told Juror No. 9 about the incident.
Juror No. 9 was asked whether a juror had informed her of contact made with another
juror, and she replied, “No.” When the court told her not to discuss what “we talked
about,” she replied, “No, sir. We didn’t talk about much, but I won’t.” Juror No. 6 was
again questioned. She confirmed that she had mentioned the incident to Juror No. 9, and
believed that more people knew about it.
Jurors No. 1, 3, 7, and Alternate Juror No. 1 all denied hearing anything about any
third-party contact with another juror. Alternate Juror No. 3 reported that he was present
when Juror No. 12 spoke with a woman in Spanish, which he did not understand, and that
after the conversation, Juror No. 12 told him that the woman asked him “to say guilty, I
guess, something along those lines.” Juror No. 2 heard from Juror No. 6 that someone
had “wanted the translation of not guilty and what that may have been. That’s all I
heard.” Juror No. 4 heard from Juror No. 10 that someone had spoken to one of the
jurors about a case in another court. Juror No. 5 had heard that someone had asked one
of their Spanish-speaking jurors to vote not guilty. Juror No. 8 overheard jurors speaking
about someone telling one of the jurors something. Juror No. 10 stated that Juror No. 12
told him and Juror No. 6 that a woman had asked him in Spanish whether he could vote
not guilty. Juror No. 11 heard that “someone got approached by someone” but did not
know further details. Alternate Juror No. 4 stated that a female juror told him that
someone approached a male juror and asked him to “say not guilty” for an unrelated case.
The trial court instructed the jurors not to discuss the incident, and those who had heard
of the contact assured the court that each of them could remain fair and impartial and
would follow the court’s instructions.
19
After further discussion regarding Juror No. 9, she was again brought into the
courtroom. Juror No. 9 reaffirmed that Juror No. 6 did not inform her of the incident
where a juror had been contacted by a third party, but she stated that she did hear from
someone else about such contact. She heard that “somebody spoke Spanish and said
something about another trial.” She heard nothing else in that regard, and told the court
that this would not affect her ability to be fair and impartial in this case. The court
instructed her not to discuss the matter with other jurors.
Following the lunch recess Moreno’s counsel moved to excuse Juror No. 9 due to
both her contact with Detective Mundell in the cafeteria and because her statement
conflicted with Juror No. 6’s statement. The trial court again questioned Juror No. 6 who
stated that she was with Juror Nos. 10 and 12 when the contact happened, that she told
Juror No. 9 about it after that, but “I don’t know if she heard me so I don’t know if she
really understands what is going on, but I did talk to Juror No. 9.” She explained, “It was
really in passing, like someone talked to Juror No. 12 about a verdict or something like
that. And I don’t even know if she understood me, but I did speak with her about it.”
According to Juror No. 6, Juror No. 9 seemed confused and “just nodded.”
Moreno’s counsel again asked that the court to excuse Juror No. 9, because Juror
No. 6 seemed credible, Juror No. 9 initially denied that juror No. 6 told her of the
incident, and because of the contact in the cafeteria. The trial court found no misconduct
and denied the request. The jurors’ responses to the questioning provides ample support
for the trial court’s conclusion that Juror No. 9 had been confused and did not engage in
misconduct. Thus there was no abuse of discretion in the court’s refusal to dismiss her.
(See Beeler, supra, 9 Cal.4th at p. 975; § 1089.)
Defendants contend that the trial court should have given an instruction drafted by
Moreno’s counsel. Counsel asked the court to instruct the jury with the fourth paragraph
of CALCRIM No. 101, modified to read as follows: “You must not allow anything that
happens outside of this courtroom to affect your decision. Anything that may have
happened this morning has nothing to do with any of the defendants in this case.”
Valencia’s counsel joined in the request to which the prosecutor objected. The court
20
denied the request finding that CALCRIM No. 222 sufficiently covered the substance of
CALCRIM No. 101. The court then instructed the jury with CALCRIM No. 222,
including the following sentence: “You must disregard anything you saw or heard when
the court was not in session even if it was done or said by one of the parties or
witnesses.”
The trial court did not err. A court may properly refuse a confusing pinpoint
instruction. (People v. Gurule (2002) 28 Cal.4th 557, 659.) The requested instruction
would likely have confused the jurors who had heard nothing about the incident, whereas
the language in CALCRIM No. 222 provided the same admonition in a neutral manner,
without bringing attention to the particular incident.
In any event, the circumstances indicate no reasonable probability that one or
more jurors were actually biased against defendants. The incident was brief, the
unidentified speaker was not connected to anyone in this case, and none of the responses
to the court’s questions indicated any bias on the part of any of the jurors. Thus we
conclude that it was neither inherently nor substantially likely to have influenced any
juror. Further, the jurors indicated they could follow the instructions in this case; and
those who had heard something about the incident assured the court they could remain
fair and impartial. As there was no reasonable probability of bias or prejudice,
defendants were not entitled to a mistrial. (See Hamilton, supra, 20 Cal.4th at p. 296.)
Moreover, as we concluded in the previous section, the evidence of the conspiracy was
overwhelming. With no probable bias and overwhelming evidence of guilt, reversal is
not indicated. (Tafoya, supra, 42 Cal.4th at p. 192.)
IV. Pitchess review
The trial court granted Moreno’s pretrial Pitchess motion for the discovery of any
information contained in Detective Mundell’s personnel file pertaining to incidents of
coercive conduct or false reporting. An in camera hearing was held to determine whether
any such information existed. Once it was determined that there were no discoverable
items in the records produced the matter was concluded. Moreno requests that we review
the sealed record of the in camera hearing and the court’s determination.
21
We review the trial court’s proceeding for an abuse of discretion. (People v.
Jackson (1996) 13 Cal.4th 1164, 1220-1221.) The records produced in the trial court
were not retained, but during the in camera hearing the trial judge examined and
described each report and stated reasons for his determination. Upon review of the sealed
transcript of the hearing we find it sufficient to review the trial court’s determination,
without having to order the production of the same documents in this court. (See People
v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) We further conclude the trial court
properly exercised its discretion in determining that the documents produced complied
with the scope of the order granting the Pitchess motion, and that none of the documents
or information need be disclosed to the defense.
V. Ex post facto
Valencia contends that the imposition of a $280 restitution fine was unauthorized
and violated the ex post facto clauses of the state and federal constitutions. He contends
that the record shows that the trial court intended to impose the minimum fine, which was
$200 at the time of his offense. (See former § 1202.4, subd. (b)(1); Stats. 2008, ch. 468,
§ 1.)
Ex post facto laws are prohibited by both the California and United States
Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) “[T]he imposition of
restitution fines constitutes punishment, and therefore is subject to the proscriptions of
the ex post facto clause and other constitutional provisions. [Citations.]” (People v.
Souza (2012) 54 Cal.4th 90, 143.) An ex post facto law is a statute that punishes as a
crime an act which was not a crime when committed, or that inflicts greater punishment
than permitted by the law applicable when the crime was committed. (Collins v.
Youngblood (1990) 497 U.S. 37, 42-43.) Similarly, an amendment that increases the
punishment associated with a crime after its commission is prohibited. (People v. Acosta
(2009) 176 Cal.App.4th 472, 475.) Thus, an amendment increasing a fine may be
imposed only prospectively.
The amount of a restitution fine rests within the trial court’s discretion so long as
the amount is “commensurate with the seriousness of the offense,” is at least the statutory
22
minimum, and does not exceed the maximum. (§ 1202.4, subd. (b)(1); People v. Urbano
(2005) 128 Cal.App.4th 396, 405.) The minimum was $200 at the time of Valencia’s
crime, with a maximum of $10,000. Thus, the court was authorized under the prior law
to impose a fine in some amount between $200 and $10,000. The primary purpose of the
ex post facto clause is “to prevent unforeseeable punishment.” (People v. Snook (1997)
16 Cal.4th 1210, 1221.) We thus agree with respondent that as the foreseeable range of
punishment was between $200 and $10,000 at the time the crime was committed, any
amount within that range, including $280, would not offend the ex post facto clause.
However, as respondent also points out, although the trial court ordered Valencia
to pay a restitution fine, the court did not set the amount of the fine. The court stated,
“He’s to pay the following: a restitution fine, a parole revocation restitution fine, a
criminal conviction assessment, a court operations assessment.” Although the court did
not specify any amount, the minutes state the amount as $280, and the clerk also inserted
that amount into the abstract of judgment. Respondent requests a limited remand to
permit the trial court to set the amount of the fine. Valencia suggests that because the
clerk chose the statutory minimum in effect at the time of sentencing, the trial court must
have intended to impose the minimum, and asks that we modify the judgment
accordingly.
We must remand as respondent asks, as the amount of the fine is part of the
judgment that must be orally pronounced by the court. (See People v. Zackery (2007)
147 Cal.App.4th 380, 386-387 (Zackery); § 1193, subd. (a); § 1445.) “The clerk cannot
supplement the judgment the court actually pronounced by adding a provision to the
minute order and the abstract of judgment. [Citation.]” (Zackery, at pp. 387-388.) Thus,
the $280 restitution fine reflected in the minutes and the abstract of judgment must be
stricken.
Although the amount of the restitution fine is discretionary, its imposition in some
amount between the minimum and maximum is mandatory “unless [the trial court] finds
compelling and extraordinary reasons for not doing so and states those reasons on the
record.” (§1202.4, subd. (b); see People v. Tillman (2000) 22 Cal.4th 300, 302.)
23
Because the trial court did not state any such reasons on the record here, but did in fact
order Valencia to pay a restitution fine, we remand the matter to allow the court to
determine the appropriate amount. (See Zackery, supra, 147 Cal.App.4th at p. 389.)
DISPOSITION
The notation of $280 as the amount of the restitution fine imposed upon Valencia
is stricken from the trial court’s minutes of May 24, 2013, and from the abstract of
judgment filed June 6, 2013. The matter is remanded for the sole purpose of permitting
the trial court to determine the amount of the restitution fine Valencia is to pay, to orally
pronounce that amount, and to provide the Department of Corrections and Rehabilitation
an amended abstract of judgment. In all other respects the judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
ASHMANN-GERST
24