Filed 11/18/14 P. v. Grajeda CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B244153
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA087587)
v.
SENON GRANDE GRAJEDA et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County, Mark C.
Kim, Judge. Affirmed in part and reversed in part with directions.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and
Appellant Senon Grande Grajeda.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and
Appellant Daniel Tomas Grajeda.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and David
Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
INTRODUCTION
Defendants Senon Grande Grajeda and Daniel Tomas Grajeda appeal from
judgments entered after a jury trial. The jury found Senon1 guilty of first degree
premeditated murder (Pen. Code, § 187, subd. (a)). The jury found true the allegations
that the crime was committed for the benefit of, at the direction of, or in association with
a criminal street gang (id., § 186.22, subd. (b)(1)(C)), and that in the commission of the
crime a principal intentionally discharged a firearm causing great bodily injury and death
(id., § 12022.53, subds. (d), (e)(1)), personally and intentionally discharged a firearm (id.,
§ 12022.53, subds. (c), (e)(1)), and personally used a firearm (id., § 12022.53, subds. (b),
(e)). The trial court found true the allegations that Senon had suffered two prior serious
felony convictions (id., §§ 667, subds. (a)(1), (b)-(i), 1170.12). The court sentenced
Senon under the three strikes law to 75 years to life for the murder, plus 25 years to life
for the intentional discharge of a firearm causing death, plus 10 years for the two prior
serious felony convictions, for a total of 110 years to life in state prison.
The jury similarly found Daniel guilty of first degree premeditated murder and
found true the gang and firearm allegations. The jury also found Daniel guilty of
possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and found true the
allegation that both crimes were committed for the benefit of, at the direction of, or in
association with a criminal street gang (id., § 186.22, subd. (b)(1)(C)). The trial court
also found true the allegations Daniel had served four prior prison terms (id., § 667.5,
subd. (b)). The trial court sentenced Daniel to 25 years to life for the murder plus an
additional 25 years to life for the intentional discharge of a firearm causing death. The
court sentenced Daniel to the upper term of three years for possession of a firearm by a
1 Where two people share the same last name, we refer to them by their first names
to avoid confusion. (See People v. Boyce (2014) 59 Cal.4th 672, 680, fn. 6; People v.
Eubanks (2011) 53 Cal.4th 110, 116, fn. 2.)
2
felon, plus five years for the gang enhancement and four years for the prior prison
sentences. Daniel’s total sentence was 62 years to life in state prison.
FACTUAL BACKGROUND
A. The Defendants
Senon is Daniel’s uncle. Senon is a member of La Rana gang and the Mexican
Mafia. He has a tattoo of a black hand, signifying his Mexican Mafia membership, and is
known by the moniker “Cherilo.”
Daniel is a member of the Westside Wilmas gang, whose territory is the west side
of Wilmington. His gang moniker is “Peanut.”
B. The Residents of the Wilmington Inn Motel
The Wilmington Inn Motel is in territory claimed by the Westside Wilmas gang.
Michelle Tamble was the manager of the Wilmington Inn.
The victim, Johnny Carbajal, lived at the Wilmington Inn with Melissa Garcia and
their two children. Johnny was a member of the Westside Wilmas and had “W.S.”
tattooed on his left arm.
Johnny’s mother, Stella Carbajal, and her husband, John Beck, also lived at the
Wilmington Inn. Stella was a member of the Westside Wilmas. Beck, who had been
incarcerated several times, had been a member of the 18th Street gang and was known by
the moniker “Psycho.” Beck had met Senon years earlier when both were incarcerated.
He knew Senon by the moniker “Cherilo” and knew that Senon was a senior member of
the Mexican Mafia.
Enedina Torres and her boyfriend, Raul Benitez, were staying with another tenant
at the Wilmington Inn. Benitez was a member of the Eastside Wilmas, and Torres was an
associate of the Westside Wilmas. Torres is Daniel’s sister and Senon’s niece. Beck
learned in November 2010 that Torres was Senon’s niece and called Senon to say hello.
3
Torres bragged to some of the tenants at the Wilmington Inn that her uncle ranked high in
the Mexican Mafia.
The Westside Wilmas’ gang color is blue, and the gang considers it a sign of
disrespect to wear red, the color of its rival gang, the Eastside Wilmas. Benitez had been
wearing red clothing, and other tenants had asked him to remove it. He did not get upset
and complied with their requests.
C. The Murder
At 8:00 p.m. on November 29, 2010 Johnny noticed that Benitez was wearing red
clothing and told him to take it off. Benitez apologized and complied. Torres, who had
been hit by a car the night before and was waiting for a ride to the hospital, sat nearby in
Stella’s wheelchair. Torres got angry and told Johnny to leave Benitez alone. Johnny
told Torres to get out of his mother’s wheelchair. Torres got up and left with Benitez.
A little while later, Senon arrived at the Wilmington Inn to take Torres to the
hospital. While Senon was taking Torres to his car, Johnny was arguing with Benitez.
Senon got upset with Johnny and told him that he was Torres’ uncle, and Johnny should
show him some respect. Senon told Benitez to get in the car. Once Senon, Torres, and
Benitez were in the car, Senon complained that people did not have respect for their
elders. Senon drove the car around the corner and parked. Then he and Benitez got out
and returned to the Wilmington Inn, leaving Torres in the car.
Beck had witnessed the initial confrontation between Johnny and Benitez and then
returned to his room. Later, Stella’s cousin came to the room and told Beck to come to
the front of the building, where Johnny was talking to Senon. Beck was concerned
because Johnny was “special ed, he don’t really understand too much.” Beck went
quickly toward the front of the building.
Beck heard Senon say, “Yeah, there is a lot of people that are running their mouths
around there, about shit. I am about something. I will be back.” Johnny came into the
motel and told Beck that Senon was angry with him. Beck told Johnny to go into
Tamble’s office. Johnny went to join Tamble, Garcia, and others in the office.
4
Beck went outside to talk to Senon. Senon put his hands up and told Beck to stay
back. Beck said, “Cherilo, it’s me, Psycho. Psycho from 18th Street.” After the two of
them had talked for a while, Beck asked if everything was “cool.” Senon said it was; he
was just there to take his niece to the hospital because she had injured her ankle. Beck
told him, “Oh yeah, she is sitting in my wife’s wheelchair in there, but my son got mad
and told her to get out of it, only because she has had three or four wheelchairs stolen
already.”
Senon made a call on his cell phone. About five minutes later, a black SUV
arrived in front of the Wilmington Inn. Daniel and another man got out of the SUV and
walked over to Senon and Beck. Daniel whispered something to Senon and put his hand
inside his waistband, where he had what appeared to be a gun. Senon told Benitez to
unlock the door to the motel. Benitez unlocked the door, and Senon, Daniel, and the
other man went inside. Beck, who remained outside, saw Senon, Daniel, and the other
man enter Tamble’s office.
Tamble asked the men if she could help them, but they ignored her. Johnny was
sitting with Garcia and talking on his cell phone. Senon told him to come outside and
fight. Johnny refused, saying that he did not want to fight. Senon slapped Johnny and
called him a “bitch.” Johnny and Garcia got up to fight back. Senon knocked Garcia to
the floor and began to fight with Johnny. When Garcia tried to get up, Daniel grabbed
her hair with his left hand and held her down. Daniel pulled a gun from his waistband
with his right hand and shot Johnny twice. Senon, Daniel, and the other man ran outside,
got into the SUV, and drove away. Tamble called 911.
When Beck heard the gunshots, he ran back inside. Someone told him, “they shot
your kid. They killed him.” Beck went into Tamble’s office and saw Johnny sprawled
on a love seat. Johnny was bloody and his eyes were shut. Beck began shaking Johnny,
but people in the room told him that Johnny was already dead. Johnny opened his eyes
and told Beck, “It will be alright.” Then he died. An autopsy revealed that one of the
bullets passed through Johnny’s kidney and spine, and the other passed through his colon,
small bowel, and liver. Johnny died of massive blood loss.
5
According to Garcia, who testified as a defense witness for Daniel, Johnny was
not a gang member. He was disabled and stayed at home with their children. On
November 29 Johnny got into an argument with Torres’ boyfriend Benitez, which made
Torres angry. Garcia knew that Torres was associated with the Westside Wilmas and La
Rana gangs, and that Torres had bragged her uncle was a member of the Mexican Mafia.
Torres said that if anyone messed with her, she would call her uncle.
At 8:00 p.m., when Garcia and Johnny were in Tamble’s office, Johnny got into an
argument with two men that Garcia had never seen before. When one man slapped
Johnny and called him a bitch, Garcia tried to intervene. The man punched her in the
face and knocked her down. Someone pulled her hair back and then she heard gunshots.
According to Garcia, Johnny never got up to fight anyone because he was not a fighter.
After the shooting, she heard people say that the shooter was “Clever” from the
Westside Wilmas. Garcia testified that the shooter had green or hazel eyes and a tattoo
under his right eye based on what other people had told her; she had not been able to see
the shooter’s face because he was wearing a hood.2 Garcia acknowledged that she was
afraid of retaliation if she identified anyone and had asked the prosecutor not to call her
as a witness.
D. The Investigation
Los Angeles Police Department Detectives Isidro Rodriguez and Antonio Batres
interviewed Tamble after the shooting. They showed her a photographic lineup (a “six-
pack”) that included a photograph of Senon’s cousin, Raymundo. Tamble initially
identified this photograph because Raymundo looked like the man who had slapped
Johnny, but Tamble was not sure of her identification. Detective Rodriguez showed her a
second six-pack containing Senon’s photograph, and she identified him as the man who
had slapped Johnny.
2 In a police interview, Garcia first indicated that the shooter’s tattoo was under his
left eye, the later indicated it was under his right eye. Daniel’s tattoo is under his left eye.
6
Tamble described the shooter as a light-skinned Hispanic man in his mid-20’s,
five-foot-seven, with a stocky build and round face, and a tattoo under his left eye. The
police showed her a six-pack that did not have Daniel’s photograph in it. She was unable
to identify the shooter, because none of the men in the photographs had a tattoo under his
left eye.
Detective Rodriguez interviewed Beck on December 1. Beck identified Senon
from a photographic lineup. Because Beck stated that the man with the gun had a tattoo
under his eye, when preparing the six-pack that included a photograph of Daniel,
Detective Rodriguez drew tattoos under the eyes of the other men. Beck identified
Daniel as the man with the gun. Beck acknowledged that he originally identified the man
with the gun as “Clever,” but he explained that “Clever” and “Peanut” were related and
he got them confused. “Everybody does. The whole barrio does. All the Westside
Wilmas does.” Beck identified Senon and Daniel at the preliminary hearing and at trial.3
Detectives Rodriguez and Cortez interviewed Torres on December 15.4 Torres
acknowledged that if someone disrespected a member of Senon’s family, there would be
consequences.
On December 16 Tamble saw a photograph of Daniel in a gang injunction letter
she received as manager of the Wilmington Inn. She recognized him as the shooter and
subsequently identified him from a photographic lineup. Tamble identified both Senon
and Daniel at the preliminary hearing and at trial.5
3 The police relocated Beck after the shooting.
4 Torres was incarcerated at the time of trial because she had been convicted of
grand theft and had violated parole.
5 The police also relocated Tamble because she had been threatened after her
preliminary hearing testimony. She was impeached with four felony convictions between
1998 and 2004.
7
E. The Cell Phone Records
Cell phone records show the phone numbers involved in a call, the time and
duration of a call, the cell site where the call originated, and the site where the call
terminated. On November 29, 2010 at 7:52 p.m., there was a 31-second call from
Senon’s cell phone to Daniel’s cell phone. The call originated and terminated from a cell
phone tower located in the general vicinity of the Wilmington Inn.
At 7:54 p.m. there was a second call from Senon’s cell phone that lasted 504
seconds (just under eight and one-half minutes). This call also originated in the general
vicinity of the Wilmington Inn. The call terminated at 8:02 p.m. at a cell phone tower
east of the tower where the call had originated.
Cell phone records for Daniel’s phone showed an incoming call from Senon’s cell
phone at 7:53 p.m. At 7:56 p.m., there was an outgoing call from Daniel’s cell phone to
Senon’s cell phone. This call originated at a cell phone tower close to the Wilmington
Inn but terminated at a tower east of there.
F. The Surveillance and Wiretaps
Torrance Police Officer David Ybarra began wiretapping Senon’s and Daniel’s
cell phones in December in connection with another investigation. On December 13 a
woman called Senon saying she had been unable to contact Torres for about a week and a
half. She explained she was worried, “‘Cause I like I left Wilmington because, dude, like
I was telling her people were like—like I told her who was trying to point fingers . . .
because they brought her portfolio, the detectives. And then I bounced.” Senon told her,
“don’t talk about that.”
On December 15 Senon’s wife called him. She was worried about him and angry
that she did not know where he was. He told her, “Well, I’m holding the baby right here
with me because Peanut’s taking care of business and I’m at their home, all right?” His
8
wife complained, “nothing else matters to you but that Eme shit,”6 and it “takes
precedence over everything, nothing else matters to you.”
On December 16 Torres called Senon and told him that Benitez had been arrested
for murder. Torres told him that “Somebody—somebody told where we were.” Senon
asked, “Who? It’s got to come out on paperwork.” Torres agreed, but when she started
to discuss it further, Senon warned her, “don’t say too much on the phone.”
G. The Gang Evidence
1. Rene Enriquez
Rene Enriquez testified at trial as a gang expert for the prosecution. Enriquez
became a member of the Arta gang when he was 13 years old, and was a member of the
Mexican Mafia for 17 years. He committed or participated in a number of murders for
the Mexican Mafia, and he was serving life terms in prison for two of them. Enriquez
left the Mexican Mafia and was now cooperating with law enforcement. He has testified
in court cases, lectured law enforcement, taught a college course, and collaborated on
books about his life and the Mexican Mafia.
Enriquez testified that there are 150 to 200 Mexican Mafia members in federal and
state prisons. In order to become a member of the Mexican Mafia, one must be
sponsored by a member and voted in by the members. The primary symbol of the
Mexican Mafia is the black hand of death. Only members can wear a black hand tattoo; a
nonmember wearing the tattoo would be killed. Both Enriquez and Senon had a black
hand tattooed on the left side of their chests.
The Mexican Mafia controls other gangs, whose members, Surenos, are the foot
soldiers of the Mexican Mafia. There are about 50,000 Surenos in California. Surenos
loyal to the Mexican Mafia use the number 13, which refers to the 13th letter of the
alphabet, M, pronounced “eme.” By committing crimes on behalf of the Mexican Mafia,
6 As we explain, “Eme” signifies the Mexican Mafia.
9
Surenos elevate their status within the gang culture and the status of their gangs. They
also become eligible for future membership in the Mexican Mafia. Surenos must be
willing to kill in order to gain respect from the Mexican Mafia.
Enriquez met Senon in Folsom State Prison, before Enriquez became a member of
the Mexican Mafia, and they became close friends. Senon gave Enriquez a picture of his
black hand tattoo. He wrote on the picture: “Para mi homie, René, Arta 13. Con
respecto, en parte de tu homie, Cherilo, La Rana.” There was a small “M” instead of a
dot over the “i” in “Cherilo.” Only Mexican Mafia members were allowed to use an “M”
instead of a dot over the “i.”
According to Enriquez, the Grajeda family was well known in the Mexican Mafia
because Senon’s two brothers were also members. Enriquez did not know Daniel but
recognized Daniel’s tattoos as referring to the Westside Wilmas. In addition, a “13”
tattooed on Daniel’s elbow identified him as a soldier for the Mexican Mafia.
In 1985 Senon told Enriquez that he had ordered a stabbing in Folsom State Prison
of someone who had disrespected a family member. The victim was accidentally killed,
which Senon subsequently approved. Senon ordered Enriquez to kill a Mexican Mafia
member who had beaten up his Mexican Mafia cellmate without permission from the
organization. Before Enriquez could kill the man, the man was removed from the
Mexican Mafia hit list. A few years later, in Chino State Prison, Senon told Enriquez
about his unsuccessful attempt to kill a man for dropping out of the Mexican Mafia.
Later, at Corcoran State Prison, Enriquez told Senon that Senon’s brother had been
stabbed for violating Mexican Mafia rules. Senon told Enriquez that if Enriquez could
get him near his brother, he would personally kill his brother.
Enriquez testified that carrying a weapon or committing an act of violence in front
of a Mexican Mafia member without that member’s permission was a capital offense.
Relatives of the member are not exempt from the requirement of permission. The
prosecutor asked Enriquez, “if you had . . . a Sureno who committed a shooting/homicide
right in front of the Mexican Mafia member, without that Mexican Mafia member’s
permission, what if that person were a relative of the Mexican Mafia member, would that
10
absolve them from the death sentence that they would otherwise receive as a result of
violating the Mexican Mafia rules? Enriquez answered, “No, even relatives are subject to
the rules of the Mexican Mafia. One rule is that you have to kill your brother, if it is
called for.” The prosecutor then asked if “a Sureno, who is a relative of the Mexican
Mafia member, did a homicide, shooting, killing, in front of that Mexican Mafia member,
and then the Mexican Mafia member came over to their house within the next week or
two, would that indicate to you that the killing had been ordered by the Mexican Mafia
member?” Enriquez said it “would indicate to me that there was a prearranged agreement
between the two individuals to perform the act in question.”7
Based on a hypothetical question mirroring the facts of this case, Enriquez opined
that there was a prearranged agreement that the Sureno would bring a gun and kill the
person who had disrespected the Mexican Mafia member and his family member, so that
the killing was at the direction of, for the benefit of, and in association with the Mexican
Mafia. The killing “lays the foundation for terror within the Hispanic gang subculture.
The gang members understand that if they don’t surrender their autonomy, if they don’t
agree to the Mexican Mafia commands, if they don’t provide the respect that’s demanded
by the organization, they will be killed. That’s how they benefit.” The killing also sends
a message to the community at large “that the Mexican Mafia is capable of killing
individuals who it desires killed.”
2. Law Enforcement Gang Testimony
Several police officers testified about contacts with Daniel and Senon where the
two of them admitted gang affiliation. Torrance Police Officer Tyrone Gribben testified
that on December 3, 2009 he conducted a field identification stop of Daniel, who
admitted that he was a member of the Westside Wilmas and that his gang moniker was
7 The questions were based on evidence of the December 15 telephone call from
Senon’s wife, in which Senon stated he was at Peanut’s home holding the baby while
Peanut took care of business.
11
“Peanut.” Torrance Police Officer Sean O’Rourke testified that he conducted field
identification stops of Senon on August 28, 2010 and November 19, 2010, and Senon
admitted he had been a member of the La Rana gang and was now a member of the
Mexican Mafia. Senon said that he was known as “Big Homie” and “Cherilo” among
Wilmington area gang members. Senon also told Officer O’Rourke that he had
committed assaults both in prison and on the streets, and his black hand tattoo signified
that he had committed five murders.
The prosecution also presented expert testimony on gang culture from two
members of law enforcement. Detective Christopher Brandon of the Los Angeles County
Sheriff’s Department, major crimes bureau, testified about the Mexican Mafia and
Sureno gangs. He agreed with Enriquez’s testimony regarding the operation of the
Mexican Mafia. In Detective Brandon’s opinion, Senon was a member of the Mexican
Mafia on November 29, 2010.
Los Angeles Police Officer Mark Maldonado testified as an expert on the
Westside Wilmas. In the 1980’s the Wilmas split into two gangs, the Westside Wilmas
and the Eastside Wilmas. Both are Sureno gangs. The Westside Wilmas have about 550
members and use “WSW” as their gang symbol.
Officer Maldonado explained that the “W” tattooed on Daniel’s head, the WSW
tattoo on the back of his neck, the Wilmas tattoo across his chest, and the “13” tattooed
on his elbow, signified his allegiance to the Mexican Mafia. Based on Daniel’s tattoos,
the officer’s prior contacts with Daniel, and information from other officers, Officer
Maldonado believed that Daniel was a Westside Wilmas member. Officer Maldonado
also testified that Daniel has brown eyes. Officer Maldonado stated he was aware of two
Westside Wilmas members having the moniker “Clever.” They were brothers and
cousins of the Grajedas. Neither had a facial tattoo.
Officer Maldonado opined that if a member of the Westside Wilmas shot a second
member of that gang in the presence of a member of the Mexican Mafia, whom the
victim had disrespected, the shooting would have been done for the benefit of, at the
direction of, or in association with, the Westside Wilmas. He explained that the shooting
12
would raise the gang member’s status and the status of the gang in the eyes of the
Mexican Mafia. If the disrespectful gang member was not killed, the Mexican Mafia
could “green light” the gang, meaning that other gangs could attack or kill the gang’s
members.
3. Defense Expert Gang Testimony
Alex Alonso testified as a gang expert for the defense. Alonso was affiliated with
the sociology department at the University of Southern California and had been studying
gangs, including the Mexican Mafia, since 1993. He explained that not all Hispanic
gangs in southern California were associated with the Mexican Mafia. The Mexican
Mafia is most interested in gangs whose territory have a high concentration of drugs and
drug users, where the Mexican Mafia can make money. Hispanic gangs in the Harbor
Cities area, including the Westside Wilmas, were associated with the Mexican Mafia.
Alonso opined that not all crimes committed by gang members are for the benefit
of their gang, and that one has to look at the circumstances surrounding a crime to
determine if it was committed for the benefit of the gang. A member of the Mexican
Mafia may kill someone over an issue that has nothing to do with the Mexican Mafia.
The Mexican Mafia would not get involved in a dispute between one of its members and
a local gang member unless the dispute involved Mexican Mafia business.
In response to a hypothetical question based on the facts of this case, Alonso
opined that the killing was not necessarily for the benefit of the Mexican Mafia. He
noted that traditional Mexican Mafia killings are well-planned executions rather than
spontaneous events, are related to Mexican Mafia business or violations of Mexican
Mafia rules, and are done in a more secretive manner that will allow the killer to escape.
The killing in this case could have been based on a personal conflict rather than for the
benefit of the Mexican Mafia. Alonso acknowledged, however, that disrespecting a
Mexican Mafia member is a violation of Mexican Mafia rules and that there is a range of
possible punishments, including death, depending on the severity of the violation.
13
Alonso also acknowledged that a killing by a Sureno gang member with the
approval of a Mexican Mafia member could increase his status in the gang and benefit
the gang. He stated, however, that not all Sureno gang members want to be part of the
Mexican Mafia. Alonso also testified that if a Sureno gang member killed someone in
the presence of a Mexican Mafia member without permission, the Mexican Mafia
member would be upset. Alonso explained that if “a family member commits this
murder without the blessing of the Mexican Mafia member, in the Mexican Mafia
member’s presence,” one would not expect the Mexican Mafia member “to be just sort of
hanging out with the person who committed the murder within a couple of weeks at their
house.”
DISCUSSION
A. Unduly Prejudicial Gang Evidence
Senon contends the trial court abused its discretion in admitting excessive and
unduly prejudicial gang evidence. In particular, Senon points to the evidence that he had
been involved in other killings and would kill his brother for the Mexican Mafia if he had
the opportunity to do so. We conclude the trial court did not abuse its discretion in
admitting the gang evidence.
1. Proceedings in the trial court
Before trial, counsel for Senon filed a motion in limine to exclude or limit
Enriquez’s testimony on the grounds that he was not qualified to testify as an expert
witness, the basis of his opinions was improper, and his testimony was irrelevant,
misleading, and unduly prejudicial. Counsel also filed a motion in limine to limit the
number of expert witnesses regarding gangs and the Mexican Mafia. Counsel for Senon
argued that, because Beck and Detective Brandon had testified at the preliminary hearing
about the activities and operations of the Mexican Mafia, Enriquez’s testimony was
cumulative and its prejudice substantially outweighed its probative value. At the hearing
14
on the motions, counsel for Senon also argued that Detective Brandon could testify about
the predicate criminal acts necessary to prove the gang allegation, and that Enriquez’s
testimony was inflammatory and sensational.
The trial court indicated that it had read the preliminary hearing transcript and
would allow the gang evidence. On the issue of cumulative testimony, the court stated
that the three witnesses would be testifying about different matters. Enriquez would be
testifying about his personal knowledge of and communication with Senon and would
corroborate Detective Brandon’s testimony. Counsel for Senon conceded that this
testimony was proper, but stated “Enriquez has elaborated on [that], talking about his
experience with other killings and other murders that occurred . . . that has no . . .
relevance to this case. To establish that he is a Mexican Mafia and he knows him, I think
that’s what it should be limited [to]. I don’t have a problem with that.” Counsel argued
that, with respect the other crimes Enriquez claimed Senon committed, there was no
evidence to substantiate Enriquez’s claims, and the testimony was unnecessary because
the law enforcement expert witnesses could testify about the predicate crimes for the
gang enhancement. Counsel for Senon emphasized that Enriquez’s testimony regarding
other crimes Senon may have committed was “unreliable, based on hearsay statements
and is speculation.” The trial court stated that counsel could challenge the reliability of
Enriquez’s testimony on cross-examination, and that counsel’s objections went to the
weight of the evidence, not its admissibility.
Counsel for Senon subsequently filed another motion to exclude Enriquez’s
testimony. Counsel argued that certain prior bad acts about which Enriquez would testify
were not similar enough to the charged crime to be admissible under Evidence Code
section 1101, subdivision (b), and that the court should exclude the evidence under
Evidence Code section 352 because its prejudicial impact substantially outweighed its
probative value. The trial court ruled the prosecution could introduce evidence only of
(1) a hit Senon had ordered, (2) Mexican Mafia infighting and stabbing in prison, and
(3) the stabbing of Senon’s brother. The court found that the probative value of this
15
evidence with respect to the gang allegations outweighed its prejudicial effect.8 The
court ruled, however, that the prosecution could not introduce evidence that Senon
admitted killing someone even though he had been acquitted of that murder.
2. Applicable Law
“Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Under
Evidence Code section 210, relevant evidence is evidence ‘having any tendency in reason
to prove or disprove any disputed fact that is of consequence to the determination of the
8 The trial court later instructed the jury pursuant to CALJIC Nos. 2.50 and 17.24.3
regarding the limited purpose for which the other crimes evidence had been admitted.
CALJIC No. 2.50 provided: “Evidence has been introduced for the purpose of showing
that the defendant committed crimes other than that for which he is on trial; and in
addition evidence has been introduced for the purpose of showing criminal street gang
activities, and of criminal acts by gang members, other than the crimes for which
defendants are on trial. [¶] This evidence, if believed, may not be considered by you to
prove that defendant is a person of bad character or that he has a disposition to commit
crimes. It may be considered by you for the limited purpose of determining if it tends to
show: [¶] The existence of the intent which is a necessary element of the crime charged;
[¶] A motive for the commission of the crime charged; [¶] That the crime or crimes
charged were committed for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members. [¶] For the limited purpose for which you may consider such
evidence, you must weigh it in the same manner as you do all other evidence in the case.
[¶] You are not permitted to consider such evidence for any other purpose.”
CALJIC No. 17.24.3 provided: “Evidence has been introduced for the purpose of
showing criminal street gang activities, and of criminal acts by gang members, other than
the crimes for which defendants are on trial. [¶] This evidence, if believed, may not be
considered by you to prove that defendant is a person of bad character or that he has a
disposition to commit crimes. It may be considered by you for the limited purpose of
determining if it tends to show that the crime or crimes charged were committed for the
benefit of, at the direction of, or in association with a criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members. It
may also be used by you to determine if there was a motive to commit a crime, or if a
crime is a natural and probable consequence of another crime. [¶] For the limited
purpose for which you may consider this evidence, you must weigh it in the same manner
as you do all other evidence in the case. [¶] You are not permitted to consider such
evidence for any other purpose.”
16
action.’ A trial court has ‘considerable discretion’ in determining the relevance of
evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code
section 352 to exclude even relevant evidence if it determines the probative value of the
evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An
appellate court reviews a court’s rulings regarding relevancy and admissibility under
Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a
court’s ruling on such matters unless it is shown ‘“the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” [Citation.]’ [Citation.]” (People v. Merriman (2014) 60 Cal.4th
1, 74.)
“Gang evidence, including expert testimony, is relevant and admissible to prove
the elements of the substantive gang crime and gang enhancements. [Citation.]” (People
v. Williams (2009) 170 Cal.App.4th 587, 609; see People v. Vang (2011) 52 Cal.4th
1038, 1048 [“‘[e]xpert opinion that particular criminal conduct benefited a gang’ is not
only permissible but can be sufficient to support the Penal Code section 186.22,
subdivision (b)(1), gang enhancement”].) “‘Gang evidence is relevant and admissible
when the very reason for the underlying crime, that is the motive, is gang related.
[Citation.]’ [Citation.]” (People v. Memory (2010) 182 Cal.App.4th 835, 858; see
People v. Ruiz (1998) 62 Cal.App.4th 234, 239 [“gang membership evidence” is
admissible “when the very reason for the crime is gang related”].) “Consequently, gang
evidence may be relevant to establish the defendant’s motive, intent or some fact
concerning the charged offenses other than criminal propensity as long as the probative
value of the evidence outweighs its prejudicial effect.” (People v. Albarran (2007) 149
Cal.App.4th 214, 223; see People v. Hernandez (2004) 33 Cal.4th 1040, 1049
[“[e]vidence of the defendant’s gang affiliation—including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like—can help prove identity, motive, modus operandi, specific intent,
means of applying force or fear, or other issues pertinent to guilt of the charged crime”].)
17
Because of its potential for prejudice, however, “‘[g]ang evidence should not be
admitted at trial where its sole relevance is to show a defendant’s criminal disposition or
bad character as a means of creating an inference the defendant committed the charged
offense.’ [Citation.]” (People v. Albarran, supra, 149 Cal.App.4th at p. 223; see Evid.
Code, § 1101, subd. (a).) Thus, “even if the evidence is found to be relevant, the trial
court must carefully scrutinize gang-related evidence before admitting it because of its
potentially inflammatory impact on the jury. [Citations.]” (Albarran, supra, at p. 224;
see People v. Carter (2003) 30 Cal.4th 1166, 1194 [“[a]lthough evidence of a defendant’s
gang membership creates a risk the jury will improperly infer the defendant has a
criminal disposition and is therefore guilty of the offense charged—and thus should be
carefully scrutinized by trial courts—such evidence is admissible when relevant to prove
identity or motive, if its probative value is not substantially outweighed by its prejudicial
effect”].) “The trial court must find that the evidence has substantial probative value that
is not outweighed by its potential for undue prejudice. [Citations.]” (People v. Williams,
supra, 170 Cal.App.4th at p. 610; see People v. Jones (2013) 57 Cal.4th 899, 930
[“‘“‘[b]ecause evidence of other crimes may be highly inflammatory, its admissibility
should be scrutinized with great care’”’”].)
3. Analysis
Senon acknowledges that the trial court properly admitted expert testimony
regarding the operations of Mexican Mafia and the crimes committed by Mexican Mafia
members, both to prove the motivation for the murder and to prove the elements of the
gang allegation. (See People v. Vang, supra, 52 Cal.4th at p. 1050, fn. 5 [“[i]t has long
been settled that expert testimony regarding whether a crime was gang related is
admissible” because “[s]uch matters are sufficiently beyond common experience that
expert testimony would assist the jury”]; People v. Lindberg (2008) 45 Cal.4th 1, 46
[“‘[t]he subject matter of the culture and habits of criminal street gangs’ satisfies the
criterion of admissible expert testimony under Evid. Code, § 801”]; People v. Gonzalez
(2005) 126 Cal.App.4th 1539, 1550 [expert testimony on gangs is admissible “to show
18
the ‘motivation for a particular crime, generally retaliation or intimidation’ and ‘whether
and how a crime was committed to benefit or promote a gang’”].) Senon does not
challenge the admissibility of the testimony of Detective Brandon or even of Enriquez
with respect to the way the Mexican Mafia operates, Senon’s membership in the Mexican
Mafia, or his motive for having Johnny killed.
Senon argues, however, that Enriquez’s testimony about Senon’s prior uncharged
criminal activity was inadmissible under Evidence Code section 1101, subdivision (b)
(section 1101(b)), cumulative to Detective Brandon’s testimony concerning predicate acts
by Mexican Mafia members that the People introduced to prove the gang allegation, and
inadmissible under Evidence Code section 352 (section 352). Specifically, Senon argues
that the trial court abused its discretion in admitting Enriquez’s testimony that (1) in 1985
Senon told Enriquez that he had ordered a stabbing in Folsom State Prison of an inmate
who had disrespected a family member; (2) Senon ordered Enriquez to kill a Mexican
Mafia member who had attacked his cellmate without permission from the Mexican
Mafia; (3) Senon had tried to kill a man for dropping out of the Mexican Mafia; and (4)
Senon’s statement that he would kill his brother for violating Mexican Mafia rules.
Senon first argues that this evidence was inadmissible under section 1101(b)
because the uncharged and charged crimes do not “‘share common features.’” (People v.
Walker (2006) 139 Cal.App.4th 782, 804.) However, “[t]he probativeness of other-
crimes evidence on the issue of motive does not necessarily depend on similarities
between the charged and uncharged crimes, so long as the offenses have a direct logical
nexus. [Citations.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 15; see People v.
McCurdy (2014) 59 Cal.4th 1063, 1097 [“probative value of uncharged conduct as
evidence of motive does not necessarily depend on the similarities between the charged
and uncharged conduct, provided there is a direct logical nexus”].) With respect to
motive, “charged and uncharged crimes need only be ‘sufficiently similar to support the
inference that the defendant “‘probably harbor[ed] the same intent in each instance.’
[Citations.]”’ [Citation.]” (Demetrulias, supra, at p. 15, citing People v. Ewoldt (1994) 7
Cal.4th 380, 402.)
19
The charged and uncharged crimes here had a direct logical nexus: all involved a
motive to punish someone for violating Mexican Mafia rules. The fact that Senon
ordered the stabbing or killing of individuals who violated the rules, and was even willing
to kill his brother for such a violation, showed that Senon took such violations seriously.
The uncharged crimes thus tended to show that Senon’s motive in ordering and
participating in the murder of someone who had disrespected him and his niece was
gang-related, rather than a personal vendetta. (See People v. McKinnon (2011) 52
Cal.4th 610, 655 [“‘[t]he People are entitled to “introduce evidence of gang affiliation
and activity where such evidence is relevant to an issue of motive or intent”’”]; People v.
Zepeda (2001) 87 Cal.App.4th 1183, 1212 [evidence that the defendant took part in prior
gang-related drive-by shooting was relevant to prove defendant’s motive in current drive-
by shooting was gang-related]; People v. Funes (1994) 23 Cal.App.4th 1506, 1518
[evidence of prior gang activity was relevant to the defendant’s motive for murdering
victim].)
Senon next argues that, even if the other crimes evidence was admissible under
section 1101(b), the trial court abused its discretion in refusing to exclude it under section
352 as unduly prejudicial. “‘Prejudice,’ as used in . . . section 352, is not synonymous
with damaging. [Citation.]” (People v. McCurdy, supra, 59 Cal.4th at p. 1095.) It “‘is
not the prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence.’” (People v. Johnson (2013) 221 Cal.App.4th 623, 636.) Rather,
“prejudice” as used in section 352 “refers to evidence that uniquely tends to evoke an
emotional bias against the defendant as an individual, and has little to do with the legal
issues raised in the trial. [Citation.]” (McCurdy, supra, at p. 1095; accord, Johnson,
supra, at p. 636.)
Senon argues that the other crimes evidence here was prejudicial under section
352 because it was “[e]xtremely inflammatory,” “had no connection with the charged
crime,” and “portrayed [him as] a ruthless killer who has no compunction about taking
human life so that a parasitic criminal organization can terrorize the prisons and the
streets.” There is some truth to Senon’s characterization of the other crimes evidence as
20
inflammatory. Nevertheless, as explained, the evidence had a connection with charged
crime in the context of the motive for the gang killing and had everything to do with the
issues raised in the trial. In addition, the evidence regarding the charged crime portrayed
Senon in exactly the same light as the evidence regarding the uncharged crimes: Senon
orchestrated an attack on a disabled, unarmed gang member who did not even want to
fight merely because the gang member had disrespected Senon and his niece. Because
evidence of Senon’s prior crimes was relevant to the motive for the charged crime and
was not inflammatory or sensational when compared to evidence of the charged crime,
and because the trial court gave appropriate limiting instructions pursuant to CALJIC
Nos. 2.50 and 17.24.3, the trial court did not abuse its discretion in admitting the
evidence under section 352. (See People v. Montes (2014) 58 Cal.4th 809, 860
[“[b]ecause the gang evidence was highly probative in this case, and the trial court gave a
limiting instruction designed to lessen the risk of undue prejudice, we cannot say the trial
court’s decision to allow the gang [motive] evidence exceeded the bounds of reason”].)9
9 People v. Albarran, supra, 149 Cal.App.4th 214, on which Senon relies, is
distinguishable. In that case there was “nothing inherent in the facts of the shooting to
suggest any specific gang motive.” (Id. at p. 227, fn. omitted.) Therefore, the bulk of the
gang evidence “was irrelevant to the underlying charges and obviously prejudicial.
Evidence of [the defendant’s] gang involvement, standing alone, was sufficient proof of
gang motive. Evidence of threats to kill police officers, descriptions of the criminal
activities of other gang members, and reference to the Mexican Mafia had little or no
bearing on any other material issue relating to [the defendant’s] guilt on the charged
crimes and approached being classified as overkill. While the court did admonish the
jury concerning the proper use of the gang evidence, certain gang evidence admitted was
so extraordinarily prejudicial and of such little relevance that it raised the distinct
potential to sway the jury to convict regardless of [the defendant’s] actual guilt.” (Id. at
p. 228, fn. omitted.) Here, by contrast, “‘the very reason for the underlying crime, that is
the motive, is gang related’” (People v. Memory, supra, 182 Cal.App.4th at p. 858; see
People v. Ruiz, supra, 62 Cal.App.4th at pp. 239-240), and specifically Mexican Mafia-
related.
21
B. Refusal To Instruct on Voluntary Manslaughter Based on Imperfect
Self-Defense or Defense of Another
Counsel for Daniel, joined by counsel for Senon, asked the court to instruct the
jury on the imperfect self-defense theory of voluntary manslaughter, based on an honest
but unreasonable belief that his life was in imminent danger from the victim. The trial
court refused to give the instruction, finding “that there is insufficient evidence to support
[a] voluntary manslaughter instruction based on the theory of imperfect self-defense.”
“A trial court must instruct on all lesser included offenses supported by substantial
evidence. [Citations.] The duty applies whenever there is evidence in the record from
which a reasonable jury could conclude the defendant is guilty of the lesser, but not the
greater, offense. [Citations.] That voluntary manslaughter is a lesser included offense of
murder is undisputed. [Citations.] [¶] Imperfect self-defense, which reduces murder to
voluntary manslaughter, arises when a defendant acts in the actual but unreasonable
belief that he is in imminent danger of death or great bodily injury. [Citations.]” (People
v. Duff (2014) 58 Cal.4th 527, 561-562.) Substantial evidence requiring instruction on
the lesser included offense of voluntary manslaughter is “‘“‘evidence from which a jury
composed of reasonable [persons] could . . . conclude[]’” that the lesser offense, but not
the greater, was committed. [Citations.]’ [Citation.]” (People v. Moye (2009) 47 Cal.4th
537, 553.)
Senon and Daniel acknowledge that the imperfect self-defense doctrine “‘may not
be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of
a physical assault or the commission of a felony), has created circumstances under which
his adversary’s attack or pursuit is legally justified.’” (People v. Randle (2005) 35
Cal.4th 987, 1001, overruled on another ground in People v. Chun (2009) 45 Cal.4th
1172, 1201; accord, People v. Enraca (2012) 53 Cal.4th 735, 761; People v. Frandsen
(2011) 196 Cal.App.4th 266, 272-273.) This rule applies even where the victim escalates
matters in response to the initial assault. (Frandsen, supra, at p. 272.) Senon and Daniel,
however, rely on the principle that, “‘[w]here the original aggressor is not guilty of a
deadly attack, but of a simple assault or trespass, the victim has no right to use deadly or
22
other excessive force,’” and that “‘[i]f the victim uses such force, the aggressor’s right of
self-defense arises. . . .’ [Citation.]” (People v. Quach (2004) 116 Cal.App.4th 294, 301;
see Frandsen, supra, at p. 273 [“[o]nly when the victim resorts to unlawful force does the
defendant-aggressor regain the right of self-defense”].)
Senon asserts that “the deputy medical examiner’s testimony established that
[Johnny] may have been leaning to his right when he was shot, which would have been
consistent with ‘[g]oing for a gun.’” Johnny was a Westside Wilmas gang member, and
Alonso “testified that some criminal street gang members keep guns readily available for
use in the case of an emergency.” Therefore, Senon argues, there was “evidence from
which reasonable jurors could conclude that Daniel Grajeda may have believed that he
needed to employ deadly force in order to defend [Senon] because [Johnny] was
escalating the force used in the altercation and was reaching for a concealed gun to shoot
[Senon].”
The problem with this theory is that there was no evidence that Johnny was
reaching for a gun, looked like he was going for a gun, or that Daniel believed Johnny
was reaching for a gun. Senon refers to the following testimony by the medical examiner
regarding the angle of Johnny’s gunshot wounds: “Q Now, if I were in a struggle with
somebody, perhaps, or if I saw the gun and kind of leaned a little bit to my right, either
because I saw the gun and I was trying to move away or because I was struggling with
somebody. [¶] A Right. [¶] Q If my upper torso is basically sort of tilted away from
you, could that explain the 30-degree angle that you are seeing? [¶] A Yes, it could.”
This testimony is about a bullet angle, not a gang member reaching for a gun.
Thus, Senon and Daniel’s theory of imperfect self-defense was based on
speculation, not substantial evidence. Because, as in People v. Manriquez (2005) 37
Cal.4th 547, there was no evidence, let alone substantial evidence, that Daniel “‘actually,
but unreasonably, believed he was in imminent danger of death or great bodily injury’
[citation], the evidence clearly was insufficient to require the giving of defendant’s
requested instruction regarding imperfect self-defense. [Citation.] We therefore
23
conclude the trial court correctly refused to instruct the jury on imperfect self-defense.”
(Id. at p. 582.)
C. Instruction on the Natural and Probable Consequences Doctrine
The trial court instructed the jury pursuant to CALJIC No. 3.02: “One who aids
and abets another in the commission of a crime is not only guilty of that crime, but is also
guilty of any other crime committed by a principal which is a natural and probable
consequence of the crime[s] originally aided and abetted. [¶] In order to find the
defendant guilty of the crime of Murder under this theory, as charged in Count 1, you
must be satisfied beyond a reasonable doubt that:
“1. The crime of Assault or Assault with Firearm was committed;
“2. That the defendant aided and abetted that crime;
“3. That a co-principal in that crime committed the crime of Assault or Assault
with Firearm; and
“4. The crime of Murder was a natural and probable consequence of the
commission of the crime of Assault or Assault with Firearm.
“In determining whether a consequence is ‘natural and probable,’ you must apply
an objective test, based not on what the defendant actually intended, but on what a person
of reasonable and ordinary prudence would have expected likely to occur. The issue is to
be decided in light of all of the circumstances surrounding the incident. A ‘natural’
consequence is one which is within the normal range of outcomes that may be reasonably
expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.
“You are not required to unanimously agree as to which originally contemplated
crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable
doubt and unanimously agree that the defendant aided and abetted the commission of an
identified and defined target crime and that the crime of Murder was a natural and
probable consequence of the commission of that target crime.”
The trial court also instructed the jury pursuant to CALIC No. 3.00 on the
definition of “principals” and that, “[w]hen the crime charged is murder, the aider and
24
abettor’s guilt is determined by the combined acts of all the participants as well as that
person[’]s own mental state. If the aider and abettor’s mental state is more culpable than
that of the actual perpetrator, that person’s guilt may be greater than that of the actual
perpetrator. Similarly, the aider and abettor’s guilt may be less than the perpetrator’s, if
the aider and abettor has a less culpable mental state.” The trial court also instructed the
jury on direct aider and abettor liability pursuant to CALJIC No. 3.01.10
Senon originally argued on appeal that the trial court erred in failing to instruct the
jury that it could find him “guilty, as an aider and abettor, of second degree murder even
though the actual perpetrator of the murder was guilty of murder in the first degree.”
Since he filed his briefs, however, the Supreme Court decided People v. Chiu (2014) 59
Cal.4th 155, which addressed the issue of whether and in what circumstances a defendant
can be convicted of first degree murder as an aider and abettor under the natural and
probable consequences theory.11 The Supreme Court’s decision in Chiu, which we are
10 CALJIC No. 3.01 provided: “A person aids and abets the commission of a crime
when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and
[¶] (2) With the intent or purpose of committing or encouraging or facilitating the
commission of the crime, and [¶] (3) By act or advice, aids, promotes, encourages or
instigates the commission of the crime.
“A person who aids and abets the commission of a crime need not be present at the
scene of the crime. [¶] Mere presence at the scene of a crime which does not itself assist
the commission of the crime does not amount to aiding and abetting. [¶] Among the
factors which may be considered in making the determination of aiding and abetting are:
presence at the scene of the crime, companionship, and conduct before and after the
offense. [¶] Mere knowledge that a crime is being committed and the failure to prevent
it does not amount to aiding and abetting.”
The court also instructed the jury that conviction of murder required a concurrence
of act and specific intent. (CALJIC No. 3.31.) It instructed the jury on the definition of
murder (CALJIC No. 8.10), malice aforethought (CALJIC No. 8.11), deliberate and
premeditated murder (CALJIC No. 8.20), unpremeditated second degree murder
(CALJIC No. 8.30), second degree murder resulting from an unlawful act dangerous to
life (CALJIC No. 8.31), and the jury’s duty to find the degree of murder (CALJIC No.
8.70).
11 The parties submitted supplemental letter briefs on the Supreme Court’s decision
in Chiu.
25
bound to follow, compels a reversal and possible retrial of Senon’s conviction for first
degree murder.
Summarizing the general principles behind the natural and probable consequences
doctrine, the Supreme Court in Chiu stated: “‘“A person who knowingly aids and abets
criminal conduct is guilty of not only the intended crime [target offense] but also of any
other crime the perpetrator actually commits [nontarget offense] that is a natural and
probable consequence of the intended crime.”’ [Citation.] ‘Thus, for example, if a
person aids and abets only an intended assault, but a murder results, that person may be
guilty of that murder, even if unintended, if it is a natural and probable consequence of
the intended assault.’ [Citation.] [¶] A nontarget offense is a ‘“natural and probable
consequence’ of the target offense if, judged objectively, the additional offense was
reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider
and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability ‘“is
measured by whether a reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonably foreseeable consequence of
the act aided and abetted.”’ [Citation.] Reasonable foreseeability ‘is a factual issue to be
resolved by the jury.’ [Citation.]” (People v. Chiu, supra, 59 Cal.4th at pp. 161-162.)
The Supreme Court noted, however, that it had “not previously considered how to
instruct the jury on aider and abettor liability for first degree premeditated murder under
the natural and probable consequences doctrine.” (Id. at p. 162.)
The Supreme Court observed that, under the natural and probable consequences
doctrine, “‘[b]ecause the nontarget offense is unintended, the mens rea of the aider and
abettor with respect to that offense is irrelevant and culpability is imposed simply
because a reasonable person could have foreseen the commission of the nontarget crime.’
[Citation.]” (People v. Chiu, supra, 59 Cal.4th at p. 164.) Thus, because “the application
of the natural and probable consequences doctrine [does not] depend[] on the
foreseeability of every element of the nontarget offense,” “in the context of murder under
the natural and probable consequences doctrine, cases have focused on the reasonable
26
foreseeability of the actual resulting harm or the criminal act that caused that harm.
[Citations.]” (Id. at p. 165.)
“In the context of murder,” the Supreme Court explained, “the natural and
probable consequences doctrine serves the legitimate public policy concern of deterring
aiders and abettors from aiding or encouraging the commission of offenses that would
naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for
punishing such aiders and abettors—to deter them from aiding or encouraging the
commission of offenses—is served by holding them culpable for the perpetrator’s
commission of the nontarget offense of second degree murder. [Citation.] It is also
consistent with reasonable concepts of culpability. Aider and abettor liability under the
natural and probable consequences doctrine does not require assistance with or actual
knowledge and intent relating to the nontarget offense, nor subjective foreseeability of
either that offense or the perpetrator’s state of mind in committing it. [Citation.] It only
requires that under all of the circumstances presented, a reasonable person in the
defendant’s position would have or should have known that the nontarget offense was a
reasonably foreseeable consequence of the act aided and abetted by the defendant.
[Citation.]” (People v. Chiu, supra, 59 Cal.4th at pp. 165-166.)
The Supreme Court observed, “[h]owever, this same public policy concern loses
its force in the context of a defendant’s liability as an aider and abettor of a first degree
premeditated murder. First degree murder, like second degree murder, is the unlawful
killing of a human being with malice aforethought, but has the additional elements of
willfulness, premeditation, and deliberation which trigger a heightened penalty.
[Citation.] That mental state is uniquely subjective and personal. It requires more than a
showing of intent to kill; the killer must act deliberately, carefully weighing the
considerations for and against a choice to kill before he or she completes the acts that
caused the death. [Citations.] Additionally, whether a direct perpetrator commits a
nontarget offense of murder with or without premeditation and deliberation has no effect
on the resultant harm. The victim has been killed regardless of the perpetrator’s
premeditative mental state. Although we have stated that an aider and abettor’s
27
‘punishment need not be finely calibrated to the criminal’s mens rea’ [citation], the
connection between the defendant’s culpability and the perpetrator’s premeditative state
is too attenuated to impose aider and abettor liability for first degree murder under the
natural and probable consequences doctrine, especially in light of the severe penalty
involved and the above-stated public policy concern of deterrence.” (People v. Chiu,
supra, 59 Cal.4th at p. 166.) For these reasons, the Supreme Court held “that punishment
for second degree murder is commensurate with a defendant’s culpability for aiding and
abetting a target crime that would naturally, probably, and foreseeably result in a murder
under the natural and probable consequences doctrine. We further hold that where the
direct perpetrator is guilty of first degree premeditated murder, the legitimate public
policy considerations of deterrence and culpability would not be served by allowing a
defendant to be convicted of that greater offense under the natural and probable
consequences doctrine.” (Ibid.)
The Supreme Court added that “[a]iders and abettors may still be convicted of first
degree premeditated murder based on direct aiding and abetting principles. [Citation.]
Under those principles, the prosecution must show that the defendant aided or
encouraged the commission of the murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing, encouraging, or facilitating its
commission. [Citation.] Because the mental state component—consisting of intent and
knowledge—extends to the entire crime, it preserves the distinction between assisting the
predicate crime of second degree murder and assisting the greater offense of first degree
premeditated murder. [Citations.] An aider and abettor who knowingly and intentionally
assists a confederate to kill someone could be found to have acted willfully, deliberately,
and with premeditation, having formed his own culpable intent. Such an aider and
abettor, then, acts with the mens rea required for first degree murder.” (People v. Chiu,
supra, 59 Cal.4th at pp. 166-167.)
Finally, the Supreme Court addressed the issue of prejudice. The instructions in
Chiu allowed the jury to convict the defendant either as a direct aider and abettor or under
28
the natural and probable consequences doctrine.12 (People v. Chiu, supra, 59 Cal.4th at
pp. 160, 167.) The record in that case suggested that the jury based its verdict on the
natural and probable consequences doctrine. (Id. at pp. 167-168.) Because the Supreme
Court could not conclude beyond a reasonable doubt that the defendant’s first degree
murder conviction was based on a legally valid theory, the Supreme Court determined
that the proper remedy was to reverse the defendant’s first degree murder conviction and
to give the People the option of accepting a reduction in the conviction to second degree
murder or retrying the case. (Id. at p. 168.)
The People acknowledge that the instructions the trial court gave here contained
the same flaw as the instructions in Chiu: They allowed the jury to convict Senon of first
degree murder as an aider and abettor under the natural and probable consequences
doctrine. The People concede that, “as in Chiu, the jury was erroneously instructed that it
could find a guilty verdict of ‘murder’ based on the natural and probable consequence of
aiding and abetting. [Citations.] This improperly allowed the jury to find that a
defendant was guilty of first degree premeditated murder as a natural and probable
consequence of an assault likely to produce great bodily injury.”
The People argue, however, that the instructional error under Chiu was harmless
because the evidence of the rules of the Mexican Mafia showed that Daniel could not
have shot Johnny without Senon’s permission and encouragement. Had Daniel done so,
Daniel would have broken Mexican Mafia rules, he would have been subject to
punishment including death, and Senon would not have socialized with Daniel and his
family after the shooting. Officer Maldonado and defense gang expert Alfonso testified
that killing someone in the presence of a member of the Mexican Mafia without prior
permission could earn the killer a death sentence. From this evidence, the People assert
that “if the jury found that Daniel was guilty of premeditated murder, it necessarily found
12 The instructions in Chiu were different than the instructions here because they
were based on the judicial council-approved form in CALCRIM rather than CALJIC.
29
that Senon was guilty of directly aiding and abetting the premeditated murder, not an
assault.”
Perhaps, but not necessarily so. The evidence of Mexican Mafia rules does
support the People’s contention that the jury could have found Senon guilty of first
degree premeditated murder on a direct aiding and abetting theory that he “aided or
encouraged the commission of the murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing, encouraging, or facilitating its
commission.” (People v. Chiu, supra, 59 Cal.4th at p. 167.) The evidence, however, also
supports a finding that Senon and Daniel went into Tamble’s office to assault but not kill
Johnny, that Daniel did not decide to kill Johnny until Johnny and Garcia fought back,
and that Senon did not approve of Daniel’s actions (thereby sparing Daniel’s life) until
after the shooting. If the jury found that Senon only intended an assault, then his
conviction of first degree murder under the natural and probable consequences doctrine
cannot stand under Chiu.
The People argued both theories of liability to the jury. The prosecutor argued, in
support of a direct aiding and abetting theory, that Senon’s actions of calling Daniel to
the Wilmington Inn and leaving Torres down the street in a place of safety showed “he is
planning to do something he doesn’t want her there for. Think about that. That right
there tells you that he is premeditating this entire thing. He doesn’t need to take her
around the corner to go slap somebody around.” The prosecutor argued that after Senon
left Torres and returned to the Wilmington Inn, there was “a series of actions that the
defendants undertook that tells you what was going on [in] their heads and tells you that
they deliberated and premeditated.” The prosecutor also argued, however, in support of a
natural consequences aiding and abetting theory. The prosecutor told the jury that, in
order to convict Senon of first degree murder, “you don’t even have to have intended to
aid and abet the murder. . . . All the defendant needs to have done is intended to aid and
abet the assault. If, under all the circumstances, the murder ended up being a natural and
probable consequence of the assault or an assault with a firearm.” Therefore, the
prosecutor argued, “[i]f Senon Grajeda intended nothing but to help Daniel Grajeda go in
30
and . . . do a shooting, or have the two of them go in and commit a beat-down, a slap-
down together, if that was his intent, that’s all enough, if under the circumstance it would
be natural and probable foreseeable that a murder would result.”
Although it is possible that the jury may have based its verdict on a direct aiding
and abetting theory, rather than the natural and probable consequences theory, we cannot
conclude beyond a reasonable doubt that the jury did so. (See People v. Chiu, supra, 59
Cal.4th at p. 167 [“[d]efendant’s first degree murder conviction must be reversed unless
we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid
theory that defendant directly aided and abetted the premeditated murder”].) Pursuant to
the Supreme Court’s decision in Chiu, we must reverse Senon’s first degree murder
conviction and allow the People the choice of accepting a reduction of Senon’s
conviction to second degree murder or retrying the case.13
D. Denial of Severance
Daniel contends that “[t]he confluence of prejudice arising from the trial court’s
erroneous denials of [his] interrelated motions for severance, for exclusion of Mexican
Mafia gang evidence, and for new trial” violated his rights to due process and a fair trial
and requires reversal of the judgment. We find no abuse of discretion in the trial court’s
rulings and no due process violation.
1. Proceedings in the trial court
Prior to trial, counsel for Daniel stated that he had learned the prosecutor intended
to introduce Enriquez’s testimony regarding Senon’s involvement with the Mexican
13 A reduction of Senon’s conviction to second degree murder will reduce his
sentence for murder from 75 years to life to 45 years to life (Pen. Code, §§ 190, subd. (a),
667, subds. (b)-(i), 1170.12), plus an additional 25 years to life for the intentional
discharge of a firearm (id., § 12022.53, subd. (d)) and 10 years for the two prior serious
felony convictions (id., § 667, subd. (a)(1)), for a total term of imprisonment of 80 years
to life rather than 110 years to life.
31
Mafia, which counsel contended did not apply to Daniel. The prosecutor responded that
“there are no statements that I am going to use that would require a dual jury. But . . . we
did have Mr. Enriquez tell us about admissions that Mr. [Senon] Grajeda had made,
discussing Mafia business, discussing specific incidents where he had ordered violent
things to happen, that sort of thing.” When counsel for Daniel expressed concern that
“this stuff is going to brush over on top of my client,” the court stated that “that’s the
nature of evidence of gang allegations.” Counsel for Daniel argued that Enriquez’s
proposed testimony about the Mexican Mafia did not apply to Daniel because Daniel was
not a member of the Mexican Mafia and did not know Enriquez. After counsel clarified
that he was objecting to the testimony under section 352, the court ruled that the evidence
is more probative than prejudicial and overruled the objection.
The following day, counsel for Daniel filed a motion for separate trials, or in the
alternative separate juries, on the ground that the jury would impute Enriquez’s testimony
about Senon’s involvement with and actions on behalf of the Mexican Mafia to Daniel
because of Daniel’s “purported association with Senon.” Counsel for Daniel argued that
separate trials were necessary to avoid the danger that the jury would convict Daniel
based on “spillover prejudice.” The trial court denied the motion.
At the subsequent hearing on Senon’s motions in limine to exclude Enriquez’s
testimony and to limit the number of gang experts, counsel for Daniel stated that, because
the court was going to admit Enriquez’s testimony under section 1101(b), counsel for
Daniel was renewing his motion for separate trials. Counsel argued that it was “unduly
prejudicial as to my client if [these] specific acts of conduct are going to be introduced
into evidence . . . .” The prosecutor responded that, although Daniel was not a member of
the Mexican Mafia, the evidence would show that Daniel was a member of the Westside
Wilmas and committed the crime on behalf of the Mexican Mafia, which in turn elevated
his status and the status of his gang within the Mexican Mafia. When the trial court again
ruled that Enriquez’s testimony would be admitted, counsel for Daniel asked the court to
instruct the jury that Enriquez’s statements were “not being introduced as direct evidence
against my client.” The court declined to give such an instruction.
32
Counsel for Daniel renewed his objection to Enriquez’s testimony during trial.
The trial court overruled the objections. Counsel also renewed his request for a limiting
instruction that would instruct the jury not to consider the evidence against Daniel. The
trial court again denied the request, noting that Enriquez’s statements laid the foundation
for the gang allegation.
After the jury returned its verdicts, Daniel moved for a new trial, based in part on
the admission of Enriquez’s testimony without a limiting instruction. The trial court
denied the motion.
2. Severance
The “‘Legislature has expressed a preference for joint trials. [Citation.] [Penal
Code s]ection 1098 provides in pertinent part: “When two or more defendants are jointly
charged with any public offense, whether felony or misdemeanor, they must be tried
jointly, unless the court order[s] separate trials.” The court may, in its discretion, order
separate trials if, among other reasons, there is an incriminating confession by one
defendant that implicates a codefendant, or if the defendants will present conflicting
defenses. [Citations.] Additionally, severance may be called for when “there is a serious
risk that a joint trial would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or innocence.” [Citations.]
[¶] We review a trial court’s denial of a severance motion for abuse of discretion based
on the facts as they appeared when the court ruled on the motion. [Citation.] If we
conclude the trial court abused its discretion, reversal is required only if it is reasonably
probable that the defendant would have obtained a more favorable result at a separate
trial. [Citations.] If the court’s joinder ruling was proper when it was made, however, we
may reverse a judgment only on a showing that joinder “‘resulted in “gross unfairness”
amounting to a denial of due process.’” [Citation.]’ [Citation.]” (People v. Homick
(2012) 55 Cal.4th 816, 848; accord, People v. Souza (2012) 54 Cal.4th 90, 109; see
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379.) “When defendants are
charged with having committed ‘common crimes involving common events and victims,’
33
as here, the court is presented with a ‘“classic case”’ for a joint trial. [Citation.]” (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 40; accord, People v. Bryant, supra, 60
Cal.4th at p. 379.)
Daniel first argues that the trial court abused its discretion in denying his
severance motions because Enriquez’s testimony regarding Senon’s uncharged offenses
was not cross-admissible against Daniel in that “[w]hether or not Senon was a long-time
member of the Mexican Mafia with a sordid history of violence had no tendency in
reason to prove any disputed issue in the case against” Daniel. Cross-admissibility is one
of the factors courts consider in determining whether severance of charges against a
defendant is proper under Penal Code section 954. (People v. McKinnon, supra, 52
Cal.4th at p. 630; accord, People v. Thomas (2012) 53 Cal.4th 771, 798-799; see also
Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 938, 939 [finding Penal Code
section 954 factors, including “whether evidence of the crimes would be cross-
admissible,” “instructive” on a Penal Code section 1098 motion where the crimes
charged against multiple defendants occurred “on separate occasions”].)
Daniel’s characterization of the evidence and issues here is inaccurate. As
discussed, Enriquez’s testimony was admissible to prove the gang allegations and motive,
which were disputed issues in the case against Daniel as well as Senon. Enriquez
explained that a Sureno like Daniel can enhance his stature and the stature of his gang by
committing crimes sanctioned by the Mexican Mafia, and can increase his chances of
becoming a member of the Mexican Mafia. Enriquez’s testimony about Senon’s gang
activities explained to the jury the nature of the relationship between the Mexican Mafia
and the Sureno gangs and the motives a Sureno like Daniel would have to commit crimes
in order to advance up the ranks in the Mexican Mafia gang culture. Thus, the evidence
was cross-admissible and did not require severance of Daniel’s trial from Senon’s. (See
People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 381 [severance of trial of
two defendants from trial of the third defendant under Penal Code section 1098 was not
required where “much evidence about which they complain would have been relevant
even at a separate trial”]; People v. Souza, supra, 54 Cal.4th at p. 112 [“no evidence was
34
presented at the joint trial that would not have been presented at a separate trial”]; cf.
People v. Merriman, supra, 60 Cal.4th at p. 38 [“[i]f the evidence underlying the joined
charges would have been cross-admissible at hypothetical separate trials, ‘that factor
alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial
court’s refusal to sever properly joined charges’”].)14
Daniel also argues that the evidence against him was weaker than the evidence
against Senon, particularly the identification evidence, and that “the weak prosecution
case against [him] shows that his conviction was undoubtedly tainted by his association
with Senon Grajeda and not based solely on the evidence of his personal guilt.” He relies
on the principle that evidence that “improperly invites a finding of guilt by association
. . . undermines the defendant’s right to a fair trial.” (People v. Castaneda (1997) 55
Cal.App.4th 1067, 1072.) This principle does not apply here.
In People v. Castaneda, supra, 55 Cal.App.4th 1067 the prosecutor presented
expert testimony that “the typical heroin dealer” in the area “is usually Hispanic male
adult.” (Id. at p. 1072, italics omitted.) The defendant, who was charged only with
possession of heroin, fit this profile. The court found that from the expert testimony “the
jury was invited to infer that [the defendant] was actually guilty of a crime even greater
than charged, that of selling heroin. An inappropriate and dangerous implication of this
evidence was: Do not let this man free; he may have done more than possess heroin—he
may be a heroin dealer. However, every defendant has the right to be tried based on
14 In a related argument, Daniel contends the admission of Enriquez’s testimony
about Senon’s uncharged offenses deprived Daniel of a fair trial and due process of law.
Daniel bases this argument on the prejudice inherent in gang evidence and the “patently
prejudicial impact of the Mexican Mafia evidence . . . .” As noted, however, this
evidence was admissible against both Senon and Daniel to prove the motivation for the
murder and the elements of the gang allegation. (See People v. Memory, supra, 182
Cal.App.4th at p. 859; People v. Ruiz, supra, 62 Cal.App.4th at p. 240.) Admission of
this evidence did not deprive Daniel of a fair trial. (See People v. Garcia (2008) 168
Cal.App.4th 261, 294 [properly admitted “gang-related evidence and gang expert
testimony” “did not deprive [the defendant] of a fair trial”].)
35
evidence tying him to the specific crime charged, and not on general facts accumulated
by law enforcement regarding a particular criminal profile. [Citations.]” (Ibid.) The
expert testimony thus invited the jury to find the defendant “guilt[y] by association” and
undermined his right to a fair trial. (Ibid.)
Here, unlike Castaneda, the challenged evidence was relevant to the crime
charged: a gang-motivated murder. Both Daniel and Senon participated in the murder.
Whether Daniel was tried separately or tried jointly with Senon, the jury would hear
evidence about Senon and the Mexican Mafia, and Daniel’s association with and relation
to Senon, all of which was necessary to prove the crime charged. The “guilt by
association” problem discussed in Castaneda was not present here. The challenged
evidence was not an invitation to the jury to find Daniel guilty based solely on his
association with Senon. (See People v. Souza, supra, 54 Cal.4th at p. 112 [severance
properly denied where “no danger of . . . prejudicial association”].) As the Supreme
Court recently stated in People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th 335:
“Whenever defendants are jointly tried, part of the prosecution’s case will naturally
attempt to establish that the defendants associated with each other, at least to the extent
that they all participated in the crimes at issue. To some degree . . . ‘[w]hen many
conspire, they invite mass trial by their conduct.’ [Citation.] That defendants associated
more broadly than their specific involvement in the alleged crimes may also be directly
relevant to establishing their guilt. . . . [W]e [have] observed that evidence of the
defendants’ membership in a gang [does] not create improper guilt by association, but
instead ‘form[s] a significant evidentiary link in the chain of proof tying them to the
crimes.’ Moreover, it is also quite likely that different defendants participating together
in a crime will have different levels of involvement and different personal backgrounds.
These circumstances alone do not compel severance or render a joint trial grossly unfair.
Individuals who choose to commit crimes together are not generally entitled to shield the
true extent of their association by the expedient of demanding separate trials.” (Id. at
p. 383.)
36
Daniel further argues that his defense and Senon’s defense were “irreconcilable in
exactly the way that makes severance mandatory to preserve due process.” Daniel’s
defense was misidentification, while Senon’s defense was lack of participation in the
shooting. Daniel contends that Senon’s defense “implicitly incriminated” him because
“[n]o reasonable juror could have disregarded Senon’s admitted prior bad acts in
determining whether [Daniel] acted in support of Senon who was present at the fatal
shooting.”
Severance may be appropriate when the defendants have conflicting or
antagonistic defenses. (People v. Homick, supra, 55 Cal.4th at pp. 848, 850.) In order to
obtain severance on this basis, a defendant must “‘“‘“demonstrate[] that the conflict is so
prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that
this conflict alone demonstrates that both are guilty.”’ [Citation.] When, however, there
exists sufficient independent evidence against the moving defendant, it is not the conflict
alone that demonstrates his or her guilt, and antagonistic defenses do not compel
severance.” [Citation.]’ [Citations.]” (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1173; accord, Homick, supra, at p. 850.) As the Supreme Court explained in People v.
Byrant, Smith and Wheeler, supra, 60 Cal.4th 335: “Simply because the prosecution’s
case will be stronger if defendants are tried together, or that one defense undermines
another, does not render a joint trial unfair. [Citation.] Indeed, important concerns of
public policy are served if a single jury is given a full and fair overview of the
defendants’ joint conduct and the assertions they make to defend against ensuing
charges.” (Id. at p. 379.)
We doubt that Senon’s defense he was not involved in the shooting, and Daniel’s
defense he was not the person who came to the Wilmington Inn in the SUV and did the
shooting, were so irreconcilable that the jury would convict Daniel based on that conflict
alone. Certainly Senon, as a high-ranking member of the Mexican Mafia, had plenty of
Surenos to do his bidding; it was not necessary that he select Daniel to do it. In any
event, Daniel did not object and move for severance based on irreconcilable defenses, nor
did he renew his motion to sever at any time during trial as the parties introduced
37
evidence relevant to the two defenses. Daniel therefore forfeited his claim that severance
was required because of irreconcilable defenses. (See People v. Lucas (2014) 60 Cal.4th
153, 219 [“to the extent defendant argues that the court’s pretrial consideration of defense
evidence was relevant to show that a weak case was being joined with a strong one to his
prejudice, that claim is forfeited because defendant passed on the opportunity to renew
such a claim after presenting his evidence at trial”]; People v. Homick, supra, 55 Cal.4th
at p. 848, fn. 21 [“‘[d]efendant has forfeited this issue on appeal because he failed to
assert this ground at the time his severance motion was heard,” and “‘[i]f further
developments occur during trial that a defendant believes justify severance, he must
renew his motion to sever’”].)
3. New Trial
“‘“‘We review a trial court’s ruling on a motion for a new trial under a deferential
abuse-of-discretion standard.’ [Citations.] ‘“A trial court’s ruling on a motion for new
trial is so completely within that court’s discretion that a reviewing court will not disturb
the ruling absent a manifest and unmistakable abuse of that discretion.”’” [Citation.]’
[Citation.]” (People v. McCurdy, supra, 59 Cal.4th at p. 1108.)
The basis of Daniel’s argument that the trial court erred in denying his motion for
a new trial is the same as the basis of his argument that the trial court erred in denying his
motion for a trial severance. We find no abuse of discretion in the trial court’s denial of
Daniel’s new trial motion for the same reasons. We similarly reject Daniel’s claim of
cumulative error. (See People v. Trinh (2014) 59 Cal.4th 216, 253 [“[c]onsistent with our
review of defendant’s individual claims, we find no cumulative error occurred”]; People
v. Avila (2014) 59 Cal.4th 496, 520 [no cumulative error where “there was no error to
accumulate”].)
E. Failure To Instruct Sua Sponte with CALJIC No. 8.71
Daniel argues that the trial court had a sua sponte obligation to give CALJIC
No. 8.71, and that the court’s failure to do so constituted reversible error. CALJIC
38
No. 8.71 provides: “If any juror is convinced beyond a reasonable doubt that the crime of
murder has been committed by a defendant, but has a reasonable doubt whether the
murder was of the first or of the second degree, that juror must give defendant the benefit
of that doubt and find that the murder is of the second degree.”
The trial court instructed the jury on the definition of murder (CALJIC No. 8.10),
the definition of malice aforethought (CALJIC No. 8.11), and deliberate and
premeditated murder (CALJIC No. 8.20). The court instructed the jury pursuant to
CALJIC No. 8.30 that “[m]urder of the second degree is also the unlawful killing of a
human being with malice aforethought when the perpetrator intended unlawfully to kill a
human being but the evidence is insufficient to prove deliberation and premeditation.”
The trial court further instructed the jury pursuant to CALJIC No. 8.70: “Murder is
classified into two degrees. If you should find the defendant guilty of murder, you must
determine and state in your verdict whether you find the murder to be of the first or
second degree.” The court also instructed the jury pursuant to CALJIC No. 8.74:
“Before you may return a verdict in this case, you must agree unanimously not only as to
whether the defendant is guilty or not guilty, but also, if you should find him guilty of an
unlawful killing, you must agree unanimously as to whether he is guilty of murder of the
first degree or murder of the second degree. [¶] However, you are not required to agree
unanimously on the theory of guilt.”
The trial court, however, refused to instruct the jury pursuant to CALJIC No. 8.75,
which instructs the jury that if it is unable to reach a unanimous decision as to first degree
murder, it must find the defendant not guilty of first degree murder before it can find the
defendant guilty of second degree murder. The court explained that CALJIC No. “8.75 is
a Stone instruction, I don’t like to give a Stone instruction . . . .”15
15 In Stone v. Superior Court (1982) 31 Cal.3d 503 the Supreme Court held that “the
trial court is constitutionally obligated to afford the jury an opportunity to render a partial
verdict of acquittal on a greater offense when the jury is deadlocked only on an
uncharged lesser included offense. Failure to do so will cause a subsequently declared
mistrial to be without legal necessity” for double jeopardy purposes. (Id. at p. 519.)
39
In People v. Moore (2011) 51 Cal.4th 386, on which Daniel relies, the trial court
instructed the jury with a prior version of CALJIC No. 8.71, which read: “‘If you are
convinced beyond a reasonable doubt and unanimously agree that the crime of murder
has been committed by a defendant, but you unanimously agree that you have a
reasonable doubt whether the murder was of the first or of the second degree, you must
give defendant the benefit of that doubt and return a verdict fixing the murder as of the
second degree.’” (Id. at p. 409, italics omitted.) The Supreme Court disapproved of the
use of this instruction and of CALJIC No. 8.72, which contained similar language,
explaining that these “instructions carry at least some potential for confusing jurors about
the role of their individual judgments in deciding between first and second degree
murder, and between murder and manslaughter. The references to unanimity in these
instructions were presumably added to convey the principle that the jury as a whole may
not return a verdict for a lesser included offense unless it first reaches an acquittal on the
charged greater offense. [Citation.] But inserting this language into CALJIC Nos. 8.71
and 8.72, which address the role of reasonable doubt in choosing between greater and
lesser homicide offenses, was unnecessary, as CALJIC No. 8.75 fully explains that the
jury must unanimously agree to not guilty verdicts on the greater homicide offenses
before the jury as a whole may return verdicts on the lesser.” (Id. at pp. 411-412, fn.
omitted.)
Moore does not support Daniel’s contention that the trial court has a sua sponte
duty to instruct the jury pursuant to CALJIC No. 8.71. Nor does it hold that CALJIC
No. 8.75 must be given if CALJIC No. 8.71 is not. The Supreme Court in Moore
emphasized that the potential for confusion is the role of a juror’s individual judgment,
not the necessity of an instruction regarding how to approach the task of determining
whether the defendant is guilty of first or second degree murder.
In People v. Hinton (2006) 37 Cal.4th 839, on which the People rely, the trial
court instructed the jury pursuant to CALJIC Nos. 8.30 and 8.75, but it did not give
CALJIC Nos. 8.70 and 8.71. The defendant argued that, without the latter two
instructions, “the jury would not have understood ‘how doubts about the proper
40
offense—first degree murder or second degree murder—should be resolved.’” (Hinton,
supra, at p. 883.) The Supreme Court disagreed, pointing out that “[i]n addition to
CALJIC No. 8.75, which directed the jury to consider second degree murder if it was
unable to find defendant guilty unanimously and beyond a reasonable doubt of first
degree murder, the jury was instructed that a guilty verdict required unanimous
agreement that defendant’s guilt of the crime had been established beyond a reasonable
doubt. Considering these instructions as a whole [citation], the jury was adequately
instructed as to the significance of a reasonable doubt as to defendant’s guilt of first
degree murder and the availability of second degree murder as a lesser offense.” (Ibid.)
No case has held that the trial court has a sua sponte duty to give CALJIC
No. 8.71,16 and we decline to do so here. Moore and Hinton instruct us to look at the
instructions as a whole to determine whether the instructions adequately informed the
jury “as to the significance of a reasonable doubt as to defendant’s guilt of first degree
murder and the availability of second degree murder as a lesser offense.” (People v.
Hinton, supra, 37 Cal.4th at p. 883.) The instructions here told the jury that murder is of
the second degree if “the evidence is insufficient to prove deliberation and
premeditation.” (CALJIC No. 8.30.) If the jury found the defendants guilty of murder,
then the jury had to determine whether the murder was of the first or second degree.
(CALJIC No. 8.70.) The jury had to “agree unanimously not only as to whether the
defendant is guilty or not guilty, but also, . . . as to whether he is guilty of murder of the
first degree or murder of the second degree.” (CALJIC No. 8.74.) The jury was also
given the standard instruction on the People’s burden to prove guilt beyond a reasonable
doubt. (CALJIC No. 2.90.) Taken as a whole, these instructions adequately informed the
jury that if it found Senon and Daniel guilty of murder but the People failed to prove
beyond a reasonable doubt the premeditation and deliberation necessary for a first degree
murder conviction, the jury could convict the two defendants of second degree murder.
16 Although the use note for CALJIC No. 8.71 states that the instruction should be
given sua sponte.
41
F. Exclusion of Evidence of Third Party Culpability
During counsel for Daniel’s cross-examination of Detective Rodriguez, counsel
attempted to elicit testimony that the gun used to kill Johnny was used in the commission
of a crime that occurred while Daniel and Senon were in custody. The People objected,
and the trial court asked for an offer of proof. Counsel for Daniel stated, “Well, I can
show that I have a description of the shooter in the other case that comes very close to
matching my client, about the same size, same height, same weight, facial tattoos, in
another case.” The trial court ruled that the offer of proof did not meet the standards of
People v. Hall (1986) 41 Cal.3d 826, but stated that if counsel could meet those
standards, he could raise the issue again.
In People v. Hall, supra, 41 Cal.3d at p. 833 the Supreme Court held that evidence
of third party culpability for the charged crime “need not show ‘substantial proof of a
probability’ that the third person committed the act; it need only be capable of raising a
reasonable doubt of defendant’s guilt.” (See People v. McWhorter (2009) 47 Cal.4th
318, 368.) The “‘holding [in Hall] did not, however, require the indiscriminate
admission of any evidence offered to prove third-party culpability. The evidence must
meet minimum standards of relevance: “evidence of mere motive or opportunity to
commit the crime in another person, without more, will not suffice to raise a reasonable
doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking
the third person to the actual perpetration of the crime.” [Citation.]” (Ibid.) In addition,
“[i]n assessing an offer of proof relating to such evidence, the court must decide whether
the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is
substantially more prejudicial than probative under . . . section 352. [Citations.]” (Id. at
pp. 367-368.)
Here, the proffered evidence that another gang member had subsequently used the
same gun Daniel used did not meet the minimum standards of relevance or raise a
reasonable doubt as to Daniel’s guilt. The fact that a gang member who may have looked
like Daniel used the same gun in a subsequent shooting does not, without more, raise a
reasonable doubt as to Daniel’s guilt. The other gang member may have received the gun
42
after the shooting in this case. Indeed, as Detective Rodriguez testified in response to
questioning by counsel for Daniel, “one of the things that is common with gangs is [that]
they will share things like cars or guns.” Nor was there was any direct or circumstantial
evidence connecting any such third party to the shooting in this case. The trial court did
not abuse its discretion in excluding the evidence. (See People v. Lucas, supra, 60
Cal.4th at p. 280 [no error in excluding evidence of third party culpability where the
connection “was speculative with no evidence, either direct or circumstantial”]; People v.
McWhorter, supra, 47 Cal.4th at p. 372 [trial court properly excluded evidence of third
party culpability where link “was entirely speculative”].)
G. Penal Code Section 654
Daniel argues that the trial court should have stayed his sentence on his conviction
of felon in possession of a firearm pursuant to Penal Code section 654 (section 654)
because his possession of the firearm was part of the same indivisible course of conduct
as the shooting. California law does not support Daniel’s argument.
“The California Supreme Court has stated: ‘The test for determining whether
section 654 prohibits multiple punishment has long been established: “Whether a course
of criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.” [Citation.]’” (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1377; accord, People v. Capistrano (2014) 59 Cal.4th 830, 885.) “‘On
the other hand, if the evidence discloses that a defendant entertained multiple criminal
objectives which were independent of and not merely incidental to each other, he may be
punished for the independent violations committed in pursuit of each objective even
though the violations were parts of an otherwise indivisible course of conduct.’
[Citation.]” (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414; accord, People v.
Galvez (2011) 195 Cal.App.4th 1253, 1262-1263.)
43
“‘“The question whether . . . section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them.” [Citation.]’” (People v. Galvez, supra, 195
Cal.App.4th at p. 1263.) “‘We review the trial court’s determination in the light most
favorable to the respondent and presume the existence of every fact the trial court could
reasonably deduce from the evidence.’ [Citation.]” (People v. Ortiz, supra, 208
Cal.App.4th at p. 1378.)
“In cases involving firearms and multiple punishment issues, a section 654,
subdivision (a) violation has been held to occur in an unusual factual scenario.
Section 654, subdivision (a) has been held to apply when fortuitous circumstances place
the firearm in the accused’s hands only at the instant of the commission of another
offense. (People v. Bradford (1976) 17 Cal.3d 8, 21-23 . . . ; People v. Venegas (1970)
10 Cal.App.3d 814, 818-821 . . . .) For example in Bradford, after robbing a bank and
driving away in a car, a state traffic officer stopped the defendant for speeding. The
defendant then struggled with the officer. The defendant got control of the gun during the
struggle and fired shots at the officer. In concluding section 654 barred multiple
sentencing for the assault and weapons possession, our Supreme Court explained,
‘Defendant’s possession of [the officer’s] revolver was not “antecedent and separate”
from his use of the revolver in assaulting the officer.’ [Citations.] In Venegas, the victim
pulled a gun and a struggle ensued with the defendant. During the struggle, the defendant
shot the victim. [Citation.] The Court of Appeal held: ‘Here the evidence shows a
possession only at the time defendant shot [the victim]. Not only was the possession
physically simultaneous, but the possession was incidental to only one objective, namely
to shoot [the victim].’ [Citations.] Our colleagues in Division Two of the Fourth
Appellate District synthesized the holdings in Bradford and Venegas thusly, ‘From
Bradford and Venegas, we distill the principle that if the evidence demonstrates at most
that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of
committing another offense, section 654 will bar a separate punishment for the
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possession of the weapon by an ex-felon.’ [Citations.]” (People v. Garcia (2008) 167
Cal.App.4th 1550, 1565; see People v. Wynn (2010) 184 Cal.App.4th 1210, 1217 [“courts
have determined that section 654 applies where the defendant obtained the prohibited
weapon during the assault in which he used the weapon,” but not “when the weapon
possession preceded the assault”].)
Here, the evidence showed that Daniel arrived at the Wilmington Inn with a gun in
his waistband, used the gun to shoot Johnny, and then left with the gun. The evidence
does not show that the gun fortuitously appeared in Daniel’s hand before he shot Johnny,
and there was no evidence that Daniel left the gun at the scene when he departed. Section
654 did not bar his sentence for being a felon in possession of a firearm. (See People v.
Rosas (2010) 191 Cal.App.4th 107, 111 [“no ‘fortuitous circumstances’ putting the
weapon in [the defendant’s] hand at the moment of the other offenses such that the act of
possession might in some meaningful way be indistinguishable from the two attempted
murders”].)
H. Sentence for Possession of a Firearm by a Felon
The trial court imposed a five-year gang enhancement under Penal Code
section 186.22, subdivision (b)(1)(B), on Daniel’s conviction for possession of a firearm
by a felon (id., § 12021, subd. (a)(1)). We agree with Daniel’s argument, and the
People’s concession, that this was error.
Penal Code section 186.22, subdivision (b)(1), provides that any person who is
convicted of a felony committed for the benefit of a criminal street gang “shall, upon
conviction of that felony, in addition and consecutive to the punishment prescribed for
the felony . . . of which he or she has been convicted, be punished as follows: [¶]
(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an
additional term of two, three, or four years at the court’s discretion. [¶] (B) If the felony
is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be
punished by an additional term of five years.”
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Possession of a firearm by a felon is not a serious felony under subdivision (c) of
Penal Code section 1192.7. Where committed for the benefit of a criminal street gang,
however, it becomes a serious felony under subdivision (c)(28), which includes “any
felony offense, which would also constitute a felony violation of Section 186.22.” (Pen.
Code, § 1192.7, subd. (c)(28).) In People v. Briceno (2004) 34 Cal.4th 451 the Supreme
Court held that Penal Code section 186.22, subdivision (b)(1)(A)-(C), refers to the
current proceeding, while Penal Code section 1192.7, subdivision (c), “comes into play
only if the defendant reoffends, at which time any prior felony that is gang related is
deemed a serious felony. Thus, any felony that is gang related is not treated as a serious
felony in the current proceeding,” making subdivision (b)(1)(A) of section 186.22 the
applicable sentencing provision. (Briceno, supra, at p. 465.) Because a violation of
Penal Code section 1202117 only became a serious felony when it was enhanced under
section 186.22, subdivision (b)(1), it was not subject to the five-year enhancement
mandated by subdivision (b)(1)(B) of section 186.22. (Briceno, supra, at p. 465; cf.
People v. Garcia, supra, 167 Cal.App.4th at p. 1563.) Therefore the five-year
enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(B), must be
stricken, and the matter must be remanded for resentencing under subdivision (b)(1)(A)
of Penal Code section 186.22.
17 This statute was repealed January 1, 2012. (Stats. 2010, ch. 711, § 4.) See now
Penal Code section 29800.
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DISPOSITION
Senon’s conviction for first degree murder is reversed, and the trial court is
directed to give the People the option of accepting a reduction in the conviction to second
degree murder or retrying the case against Senon. The five-year enhancement imposed
on Daniel’s conviction of possession of a firearm by a felon under Penal Code section
186.22, subdivision (b)(1)(B), is stricken, and the matter is remanded for resentencing on
count 2 under subdivision (b)(1)(A) of Penal Code section 186.22. In all other respects,
the judgments are affirmed.
SEGAL, J.*
We concur:
PERLUSS, P. J.
WOODS, 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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