People v. Partida CA2/2

Filed 5/4/15 P. v. Partida CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, B253091

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA387117)
v.

JOSE FRANCISCO PARTIDA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald
H. Rose, Judge. Affirmed with directions.

Peter Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Jose Francisco Partida (defendant) appeals from his
convictions of murder, attempted murder, attempted robbery, and possession of a gun by
felon. He contends that the convictions must be reversed because the trial court erred in
giving two jury instructions (CALCRIM Nos. 1863 and 1403) without first modifying
them, and because his murder and attempted murder convictions were unsupported by
substantial evidence of premeditation and deliberation. Defendant also contends that the
trial court abused its discretion in refusing to unseal juror information, and erred in
imposing a consecutive sentence as to one of the attempted robbery counts rather than
staying the term imposed. Finally, defendant points to an error in the abstract of
judgment, which both defendant and respondent ask to be corrected to accurately reflect
the oral pronouncement of judgment. We order the trial court to issue a corrected
abstract of judgment. However, finding no merit to defendant’s remaining contentions,
we affirm the judgment.
BACKGROUND
An amended information charged defendant with the following crimes: count 1,
the murder of Plutarco Salguero Soriano (Soriano), in violation of Penal Code, section
187, subdivision (a);1 count 2, the attempted willful, deliberate, and premeditated murder
of Carlos Delgado (Delgado) (§§ 664, 187, subd. (a)); count 3, possession of a firearm by
a felon (§ 12021, subd. (a)(1)); and counts 4 and 5, attempted first degree residential
robbery (§§ 664, 211). As to all five counts, the amended information alleged that
defendant had suffered three prior convictions for which he served prison terms within
the meaning of section 667.5, subdivision (b). As to counts 1, 2, 4, and 5, the information
alleged that defendant personally and intentionally used and discharged a firearm,
causing great bodily injury and death to the victims within the meaning of section
12022.53, subdivisions (b) through (d). In addition the amended information alleged that
the murder was committed by defendant while he was engaged in the commission of the
crimes of robbery and burglary, within the meaning of section 190.2, subdivision (a)(17).

1 All further statutory references are to the Penal Code unless otherwise indicated.

2
 A jury found defendant guilty of all counts as charged and found true all special
allegations. On December 2, 2013, the trial court sentenced defendant to life in prison
without the possibility of parole as to count 1, enhanced by a consecutive term of 25
years to life under section 12022.53, subdivision (d), plus consecutive but stayed
enhancements under subdivisions (b) and (c) of that section, of 10 and 20 years
respectively. As to count 2, defendant was sentenced to a life term, plus a consecutive
term of 25 years to life pursuant to section 12022.53, subdivision (d), as well as
consecutive but stayed enhancements under subdivisions (b) and (c) of that section, of 10
and 20 years respectively. The court imposed the high term of three years as to count 3,2
and the high term of six years as to court 4, plus firearm enhancements, all stayed under
section 654. As to count 5, the court sentenced defendant to a consecutive high term of
six years, plus firearm enhancements, and stayed only the firearm enhancements under
section 654. Defendant’s total unstayed sentence was life without parole plus 56 years to
life. Defendant received presentence custody credit of 861 actual days, and was ordered
to pay mandatory fines and fees. Defendant filed a timely notice of appeal from the
judgment.
Prosecution evidence
Delgado lived in East Los Angeles with Ana Lilian Zepeda (Zepeda) and Soriano,
Zepeda’s brother. On January 30, 2011, he was home watching television and drinking
beer when Soriano came home and went into his bedroom with two women Delgado had
never seen before. Zepeda had already gone to bed.
Magaly Gonzalez (Gonzalez) was one of the two women. She testified that she
was acquainted with defendant and knew him by his nicknames Boomer and Downer.
Gonzalez was also acquainted with the other woman, Damarius Teresa Rosales (Rosales),
whose nickname was “Lil’ Girl.” Sometime after midnight Gonzalez was walking with
Rosales when Soriano, who was unknown to them, approached and asked whether they

2 For purposes of count 3, felon in possession of a firearm, defendant stipulated that
he had suffered the alleged prior convictions, and the prosecution dismissed the three
prison prior allegations.

3
wanted to have a good time with him. They agreed and both women got into his car,
went with him to buy beer, and then went to his house. After awhile they left the house
to buy marijuana and then returned to Soriano’s bedroom.
When Soriano bought the marijuana the women noticed he had a lot of money.
Rosales communicated to Gonzalez by text message to the effect that she had a plan to
rob Soriano, had taken his car keys, and that she had arranged for her friend “Boomer” to
pick her up. When defendant arrived in a van with another person, Gonzalez and Rosales
were about to leave with him when Gonzalez realized that she had forgotten her
marijuana. She went back for it and Soriano came out and gave it to her. Gonzalez then
got back into the van and was taken home. Later, after Rosales sent a text message to
Gonzalez, “We messed up,” Gonzalez called Soriano several times throughout the
morning to check whether he was alive. Gonzalez testified that defendant was a member
of the Clarence Street gang and that she was afraid that “they” were going to come
looking for her, possibly to kill her, because she was “ratting someone out” in her
testimony.
Gonzalez denied knowing the other man in the van with defendant. He was Jesus
Rolon (Rolon), who testified that he was at the home of his friend “Junior” that night
with defendant and others when defendant asked Junior to give him a ride in his van to
pick up two girls. Junior had been drinking, so he asked Rolon to drive defendant in his
van. Rolon testified that when they stopped for gas along the way, defendant took the
keys from him and drove the van himself. Rolon did not resist because defendant was
aggressive and intimidating; he had gang tattoos and Rolon believed that defendant was a
member of the Clarence Street gang.
After dropping Gonzalez off at her home, Rolon testified that defendant drove
around and then went back to the house where they had picked up the two women. Rolon
was in the back of the van and although he could not hear much of the conversation
between defendant and Rosales, who were in the front, he did hear the words, “wallet,”
“in the drawer,” and “money.” Rolon saw Rosales get out of the van, walk toward the
gate and out of sight, and then return to the van, where she gestured “desperately,” while

4
saying something that Rolon could not hear. Defendant then got out of the van and
walked toward the gate. Rolon did not see defendant go into the house but soon he heard
three or four noises like firecrackers. Rosales, who remained just outside the open
passenger door of the van until defendant returned, said, “Oh my god. Hurry. Hurry.”
As defendant drove away, Rosales said, “Oh, my god. What did you do?” It was noisy
in the back of the van where Rolon still sat, and he did not hear a response. Rolon denied
seeing a gun in defendant’s hand. Rolon testified that he was concerned about his safety
and his family’s safety, and was afraid that gangs or defendant’s friends would come
after him.
Delgado testified that he sat in his pajamas watching television in the living room
while the two women were in the bedroom with Soriano, as well as when they went out
and came back. He did not know what they were doing in the bedroom. Delgado was
still watching television when the women left for the last time. A short time later,
Delgado saw Soriano sitting by himself in the driveway.
The next time Delgado saw Soriano, the latter was coming into the house with a
man Delgado had never before seen. The man, later identified as defendant, appeared to
be holding his right arm around Soriano’s waist, while walking against the wall sideways
in a “weird” way. When they stopped in front of Delgado, Delgado saw that defendant
was holding a gun. Defendant stepped around Soriano, moved the gun back and forth,
pointing it at Soriano and then at Delgado, and said, “Give me the money.” Soriano
asked Delgado to give him the money, which confused him, because Soriano had not
given Delgado any money. As Delgado got up to get money from his pants, Soriano
lifted a small stool and swung it toward defendant’s face. Delgado then heard about four
gunshots and saw muzzle flash. Soriano fell but defendant continued to stand with the
gun in his hand, so Delgado ran across the living room to defendant, where they struggled
over the gun. Unable to dislodge the gun from defendant, Delgado pushed him and was
then shot in the face. Even after defendant shot him, Delgado tried to take the gun away,
but tripped over Soriano’s body and fell. As Delgado lay on the floor defendant fired
again and Delgado felt a bullet strike him in the neck. As Delgado tried to get up he saw

5
defendant jump over Soriano’s body and run outside. Zepeda came out of the bedroom to
find Delgado bleeding.
Delgado was taken to the hospital where he was treated for two bullet wounds, one
on the right side of his face and one in the neck. The bullet that entered his face traveled
through the sinus cavity and came to rest at the base of the left side of his skull. The
bullet that entered his neck injured the carotid artery and lodged in the soft tissue in front
of the breastbone. The bullets were not removed.
Soriano died of multiple gunshot wounds. Deputy Medical Examiner Ajay
Panchal testified that Soriano had been struck with four bullets in an undetermined order,
three of which would have caused his death. One bullet entered Soriano’s left eye
injuring multiple lobes of the brain, causing rapid or instant unconsciousness; one entered
his left torso and perforated the left lower lung; another fractured his left arm; and a
fourth bullet entered Soriano’s left torso and passed through the heart and right lung.
Dr. Panchal explained soot and stippling. Soot, or burned particles of gunpowder,
could be deposited in a wound caused by a handgun fired in close range, not more than
six inches away. Stippling consisted of unburned particles of gunpowder that could strike
the skin and cause pinpoint abrasions when a gun is fired from within a half an inch up to
two feet from the target, unless blocked by something such as thick clothing. Dr. Panchal
concluded that as Soriano was not wearing thick clothing, but simply a white shirt, and
there was no soot or stippling found on the body or clothing, the gun that killed Soriano
was at least two feet away from him when fired.
Zepeda testified about waking up to gunfire and finding Delgado and her brother
on the floor. She briefly saw a man running away outside but could not identify him.
When she tried to go outside Delgado, who had regained consciousness, stopped her.
FBI Special Agent Chad Fitzgerald, an expert in analyzing cell phone connections
and signals, analyzed records of the relevant cell tower and call evidence relating to the
cell phones used by Soriano, Rosales, Gonzalez, and defendant on January 30, 2011. He
generally confirmed the movements of these individuals as described by other
prosecution witnesses.

6
 Michael Bosillo (Bosillo), custodian of records for Metro P.C.S., testified
regarding the cell phones registered to Henessy Martinez and Michael Partillo, later
identified by Sheriff’s Sergeant Domenick Recchia as Rosales and defendant. Bosillo
explained that because Metro P.C.S. was a prepaid cell phone company which did not
offer service on credit, accounts could be opened under false names. Metro P.C.S. call
records revealed that on January 30, 2011, between 1:40 a.m. and 1:46 a.m., the
following text messages were sent from the cell phone later identified as belonging to
Rosales, to the cell phone later identified as used by defendant: “Dick, never mind. Call
now. Please, please, foo [phonetic]. I’m not playing. Serio [phonetic]”; and, “Okay.
Call in ten. I’m gonna jack this fool. ‘Ranfla y feria,’ I got the keys.” The texts were
signed, “Lil’ Girl.” Although the text messages were sent and received, there was no way
to know whether defendant saw or read them.
Defense evidence
Defendant testified that Rosales was a friend who he referred to as “Lil’ Girl”; but
Gonzalez was a mere acquaintance whom he disliked. On the night of the shooting he
had attended a friend’s birthday party, had been drinking and was slightly intoxicated.
He denied using drugs or marijuana. He received a text message from Rosales
suggesting that he meet a friend of hers, but that did not work out. About three hours
later Rosales sent another text message saying in effect that she needed help. Thinking
she was in danger, he showed the message to his friends and asked for a ride.
Defendant’s friend, Junior suggested that Rolon drive defendant in Junior’s van, since
Junior had been drinking and defendant had no driver’s license.
Defendant claimed he had just met Rolon and did not know his name and that he
drove the van after stopping for gas because he knew the area better than Rolon.
Defendant drove to the area Rosales directed and saw her talking to Soriano, who acted
“kind of weird” as soon as he saw the van. Defendant became angry when he saw
Gonzalez was with Rosales, and Gonzalez did not want to get into the van because she
knew defendant did not like her. Gonzalez intended to walk home instead, but defendant
insisted on driving her. In the van, Rosales told defendant that Gonzalez had forgotten

7
something at the house, so he drove her back. Gonzales retrieved what she had left, and
returned about two minutes later. Defendant then drove Gonzalez home. Rosales then
suggested they go back and “come up on this fool.” Defendant understood this to mean
“take his stuff.” He repeatedly told her he did not want to go back and continued to drive
in the direction of Rosales’s house, intending to drop her off there, but then she said she
had forgotten her “stuff” and insisted that they go back.
Defendant drove Rosales back to Soriano’s house. Since there was no parking in
the area Rosales got out of the van while defendant drove around and finally parked
illegally. Defendant became inpatient waiting for Rosales so he decided to walk to the
house to see what she was doing. On the way defendant saw Rosales sitting in the
driver’s seat of a truck with Soriano on the passenger side. They appeared to be arguing.
Soriano looked in defendant’s direction with surprise. Defendant told Rosales, “Let’s get
out of here,” and she replied that Soriano would not return her stuff. Defendant became
agitated and told Soriano in an unpleasant tone in Spanish to give him Rosales’s stuff.
Defendant admitted that he was carrying a loaded revolver, but denied displaying the
gun. Soriano said the stuff was inside, so they went through the yard and into the house,
which was dark except for light from the television.
Rosales waited in the van while defendant went into the house with Soriano,
although defendant did not know what it was that Soriano refused to give back to
Rosales. Defendant denied walking abnormally or having his arm around Soriano, and
claimed that Soriano was in the lead. Soriano stopped in front of Delgado, who was
watching television, and told him to give defendant the money. Defendant claims that he
still had not drawn his gun and that he had not asked for money. Suddenly, something
came flying toward his face, and he was struck in the head a couple times and then
pushed. Defendant claimed he then pulled out his gun and started shooting because he
feared for his life. He did not know how many times he fired or whether he hit someone.
He did not see anyone on the floor, and because he thought they had run away, he did not
look down for them, but instead ran outside to the van and drove away. Defendant
denied jumping over the men.

8
 Defendant claimed he never intended to steal from or rob anyone, and that after
fleeing he became nauseated and threw up. Defendant did not call 911, did not need
treatment for the lumps caused by the blows to his head, and did not tell anyone about
incident. He fled because he feared prosecution.
Defendant acknowledged that he was known by two nicknames, Downer and
Boomer, and that he was a member of the Clarence Street gang. He was given the name
Downer from his “friends or whoever, people who jumped me in.” Defendant claimed he
used a false name to purchase a cell phone because he could not pay the fees charged for
unpaid phone bills. Defendant admitted that although he was previously convicted of
felon in possession of a firearm, he always carried a loaded gun. On the night of the
shooting he carried a .22-caliber revolver which he had loaded himself with six bullets,
all of which were fired that night. Defendant bought the gun illegally on the street.
Defendant denied that he read the text message from Rosales that said, “Okay.
Call in ten. I’m gonna jack this fool. ‘Ranfla y feria,’ I got the keys”; however, he
admitted that he called Rosales about a minute or two later. Defendant explained that
ranfla was Spanish for car, that feria was Spanish for money, and that to “jack” someone
meant to rob the person. Defendant claimed that Rosales did not mention a wallet or
money and they had no such conversation in the van as described by Rolon. He denied
ever demanding money. Defendant saw the video recording of Gonzalez’s police
interview in which she told investigators about a plan to rob Soriano and gave a
description of a conversation in the van in which she asked to be taken home because she
wanted nothing to do with the plan, and told the others not to do anything crazy.3
Defendant testified that it “didn’t happen.”

3 Neither the video nor a transcript of the interview has been made part of the record
on appeal.

9
 DISCUSSION
I. CALCRIM No. 1863: claim of right instruction
Defendant contends that although the trial court gave a requested claim of right
instruction, the court erred in failing to modify it to fit his theory of defense. At
defendant’s request, the trial court read CALCRIM No. 1863 to the jury. The portion of
the instruction relevant to this issue was the following: “If the defendant obtained
property under a claim of right, he did not have the intent required for the crime required
of robbery. The defendant obtained property under a claim of right if he believed in good
faith that he had a right to the specific property or specific amount of money and he
openly took it.” 4 Defendant does not contend that the instruction is an incorrect
statement of law, but argues that because it was inapplicable to his particular theory of
defense the trial court should have added language to the effect that a defendant’s good
faith belief in the right to property can be based upon a good faith belief that he was
helping to reclaim another person’s property.
Defendant was charged with killing Soriano in the course of a robbery. “Robbery
is the felonious taking of personal property in the possession of another, from his person
or immediate presence, and against his will, accomplished by means of force or fear.”
(§ 211.) “A good faith claim of right to title or ownership of specific property taken from
another can negate the element of felonious taking (a taking accomplished with intent to
steal) necessary to establish theft (§ 484) or robbery (§ 211).” (People v. Tufunga (1999)
21 Cal.4th 935, 945 (Tufunga), boldface and italics omitted.)

4 The remainder of CALCRIM No. 1863 was read as follows: “In deciding whether
the defendant believed that he had a right to the property and whether he held that belief
in good faith, you should consider all of the facts known to him at the time he obtained
the property along with all the other evidence in the case. The defendant may hold a
belief in good faith even if the belief is mistaken or unreasonable. But if the defendant
was aware of facts that made that belief completely unreasonable, you may conclude that
the belief was not held in good faith. The claim of right defense does not apply if the
claim arose from an activity commonly known to be illegal or known by the defendant to
be illegal. If you have a reasonable doubt about whether the defendant had the intent
required for robbery, you must find him not guilty of robbery.”

10
 As defendant points out, a claim of right instruction must be given when
substantial evidence supports “a good faith belief by a defendant, tried as an accomplice,
that he was assisting his coprincipal retake the principal’s property . . . .” (People v.
Williams (2009) 176 Cal.App.4th 1521, 1528-1529 (Williams).) Because there was such
substantial evidence in Williams, “the trial court erred in refusing to give a modified
version of CALCRIM No. 1863.” (Id. at p. 1529, fn. omitted.)
Respondent contends both that the issue has been forfeited due to defendant’s
failure to object to the wording of CALCRIM No. 1863, and that no modification was
necessary. We agree that no modification was necessary, as CALCRIM No. 1863 does
not preclude a claim of right based upon a request from the rightful owner. However, we
conclude that the trial court was not required to give the instruction, modified or
unmodified, as defendant failed to demonstrate that the request was supported by
substantial evidence. We evaluate the evidence supporting a claim of right instruction
under the defendant’s account of events, and any doubts as to the sufficiency of the
evidence to support the instruction should be resolved in defendant’s favor. (Tufunga,
supra, 21 Cal.4th at p. 944.) However, “a trial court has no obligation to instruct sua
sponte on a defense supported by ‘minimal and insubstantial’ evidence [citation] . . . .”
(People v. Barnett (1998) 17 Cal.4th 1044, 1152 (Barnett).)
Defendant contends that the evidence was sufficient because he testified in his
defense that he went into the house only to retrieve property belonging to Rosales. The
good faith belief in a claim of right must relate to specific property. (Tufunga, supra, 21
Cal.4th at p. 945.) And that belief must be a subjective one. (Barnett, supra,17 Cal.4th
at p. 1152.) Thus, a claim of right defense requires identification of the property, as well
as evidence of how it relates to the defendant’s claim of right. (See People v. Alvarado
(1982) 133 Cal.App.3d 1003, 1022.) Here, defendant testified that he did not know what
“stuff” Soriano had reportedly refused to give to Rosales, and there was no evidence of
any circumstances that would suggest that she had any right to any particular property.
Moreover, defendant did not testify that he subjectively thought that Rosales had a right
to any property. Indeed, defendant admitted that before Rosales told defendant that she

11
had forgotten her stuff, she expressed a desire to “come up on this fool,” which defendant
understood to mean “take his stuff.” Rosales apparently repeatedly expressed her desire
to take Soriano’s property, as defendant testified he kept saying that he did not want to go
back and relented only after she claimed that she had forgotten her stuff.
In short, defendant had no idea what property belonged to Rosales and had no
reason to believe that she had a right to whatever the property might have been. We
conclude that the evidence of defendant’s claim of right defense was “minimal and
insubstantial”; thus, no claim of right instruction was required. (Barnett, supra, 17
Cal.4th at p. 1152.) As no instruction was required, the trial court did not err in failing to
modify the instruction given.
II. CALCRIM No. 1403: limited purpose of gang activity
Defendant contends that the trial court erred in reading CALCRIM No. 1403 to the
jury without modification.
The trial court instructed: “You may consider evidence of gang activity only
when you evaluate the credibility or the believability of a witness. You may not consider
this evidence for any other purpose. You may not conclude from this evidence that the
defendant is a person of bad character or that he has a disposition to commit a crime.”
Defendant did not object to the admission of the evidence of his gang membership
but objected to the instruction because it allowed the jury to consider the gang affiliation
evidence in evaluating his credibility or believability. Defendant does not contend that
the instruction was incorrect in allowing the jury to use such evidence to evaluate other
witnesses’ testimony, and he acknowledges that gang evidence may be relevant to
establish a witness’s bias or credibility. (See People v. Ayala (2000) 23 Cal.4th 225,
276.) Defendant also acknowledges that CALCRIM No. 1403 is properly given when
gang evidence is admitted to provide a plausible explanation for a witness’s reluctance to
testify. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1169.) Defendant
points out that although this rationale might apply to Rolon and Gonzalez, it did not apply
to his own testimony. Neither defendant nor respondent has provided authority that
would permit, prohibit, or limit the use of CALCRIM No. 1403 where the defendant

12
testifies. Nevertheless, defendant contends that because evidence of gang affiliation can
be inflammatory, the instruction should have been modified to make clear that the
instruction did not apply to defendant.
Respondent relies on the general rule that “‘[b]y taking the stand, defendant put
his own credibility in issue and was subject to impeachment in the same manner as any
other witness.’ [Citations.]” (People v. Doolin (2009) 45 Cal.4th 390, 438.) Defendant’s
argument, however, is that the evidence did not impeach him in the same manner as the
other witnesses, as he was not reluctant to testify and expressed no fear of gangs.
Respondent counters that it was not likely that that jury would improperly use any gang
evidence in evaluating his credibility, because the instruction made clear that the jury was
not to conclude from the gang evidence that the defendant had a bad character or
disposition to commit a crime. We agree as this was the only part of the instruction
which referred specifically to defendant; otherwise it referred to witness credibility in
general. We also note that the prosecutor did not mention defendant’s gang membership
anywhere in her final arguments. Instead she pointed to the ways in which defendant’s
testimony conflicted with other testimony, in particular Rosales’s text messages about
robbing Soriano, the bits of conversation about a wallet and money which Rolon
overheard in the van, and defendant’s inability to identify any property which he
supposedly went into the house to retrieve, as well as the manner in which he shot the
victims.
Regardless, assuming the trial court was required to limit the consideration of
defendant’s gang membership to evaluating the credibility of witnesses other than
defendant, any error in failing to do so was harmless. Defendant did not deny that he
shot Soriano and Delgado. The primary credibility issue presented by defendant’s
testimony was his claim that he did not go into the house for a felonious purpose, but to
retrieve Rosales’s property, and once there he was attacked and defended himself. As we
have previously determined above, his testimony was insufficient to support his claim of
right defense because he failed to identify specific property, any facts demonstrating his
or Rosales’s right to the property, or his ignorance of facts that would make that belief

13
unreasonable. (See Tufunga, supra, 21 Cal.4th at p. 945; Barnett, supra, 17 Cal.4th at p.
1152; People v. Alvarado, supra, 133 Cal.App.3d at p. 1022.) Thus, even if defendant’s
testimony had been believed, it would not have provided a defense.
Moreover, it is not reasonably likely that the jury would have found defendant’s
testimony credible even if the instruction had been limited as defendant suggests. The
evidence demonstrating defendant’s intent to rob Soriano was overwhelming. It was
clearly Rosales’s intent to rob Soriano, as she expressed that intent in a text message to
Gonzalez. Rosales also sent defendant a message about her intent before he picked her
up, writing, “I’m gonna jack this fool. ‘Ranfla y feria,’ I got the keys.” Defendant knew
that “jack” meant to rob, and although he denied ever reading this text message, he
admitted having called Rosales a minute or two later. Once defendant picked up Rosales,
he certainly knew of her intent, as he admitted that Rosales suggested they go back and
“come up on this fool,” which he understood to mean “take his stuff.” Rolon overheard
parts of a conversation between defendant and Rosales, including the words, “wallet,” “in
the drawer,” and “money.” Belying defendant’s claim that he merely intended to retrieve
Rosales’s property, defendant did not ask Rosales to identify the “stuff” that Soriano
refused to give back to her; and then, armed with a fully loaded firearm, defendant went
into the house with Soriano while Rosales remained in the van and thus unavailable to
identify the property. The only reasonable inference to be drawn from such evidence was
that defendant had no intention of retrieving property belonging to Rosales, but intended
to carry out Rosales’s plan of robbing Soriano.
We conclude that there is no reasonable probability that defendant would have
obtained a more favorable result had the trial court instructed the jury to consider
defendant’s gang membership solely to evaluate the credibility of witnesses other than
defendant. The omission of that language was thus harmless under the test of People v.
Watson (1956) 46 Cal.2d 818, 836. We also conclude beyond a reasonable doubt that the
omission of such language did not contribute to the verdicts, and thus find it harmless
under the test of Chapman v. California (1967) 386 U.S. 18, 24.

14
III. Substantial evidence of premeditation
Defendant contends that there was insufficient evidence of premeditation to
support his convictions of first degree murder and willful, deliberate, and premeditated
attempted murder. He asks that we reduce his first degree murder conviction to second
degree murder and that we strike the jury’s finding that the attempted murder was
deliberate and premeditated.
When a criminal conviction is challenged as lacking evidentiary support, “the
court must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence -- that is, evidence which is
reasonable, credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d
557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Reversal on a
substantial evidence ground “is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]”
(People v. Bolin (1998) 18 Cal.4th 297, 331.) “‘An appellate court must accept logical
inferences that the jury might have drawn from the evidence even if the court would have
concluded otherwise. [Citation.]’ [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th
379, 419.) “‘The test on appeal is whether substantial evidence supports the conclusion
of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt
. . . .’” (People v. Johnson, supra, at p. 576.) “The same standard of review applies to
cases in which the prosecution relies mainly on circumstantial evidence [citation], and to
special circumstance allegations [citation].” (People v. Maury (2003) 30 Cal.4th 342,
396.)
“All murder which is perpetrated by means of . . . willful, deliberate, and
premeditated killing . . . is murder of the first degree.” (§ 189.) Murder committed in the
perpetration of attempted robbery is also first degree murder under the felony-murder
rule. (People v. Elliot (2005) 37 Cal.4th 453, 469.) Defendant acknowledges that the
jury found true the special circumstance of attempted robbery, but contends that the
felony-murder theory fails due to the asserted instructional error regarding CALCRIM

15
No. 1863. As defendant does not contend that the attempted robbery finding is
unsupported by substantial evidence, and we have rejected his claim of instructional
error, we must affirm defendant’s first degree murder conviction based upon the felony-
murder rule.
Further, defendant has not demonstrated that the evidence which supports a
finding that the murder or the attempted murder was premeditated, was insufficient.
Defendant cites People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson) in which the
California Supreme Court formulated guidelines based upon evidence of three factors,
planning, motive, and manner of killing, “to aid reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere unconsidered or rash impulse.
[Citation.]” (People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez).) The Anderson
guidelines are merely descriptive and did not purport to define or rewrite the elements of
first degree murder, alter the substantive law of murder in any way, or change the
traditional standards of appellate review. (Perez, at p. 1125.)
Using such guidelines, defendant contends there is no evidence that defendant
planned to kill either victim, that he had a motive to kill, or that he killed in a manner
suggesting anything but “a spur of the moment in response to a robbery gone bad.”
Defendant rejects the planning factor, claiming the only plan shown by the evidence was
the plan to go into the house to rob Soriano. Defendant rejects the motive factor, because
the prosecutor did not suggest a motive in argument, other than a motive to rob the
victims. Finally, defendant minimizes the significance of the manner in which the
victims were shot, because “[t]he fact that a slaying was unusually brutal, or involved
multiple wounds, cannot alone support a determination of premeditation.” (People v.
Alcala (1984) 36 Cal.3d 604, 626-627, italics added.)
Initially, we observe that despite acknowledging the traditional standards of
review, defendant’s analysis depends entirely upon a review of the evidence in the light
most favorable his own arguments, drawing inferences that would defeat the judgment,
and referring mostly to his own testimony, despite any conflicts with other evidence. For

16
example, defendant cites his own testimony that Soriano twice struck defendant with a
wrought iron stool and that defendant shot him in response to the attack. Delgado
however testified that Soriano swung the stool toward defendant’s face, but he did not say
that he saw the stool strike defendant. Delgado also testified that defendant remained
standing, fired his weapon four times, and remained standing after Soriano fell. Further,
the medical examiner opined that defendant was at least two feet away from Soriano
when he fired all four bullets into him. Thus, contrary to defendant’s view of the
evidence, the jury could reasonably infer that Soriano did not come closer to defendant
than two feet and that he did not succeed in hitting defendant at all.
Defendant complains that “[r]espondent has failed to bear its burden of
establishing premeditation and deliberation beyond a reasonable doubt.” However, as the
judgment is presumed correct, it is the appellant’s burden to demonstrate that the
evidence was insufficient to support the verdict. (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573.) Defendant does not meet that burden “by citing only his own
evidence, or by arguing about what evidence is not in the record, or by portraying the
evidence that is in the record in the light most favorable to himself. . . . ‘[A] recitation of
only [the appellant’s] own evidence or a general unsupported denial that any evidence
sustains the findings is not the “demonstration” contemplated under the rule.’
[Citation.]” (Id. at pp. 1573-1574.)
Moreover, “‘[t]he Anderson factors, while helpful for purposes of review, are not a
sine qua non to finding first degree premeditated murder, nor are they exclusive.’
[Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 33, disapproved on another point in
People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Nor is it necessary that the
Anderson “factors be present in some special combination or that they be accorded a
particular weight.” (People v. Pride (1992) 3 Cal.4th 195, 247.) Nevertheless, we agree
with respondent that substantial evidence supported all three factors.
The victims were, as far as defendant knew, unarmed and alone in their home very
late at night, and defendant had armed himself with a loaded firearm before entering the
house to rob them. As such facts support “‘the inference that he planned a violent

17
encounter,’” they satisfy the planning factor. (People v. Elliot, supra, 37 Cal.4th at p.
471.)
Soriano and Delgado were the only witnesses to defendant’s attempted robbery
and their struggle could have impeded his escape. Defendant emptied his gun into vital
parts of their bodies, ran from the house, and rapidly fled the scene. Under such
circumstances, a motive to escape and eliminate witnesses may reasonably be inferred.
(See People v. San Nicolas (2004) 34 Cal.4th 614, 658 [motive to eliminate lone witness
and facilitate escape].)
Finally, we reject defendant’s characterization of the manner of killing as a spur-
of-the-moment impulse because it was not execution style. A decision made quickly
does not preclude a finding of premeditation, as “premeditation can occur in a brief
period of time. ‘The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .’ [Citations.]” (Perez, supra, 2 Cal.4th at p.
1127.) Moreover, shooting Soriano in the heart, lungs, and brain while standing two feet
away could reasonably be construed as an execution, as could shooting Delgado a second
time in the neck after shooting him in the eye failed to kill him. While more brutal attacks
with multiple blows may indicate a rash impulse, they can also reasonably imply a
premeditated intent to make certain the victim died. (See People v. Lewis (2009) 46
Cal.4th 1255, 1293 [throat cut after strangulation]; People v. Nazeri (2010) 187
Cal.App.4th 1101, 1118 [numerous blows to the neck, vital organs, and eye].)
In sum, substantial evidence of planning, motive, and manner of killing supports
the reasonable inference that defendant’s intent to kill the victims was premeditated, and
we reject defendant’s contrary inferences. (See Perez, supra, 2 Cal.4th at p. 1124.)
IV. Juror information
Defendant contends that the trial court erred in denying his motion to disclose
juror identification information in order to determine whether any judicial misconduct
occurred which affected the jury. The motion was brought pursuant to sections 206 and
237 of the Code of Civil Procedure, which permit the trial court to release sealed juror

18
identification information if the defendant establishes a prima facie showing of good
cause for the release and there is no compelling interest against such disclosure. (Code
Civ. Proc., § 237, subd. (b).)
In support of his petition, defendant submitted the declaration of Brother Carmel
Duca (Brother Duca), chaplain for the Los Angeles County Jail, who was sitting in the
courtroom, directly opposite the judge, during closing arguments. Brother Duca
declared: “When defense counsel was delivering his argument, he mentioned that the
victim, Mr. Soriano was probably feeling jealous because [Rosales] had brought the
defendant with her. At that point, the Judge started frowning and shaking his head while
looking at defense counsel and the jury.”
In opposition, the prosecutor represented that defense counsel had told her that
Brother Duca was a friend of defendant’s family, that she observed him sitting and
conversing with defendant’s mother throughout the trial, that she did not see the court
make any facial gestures, and that it took Brother Duca a week following the verdicts to
come forward with his allegation. At the hearing on the motion defense counsel did not
deny these representations, but clarified that Brother Duca was not defendant’s friend,
only his chaplain. The trial court denied having made a face at any point, adding: “I
make a specific point of appearing to be neutral at all times. In fact, I remember [defense
counsel’s] argument and the very point at which this allegation is being made, and I made
a very specific point of not looking at the jurors [or] in any way indicating any belief on
the court’s part as to the validity of any of the argument.”
The trial court found that defendant had made an insufficient showing of good
cause and denied the motion. Defense counsel then orally moved for a new trial on the
same grounds which the court denied.
We review for an abuse of discretion the trial court’s ruling that the declarations
were insufficient to make a prima facie showing of good cause to unseal juror
information. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096.) Defendant’s
showing must be sufficient to support a reasonable belief that the alleged misconduct
occurred. (People v. Rhodes (1989) 212 Cal.App.3d 541, 552.) Further, the misconduct

19
alleged must be “‘of such a character as is likely to have influenced the verdict
improperly.’ [Citation.]” (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) A
petition to disclose juror identification information must be supported by more than mere
speculation and may not be used as a “‘fishing expedition[]’ by parties hoping to uncover
information to invalidate the jury’s verdict.” (People v. Rhodes, supra, at p. 552.)
Defendant suggests that the court’s expressions may have been unconscious and
thus we should give little weight to the court’s disagreement with Brother Duca’s
account. Referring to Brother Duca’s allegations, the trial court stated that “it did not
happen.” In ruling on a motion to disclose juror information, “‘“[t]he power to judge the
credibility of witnesses and to resolve conflicts in the testimony is vested in the trial
court”’ [citation], even when the witnesses testify via declarations [citation].” (People v.
Johnson (2013) 222 Cal.App.4th 486, 499.) We thus defer to the trial court’s resolution
of conflicting recollections and credibility, and do not reweigh the evidence. We find no
abuse of discretion.
V. Consecutive terms for attempted robbery and attempted murder
Defendant contends that the trial court erred in ordering the prison term for the
attempted robbery of Delgado (count 5), to run consecutively to the attempted murder,
instead of imposing and staying the term pursuant to section 654.
“An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).) Section 654 prohibits punishment for two such crimes
arising from an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290,
294.) “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.” (Neal v. State of
California (1960) 55 Cal.2d 11, 19, disapproved on other grounds by People v. Correa
(2012) 54 Cal.4th 331, 334, 336.) However, section 654 does not apply to similar but

20
consecutive and different objectives, or to simultaneous but separate objectives. (People
v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
“Because of the many differing circumstances wherein criminal conduct involving
multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no
universal construction which directs the proper application of section 654 in every
instance. [Citation.]” (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) Thus, whether
a course of criminal conduct is divisible presents a factual issue for the trial court, and we
will uphold its ruling if supported by substantial evidence. (People v. Coleman (1989) 48
Cal.3d 112, 162.) “Whether section 654 applies in a given case is a question of fact for
the trial court, which is vested with broad latitude in making its determination.
[Citations.] Its findings will not be reversed on appeal if there is any substantial evidence
to support them. [Citations.] 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. Jones (2002) 103
Cal.App.4th 1139, 1143.)
A shooting is incidental to a robbery when the defendant’s only intent or objective
for the shooting is to facilitate the robbery. (See People v. Hensley (2014) 59 Cal.4th
788, 828.) However, an act of violence is not incidental to a robbery when it exceeds the
force necessary to commit the robbery. (People v. Cleveland (2001) 87 Cal.App.4th 263,
272.) An act of gratuitous violence against a helpless and unresisting victim is not
considered incidental to robbery for the purposes of section 654. (People v. Nguyen
(1998) 204 Cal.App.3d 181, 190.) In addition, once a robbery has been committed, an
attempted murder committed to effect an escape is not incidental to the robbery for
purposes of section 654. (See In re Jesse F. (1982) 137 Cal.App.3d 164, 171.)
Here, defendant’s robbery attempt was abandoned when the victims resisted, and
as we previously found, substantial evidence supported a reasonable inference that
defendant’s motive in shooting Delgado was to facilitate his escape and to eliminate
witnesses. In addition, defendant exceeded the force necessary to commit the robbery or
to effect his escape when he shot Delgado in the eye and then again in the neck after

21
Delgado had fallen. Substantial evidence thus supports the trial court’s finding that
defendant’s intent and objective in committing attempted murder were separate and
distinct from his intent and objective to rob the victims. The trial court did not err in
imposing consecutive sentences.
VI. Error in abstract of judgment
Defendant points out that although the trial court ordered the sentence as to
count 5 to run consecutively, the court imposed and stayed the firearm enhancement of
25 years to life. The abstract of judgment, however, fails to reflect that the enhancement
was stayed. Respondent agrees with defendant and both parties ask that we order the trial
court to issue a corrected abstract of judgment. Since the writing does not accurately
reflect the oral pronouncement of judgment we thus order the trial court to correct the
abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 188.)
DISPOSITION
The judgment is affirmed. The superior court is directed to prepare an amended
abstract of judgment accurately reflecting the court’s oral pronouncement of judgment, in
which the firearm enhancement imposed as to count 5 pursuant to section 12022.53,
subdivision (d) was stayed. The superior court shall then forward certified copies of the
amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.
CHAVEZ

We concur:

__________________________, Acting P. J.
ASHMANN-GERST

__________________________, J.
HOFFSTADT

22