Filed 4/12/18 Opinion on remand from Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060438
v. (Super.Ct.No. FVI901482)
JOSE LUIS PEREZ et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed in part and reversed in part; remanded with directions.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for
Defendant and Appellant Jose Luis Perez.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant Edgar Ivan Chavez Navarro.
Randall Bookout, under appointment by the Court of Appeal, and H. Russell
Halpern for Defendant and Appellant Pablo Sandoval.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts I, II, IV, V, VI, VII, VIII,
IX, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, and XX.
Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Senior
Assistant Attorney General, and Scott C. Taylor and Kristen Kinnaird Chenelia, Deputy
Attorneys General, for Plaintiff and Respondent.
A drug dealer identified only as “Max” owed money to a group of other drug
dealers for some methamphetamine that had gone missing. He decided to ambush his
creditors, tie them up, rob them of any drugs and money they might have, and kill them.
Max delegated the actual commission of these planned crimes to at least nine men.
Some of them, including defendant Pablo Sandoval, worked for him; others, including
defendant Edgar Ivan Chavez Navarro,1 worked for a fellow drug dealer named Eduardo
Alvarado; and still others, including defendant Jose Luis Perez, worked for (or with)
another drug dealer named Flor Iniguez. According to the prosecution’s designated gang
expert, most, if not all, of the participants — including all three of the defendants named
in this case — were members or associates of the Sinaloa drug cartel; the victims were
members or associates of a different cell of the same cartel.
The participants carried out the plan, but not flawlessly. One of the victims,
although shot in the face and chest, survived, and he was able to provide information that
led the police to defendant Perez and to Sabas Iniguez (Flor Iniguez’s nephew). Perez
gave statements to the police incriminating himself. Iniguez testified at trial pursuant to a
plea bargain.
1 In accordance with Spanish-language naming conventions, this defendant
takes the surname Chavez from his father and the surname Navarro from his mother. He
prefers to be called “Mr. Chavez” or “Mr. Chavez Navarro” rather than “Mr. Navarro.”
We will therefore refer to him as Chavez.
2
Defendants were convicted of multiple first degree murders, with special
circumstances, as well as other crimes. They now appeal.
In the published portion of this opinion, we will hold that trial counsel forfeited
any objection to expert testimony to case-specific hearsay, which is inadmissible under
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), by failing to raise it below. Even
though this case was tried before Sanchez was decided, previous cases had already
indicated that an expert’s testimony to hearsay was objectionable. If anything, Sanchez
narrowed the scope of a meritorious objection by limiting it to case-specific hearsay.
In the unpublished portion of this opinion, we will hold that there was insufficient
evidence to support the gang special circumstance. We also hold that the trial court erred
by failing to instruct on the financial-gain special circumstance. Hence, we will reverse
these two special circumstances. We will also direct the trial court to consider whether to
strike the firearm enhancements under Penal Code section 12022.53, pursuant to newly
enacted Senate Bill 620. Otherwise, however, we find no prejudicial error.
I
SUMMARY OF DEFENDANTS’ CONTENTIONS
In this appeal,2 defendants raise the following contentions regarding:
1. Insufficiency of the evidence:
a. There was insufficient evidence of first degree murder on a theory of:
2 Perez has also filed a related petition for writ of habeas corpus (case
No. E064866). We ordered the petition considered with (but not consolidated with) this
appeal for the purpose of determining whether an order to show cause should issue. We
will rule on the petition by separate order.
3
i. Premeditation.
ii. Either robbery murder or kidnapping murder.
iii. Lying-in-wait murder.
b. There was insufficient evidence that defendants had the intent to kill, or,
when applicable, that they acted with reckless indifference to human life, to support any
of the special circumstances.
c. There was insufficient evidence that a kidnapping or a robbery was still
underway when the shooting occurred to support the kidnap-murder and robbery-murder
special circumstances.
d. There was insufficient evidence that the shooting occurred during a
period of lying in wait to support the lying-in-wait special circumstance.
e. There was insufficient evidence to support the financial-gain special
circumstance.
f. There was insufficient evidence that defendants had the intent to kill for
purposes of the attempted murder of the victim who survived.
g. There was insufficient evidence of asportation of two of the victims to
support the convictions of kidnapping them for robbery.
h. There was insufficient evidence to support the gang-related convictions
and allegations.
2. Erroneous admission of evidence:
a. The trial court erred by admitting evidence that witness Iniguez had been
assaulted in jail.
4
b. The trial court erred by admitting the gang expert’s testimony to case-
specific hearsay.
3. Erroneous jury instructions:
a. The jury was erroneously allowed to find defendants guilty or
premeditated first degree murder, as aiders and abettors, under the natural and probable
consequences doctrine.
b. The jury was erroneously allowed to find defendants guilty of
conspiracy to commit attempted murder.
c. The trial court failed to instruct on the financial-gain special
circumstance.
d. The trial court failed to instruct that the multiple-murder special
circumstance, as to an aider and abettor, required the intent to kill.
e. The trial court failed to instruct on the escape rule for purposes of felony
murder.
f. The trial court failed to instruct on the defense of duress.
4. Prosecutorial misconduct in closing argument:
a. The prosecutor improperly argued:
i. A felony-murder theory of attempted murder.
ii. A lying-in-wait theory of attempted murder.
iii. A theory of conspiracy to commit attempted murder.
b. The prosecutor violated defendants’ right to remain silent by
commenting on their failure to contradict witness Iniguez’s testimony.
5
5. Sentencing error: The trial court erroneously failed to state reasons for
imposing the upper term for the crime of active gang participation.
II
FACTUAL BACKGROUND
A. The Crime Scene.
On June 23, 2009, around 10:30 p.m., a motorist on Highway 395 near Victorville
stopped because he saw a man “stumbling in the middle of the road.” The man had been
shot in the forehead and in the chest. The motorist phoned 911.
When the police responded, the victim gave his name as Luis Romero. He told
them that he and two other men had been kidnapped in South Gate, driven to Victorville,
robbed, and shot. He identified the kidnappers as “Lalo” and “Junior.”
A trail of Romero’s blood led to a black Chevrolet Silverado pickup truck that was
parked a few blocks away. In it, the police found the dead bodies of victims Alejandro
Martin and Eduardo Gomez. They had each been shot multiple times. Empty cartridge
casings showed that at least two guns had been fired — a 9-millimeter and a .40-caliber.
The hands and feet of the bodies were bound with zip ties. A set of zip ties that
Romero had managed to remove was also found at the scene.
Inside the pickup, there was a black hooded sweatshirt. After defendant Sandoval
was identified as a suspect, DNA from this sweatshirt was tested and found to be his.
B. The Investigation.
Romero told the police that victims Martin and Gomez dropped him off at a
certain house on Center Street in South Gate. When he went inside, he was taken captive
6
and forced to phone the others. The next day, they came to the house, where they, too,
were taken captive.
On July 2, 2009, the police searched the house on Center Street. It was associated
with one Flor Iniguez. The living quarters were upstairs, over a garage. The house was
vacant. However, the police found zip ties like those found on the victims. They also
found a box of latex gloves.
That same day, based on what they learned at the house on Center Street, the
police also searched a house on California Street in South Gate, also associated with Flor
Iniguez. In a van parked out front, they found approximately 70 pounds of marijuana.
While there, they encountered one Sabas Iniguez.
Inside the house, the police found a card for a storage unit in South Gate. On July
3, 2009, they went to the storage facility. There they encountered defendant Perez, who
was driving a BMW. A search of the BMW turned up a loaded shotgun.
Surveillance video and sales records from a Target store in South Gate showed
that, on the day of the shooting, at about 12:40 p.m., three men — including defendant
Perez and defendant Chavez — bought a box of latex gloves identical to the one found at
the Center Street house.
Cell phone records showed that on the day of the shooting, defendant Sandoval
made 24 calls from the vicinity of the Center Street house. Additional calls made
between 9:45 and 10:30 p.m. showed him going toward Victorville. Calls made between
10:30 p.m. and midnight showed him coming back from Victorville.
7
C. Testimony of Sabas Iniguez.
Sabas Iniguez, nicknamed “Junior,” testified at trial pursuant to a plea bargain. It
called for him to plead guilty to the same crimes as defendants were charged with and to
testify truthfully in this case, in exchange for a reduced sentence.
1. The formulation of the plan.
Iniguez distributed drugs, including methamphetamine, cocaine, and marijuana.
He had several suppliers, including victim Romero. Victim Martin was victim Romero’s
boss, and victim Gomez was victim Martin’s driver.
Flor Iniguez was Iniguez’s aunt. She worked for Romero as a “mule,”
transporting drugs. Romero lived in Mexico; whenever he visited the United States, he
would stay with Flor.
One “Max” owed victim Martin money for methamphetamine. Martin had sent
“collectors” to Max’s home in Mexico. Max wanted to eliminate the debt and also to get
revenge on Martin and his people.
A few weeks before the shooting, Max held a meeting at a Denny’s. Max brought
along defendant Sandoval; this was the first time that Iniguez had ever met Sandoval.
Sandoval, in turn, brought along three men Iniguez did not know. They were members of
a gang called the Bell Gardens Locos. They were referred to at trial as the “unknowns.”
Iniguez understood that Sandoval and the unknowns worked for Max.
8
Also present at the meeting was Eduardo Alvarado, known as “Lalo.” Alvarado
was another one of Iniguez’s suppliers. Alvarado was accompanied by defendant Chavez
and one Cesar Rodriguez; they both worked for him.3
Max did most of the talking. The discussion included the fact that “[s]omebody”
owed a debt to the victims and that “the debt needed to be handled . . . .” During the
meeting, a plan was developed to “get” the victims “[s]o the debt wouldn’t have to be
paid.” To “collect extra,” they would rob the victims of money and drugs.
A few days before the shooting, Max held another meeting, at an El Pollo Loco.
This time, defendant Perez was also there. Perez lived with Flor Iniguez and worked for
her as her babysitter. Until then, he had not been involved in the drug business.
They discussed having all three of the victims come to the Center Street house,
where the participants would grab them and tie them up. Iniguez and Perez were to act as
“bait,” because the victims knew them and would be comfortable around them. They
were told that they “would have to go along with it, or else it was going to be [them]
along with [the victims] . . . .”
2. The execution of the plan.
On Sunday (i.e., two days before the shooting), Iniguez, defendant Perez,
defendant Sandoval, defendant Chavez, Alvarado, Cesar Rodriguez, and the unknowns
took up stations at the Center Street house.
3 Alvarado and Rodriguez were tried separately and convicted. We affirmed
their convictions. (People v. Alvarado (Dec. 19, 2013, E054118) 2013 Cal. App. Unpub.
LEXIS 9154 [nonpub. opn.].)
9
At one point, Iniguez left for a few hours. While he was away, he got a phone call
saying that Romero had arrived at the house and had been tied up. When he got back, the
others were making Romero phone victim Martin and victim Gomez to get them to come
back to the house.
Alvarado told Iniguez and defendant Perez to go out in front of the house and
wash Flor’s black GMC pickup truck, so the victims would feel comfortable.
Meanwhile, two other participants hid in the garage and two more waited in a parked car.
Martin and Gomez arrived, in a black Chevrolet pickup truck. They said hi and
walked upstairs. The participants who had been hiding ran up the stairs behind them and
pushed them into the house. There were sounds of fighting.
About 20 minutes later, someone told Iniguez and Perez to come upstairs. All of
the other participants were wearing latex gloves. They had a shotgun and four handguns,
including a 9-millimeter and a .40-caliber, which they “passed around”; whoever was
guarding the victims would hold a gun.
The participants relieved the victims of their cell phones and took Martin’s
expensive watch. They blindfolded the victims, zip-tied their hands behind their backs,
and duct-taped their feet together. For a while, the victims were kept in separate
bedrooms. Defendant Chavez and others then brought them out to the living room and
seated them on the couch. Defendant Chavez, armed with a gun, acted as a guard.
Alvarado ordered the victims to get money and drugs. Victim Martin arranged for
someone to bring 20 pounds of marijuana to the house. He also arranged the pickup of
10
$100,000 in Bellflower. Several participants left to get it, taking victim Romero with
them.
Alvarado told everyone that after dark, they were going to take the victims out of
the house and drop them off somewhere.
Once it started to get dark, Iniguez and defendant Perez were told to drive Flor’s
pickup around the neighborhood and keep a lookout. They circled the neighborhood
several times. On one pass, they saw victim Romero being walked down the stairs.
Four vehicles then left the Center Street house in convoy. Alvarado was driving
the victims’ pickup, with defendant Sandoval as his passenger. Sandoval was wearing a
black hooded sweatshirt. Presumably the victims were in the back of that pickup, where
their bodies were later found, but Iniguez could not see inside because the windows were
tinted. Rodriguez was driving Alvarado’s pickup, with defendant Chavez as his
passenger. Two of the unknowns were in a gold Chevrolet Tahoe.
Iniguez and Perez, still in Flor’s pickup, were told to follow the others. However,
they made a wrong turn and got separated from the group. They had not yet caught up
when they got a phone call saying, “it’s over with” and they should go home.
At Iniguez’s direction, defendant Perez phoned Flor and asked to borrow some
money. Iniguez waited at a Denny’s while Perez went to pick the money up. When
Perez got back, he gave Iniguez $2,000. Flor later said that the $100,000 had been
divided up among everybody who had been at the house.
11
D. Statements of Defendant Perez.
Defendant Perez made a series of statements to the police that were admitted
before his jury only.
1. Statements at the storage facility.
When interviewed at the storage facility, Perez admitted knowing that the shotgun
in the BMW had been used at the Center Street house, “[i]n the kidnapping that led to the
homicide.”
2. Statements at the police station on July 3.
On July 3, 2009, the police interviewed Perez again.
Perez said that he lived at the Center Street house along with Flor, Flor’s children,
and Iniguez. Alvarado and Flor were in the drug business.
He admitted that he was at the Center Street house when the victims were there.
He also admitted that he personally blindfolded and zip-tied victim Gomez. The other
participants in the crimes included Alvarado, defendant Chavez, and defendant Sandoval.
Victim Romero was his “good friend.” Romero worked for victim Martin, selling
drugs. The victims were driven away in their own pickup. Flor’s pickup and a third
black pickup were also used in the crimes. He claimed he did not know what happened
to the victims after they left the house.
3. Statements at the police station on July 6.
The police interviewed Perez again on July 6, 2009.
12
This time, Perez explained that Max’s boss owed victims Martin and Romero
money for some drugs that had been lost. Romero had threatened Max’s boss, so Max’s
boss ordered Max “to kill them.”
On Saturday morning (i.e., three days before the shooting), Iniguez told Perez that
they were going to “get” all three victims — “they were gonna kill ‘em, . . . they were
gonna take everything they had.”
On Saturday night, the participants assembled at the house on Center Street.
Leaving aside Iniguez and Perez, they fell into two groups. One group was led by
Alvarado; it included defendant Chavez and one of the unknowns. The other group
worked for Max and was led by defendant Sandoval; it included three more unknowns.
They had a shotgun and other guns.
According to Perez, “[T]he reason for me to stay there was cuz . . . [Sandoval] and
them[,] they wanted to kill him there.” Flor, however, did not want the victims killed in
her house. She said she would give Perez and Iniguez “a little money” just “for being
there.” Also, Perez admitted, he was hoping to get work from Sandoval.
On Sunday, victim Romero arrived. Defendant Perez went downstairs and told the
others that Romero was there. They ran upstairs, tied him up, and blindfolded him.
Defendant Chavez tied him up. He told them where some money was hidden.
On Monday (i.e., one day before the shooting), the participants made victim
Romero call victims Martin and Gomez and get them to come to the house.
That afternoon, Iniguez and Perez were outside washing Flor’s pickup and two
other “guys” were hiding in the garage when victims Martin and Gomez arrived. As they
13
walked upstairs, the two guys ran up behind them, grabbed them, and pushed them inside.
Perez and defendant Chavez participated in binding them.
Alvarado forced victim Martin to make phone calls in an effort to get drugs. At
some point, the participants took Martin’s watch and Gomez’s money. Alvarado and
defendant Sandoval left to consult with Max, then came back and said that they were
going to kill all three of the victims.
Iniguez and Perez drove Flor’s pickup around the block to keep a lookout.
Meanwhile, defendant Sandoval walked the victims down to the victims’ own pickup,
one at a time, sat them in the back seat, and tied them up. Sandoval told Perez, “[I]f you
say something . . . we’re gonna do the same thing we did to them to you and your
family.”
One of the unknowns drove Sandoval and the victims to Victorville. Alvarado and
defendant Chavez followed in Alvarado’s pickup. Iniguez and Perez also followed, in
Flor’s pickup. However, they got lost somewhere in Victorville. Defendant Sandoval
then phoned and said “they had already killed ‘em.” He added that the unknown who
was driving shot them first, but Alvarado “went back” and “made sure and shot them
again.”
Iniguez waited at a Denny’s while Perez picked up $5,000 from Flor for both of
them.
14
E. Testimony of Sandraluz Garcia.
Sandraluz Garcia was defendant Chavez’s girlfriend at the time of the crimes.
Pursuant to a plea agreement, which required her to testify truthfully in this case, she had
pleaded guilty to acting as an accessory after the fact, with a gang enhancement.
Chavez told her that he and Alvarado were “involved in the drug business.” They
worked for the “Chapos” drug cartel in Mexico. He also said that Alvarado had stolen
some money from the cartel and was on the run from them.
She testified that, sometime shortly after June 21, 2009, Chavez said he was going
dirt bike riding. She did not hear from him for three days. The next time she saw him, he
had a lot of money. Later, she saw Alvarado wearing an expensive watch.
After hearing that Alvarado had been arrested, Chavez told her that they had to
leave. He explained that Alvarado was in trouble and was going to try to blame him for
it. They went to Stockton and then to Utah.
F. Gang Evidence.
1. Iniguez’s testimony.
According to Iniguez, “all the dope coming out of Mexico comes through one of
the cartels . . . .” A cartel member is supposed to work only with that cartel, though a
lower-level associate might work with another cartel “on the sly.”
15
Max, Martin, and one “Gordo”4 were all cartel members. They were each on the
same level of the organization; they did not work with each other. Defendant Sandoval
reported to Max.
Alvarado was also a cartel member. Defendant Chavez reported to Alvarado.
At one time, Alvarado worked for Gordo. However, “right before this whole
incident happened,” they had a falling-out, and Alvarado started getting his drugs from
Romero. Alvarado sometimes also got drugs from Max.
Iniguez himself sometimes bought drugs from Gordo and sometimes from
Romero. Romero reported to Martin, who reported to Nacho, the “big boss” in
Guadalajara.
2. Testimony of the gang expert.
Officer Jeffrey Moran testified as an expert on criminal street gangs. His
qualifications are discussed further in part VIII.A, post.
He testified that the Sinaloa drug cartel produces large amounts of
methamphetamine, cocaine, and marijuana and transports them into the United States. Its
primary purpose is the distribution, transportation, and possession for sale of drugs. The
head of the cartel is “El Chapo” Guzman. It has approximately 100,000 to 150,000
participants worldwide. It goes by several alternative names.
According to Officer Moran, the Sinaloa cartel operates like a franchisor, such as
McDonald’s. It is subdivided into territories, which in turn are subdivided into cells.
4 This individual went by several nicknames, including Gordo, Wetto, and
Skinny.
16
Each cell “connect[s] up to somebody in the Sinaloa cartel” but works independently of
the other cells.
As evidence of a pattern of criminal gang activity, the trial court took judicial
notice that Alvarado, Iniguez, and Rodriguez had been convicted of murder, attempted
murder, and kidnapping, all committed on June 23, 2009 (i.e., the same crimes as in this
case). In Officer Moran’s opinion, all three men were either members or associates of the
cartel.
As of 2009, Ignacio “Nacho” Coronel, based in Guadalajara, was the number three
man in the Sinaloa cartel. Defendant Chavez once told his girlfriend that Alvarado
worked for a drug cartel in Mexico called “Chapos.” Also, Iniguez told the police that
one “Nacho,” in Guadalajara, was “the big boss” and, specifically, Martin’s boss. Officer
Moran concluded that Max and the victims were all members of one cell of the Sinaloa
cartel and that Alvarado was a member of a separate cell of the Sinaloa cartel.
In Officer Moran’s opinion, defendant Sandoval was also a member of the cartel,
based on the fact that he had direct contact with Max and he was “calling the shots” on
the “hit.”
Defendant Chavez was either a member or an associate of the cartel, because he
worked for Alvarado.
Defendant Perez was a “low level associate” of the cartel. This opinion was based
on Perez’s own statement that he was “pretty much at the bottom” of the cartel, which
17
Officer Moran took to be an admission that he was, in fact, in the cartel.5 It was also
based on the fact that Perez wanted to work for Sandoval and saw the crimes as a kind of
“audition.”
Also in Officer Moran’s opinion, the crimes in this case were committed in
association with the cartel.
III
PROCEDURAL BACKGROUND
Defendants were tried together, but Perez had a jury separate from Sandoval and
Chavez’s jury.
Each defendant was found guilty on two counts of murder (Pen. Code, § 187,
subd. (a)), one count of premeditated attempted murder (Pen. Code, §§ 187, subd. (a),
664)), three counts of kidnapping for ransom (Pen. Code, § 209, subd. (a)), three counts
of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1)), and one count of active gang
participation (Pen. Code, § 186.22, subd. (a)).
In connection with the murder counts, six special circumstances were found true:
financial gain (Pen. Code, § 190.2, subd. (a)(1)), multiple murder (Pen. Code, § 190.2,
subd. (a)(3)), lying in wait (Pen. Code, § 190.2, subd. (a)(15)), robbery murder (Pen.
Code, § 190.2, subd. (a)(17)(A)), kidnapping murder (Pen. Code, § 190.2, subd.
(a)(17)(B)), and gang-related murder (Pen. Code, § 190.2, subd. (a)(22)).
5 Perez complains that the transcript of his July 6 interview does not include
such an admission. However, Officer Moran specifically testified that Perez made this
statement in his July 3 interview. A transcript of the July 3 interview was not in
evidence.
18
In connection with all counts other than active gang participation, an enhancement
for the discharge of a firearm by a principal in a gang-related crime causing great bodily
injury or death (Pen. Code, § 12022.53, subds. (d), (e)(1)) and a gang enhancement (Pen.
Code, § 186.22, subd. (b)) were found true.
Each defendant was sentenced to a total of nine consecutive life terms — five
without the possibility of parole, three with a minimum parole period of 25 years, and
one with the possibility of parole — plus three years.6
IV
THE SUFFICIENCY OF THE EVIDENCE
THAT THE MURDERS WERE OF THE FIRST DEGREE
Perez contends that there was insufficient evidence to support the finding that the
murders were in the first degree.
“When the sufficiency of the evidence to support a conviction is challenged on
appeal, we review the entire record in the light most favorable to the judgment to
determine whether it contains evidence that is reasonable, credible, and of solid value
from which a trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] Our review must presume in support of the judgment the existence of every
6 The trial court’s statement of the sentence on a count-by-count basis (nine
consecutive life terms) was different from its statement of the total aggregate sentence
(three consecutive life terms).
The abstracts of judgment are consistent with the count-by-count sentence.
Defendants’ briefs set forth the count-by-count sentence as the actual sentence.
Defendants have not argued that that sentence was erroneous. We therefore accept the
count-by-count sentence.
19
fact the jury could reasonably have deduced from the evidence. [Citation.] . . . [T]he
relevant inquiry on appeal is whether, in light of all the evidence, ‘any reasonable trier of
fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.]”
(People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
A murder may be found to be in the first degree on several alternative grounds,
including, as relevant here, if it is: (1) “willful, deliberate, and premeditated”;
(2) “committed in the perpetration of, or attempt to perpetrate . . . robbery . . . [or]
kidnapping”’; or (3) “perpetrated by means of . . . lying in wait.” (Pen. Code, § 189.)
A. Premeditation.
First, Perez contends that there was insufficient evidence of first-degree murder on
a premeditation theory.
Perez was an aider and abettor, not an actual killer. Under the natural and
probable consequences doctrine, an aider and abettor can be guilty of second degree
murder even if he or she did not personally intend to kill (or otherwise harbor malice).
(People v. Williams (1997) 16 Cal.4th 635, 691.) However, an aider and abettor cannot
be guilty of first degree murder on a premeditation theory unless he or she personally
premeditated. (People v. Chiu (2014) 59 Cal.4th 155, 158-159, 166-167.)
Perez attended the meeting at El Pollo Loco a few days before the shooting. At
that meeting, he was told that he was expected to participate in the overall scheme.
Admittedly, at that meeting, at least according to Iniguez, the only plan that was
discussed was tying the victims up and robbing them; there was no evidence that there
was any discussion at the El Pollo Loco of killing them.
20
Perez admitted to police, however, that, on Saturday, three days before the
shooting, Iniguez told him that the plan was to kill the victims. He also admitted that he
and Flor knew that the plan was to kill the victims. Nevertheless, on Saturday night,
Perez took up a position, along with the others, at the house. Thereafter, he willingly
participated, by buying latex gloves, binding the victims, and acting as a lookout.
Finally, Perez admitted that, while the victims were being detained, Alvarado announced
that they were going to kill all three of the victims. Perez nevertheless continued to act as
lookout as the victims were taken away.
From the combination of his knowledge and his willing participation, it is
reasonably inferable that Perez intended to kill. “It would be virtually impossible for a
person to know of another’s intent to murder and decide to aid in accomplishing the
crime without at least a brief period of deliberation and premeditation, which is all that is
required.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166.) Moreover, here,
Perez had three days in which to deliberate and premeditate.
Perez argues that knowledge plus participation are insufficient to prove the
necessary intent to kill. He cites People v. Snyder (2003) 112 Cal.App.4th 1200, which
stated: “[A]n aider and abettor is chargeable as a principal only to the extent he or she
actually knows and shares the full extent of the perpetrator’s specific criminal intent, and
actively promotes, encourages, or assists the perpetrator with the intent and purpose of
advancing the perpetrator’s successful commission of the target offense. [Citation.] It is
not sufficient if the person simply gives assistance with knowledge of the perpetrator’s
criminal purpose.” (Id. at p. 1220, fn. omitted.)
21
Snyder stands for the uncontroversial proposition that knowledge plus
participation do not establish shared intent as a matter of law. (See also People v. Sully
(1991) 53 Cal.3d 1195, 1227.) Nevertheless, a jury can reasonably infer shared intent
from knowledge plus participation (at least in the absence of contrary evidence). “The
act of encouraging or counseling itself implies a purpose or goal of furthering the
encouraged result.” (People v. Beeman (1984) 35 Cal.3d 547, 556.)
We recognize that Perez had no personal animus against the victims. In fact, he
considered victim Romero to be a good friend. Nevertheless, he stood to gain by
participating in the crimes. He worked for Flor; Flor had ordered him to remain at the
house and had promised to pay him for being present. He already knew that Max wanted
him to participate; in any event, violent, cartel-affiliated drug dealers were not likely to
allow him to remain present without participating. Moreover, Perez admitted that he was
hoping to get work from defendant Sandoval. Thus, while his own personal goals were
to make some money and to please Sandoval, he intentionally furthered the commission
of robbery, kidnapping, and murder in order to achieve these goals.
Perez also notes that, according to Iniguez, neither of them knew that the plan was
to kill the victims and neither of them participated in binding the victims. He argues that
this testimony was more credible than his own admissions, made under the stress of
interrogation. However, “it is the jury, not the reviewing court, that must weigh the
evidence, resolve conflicting inferences, and determine whether the prosecution
established guilt beyond a reasonable doubt. [Citation.] And if the circumstances
reasonably justify the trier of fact’s findings, the reviewing court’s view that the
22
circumstances might also reasonably be reconciled with a contrary finding does not
warrant reversal of the judgment. [Citation.]” (People v. Hubbard (2016) 63 Cal.4th
378, 392.)
Iniguez had a motive to minimize his own knowledge of the full extent of the plan.
Moreover, even though Perez had the same interest, he freely made damaging admissions
to the police. There is a reason why statements against one’s penal interest are deemed
particularly credible. While false confessions do occur, the interrogation here was not
particularly coercive.
Accordingly, there was sufficient evidence that Perez premeditated.
B. Felony Murder.
Perez also contends that there was insufficient evidence that a kidnapping or a
robbery was still underway when the shooting occurred to support either (1) a felony-
murder theory of first degree murder or (2) the kidnap-murder and robbery-murder
special circumstances.
“The felony-murder rule provides that ‘[a]ll murder . . . which is committed in the
perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, [or] train wrecking . . . is murder of the first degree.’ [Citation.]” (People v.
Wilkins (2013) 56 Cal.4th 333, 340-341.)
Similarly, a felony-murder special circumstance requires that “[t]he murder was
committed while the defendant was engaged in, or was an accomplice in, the commission
of, attempted commission of, or the immediate flight after committing, or attempting to
commit,” a specified felony. (Pen. Code, § 190.2, subd. (a)(17).)
23
A crime can be complete, for purposes of distinguishing between a completed
crime and an attempt, yet still be ongoing for purposes of felony-murder. (Cf. People v.
Heath (1998) 66 Cal.App.4th 697, 707 [when crime is in progress for purposes of aider
and abettor liability].) The test for whether the underlying felony is still ongoing is called
the “escape rule.” “‘Under this test . . . the crime continues until the criminal has reached
a place of temporary safety.’ [Citation.]” (People v. Wilkins, supra, 56 Cal.4th at p. 343,
fns. omitted.)
“In the case of robbery, for example, the crime is committed — as distinct from a
mere attempt — when the defendant removes the victim’s property. [Citations.] The
robbery continues, however, until the robber has escaped with his loot to a place of
temporary safety. [Citations.] Once the defendant has reached a place of temporary
safety, the robbery is at an end. [Citation.]” (People v. Bigelow (1984) 37 Cal.3d 731,
753-754.)
Here, the kidnappings were indisputably still underway when the shooting
occurred. There is no need to resort to the escape rule, because the essential elements of
kidnapping were still ongoing. Kidnapping is committed by “forcibly, or by any other
means of instilling fear, steal[ing] or tak[ing], or hold[ing], detain[ing], or arrest[ing] any
person in this state, and carr[ying] the person into another country, state, or county, or
into another part of the same county . . . .” (Pen. Code, § 207, subd. (a), italics added; see
also Pen. Code, § 209, subd. (a).) Thus, while there must be proof of asportation —
“carr[ying]” — the crime is ongoing even if the carrying is over, as long as “detain[ing]”
is still occurring.
24
For example, in People v. Burney (2009) 47 Cal.4th 203, the defendant and two
accomplices pointed a gun at the victim, took his wallet, and forced him to get into the
trunk of their car. After driving around for a while, they decided to kill him because he
could identify them. They stopped the car, opened the trunk, and shot and killed the
victim. (Id. at p. 212.)
The defendant argued that the kidnapping was over when the murder occurred
because “movement of the victim had ceased [and] defendant had reached a place of
temporary safety . . . .” (People v. Burney, supra, 47 Cal.4th at p. 233.) The Supreme
Court responded, “[D]efendant’s claim substantively is without merit. As we previously
have recognized, ‘the crime of kidnapping continues until such time as the kidnapper
releases or otherwise disposes of the victim and [the defendant] has reached a place of
temporary safety . . . .’ [Citations.] . . . ‘Because [the victim] was still being detained at
the time of his murder, he was killed while defendant was engaged “in the commission
of” the kidnapping.’ [Citations.]” (Id. at pp. 233-234, italics added.)
Perez seems to think that, because the crimes charged were kidnapping for robbery
and kidnapping for ransom, rather than simple kidnapping, they ended once the
perpetrators were no longer trying to rob or to obtain ransom. We note, if only in
passing, that this logic does not apply to the kidnapping-murder special circumstance,
which required only a kidnapping, regardless of motivation. More to the point, however,
there was only one continuous kidnapping of each victim. It cannot be divided into a
robbery-and-ransom phase and a murder phase. Even though the kidnapping was
25
originally motivated by robbery and ransom, it could and did continue even after the
perpetrators had obtained all available loot.
To determine whether the robberies were still underway when the shootings
occurred, it is necessary to consider the escape rule. “‘In cases involving [both] a
kidnapping and robbery, courts have held almost without exception that the evidence
supported the conclusion the robber had not yet reached a place of temporary safety so
long as the victim remained under the robber’s control.’ [Citations.]” (People v.
Cummins (2005) 127 Cal.App.4th 667, 679.) “[A]s long as a robber holds the victim
captive, the robber’s safety is ‘continuously in jeopardy’ during the period of captivity if
at ‘any unguarded moment, the victim might . . . escape or signal for help.’ [Citations.]”
(People v. Debose (2014) 59 Cal.4th 177, 205.)
For example, in People v. McLead (1990) 225 Cal.App.3d 906, the defendants,
who were drug dealers, invaded an apartment occupied by three competing drug dealers.
(Id. at p. 910.) They took money and drugs from the victims. (Id. at p. 911.) After
holding the victims captive in the apartment for a while, they tied them up, drove them
some distance, pulled over to the side of the road, and shot them. (Id. at pp. 911-912.)
Two of the victims lived, but victim Frazier died. (Id. at p. 912.)
On appeal, the defendants argued that the trial court erred by instructing on felony
murder. (People v. McLead, supra, 225 Cal.App.3d at p. 915.) This court disagreed:
“While it is true that the felony-murder rule is inapplicable to situations where the felony
is completed prior to the killing, that is not the case here. [Citation.] . . . The elimination
of Frazier and the takeover of his business were one continuous transaction. In addition,
26
defendants had not reached a place of temporary safety after the robbery until Frazier was
killed. [Citation.] Therefore, the robbery was not completed before the murder.” (Id. at
p. 916.)
Similarly, in People v. Powell (1974) 40 Cal.App.3d 107, disapproved on other
grounds in People v. Harris (1984) 36 Cal.3d 36, 53, the defendants “‘got[] the drop on’”
two police officers during a traffic stop (id. at p. 116), forced them to get into the
defendants’ car, and drove away with them. (Id. at p. 117.) The defendants took the
officers’ guns and flashlights; they also took cash from one officer. (Ibid.) The
defendants drove the officers from Hollywood to a secluded area in Bakersfield. (Id. at
pp. 116-117.) Once there, they shot and killed one officer; the other officer ran, and the
defendants attempted unsuccessfully to shoot him, too. (Id. at p. 117.)
On appeal, the defendants argued that the trial court erred by instructing on
robbery murder because any robbery had ended before the killing occurred. (People v.
Powell, supra, 40 Cal.App.3d at p. 163.) The appellate court rejected this argument,
stating that, as long as the defendants “were accompanied [by] and saddled with” the
victims, they had not reached a place of temporary safety. (Id. at p. 164.)
Here, as in McLead and Powell, the perpetrators had the victims under their
continuous control. They bound them with zip ties and watched over them while armed.
They “could not reasonably be regarded as having reached a place of temporary safety
. . . while they still had the kidnapped victim under their control in a public place.
[Citation.]” (In re Malone (1996) 12 Cal.4th 935, 967.) “The crimes were also linked by
the fact that [the perpetrators’] motive for killing may have been to prevent the victim of
27
the robbery and kidnapping from identifying him. [Citation.]” (People v. Stankewitz
(1990) 51 Cal.3d 72, 101; accord, People v. Fields (1983) 35 Cal.3d 329, 368.)
As a fallback argument, Perez asserts that he, individually, had reached a place of
temporary safety, because he had gotten separated from the main group. In People v.
Cavitt (2004) 33 Cal.4th 187, however, the Supreme Court stated: “There is case support
for the proposition that, under the escape rule, a felony continues as long as any one of
the perpetrators retains control over the victim or is in flight from the crime scene.
[Citations.]” (Id. at p. 209, italics added.)
Shortly thereafter, the Supreme Court applied this principle in People v. Coffman
and Marlow (2004) 34 Cal.4th 1. There, codefendants Marlow and Coffman kidnapped
victim Novis and took her to a friend’s residence. (Id. at pp. 16-17, 23.) Marlow took
the victim’s purse. (Id. at p. 23.) While Marlow and the victim remained at the house,
Coffman drove to a 7-Eleven for soda and cigarettes, then came back. (Id. at pp. 17, 23.)
Finally, Coffman drove Marlow and the victim from the house to a vineyard, where
Marlow killed the victim and buried her. (Id. at pp. 18, 23-24.)
Coffman argued “that when she . . . took Novis’s purse and drove her car to a
7-Eleven store, while Marlow remained at the [friend’s] residence with Novis, Coffman
had reached a place of temporary safety definitively terminating the prior robbery as to
her, even though Novis remained captive under Marlow’s control.” (People v. Coffman
and Marlow, supra, 34 Cal.4th at p. 96.) The Supreme Court disagreed: “[T]he robbery
[did not] terminate as to Coffman during her temporary absence from the house. Rather,
28
the evidence shows all of defendants’ offenses against Novis to have been part of a
continuous transaction for purposes of felony-murder liability.” (Id. at p. 97.)
Here, identically, all of the participants’ offenses against the victims were part of a
continuous transaction, consisting of robberies, followed by kidnappings for the purpose
of (among other things) killing the victims to eliminate them as witnesses.
If we were to hold that an accomplice’s own temporary safety cuts off his or her
liability for a later felony murder, we would be flying in the face of general principles of
complicity. An accomplice does not have to be present at the scene of a felony to be
liable for the intended felony. (See Pen. Code, § 31.) The aiding and abetting statute “is
intended to apply criminal liability as a principal to those who are not present at the
commission of an offense if, with the requisite intent, they have assisted the perpetrator.
[Citation.]” (People v. Morante (1999) 20 Cal.4th 403, 433.) Likewise, “‘[i]t is not
necessary that a party to a conspiracy shall be present and personally participate with his
co-conspirators in all or in any of the overt acts.’ [Citation.]” (Id. at p. 417.)
And under the “‘complicity aspect’” of the felony-murder rule (People v. Pulido
(1997) 15 Cal.4th 713, 720), an accomplice is criminally liable for “killings occurring
while the killer was acting in furtherance of a criminal purpose common to himself and
the accomplice, or while the killer and accomplice were jointly engaged in the felonious
enterprise.” (Id. at p. 719.) Thus, a Moriarty-like mastermind who plans a felony and
commands his underlings to carry it out is fully implicated, not only in the felony, but
also in any resulting felony murder, even if he never leaves his own fireside.
29
We therefore conclude that there was sufficient evidence that the killings occurred
in the perpetration of both kidnapping and robbery for purposes of both felony murder
and the kidnap-murder and robbery-murder special circumstances.
C. Lying in Wait.
Defendants contend that there was insufficient evidence that the shooting occurred
during a period of lying in wait to support of either (1) the lying-in-wait theory of first
degree murder or (2) the lying-in-wait special circumstance.
Lying-in-wait murder and the lying-in-wait special circumstance have three
elements in common: (1) a concealment of purpose, (2) a substantial period of watching
and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack
on an unsuspecting victim from a position of advantage. (People v. Nelson (2016) 1
Cal.5th 513, 549 [special circumstance]; People v. Russell (2010) 50 Cal.4th 1228, 1244
[first degree murder].)7
“A lying-in-wait special circumstance can apply to a defendant who, intending that
the victim would be killed, aids and abets an intentional murder committed by means of
lying in wait. [Citations.] In this factual setting, the questions are whether the defendant,
with the intent to kill, aided and abetted the victim’s killing, and whether the actual killer
intentionally killed the victim by means of lying in wait. [Citation.]” (People v. Johnson
(2016) 62 Cal.4th 600, 630.)
7 The intent elements, however, differ: “‘ . . . [T]he lying-in-wait special
circumstance requires intent to kill, while lying-in-wait murder requires only a wanton
and reckless intent to inflict injury likely to cause death. [Citation.]’ [Citation.]”
(People v. Nelson, supra, 1 Cal.5th at p. 549.)
30
“[F]irst degree murder by means of lying in wait does not contain a temporal
requirement. [Citation.]” (Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 908 [applying
California law].) It merely requires a killing “by means of” lying in wait. (Pen. Code,
§ 189.) Prior to 2000, the lying in wait special circumstance did have a temporal
requirement; it required a killing “while” lying in wait. In March 2000, however, the
voters enacted Proposition 18, which amended the definition of the special circumstance,
so now, it, too, merely requires a killing “by means of” lying in wait. (Pen. Code,
§ 190.2, subd. (a)(15); see generally People v. Johnson, supra, 62 Cal.4th at p. 634.)
“[T]he voters’ purpose in amending the lying-in-wait special circumstance was to
eliminate the temporal distinction between the special circumstance and lying-in-wait
first degree murder, and thereby expand the class of cases in which the special
circumstance could be found true . . . .” (People v. Johnson, supra, 62 Cal.4th at p. 636.)
“The voter information guide shows that voters were informed that the courts had
interpreted the special circumstance’s reference to a killing ‘while’ lying in wait to
require that the murder have ‘occurred immediately upon a confrontation between the
murderer and the victim.’ [Citation.] According to the Legislative Analyst, this
interpretation precluded application of the special circumstance if the defendant watched
and waited for the victim, but the killing occurred after the defendant had captured the
victim and transported him or her to another location. [Citation.] The Legislative
Analyst explained that the passage of Proposition 18 would replace the special
circumstance’s previous language with reference to a killing ‘by means of’ lying in wait,
31
thereby permitting application of the special circumstance in that previously prohibited
scenario. [Citations.]” (People v. Johnson, supra, 62 Cal.4th at p. 635.)
In sum, then, now a surprise attack must come immediately after the watching and
waiting; however, there is no requirement that the killing must come immediately after
the watching and waiting. All that is required is that the killing must be committed by
means of the watching and waiting.
Here, the participants started watching and waiting at the Center Street house on
Saturday night. On Sunday, they launched a surprise attack on victim Romero, and on
Monday, on victims Martin and Gomez. Apparently, the victims were held at the Center
Street house overnight, from Monday until Tuesday, to give them an opportunity to round
up money and drugs for their captors. However, there was substantial evidence that the
plan all along was to kill them after robbing them. And sure enough, on Tuesday night,
they were driven to Victorville and shot. The period of watching and waiting that
enabled the participants to get the drop on the victims, to capture them, and to bind them,
also ultimately enabled the participants to kill them. Thus, the murders were committed
by means of the watching and waiting.
32
V
THE SUFFICIENCY OF THE EVIDENCE OF INTENT TO KILL
Chavez and Perez8 contend that there was insufficient evidence that they had the
intent to kill, or, when applicable, that they acted with reckless indifference to human life,
to support the special circumstances.
As applied to a defendant who is not the actual killer, four of the special
circumstances — financial gain (Pen. Code, § 190.2, subd. (a)(1)), multiple murder (Pen.
Code, § 190.2, subd. (a)(3)), lying in wait (Pen. Code, § 190.2, subd. (a)(15)), and gang-
related murder (Pen. Code, § 190.2, subd. (a)(22)) — required that the defendant had the
intent to kill. (Pen. Code, § 190.2, subd. (c).)
The remaining two special circumstances — robbery murder (Pen. Code, § 190.2,
subd. (a)(17)(A)) and kidnapping murder (Pen. Code, § 190.2, subd. (a)(17)(B)) —
required that the defendant either had the intent to kill or was a major participant who
acted with reckless indifference to human life. (Pen. Code, § 190.2, subds. (c) & (d).)
8 We do not understand Sandoval to be raising this argument. He purports to
join in all of Chavez’s arguments, “to the extent [Chavez]’s arguments both pertain to
and potentially benefit him.” However, neither defendant discusses the evidence
pertaining specifically to Sandoval. While one appellant is allowed to join in another
appellant’s argument (Cal. Rules of Court, rule 8.200(a)(5)), “each appellant has the
burden of demonstrating error and prejudice [citations].” (People v. Nero (2010) 181
Cal.App.4th 504, 510, fn. 11.)
In any event, there was substantial evidence that Sandoval had the intent to kill.
All of the reasons for finding intent to kill as to Chavez and Perez also apply to Sandoval.
In addition, according to Iniguez, Alvarado and Sandoval left in the same pickup as the
victims; a sweatshirt with Sandoval’s DNA was found in that pickup. It is reasonably
inferable that Alvarado and Sandoval were the shooters, and it seems indisputable that the
shooters had the intent to kill.
33
As we discussed in part IV.A, ante, there was substantial evidence that Perez
premeditated and, a fortiori, that he had the intent to kill.
There was also substantial evidence that Chavez had the intent to kill. Chavez
attended the meeting at Denny’s a few weeks before the shooting. Thus, he knew that
Max owed a debt to Martin and Romero. He also knew that the plan was to “get” the
victims “[s]o the debt wouldn’t have to be paid.” While the word “get,” standing alone,
might be ambiguous, in this context, it clearly meant “kill.” Chavez willingly aided and
abetted the crimes by buying latex gloves and by guarding the victims. He also rode
along in one of the pickups to Victorville. As with Perez (see part IV.A, ante), from the
combination of his knowledge and his willing participation, it is reasonably inferable that
Chavez had the intent to kill.
Chavez argues that there was no evidence that he knew who took guns to
Victorville (or even if anyone did). However, while the participants were in the Center
Street house, they had a shotgun and four handguns between them. They kept passing
them around, so that whoever was guarding the victims had a gun. Chavez himself held a
gun while guarding the victims. Obviously, the participants who rode in the lead pickup
with the victims would hardly leave their guns behind at the house. They would hold on
to them — at a minimum to keep control of the victims, but also to kill them, as Chavez
knew they intended to do.
Finally, both Chavez and Perez also argue that there was insufficient evidence that
they intended to aid and abet the attempted murder of Romero. As discussed further in
part XVI, post, to be guilty of attempted murder, either as a direct perpetrator or as an
34
aider and abettor, they had to have the intent to kill. (People v. Lee (2003) 31 Cal.4th
613, 623-624.) As just discussed, however, there was substantial evidence that both
Chavez and Perez did have the intent to kill for purposes of the murder counts. The same
evidence was also sufficient to show that they had the intent to kill for purposes of the
attempted murder count.
VI
THE SUFFICIENCY OF THE EVIDENCE
TO SUPPORT THE FINANCIAL-GAIN SPECIAL CIRCUMSTANCE
Defendants contend that there was insufficient evidence to support the financial-
gain special circumstance.
When a defendant is charged with both a financial-gain special circumstance and a
robbery-murder special circumstance, “‘ . . . the financial gain special circumstance
applies only when the victim’s death is the consideration for, or an essential prerequisite
to, the financial gain sought by the defendant.’ [Citation.]” (People v. Ervine (2009) 47
Cal.4th 745, 790.) Some examples include “the killing of a victim in a murder for hire
[citation] or in an attempt to secure the proceeds of a life insurance policy covering the
victim [citation] or to avoid a debt owing to the victim [citation].” (People v. Mickey
(1991) 54 Cal.3d 612, 678, italics added.)
Here, Iniguez testified that Max had dual reasons for ordering the killing. First,
Max owed money to Martin and Romero for methamphetamine, and killing them would
eliminate that debt. Specifically, Iniguez testified that “they wanted to get them. So the
debt wouldn’t have to be paid.” “By taking care of [Martin] and [Romero], they
35
wouldn’t have to pay the debt that was owed.” Second, they would “collect extra” by
robbing the victims of money and drugs. Because killing the victims was an essential
prerequisite of avoiding the debt, which was a financial gain separate and distinct from
the robbery, there was sufficient evidence to support the financial gain special
circumstance.
Defendants rely on an admission that Iniguez made on cross-examination:
“Q . . . If Martin, the chauffeur Gomez, and Romero are all killed, then Max’s
debt is erased.
“A It will — it won’t be ‘cause there’s still somebody that will be higher than
Martin that will try to settle matters with Max.
“Q Sooner or later.
“A Sooner or later.”
Iniguez also admitted that Max “probably” had “qualms” about the “risk” that the
killings “could possibly lead to cartel wars . . . .”
Iniguez’s admission on cross could be viewed as contradicting his testimony on
direct. Alternatively, however, they could be reconciled as meaning that Max could
avoid repaying the debt in the short term and also hoped he could avoid repaying the debt
in the long term, although, in Iniguez’s opinion, this hope was unduly optimistic. It
seems the jury took the latter view; if so, there was sufficient evidence to support it.
Finally, defendants argue that, even assuming Max acted for financial gain, there
was no evidence that they, personally, stood to gain financially. However, a person who
aids and abets a “murder . . . carried out for financial gain” (Pen. Code, § 190.2, subd.
36
(a)(1)) can be subject to the financial-gain special circumstance even if he or she has no
personal financial motive. (People v. Battle (2011) 198 Cal.App.4th 50, 84; People v.
Singer (1990) 226 Cal.App.3d 23, 43; People v. Freeman (1987) 193 Cal.App.3d 337,
339-340.)
VII
THE SUFFICIENCY OF THE EVIDENCE
OF ASPORTATION FOR PURPOSES OF KIDNAPPING FOR ROBBERY
Defendants contend that there was insufficient evidence of “asportation in
connection with a robbery” to support the convictions of kidnapping of Martin and
Gomez for robbery.
“Kidnapping for robbery requires asportation, i.e., movement of the victim that is
not merely incidental to the commission of the robbery and that increases the risk of harm
over that necessarily present in the crime of robbery itself. [Citations.]” (People v.
Delgado (2013) 56 Cal.4th 480, 487.)
Basically, defendants argue that the only movement of Martin and Gomez that
satisfied this requirement consisted of the drive from South Gate to Victorville, which
occurred after the robbery was already over.9 They rely on People v. Isitt (1976) 55
Cal.App.3d 23, which stated: “An element of the crime of kidnap for robbery is the
specific intent to rob. [Citations.] That crime, however, is not committed unless the
9 Defendants do not challenge their conviction of kidnapping for robbery
with respect to Romero, because there is evidence that some of the participants took
Romero with them when they went to Bellflower to get $100,000.
37
intent is formed before the kidnap commences [citation] and the asportation is undertaken
with that intent and purpose in mind [citation].” (Id. at p. 28.)
In People v. Laursen (1972) 8 Cal.3d 192, the Supreme Court rejected an
essentially identical contention. There, the defendant and an accomplice committed the
armed robbery of a grocery store. When they jumped into their getaway car, however, it
refused to start. They therefore accosted a bystander in the parking lot and forced him, at
gunpoint, to drive them away in his car. (Id. at p. 196.) On appeal, the defendant argued
“that the asportation of [the victim] was unrelated to the robbery since it occurred after
that crime had been completed.” (Id. at p. 198, fn. omitted.)
The Supreme Court acknowledged “the rule that a kidnaping in which a robbery
occurs does not constitute kidnaping for the purpose of robbery unless the specific
intention to rob is present at the time of the original asportation. [Citation.] (People v.
Laursen, supra, 8 Cal.3d at p. 198.) It continued: “Contrary to defendant’s contentions,
we have never held that [Penal Code] section 209 requires that the separately defined
crimes of robbery and kidnaping be tied together by a coexistence of the elements of
intent at the commencement of the criminal transaction; or, to state it in a different
fashion, that kidnaping, as well as robbery, must be simultaneously premeditated as a part
of a single course of criminal conduct.” (Id. at p. 199.)
Rather, “where a kidnaping is in furtherance of a robbery during which the
kidnaping occurs, a violation of [Penal Code] section 209 is committed even though the
intent to kidnap was formulated after the robbery commenced.” (People v. Laursen,
supra, 8 Cal.3d at p. 199.) In the case before it, the robbery was still underway when the
38
kidnapping occurred, because the robbers had not yet reached a place of temporary
safety. (Id. at pp. 199-200.) Indeed, the asportation “was for the purpose of effecting
defendant’s escape from the scene where the robbery was perpetrated.” (Id. at p. 200.)
Here, similarly, the robbery was still underway when the victims were driven to
Victorville. As already discussed in part IV.B, ante, “‘[i]n cases involving [both] a
kidnapping and robbery, courts have held almost without exception that the evidence
supported the conclusion the robber had not yet reached a place of temporary safety so
long as the victim remained under the robber’s control.’ [Citations.]” (People v.
Cummins, supra, 127 Cal.App.4th at p. 679.) Even though the participants had finished
taking money and other property from the victims, the victims were still under their
control until the victims were shot.
Thus, we may assume, without deciding, that the movement of the victims in and
around the house on Center Street failed to satisfy the asportation requirement for
kidnapping for robbery. Even if so, the movement of the victims during the drive to
Victorville did meet the definition. Moreover, it was carried out for purposes of a
robbery that was still underway.
VIII
THE SUFFICIENCY OF THE EVIDENCE
TO SUPPORT THE GANG-RELATED CONVICTIONS AND ALLEGATIONS
Defendants contend that there was insufficient evidence to support the gang-
related convictions and allegations, in part because the prosecution gang expert was not
qualified and his testimony lacked foundation.
39
A. Additional Factual and Procedural Background.
Officer Moran had been a member of the Gang Division since 2007. As such, he
had taken two 24-hour classes on gangs. In 2008 and again in 2010, he had taken
additional 32-hour classes on gangs, which had included information on cartels.
From 2007 through 2011, Officer Moran was assigned to a gang task force; during
this time, he talked to gang members “pretty much on a daily basis.” He had investigated
narcotics trafficking cases. He had worked on “a few cases” in which drug cartels were
involved, although he was not the designated gang expert.
Because he had never previously testified as an expert on drug cartels, he felt the
need to “do some homework” in this case. Thus, he had spoken to several members of
the Drug Enforcement Agency (DEA) and he had taken classes from the California Gang
Investigators Association (CGIA). He had carried out additional research on his own
using sources available to the public, such as federal State Department and Justice
Department websites, articles from Forbes and Newsweek, and Internet translations of
articles from Mexican magazines.
B. Forfeiture.
Preliminarily, the People respond that defendants forfeited their present contention
by failing to raise it below.
Both sides claim that People v. Dowl (2013) 57 Cal.4th 1079 supports their
position on forfeiture. There, a police officer testified, as an expert, that the defendant
was in possession of marijuana for the purpose of sale. (Id. at pp. 1082-1083.) The
defendant testified that he was in possession for the lawful purpose of personal medical
40
use. (Id. at p. 1083.) On appeal, the defendant argued that the officer’s testimony was
not substantial evidence sufficient to support a conviction, because he lacked “experience
in differentiating those who possess marijuana lawfully for medical purposes from those
who possess it unlawfully with the intent to sell.” (Id. at p. 1083.)
The Supreme Court held that the defendant had forfeited any contention that the
expert’s testimony was inadmissible by failing to object on this ground at trial. (People
v. Dowl, supra, 57 Cal.4th at pp. 1087-1088.) “Because a party offering expert testimony
need not establish the witness’s qualifications absent an objection [citations], defendant’s
failure to object at trial eliminated the incentive of the prosecution ‘to provide additional
testimony to lay a foundation for [the officer’] testimony’ [citation] and of the trial court
to ‘take steps to prevent error from infecting the remainder of the trial’ and to develop an
adequate record. [Citation.] He therefore cannot now challenge on appeal the
testimony’s admissibility based on the officer’s qualifications.” (Id. at p. 1088, fn.
omitted.)
It further held: “It follows from this conclusion, and from other basic principles of
California law, that defendant also may not now obtain reversal by having a reviewing
court declare on appeal, as a matter of substantial evidence review, that [the officer] was
unqualified to render an opinion at trial regarding defendant’s intent to sell.” (People v.
Dowl, supra, 57 Cal.4th at p. 1089; see also id. at p. 1089, fn. 3.)
It did also hold that: “[D]espite his failure to object, defendant may argue on
appeal that the evidence put before the jury at trial — including the officer’s opinion
testimony — was insufficient to establish he possessed the marijuana for purposes of
41
sale. [Citation.]” (People v. Dowl, supra, 57 Cal.4th at p. 1089.) However, it rejected
this argument, noting that the officer’s opinion was based on specific facts that were
supported by the record. (Id. at pp. 1091-1092.)
It is true that, under Dowl, defendants have forfeited any evidentiary objection to
Officer Moran’s opinions. However, they can still argue that his opinions did not
constitute substantial evidence. In this context, they cannot argue that he was not
qualified, but they can argue that his opinions lacked necessary support. Even aside from
Dowl, it is well-established that “‘ . . . when an expert bases his or her conclusion on
factors that are “speculative, remote or conjectural,” or on “assumptions . . . not
supported by the record,” the expert’s opinion “cannot rise to the dignity of substantial
evidence” and a judgment based solely on that opinion “must be reversed for lack of
substantial evidence.”’ [Citation.]” (People v. Wright (2016) 4 Cal.App.5th 537, 545.)
Here, Officer Moran specified that his testimony about the Sinaloa cartel was
based on the “homework” he had done, which included talking to DEA agents, taking
CGIA classes, researching federal websites, and reading magazine articles. He
specifically testified that these were all sources of information on which an expert would
commonly rely. Thus, his testimony was not speculative or conjectural.
Defendants argue that some of this material was publicly available and hence not a
proper subject for expert testimony. An expert’s testimony must be “[r]elated to a subject
that is sufficiently beyond common experience that the opinion of an expert would assist
the trier of fact . . . .” (Evid. Code, § 801, subd. (a).) However, an expert is not
forbidden to rely on publicly available information. Here, the operations of the Sinaloa
42
cartel were sufficiently beyond common experience to be a permissible subject of expert
testimony. This is true even assuming that a nonexpert who was sufficiently motivated
could manage to bone up on the subject. (See People v. Rodriguez (2014) 58 Cal.4th
587, 639 [“Expert testimony regarding what does and does not cause rubber to fracture is
sufficiently beyond common experience to be admissible even if parts of that testimony
refer to matters within common knowledge.”].)
Finally, defendants argue that there was insufficient evidence of an organizational
or associational connection between them and the Sinaloa cartel. Under People v. Prunty
(2015) 62 Cal.4th 59, Penal Code section 186.22 “requires the prosecution to introduce
evidence showing an associational or organizational connection that unites members of a
putative criminal street gang. . . . [W]hen the prosecution seeks to prove the street gang
enhancement by showing a defendant committed a felony to benefit a given gang, but
establishes the commission of the required predicate offenses with evidence of crimes
committed by members of the gang’s alleged subsets, it must prove a connection between
the gang and the subsets.” (Id. at pp. 67-68.)
Here, one connection to the Sinaloa cartel ran through Alvarado. Defendant
Chavez told his girlfriend that both he and Alvarado worked for the “Chapos” drug cartel
in Mexico. Officer Moran identified “El Chapo” Guzman as the head of the Sinaloa
cartel. Defendant Chavez worked for Alvarado; so did Rodriguez.
Another connection ran through victim Martin. Martin reported to Nacho, the “big
boss” in Guadalajara. Officer Moran identified Nacho as Ignacio Coronel, a high-ranking
member of the Sinaloa cartel, who was based in Guadalajara. Thus, as he concluded,
43
victim Romero and victim Gomez, who both worked for Martin, also worked for the
Sinaloa cartel.
Iniguez identified three men as cartel members who were all at the same level —
Gordo, Max, and Martin. Admittedly, Iniguez did not testify that they were members of
the same cartel. He even acknowledged that there was more than one Mexican drug
cartel. However, he testified that he himself sometimes bought drugs from Gordo and
sometimes from Martin. Alvarado likewise used to buy drugs from Gordo but then
started buying them from Martin; Alvarado also sometimes obtained drugs from Max.
According to Iniguez, a cartel member is supposed to work only with that cartel. It was
reasonably inferable that Gordo, Max, and Martin were at the top of different cells of the
same cartel — namely, the Sinaloa cartel. In fact, Officer Moran drew exactly this
inference.
In addition, as the People point out, the crimes in this case arose out of a debt that
Max owed Martin for some methamphetamine that had gone missing. This was some
evidence that Max and Martin engaged in drug transactions with each other, which in
turn was evidence that they were in the same cartel.
Finally, defendant Sandoval reported to Max, and defendant Perez admitted that
he participated in the crimes in the hope of getting work from Sandoval. Thus, both of
them were affiliated with the Sinaloa cartel.
Defendants place great weight on Iniguez’s use of the word “freelance” to describe
both himself and Alvarado. In context, however, he was clearly referring to the fact that
44
they bought drugs from both Gordo and Martin. In other words, they were not bound to
any one cell of the cartel.10
Defendants also rely on Iniguez’s testimony that Gordo was “from a different
cartel.” However, this came in response to a question about where Gordo stood in a
particular exhibit that had been created to illustrate the various cells of the Sinaloa cartel.
Thus, it appears that Iniguez was using “cartel” to mean “cell.” Elsewhere in his
testimony, Iniguez similarly used “cartel, or whatever you want to call it” to refer to
what, in context, was clearly just a single cell of a cartel.
The gang enhancement required evidence that the crimes were “committed for the
benefit of, at the direction of, or in association with” the Sinaloa cartel. (Pen. Code,
§ 186.22, subd. (b)(1), italics added.) The fact that defendants (Sandoval, Chavez, and
Perez) as well as their accomplices (Alvarado, Iniguez, and Rodriguez)11 were all
affiliated with the Sinaloa cartel was sufficient evidence of this. “A trier of fact can
rationally infer a crime was committed ‘in association’ with a criminal street gang . . . if
the defendant committed the offense in concert with gang members. [Citation.]” (People
v. Leon (2016) 243 Cal.App.4th 1003, 1021.)
Unlike the gang enhancement, however, the gang special circumstance cannot be
satisfied by evidence that the crime was committed in association with a gang. It
10 Defendants also quote Iniguez as testifying that he worked for “‘[p]retty
much everybody.’” (Italics omitted.) The portions of the reporter’s transcript that
defendants cite, however, do not contain this quote.
11 Alvarado, Iniguez, and Rodriguez also committed the offenses that were
used to show a pattern of criminal gang activity by members of the Sinaloa cartel.
[footnote continued on next page]
45
specifically requires evidence that “the murder was carried out to further the activities of”
the relevant gang. (Pen. Code, § 190.2, subd. (a)(22).)12 Here, the crimes may have
furthered the activities of the participants’ own cell; however, they could not further the
activities of the cartel as a whole, because the victims were part of another cell of the
same cartel. Indeed, Iniguez conceded that, in killing Martin and Romero, Max risked
retaliation from the cartel. Moreover, the killings would not necessarily “erase[]” Max’s
debt to Martin, “[be]cause there’s still somebody higher than Martin that will try to settle
matters with Max.” Similarly, Chavez told his girlfriend after the killings that Alvarado
was on the run from the cartel. In sum, then, the crimes actually cut against the interests
of the overall cartel.
There was insufficient evidence that the participants’ cell was, in itself, a criminal
street gang. The statutory definition of a criminal street gang requires, among other
things, that the alleged gang must have “a common name or common identifying sign or
symbol . . . .” (Pen. Code, § 186.22, subd. (f).) There was no evidence that the
participants’ cell had any such common name, sign, or symbol.
We therefore conclude that there was sufficient evidence to support the
convictions for active gang participation (Pen. Code, § 186.22, subd. (a)) and to support
the gang enhancements (Pen. Code, § 186.22, subd. (b).) However, there was insufficient
evidence to support the gang special circumstances. (Pen. Code, § 190.2, subd. (a)(22).)
12 The People’s discussion of the sufficiency of the evidence to support the
gang special circumstance rather conspicuously fails to mention this element.
46
IX
THE ADMISSION OF EVIDENCE
THAT INIGUEZ HAD BEEN ASSAULTED IN JAIL
Defendants contend that the trial court erred by admitting evidence that Iniguez
had been assaulted in jail.
A. Additional Factual and Procedural Background.
Iniguez testified that he was in protective custody. He then testified:
“Q What has happened to you since you’re been in custody?
“A I got attacked when I was in general population due to the statements I made.”
Sandoval’s counsel objected, “This line of questioning is speculation.” The trial
court overruled the objection. It then stated:
“[THE COURT:] And [Chavez’s counsel], [Perez’s counsel], I’m going to
assume you join in that objection, and the same ruling for your client?
“[CHAVEZ’S COUNSEL]: . . . My only concern is clarification that the fact that
he may have been attacked doesn’t mean my client did any attacking directly.
“THE COURT: Right. I don’t think there is any evidence of that. If there is, that
is certainly something that can be brought out if there’s a foundational basis for it.”
Iniguez then testified that he had been attacked by from seven to nine fellow
inmates. “I got cut up with razor blades . . . . Beat up in a corner.” During the attack,
these other inmates called him a snitch. He explained that other inmates “check [an
inmate’s] paperwork,” including police reports, to make sure the inmate is not a snitch.
47
Iniguez confirmed that defendants did not physically participate in the attack.
When it occurred, he was housed with Rodriguez, but not with defendants. At one point,
he had been housed with Sandoval, but Sandoval had been moved before the attack.
B. Discussion.
We assume, without deciding, that counsel for Sandoval and Chavez did not
forfeit their clients’ present contention.
“‘Evidence that a witness is afraid to testify or fears retaliation for testifying is
relevant to the credibility of that witness and is therefore admissible. [Citations.] An
explanation of the basis for the witness’s fear is likewise relevant to [his or] her
credibility and is well within the discretion of the trial court. [Citations.]’ [Citations.]
‘[T]here is no requirement to show threats against the witness were made by the
defendant personally or the witness’s fear of retaliation is “directly linked” to the
defendant.’ [Citation.]” (People v. McKinnon (2011) 52 Cal.4th 610, 668.)
Defendants acknowledge these principles; however, they argue that the evidence
was irrelevant in this case because the assault occurred before Iniguez was convicted, but
he decided to testify only after he was convicted, and then only in consideration of a
significant sentence reduction.
But this is a non sequitur. Attempts to intimidate a witness are relevant because
they show that the witness is testifying despite such attempts, and thus is more likely to
be telling the truth. This is true even if the witness is testifying pursuant to a plea
bargain. It is also true even if, prior to the plea bargain, the witness was reluctant to
testify. A witness who, like Iniguez, has been attacked by seven to nine desperate
48
characters, beaten, and slashed with razor blades may well be reluctant to testify, even
with a plea bargain. And this is particularly true in light of the specifics of Iniguez’s plea
bargain. A reduction from life without the possibility of parole to life with the possibility
of parole after 50 years is arguably not a very compelling incentive (see Pen. Code,
§ 2933.2, subd. (a) [persons convicted of murder are not entitled to postsentence conduct
credit]),13 especially when you will have to spend your time in prison with people who
are looking to beat you up. Thus, even after his plea bargain, the fact that he had been
attacked for snitching remained relevant.
Defendants’ counsel were free to make the same argument to the jury as
defendants argue in this appeal — that Iniguez’s real motivation was to obtain the plea
bargain, not to tell the truth. However, he could have had both motivations. In any
event, the jury was entitled to hear the evidence on both sides so it could make up its own
mind.
In their reply briefs, defendants argue that the evidence was more prejudicial than
probative because it would have led the jury to suspect that they were behind the attack.
They forfeited this argument by failing to object on this ground at trial. They forfeited it
again by failing to raise it in their opening briefs. (People v. Clark (2016) 63 Cal.4th
522, 552.) Even absent forfeiture, we would reject it. Once again, Iniguez testified that
defendants did not physically participate in the attack. He also testified that they were
not housed with him at the time. Rodriguez, who was housed with him, would seem to
13 Sandoval himself characterizes the incentive as a mere “glimmer of hope
that [Iniguez] might someday be released from prison.”
49
be a more likely suspect. Moreover, Iniguez testified that inmates in general are hostile
to snitches in general — so much so that they inspect other inmates’ “paperwork.” Thus,
the evidence was not unduly likely to make the jury think defendants were behind the
attack.
1. The trial court’s admonition to Iniguez.
Shortly after Iniguez took the stand, the trial court interrupted to admonish him, in
the presence of the jury, that he had a right to consult with his attorney during
questioning, and also that he was subject to possible adverse effects “if the deal doesn’t
go through . . . .”
Defendants do not contend that this was, in itself, reversible error. Thus, they
have forfeited any such contention. They also forfeited it by failing to object to the
admonition below. (See, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038.)
However, they do argue that the prejudicial effect of the evidence that Iniguez had been
assaulted was compounded by the trial court’s admonition, because it “had the
unfortunate effect of vouching for [Iniguez]’s credibility.” (Fn. omitted.)
Because we hold that the admission of the challenged evidence was not error and,
if error, was forfeited, we have no occasion to consider whether it was prejudicial. A
fortiori, we have no occasion to consider whether it was cumulatively prejudicial in
combination with the trial court’s admonition. Finally, even if we were to hold that the
admission of the challenged evidence was error, we would not consider cumulative
prejudice from the admonition, because defendants have failed to preserve any claim that
the admonition itself was erroneous.
50
X
THE GANG EXPERT’S TESTIMONY TO CASE-SPECIFIC HEARSAY
Chavez contends that much of the gang expert’s testimony consisted of case-
specific hearsay, which is inadmissible under Sanchez.
The People respond, among other things, that Chavez’s trial counsel forfeited this
contention by failing to object to the gang expert’s testimony below. Ordinarily, “the
failure to object to the admission of expert testimony or hearsay at trial forfeits an
appellate claim that such evidence was improperly admitted. [Citations.]” (People v.
Stevens (2015) 62 Cal.4th 325, 333; see also Evid. Code, § 353, subd. (a).) Chavez
argues, however, that his argument is not subject to forfeiture because it is based on
Sanchez, and Sanchez was not decided until after his trial.14
“‘“[W]e have excused a failure to object where to require defense counsel to raise
an objection ‘would place an unreasonable burden on defendants to anticipate unforeseen
changes in the law and encourage fruitless objections in other situations where defendants
might hope that an established rule of evidence would be changed on appeal.’”’
[Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 704-705.)
“In determining whether the significance of a change in the law excuses counsel’s
failure to object at trial, we consider the ‘state of the law as it would have appeared to
competent and knowledgeable counsel at the time of the trial.’ [Citation.]” (People v.
14 Defendants’ trial ran from October 17-November 1, 2013.
51
Black (2007) 41 Cal.4th 799, 811.) We therefore need to review the applicable law prior
to and leading up to Sanchez, even if only to decide the People’s forfeiture claim.
A. Crawford.
“‘Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) Under state law, hearsay is generally
inadmissible unless it is within some statutory exception to the hearsay rule. (Evid.
Code, § 1200, subd. (b).)
In California and elsewhere, including in the federal courts, “‘[a]n expert may
generally base his opinion on any “matter” known to him, including hearsay not
otherwise admissible, which may “reasonably . . . be relied upon” for that purpose.
[Citations.] On direct examination, the expert may explain the reasons for his opinions,
including the matters he considered in forming them. . . .’ [Citations.]” (People v. Catlin
(2001) 26 Cal.4th 81, 137; see also Fed. Rule Evid. 703.) The thinking is that the out-of-
court statements are admitted to shed light on the expert’s reasoning, and not for their
truth. (See, e.g., CALCRIM No. 360.)
Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]
held that if a hearsay statement is “testimonial,” the confrontation clause prohibits its
admission against a criminal defendant, unless (1) the declarant is unavailable at trial, and
(2) the defendant has had a prior opportunity to cross-examine the declarant. (Id. at
pp. 53-54, 55-56, 68.) However, the confrontation clause “does not bar the use of
52
testimonial statements for purposes other than establishing the truth of the matter
asserted. [Citation.]” (Id. at p. 59, fn. 9.)
One of the many questions that arose in the wake of Crawford was whether the
confrontation clause limits the admission of an expert’s testimony to hearsay that forms a
basis for his or her opinions.
B. Williams.
In 2012, the United States Supreme Court took up this question in Williams v.
Illinois (2012) 567 U.S. 50 [132 S.Ct. 2221, 183 L.Ed.2d 89], as presented by the
following facts.
A state police lab sent vaginal swabs from a rape victim to Cellmark Diagnostics
Laboratory (Cellmark); Cellmark sent back a DNA profile. (Williams v. Illinois, supra,
567 U.S. at p. 59.) Earlier (as a technician ultimately testified), she had personally
developed a DNA profile from the defendant’s blood and entered it into a state database.
(Id. at pp. 59, 123.)
At the defendant’s trial, Sandra Lambatos, another technician employed at the
state police lab, testified:
“‘Q Was there a computer match generated of the male DNA profile found in
semen from the vaginal swabs of [the victim] to a male DNA profile that had been
identified as having originated from [the defendant]?
“‘A Yes, there was.
“‘Q Did you compare the semen . . . from the vaginal swabs of [the victim] to the
male DNA profile . . . from the blood of [the defendant]?
53
“‘A Yes, I did . . . .
“‘Q [I]s the semen identified in the vaginal swabs of [the victim] consistent with
having originated from [the defendant]?
“‘A Yes.’ [Citation.]” (Williams v. Illinois, supra, 567 U.S. at p. 124 [dis. opn.
of Kagan, J.]; see also id. at p. 61 [lead opn. of Alito, J.]; id. at p. 87 [conc. opn. of
Breyer, J.])
On cross-examination, Lambatos admitted that she relied on the Cellmark DNA
profile, and she had no personal knowledge of how Cellmark had developed that DNA
profile. (Williams v. Illinois, supra, 567 U.S. at p. 61-62 [lead opn. of Alito, J.].)
The issue before the Supreme Court was whether Lambatos’s testimony that the
Cellmark DNA profile came from the swabs violated the confrontation clause as
construed in Crawford. This issue produced no majority opinion, and not even a true
plurality opinion; rather, there was a 4-1-4 split.
Justice Alito authored the lead opinion, joined by three other justices. He accepted
that, as a matter of state law, Lambatos’s testimony based on the Cellmark report was not
admitted to prove the truth of the matter asserted. (Williams v. Illinois, supra, 567 U.S. at
pp. 57, 69-80 [lead opn. of Alito, J.].) Separately and alternatively, he also concluded
that the Cellmark report was not testimonial. (Id. at pp. 57, 81-86.)
Justice Kagan authored the dissenting opinion, also joined by three other justices.
In her view, as a matter of federal constitutional law, Lambatos’s challenged testimony
was admitted to prove the truth of the matter asserted. (Williams v. Illinois, supra, 567
U.S. at pp. 125-132 [dis. opn. of Kagan, J.].) “[W]hen a witness, expert or otherwise,
54
repeats an out-of-court statement as the basis for a conclusion, . . . the statement’s utility
is then dependent on its truth. If the statement is true, then the conclusion based on it is
probably true; if not, not. So to determine the validity of the witness’s conclusion, the
factfinder must assess the truth of the out-of-court statement on which it relies. . . .
[A]dmission of the out-of-court statement in this context has no purpose separate from its
truth; the factfinder can do nothing with it except assess its truth and so the credibility of
the conclusion it serves to buttress.” (Id. at pp. 126-127.) Justice Kagan then further
concluded that the Cellmark report was testimonial. (Id. at pp. 132-141.)
Finally, Justice Thomas wrote a separate opinion concurring solely in the
judgment. He agreed with the dissent that the challenged testimony was admitted to
prove its truth. (Williams v. Illinois, supra, 567 U.S. at pp. 104-109 [conc. opn. of
Thomas, J.].) “[S]tatements introduced to explain the basis of an expert’s opinion are not
introduced for a plausible nonhearsay purpose. There is no meaningful distinction
between disclosing an out-of-court statement so that the factfinder may evaluate the
expert’s opinion and disclosing that statement for its truth.” (Id. at p. 106.) However, he
agreed with the lead opinion that the Cellmark report was not testimonial (id., at pp. 109-
118), though for different reasons. (Id. at p. 111.)
C. Dungo.
Later in 2012, the California Supreme Court addressed similar issues in People v.
Dungo (2012) 55 Cal.4th 608. There, the autopsy of the victim had been performed by
one Dr. Bolduc. (Id. at p. 613.) When the defendant was tried for murder, however, one
Dr. Lawrence, who had not been present at the autopsy, gave expert opinion testimony
55
based on his review of Dr. Bolduc’s autopsy report and autopsy photos. (Id. at pp. 614-
615.) Thus, he testified that, in his opinion, the victim was strangled to death slowly, as
shown by pinpoint hemorrhages in her eyes, neck hemorrhages, the purple color of her
face, her bitten tongue, and her unbroken hyoid bone. (Id. at p. 614.) The autopsy report
and the autopsy photos were not introduced. (Id. at pp. 614-615.)
By signing the majority opinion, five justices agreed that there was no Crawford
violation because the contents of the autopsy report, as relayed by Dr. Lawrence, were
not testimonial. (People v. Dungo, supra, 55 Cal.4th at pp. 618-621.) The majority
opinion did not specifically discuss whether this evidence was offered for its truth.
Four of those five justices, however, also signed a concurring opinion by Justice
Werdegar, which did address this issue. It stated: “Dr. Lawrence relayed to the jury
certain physical observations recorded by Dr. Bolduc in his report of the autopsy, using
those observations to support Dr. Lawrence’s own expert opinions as to the cause and
manner of death. Dr. Bolduc’s observations were introduced for their truth, and since
Dr. Bolduc was not shown to be unavailable and had not been subject to prior cross-
examination on this matter by defendant, his statements, were they testimonial, would
have been inadmissible under Crawford.” (People v. Dungo, supra, 55 Cal.4th at p. 627
[conc. opn. of Werdegar, J.], italics added.)
The remaining two justices (Corrigan and Liu) dissented, concluding that the
contents of the autopsy report were testimonial. (People v. Dungo, supra, 55 Cal.4th at
pp. 641-646 [dis. opn. of Corrigan, J.].) However, they further concluded: “When an
expert witness treats as factual the contents of an out-of-court statement, and relates as
56
true the contents of that statement to the jury, a majority of the high court in Williams . . .
rejects the premise that the out-of-court statement is not admitted for its truth.” (Id. at
p. 635, fn. 3.)
D. Sanchez.
This brings us to Sanchez. There, a gang expert’s opinion that the defendant was a
gang member was based, in part, on records created by other police officers, which
recounted their contacts with the defendant. (People v. Sanchez, supra, 63 Cal.4th at
pp. 672-673.) On appeal, the defendant argued that the admission of the expert’s
testimony about the content of these records violated Crawford. (Id. at p. 674.)
The Supreme Court stated: “We first address whether facts an expert relates as the
basis for his opinion are properly considered to be admitted for their truth. The
confrontation clause ‘does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.’ [Citation.]” (People v. Sanchez, supra,
63 Cal.4th at p. 674.)
“The hearsay rule has traditionally not barred an expert’s testimony regarding his
general knowledge in his field of expertise.” (People v. Sanchez, supra, 63 Cal.4th at
p. 676.) “By contrast, an expert has traditionally been precluded from relating case-
specific facts about which the expert has no independent knowledge. Case-specific facts
are those relating to the particular events and participants alleged to have been involved
in the case being tried. Generally, parties try to establish the facts on which their theory
of the case depends by calling witnesses with personal knowledge of those case-specific
facts. An expert may then testify about more generalized information to help jurors
57
understand the significance of those case-specific facts. An expert is also allowed to give
an opinion about what those facts may mean. The expert is generally not permitted,
however, to supply case-specific facts about which he has no personal knowledge.
[Citation.]” (Ibid.)
The court then discussed Williams. (People v. Sanchez, supra, 63 Cal.4th at
pp. 681-683.) It noted: “The reasoning of a majority of justices in Williams calls into
question the premise that expert testimony giving case-specific information does not
relate hearsay.” (Id. at p. 683.) Rather, under the reasoning of both the dissent and
Justice Thomas’s concurrence, an expert’s testimony to case-specific facts based on
hearsay is offered for its truth. (Id. at pp. 682-683.) The court concluded: “We find
persuasive the reasoning of a majority of justices in Williams.” (Id. at p. 684, fn.
omitted.) It therefore held that “[i]f an expert testifies to case-specific out-of-court
statements to explain the bases for his opinion, those statements are necessarily
considered by the jury for their truth, thus rendering them hearsay.” (Ibid.)
By contrast, the court allowed an expert to testify freely to non-case-specific
hearsay when it is the basis for his or her opinion: “Our decision does not call into
question the propriety of an expert’s testimony concerning background information
regarding his knowledge and expertise and premises generally accepted in his field.
Indeed, an expert’s background knowledge and experience is what distinguishes him
from a lay witness, and, as noted, testimony relating such background information has
never been subject to exclusion as hearsay, even though offered for its truth.” (People v.
Sanchez, supra, 63 Cal.4th at p. 685.)
58
E. Discussion.
In Williams, in 2012, a total of five justices of the United States Supreme Court
expressed the view that, at least for purposes of the confrontation clause, an expert’s
testimony to the hearsay on which his or her opinion is based is offered for its truth. At a
minimum, as the court in Sanchez stated, their reasoning “call[ed] into question the
premise that expert testimony giving case-specific information does not relate hearsay.”
(People v. Sanchez, supra, 63 Cal.4th at p. 683.) Moreover, Sanchez expressly relied on
the reasoning of Williams.
Then in Dungo, also in 2012, six justices of the California Supreme Court likewise
agreed that, when an expert relates an out-of-court statement as the basis for his or her
opinion, that statement is necessarily admitted for its truth.
In May 2013, People v. Mercado (2013) 216 Cal.App.4th 67 stated: “‘[A] five
justice majority of the high court and at least six of the seven justices on the California
Supreme Court appear to agree that, for purposes of the confrontation clause, out-of-court
statements admitted as basis evidence during expert testimony are admitted for their truth
if treated as factual by the expert . . . .’ [Citation.]” (Id. at p. 89, fn. 6.)
Admittedly, Williams, Dungo, and Mercado did not anticipate the distinction that
Sanchez ultimately drew between case-specific and non-case-specific hearsay. If
anything, they suggested that any hearsay that is offered as the basis for an expert’s
opinion testimony is necessarily offered for its truth. Thus, they alerted competent and
knowledgeable counsel to the need to object to such evidence on hearsay and Crawford
grounds. They also meant that such objections would not have been futile.
59
Significantly, in arguing that Crawford prohibits an expert from acting as a
conduit for hearsay, Chavez himself relies on various pre-Sanchez authorities, including
United States v. Gomez (9th Cir. 2013) 725 F.3d 1121, 1129, United States v. Pablo (10th
Cir. 2012) 696 F.3d 1280, 1288, and United States v. Lombardozzi (2d Cir. 2007) 491
F.3d 61, 72.
We therefore conclude that the failure of Chavez’s trial counsel to object on these
grounds below constituted a forfeiture. Chavez does not contend that his trial counsel’s
failure to object constituted ineffective assistance of counsel. Hence, we are not called
upon to discuss this contention.
XI
ERRONEOUS INSTRUCTIONS REGARDING THE INTENT REQUIREMENT
FOR AIDING AND ABETTING PREMEDITATED MURDER
Perez contends that the jury was erroneously allowed to find him guilty of
premeditated first degree murder, as an aider and abettor, under the natural and probable
consequences doctrine.
A. Additional Factual and Procedural Background.
1. Aiding and abetting instructions.
Perez’s jury was instructed on the natural and probable consequences doctrine as it
applies to aiding and abetting, as follows:
“Under certain circumstances, a person who is guilty of one crime may also be
guilty of other crimes that were committed at the same time.
60
“To prove that a defendant is guilty of Murder and Attempted Murder, the People
must prove that:
“1. The defendant is guilty of Kidnapping for Ransom And Kidnapping for
Robbery;
“2. During the commission of Kidnapping for Ransom And Kidnapping for
Robbery, a co-participant in that Kidnapping for Ransom And Kidnapping for Robbery
committed the crime of Murder and Attempted Murder;
“AND
“3. Under all the circumstances, a reasonable person in the defendant’s position
would have known that the [c]ommission of Murder and Attempted Murder was a natural
and probable consequence of the commission of the Kidnapping for Ransom And
Kidnapping for Robbery.” (CALCRIM No. 402.)
2. Conspiracy instructions.
Perez’s jury was also instructed on conspiracy, using CALCRIM No. 416. This
instruction stated that the defendant could be found guilty of murder as a conspirator only
if he “intended to agree and did agree with one or more of the other defendants to commit
Murder, Kidnapping, and Robbery . . . .”
The trial court did not give CALCRIM No. 417 (2013), which would have
instructed that a member of a conspiracy to commit one crime can also be found guilty of
another crime if it “is a natural and probable consequence of the common plan or design
of the conspiracy.”
61
3. First degree murder instructions.
Perez’s jury was also instructed on first degree murder, as follows:
“If you decide that the defendant committed murder, it is murder of the second
degree, unless the People have proved beyond a reasonable doubt that it is murder in the
first degree as defined in CALCRIM numbers 521, 540A, and/or 540B.” (CALCRIM
No. 520.)
CALCRIM No. 521 addressed the willful, deliberate, and premeditated theory of
first degree murder. As relevant here, it stated:
“A defendant is guilty of first degree murder if the People have proved that he
acted willfully, deliberately, and with premeditation. The defendant acted willfully if he
intended to kill.
“The defendant acted deliberately if he carefully weighed in the considerations for
and against his choice, and knowing the consequences, decided to kill.
“The defendant acted with premeditation if he decided to kill before completing
the act that caused death.”
CALCRIM No. 521 also addressed the lying-in-wait theory of first degree murder.
CALCRIM Nos. 540A and 540B addressed the felony-murder theory of first degree
murder.
B. Discussion.
After defendants were tried and sentenced, the California Supreme Court decided
People v. Chiu, supra, 59 Cal.4th 155 (Chiu). Chiu held that an aider and abettor cannot
be convicted of first degree murder unless he or she personally premeditated and had the
62
intent to kill; in other words, it held that the natural and probable consequences doctrine
does not apply to the degree of first degree murder. (Id. at pp. 158-159, 166-167.)
As the People concede, Chiu is retroactive. (In re Brigham (2016) 3 Cal.App.5th
318, 327, fn. 4.)
Here, the trial court correctly instructed that the jury could find the defendant
guilty of murder, if he was an aider and abettor, under the natural and probable
consequences doctrine. It also correctly instructed that the jury could find the defendant
guilty of first degree murder under a willful, deliberate, and premeditated murder theory
only if the “defendant . . . acted willfully, deliberately, and with premeditation.” (Italics
added.)
This wording was significantly different from CALCRIM No. 521 as given in
Chiu, which stated that the jury could find the defendant guilty of first degree murder
under a premeditated murder theory as long as “the perpetrator acted willfully,
deliberately, and with premeditation . . . .” (People v. Chiu, supra, 59 Cal.4th at p. 161,
italics added.) Hence, unlike in Chiu, if the jury found a defendant guilty of first degree
murder under a premeditation theory at all, it necessarily did so because it found that that
defendant personally premeditated.
Chiu has been held to require personal premeditation by conspirators as well as
aiders and abettors. (People v. Rivera (2015) 234 Cal.App.4th 1350, 1356-1357.)
However, the trial court did not instruct that the jury could find defendant guilty of
murder, if he was a conspirator, under the natural and probable consequences doctrine.
Even if it had done so, we would conclude that it did not err, because it further instructed
63
that the jury could not find defendant guilty of first degree murder unless he personally
premeditated.
XII
ERRONEOUS INSTRUCTIONS ON
CONSPIRACY TO COMMIT ATTEMPTED MURDER
Perez contends that the trial court erred by instructing that he could be guilty of
attempted murder on a conspiracy theory.
A. Additional Factual and Procedural Background.
Perez’s jury was instructed:
“A member of a conspiracy is criminally responsible for the acts and statements of
any other member of the conspiracy done to help accomplish the goal of the conspiracy.
“To prove that a defendant was a member of a conspiracy in this case, the People
must prove that:
“1. The defendant intended to agree and did agree with one or more of the other
defendants to commit Murder, Kidnapping, and Robbery;
“2. At the time of the agreement, the defendant and one or more of the other
alleged members of the conspiracy intended that one or more of them would commit
Murder, Kidnapping and Robbery;
“3. One of the defendants or all of them committed at least one of the following
overt acts to accomplish Murder, Attempted Murder, Kidnapping for Ransom or
Kidnapping for Robbery[:] [¶] [List of alleged overt acts.]
“AND
64
“4. At least one of these overt acts was committed in California[.]” (CALCRIM
No. 416.)
B. Discussion.
The crime of conspiracy to commit attempted murder does not exist. “This is
because the crime of attempted murder requires a specific intent to actually commit the
murder, while the agreement underlying [such a] conspiracy . . . contemplate[s] no more
than an ineffectual act. No one can simultaneously intend to do and not do the same act,
here the actual commission of a murder.” (People v. Iniguez (2002) 96 Cal.App.4th 75,
79.)
“Stated another way, under a traditional conspiracy approach, one cannot conspire
to try to commit a crime. An agreement to commit a crime is required, even if nothing
more than an overt act is ultimately done.” (People v. Johnson (2013) 57 Cal.4th 250,
264.)
Here, the jury was not dealing with conspiracy as a substantive offense (Pen.
Code, § 182), but rather with conspiracy as a theory of vicarious criminal liability. (See
In re Y.R. (2014) 226 Cal.App.4th 1114, 1121.) Nevertheless, for the reasons stated in
Iniguez and Johnson, such a conspiracy to commit attempted murder is likewise a legal
impossibility.
The jury here, however, was not instructed that Perez could be found guilty of
attempted murder if he entered into a conspiracy to commit attempted murder. To the
contrary, it was instructed that he was “criminally responsible” for attempted murder on a
conspiracy theory only if, among other things, (1) he entered into a conspiracy to commit
65
“Murder, Kidnapping, and Robbery,” and (2) another member of the conspiracy
committed attempted murder “to help accomplish the goal of the conspiracy.”
Admittedly, the instruction also required that some member of the conspiracy
commit an overt act “to accomplish Murder, Attempted Murder, Kidnapping for Ransom
or Kidnapping for Robbery.” (Italics added.) However, for the same reasons that it is
legally impossible to intend to accomplish attempted murder, it is also factually
impossible. Hence, we may assume that the jury found that a member of the conspiracy
intended to accomplish murder or kidnapping, rather than attempted murder. (See People
v. Guiton (1993) 4 Cal.4th 1116, 1129.) Indeed, on these facts, it would be absurd to
suppose that the person or persons who shot Romero did not intend to kill him.
XIII
FAILURE TO INSTRUCT ON
THE FINANCIAL-GAIN SPECIAL CIRCUMSTANCE
Defendants contend that the trial court failed to instruct on the financial-gain
special circumstance. (E.g., CALCRIM No. 720.) The People concede the error. We
agree.
“A trial court has a sua sponte duty to instruct the jury on the essential elements of
a special circumstance allegation [citation] . . . .” (People v. Mil (2012) 53 Cal.4th 400,
409.)
A financial-gain special circumstance applies when a “murder was intentional and
carried out for financial gain.” (Pen. Code, § 190.2, subd. (a)(1).) Admittedly, the trial
court has no sua sponte duty to define financial gain. (People v. Howard (1988) 44
66
Cal.3d 375, 408-409.) Also, while it failed to instruct that this special circumstance
required that the murder be intentional, it is arguable that that error was harmless.15
However, when a robbery-murder special circumstance is also alleged, the trial court has
a duty to clarify that “the financial gain special circumstance applies only when the
victim’s death is the consideration for, or an essential prerequisite to the financial gain
sought by the defendant.” (People v. Bigelow, supra, 37 Cal.3d at p. 751; see also Bench
Notes to CALCRIM No. 720.) The trial court did not do so.
We cannot say that the omission of this clarification was harmless, because the
jury could well have concluded that defendants expected financial gain from robbing the
victims. Thus, we must reverse the financial-gain special circumstance.
XIV
ERRONEOUS INSTRUCTIONS ON
THE MULTIPLE-MURDER SPECIAL CIRCUMSTANCE
Defendants contend that the trial court failed to instruct that the multiple-murder
special circumstance, as to an aider and abettor, requires the intent to kill.
15 The trial court did instruct that several of the charged special circumstances
— specifically including the financial-gain special circumstance — required that a
defendant either be the actual killer or have the intent to kill. (CALCRIM No. 702; see
part XIII, post.) This was erroneous with regard to the financial gain special
circumstance, which requires the intent to kill. (See Bench Notes to CALCRIM
No. 702.)
As to Chavez and Perez, however, there was no evidence that either of them was
an actual killer; thus, the jury must have found that they had the intent to kill. As to
Sandoval, the jury could have concluded that he was an actual killer because his
sweatshirt was found in the pickup with the bodies; nevertheless, given the facts, it could
not very well have found that the actual killers acted without the intent to kill.
67
A. Additional Factual and Procedural Background.
The trial court instructed both juries:
“If you decide that a defendant is guilty of first degree murder but was not the
actual killer, then, when you consider the special circumstance of Murder by an Active
Participant of a Criminal Street Gang . . . , Murder for Financial Gain, [and] Murder by
Means of Lying in Wait, . . . you must also decide whether the defendant acted with the
intent to kill.
“In order to prove this special circumstance for a defendant who is not the actual
killer, but who is guilty of first degree murder as an aider and abettor or a member of the
conspiracy, the People must prove that the defendant acted with the intent to kill.
“The People do not have to prove that the actual killer acted with the intent to kill
in order for this special circumstance to be true.
“If you decide that the defendant is guilty of first degree murder, but you cannot
agree whether the defendant was the actual killer, then, in order to find this special
circumstance true, you must find that the defendant acted with the intent to kill.
“If the defendant was not the actual killer, then the People have the burden of
proving beyond a reasonable doubt that he acted with the intent to kill for the special
circumstance of Murder by an Active Participant of a Criminal Street Gang, Murder for
Financial Gain, and Murder by Means of Lying in Wait to be true. If the People have not
met this burden, you must find this special circumstance has not been proved true for that
defendant.” (CALCRIM No. 702.)
68
It did not give this or any similar instruction regarding the multiple-murder special
circumstance. (Pen. Code, § 190.2, subd. (a)(3).)
B. Discussion.
“When there is evidence from which a jury could base its convictions for multiple
counts of murder on the theory that the defendant was guilty as an aider and abettor, and
not as the actual perpetrator, the trial court must instruct the jury that to find true a
multiple-murder special-circumstance allegation as to that defendant, it must find that the
defendant intended to kill the murder victims. [Citations.]” (People v. Nunez and Satele
(2013) 57 Cal.4th 1, 45.) This the trial court failed to do.
The People concede the error. They contend, however, that it was harmless
beyond a reasonable doubt.
The failure to instruct that a special circumstance requires the intent to kill is
harmless “if the factual question not posed to the jury by the failure to instruct on intent
was necessarily resolved adversely to defendant under other, properly given instructions.
[Citation.]” (People v. Garrison (1989) 47 Cal.3d 746, 789-790.)
Here, the jury also found a financial-gain special circumstance (Pen. Code,
§ 190.2, subd. (a)(1)), a lying-in-wait special circumstance (Pen. Code, § 190.2, subd.
(a)(15)), and a gang special circumstance (Pen. Code, § 190.2, subd. (a)(22)) to be true.
As just noted, it was instructed that, to find these special circumstances true, it had to find
that the defendant either was the actual killer or acted with the intent to kill. Hence, we
can be sure beyond a reasonable doubt that the failure to give a similar instruction
regarding the multiple-murder special circumstance was harmless. (People v. Garrison,
69
supra, 47 Cal.3d at pp. 789-791 [failure to instruct that multiple-murder special
circumstance required intent to kill was harmless given true finding on witness-killing
special circumstance, which, as jury was instructed, required intent to kill].)
XV
FAILURE TO INSTRUCT ON THE ESCAPE RULE
In part IV.B, ante, we held that there was sufficient evidence that a kidnapping
was still underway when the shooting occurred. Perez, however, also contends that there
was sufficient evidence that a kidnapping was not still underway to require the trial court
to instruct on the escape rule for purposes of felony murder.16
A. Additional Factual and Procedural Background.
As already mentioned, the trial court gave CALCRIM Nos. 540A and 540B
concerning felony-murder. CALCRIM No. 540B, as relevant here, stated:
“The defendants may also be guilty of murder, under a theory of felony murder,
even if another person did the act that resulted in the death. I will call the other person
the perpetrator.
“To prove that the defendant is guilty of first degree murder under this theory, the
People must prove that:
“1. The defendant committed, or aided and abetted, or was a member of a
conspiracy to commit Kidnapping for Ransom or Kidnapping for Robbery;
16 Perez does not contend that the trial court erred by failing to instruct on the
escape rule for purposes of the robbery-murder or kidnapping-murder special
circumstances. We deem any such contention forfeited.
70
“2. The defendant intended to commit, or intended to aid and abet the perpetrator
in committing, or intended that one or more of the members of the conspiracy commit
Kidnapping for Ransom or Kidnapping for Robbery;
“3. If the defendant did not personally commit Kidnapping for Ransom or
Kidnapping for Robbery, then a perpetrator, whom the defendant was aiding and abetting
or with whom the defendant conspired, personally committed Kidnapping for Ransom or
Kidnapping for Robbery;
“AND
“4. While committing [or attempting to commit] Kidnapping for Ransom or
Kidnapping for Robbery, the perpetrator caused the death of another person. [¶] . . . [¶]
...
“It is not required that the person die immediately, as long as the cause of death
and the felonies are part of one continuous transaction.”
The trial court omitted optional bracketed language from CALCRIM No. 540A
(Aug. 2013 supp.) that would have stated: “The crimes of Kidnapping for Ransom or
Kidnapping for Robbery continue until a defendant has reached a place of temporary
safety.” (Ibid. [with case-specific insertions].)
B. Discussion.
“‘In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.’ [Citation.]” (People v. Townsel (2016) 63 Cal.4th
25, 58.) However, “[t]rial courts are duty-bound to avoid instructions which are not
71
justified by the facts of the case, since they have a natural tendency to overburden and
confuse the jury. [Citations.]” (People v. Singleton (1987) 196 Cal.App.3d 488, 492.)
Accordingly, the trial court need not instruct on the escape rule when the evidence
establishes as a matter of law that the underlying felony was still in progress when the
murder occurred.17
As discussed in part IV.B, ante, the kidnappings were still underway when the
shooting occurred, because the victims were detained by and under the control of Perez’s
accomplices. There was no substantial evidence to the contrary. As also discussed, the
fact that Perez himself may have reached a place of temporary safety is legally irrelevant
to this question.
We therefore conclude that the trial court did not err by failing to instruct on the
escape rule.
XVI
FAILURE TO INSTRUCT ON THE DEFENSE OF DURESS
Perez contends that the trial court erred by failing to instruct sua sponte on duress
as a defense.
17 Perez asserts that there is a sua sponte duty to instruct on the escape rule,
citing People v. Wilkins, supra, 56 Cal.4th 333. Wilkins, however, merely held that there
is a duty to instruct on the escape rule on request. (Id. at p. 59.) We need not decide
whether the duty also exists sua sponte.
72
A. Additional Factual and Procedural Background.
Iniguez testified that the other participants trusted him and Perez because “they
knew . . . how to get back to us,” meaning that they knew how to kidnap, torture, and kill
them.
At the meeting at El Pollo Loco, Iniguez and Perez were told that they “would
have to go along with it,” or else they would meet the same fate as the victims.
Perez told the police that, before leaving in the truck containing the victims,
Sandoval told him, “[I]f you say something or do something . . . we’re gonna do the same
thing we did to them to you and your family.”
When the police asked Perez why he did not call the police “afterwards,” he said
he was “scared”; if the others found out that he “snitched,” they would “probably get
[his] mom . . . .”
B. Discussion.
“The defense of duress is available to defendants who commit crimes, except
murder, ‘under threats or menaces sufficient to show that they had reasonable cause to
and did believe their lives would be endangered if they refused.’ [Citations.] Although
‘duress is not a defense to any form of murder,’ [citation] ‘duress can, in effect, provide a
defense to murder on a felony-murder theory by negating the underlying felony.
[Citations.] If one is not guilty of the underlying felony due to duress, one cannot be
guilty of felony murder based on that felony.’ [Citation.] A trial court is required to
instruct sua sponte on a duress defense if there is substantial evidence of the defense and
73
if it is not inconsistent with the defendant’s theory of the case. [Citation.]” (People v.
Wilson (2005) 36 Cal.4th 309, 331.)
“‘Duress is an effective defense only when the actor responds to an immediate and
imminent danger.’ [Citation.] . . . ‘ . . . A “phantasmagoria of future harm” such as a
threat of death to be carried out at some undefined time, will not diminish criminal
culpability.’ [Citation.]” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1460; accord,
People v. Casares (2016) 62 Cal.4th 808, 844.)
For example, in People v. McKinney (1986) 187 Cal.App.3d 583, the defendant, a
prison inmate, hit a fellow inmate in the head with a hammer during metal shop class.
(Id. at p. 585.) The trial court excluded evidence, offered to support a duress defense,
that other inmates had threatened to kill him if he failed to use violence to settle his
dispute with the victim (and also if he went into protective custody). (Id. at pp. 585,
587.) The appellate court upheld this ruling: “The other inmates who had threatened
defendant were not present in the shop class at the time. In short, defendant’s offer of
proof established at most a threat of future harm if he failed to confront [the victim].
Thus, the trial court did not err in excluding the offered evidence.” (Id. at pp. 587-588.)
Here, similarly, there was no evidence of any threat of immediate harm. At most,
the evidence showed that, if Perez failed or refused to participate, the others would
attempt to kill him and/or his family members sometime in the future.
We therefore conclude that the trial court did not err by failing to instruct on
duress as a defense.
74
XVII
PROSECUTORIAL MISCONDUCT
BY MISSTATING THE LAW IN CLOSING ARGUMENT
Perez contends that, in closing argument, the prosecutor advanced several legally
invalid theories of attempted murder.
A. Additional Factual and Procedural Background.
In closing argument to Perez’s jury, the prosecutor stated:
“[R]emember . . . the hypothetical of how we develop a bank robbery? Remember
that?[18] Where the person who comes up with the idea and actually commits the robbery
is the principal but when you get someone to act as a getaway driver, that person is aiding
and abetting? While they get someone to agree to do it ahead of time, maybe provides a
gun or something like that, that becomes a conspiracy, when you have . . . two or more
agreeing?
“All of these principles are at play here. All of them apply to this defendant in one
form or another to make him guilty of these crimes.” (Italics added.)
Later, he stated: “We’ve given you three possible ways to get to first degree
murder as to Jose Perez. . . . [T]hree theories, felony murder, lying in wait and willful,
deliberate and premeditated. We’ve also given you three different ways to ascribe that
liability to him[,] as a direct actor in the felony committed, as a co-conspirator, and as an
aider and abettor.”
18 Apparently, this referred to something that was said during jury selection
and therefore is not in the normal record.
75
In a digression covering about one transcript page, he predicted that Perez’s
counsel would argue that Perez “was just the babysitter roped into something over his
head that he had no control over.” He argued that, to the contrary, at the El Pollo Loco
meeting, Perez made a “free choice” to become “an active participant in [c]artel
business.”
He then said: “Why is count 3 attempted murder? Because by the grace of God or
fate, or whatever intervened that night, Luis Romero survived. They surely intended to
kill him just like Alejandro Martin and Eduardo Gomez. . . .
“So for all the things that we just talked about, or I just talked about to you about
why it’s a murder apply to why it’s an attempted murder with just the one coincidence or
odd fact that he survived . . . .” (Italics added.)
B. Discussion.
Perez argues that felony murder, lying in wait, and conspiracy are not legally valid
theories of attempted murder.
He “is correct . . . that the felony-murder rule has no application to a charge of
attempted murder. An attempted murder requires the intent to take a human life — an
element which cannot be supplied by the application of the felony-murder rule.
[Citation.]” (People v. Wein (1977) 69 Cal.App.3d 79, 92.)
He is also correct that lying in wait is inapplicable to attempted murder. The fact
that a murder is committed by lying in wait will elevate what would otherwise be a
second degree murder to a first degree murder. (Pen. Code, § 189.) Thus, a murder
committed by lying in wait is first degree murder, even if it is committed with only
76
implied malice, i.e., without the intent to kill. (People v. Laws (1993) 12 Cal.App.4th
786, 793-794.) By contrast, attempted murder is not divided into degrees and, as
mentioned, it does require the intent to kill.
And, as discussed in part XII, ante, he is correct that there is no such thing as a
conspiracy to commit attempted murder.
Thus, Perez is essentially arguing that the prosecutor misstated the law. “[S]uch
an error would merely amount to prosecutorial misconduct [citation] during argument,
rather than trial and resolution of the case on an improper legal basis.
“When a defendant believes the prosecutor has made remarks constituting
misconduct during argument, he or she is obliged to call them to the court’s attention by a
timely objection. Otherwise no claim is preserved for appeal. [Citation.]
“Defendant made no objection to the prosecutor’s remarks and thus has waived his
claim.” (People v. Morales (2001) 25 Cal.4th 34, 43-44 (Morales); accord, People v.
Nguyen (2015) 61 Cal.4th 1015, 1046-1047.)
Perez argues that the error is not waived because it is analogous to an instructional
error, citing People v. Guiton, supra, 4 Cal.4th 1116 and People v. Green (1980) 27
Cal.3d 1, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239.
In Morales, however, the Supreme Court stated: “Guiton and Green are unlike this case
in that in each of them, the court presented the state’s case to the jury on an erroneous
legal theory or theories. In Green, the instructions were deficient . . . .” (Morales, supra,
25 Cal.4th at p. 43.) “In Guiton, too, a theory unsupported by evidence was presented to
the jury in the very trying of the case — [the defendant] was charged with selling cocaine
77
despite a lack of evidence that he engaged in this conduct. Again, the trial court should
have modified the instructions in light of this fact.” (Ibid.) “In this case, by contrast, the
court did not present to the jury a case that was premised on a legally incorrect theory.”
(Ibid.) Here, similarly, the trial court was not involved in the misstatement.
Perez also argues that his trial counsel’s failure to object to the prosecutor’s
misstatement constituted ineffective assistance.
“In order to establish a claim for ineffective assistance of counsel, a defendant
must show that his or her counsel’s performance was deficient and that the defendant
suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate
deficient performance, defendant bears the burden of showing that counsel’s performance
‘“‘“fell below an objective standard of reasonableness . . . under prevailing professional
norms.’”’” [Citation.] To demonstrate prejudice, defendant bears the burden of showing
a reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceeding would have been different. [Citations.]” (People v. Mickel (2016) 2 Cal.5th
181, 198.)
Here, the jury specifically found, as to each defendant, that in the commission of
the attempted murder, “the defendant acted with willful, deliberate premeditation . . . .”
It had been instructed that, for purposes of attempted murder, premeditation requires the
intent to kill. (CALCRIM No. 601.) It necessarily follows that, even assuming the jury
might have found defendants guilty of attempted murder on a legally invalid theory, it
also found them guilty on the legally valid theory of intent to kill. Accordingly, defense
counsel’s failure to object was not prejudicial.
78
XVIII
PROSECUTORIAL COMMENT ON DEFENDANTS’ FAILURE TO TESTIFY
Sandoval and Chavez19 contend that the prosecutor violated their right to remain
silent by commenting on their failure to contradict Iniguez’s testimony.
A. Additional Factual and Procedural Background.
During his rebuttal argument to Sandoval and Chavez’s jury, the prosecutor noted
that Chavez’s counsel had argued that his client was coerced into participating, citing
Iniguez’s testimony that he himself felt coerced. He then said:
“But you heard zero evidence that that is what [Chavez] was thinking, or that is
what [Chavez] was told, or that’s anything that was impressed upon him in his actions in
this case.”
“And what [Sandoval’s counsel] did was stand up here and give you rank
speculation as to people’s state of mind, inferences from evidence that is not there, and
ignored evidence that was there.”
“[Y]ou never heard one piece of evidence to contradict anything [Iniguez] said.”
“And that credibility of Mr. Iniguez, there was nothing to impeach him. There
was nothing to show that anything he said was wrong, inconsistent, contradictory.”
“Again, there was no evidence to contradict Mr. Iniguez.”
“It’s that evidence, the cell phone evidence and the DNA that independently
connect . . . Sandoval to these crimes. It’s that evidence that then allows you to consider
19 We do not understand Perez to be joining in this contention, because it
concerns the prosecutor’s remarks to Sandoval and Chavez’s jury, not to Perez’s jury.
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. . . Iniguez’s testimony, that uncontradicted, unimpeached, unaltered, unquestioned,
testimony.
“Was there any question that was asked of . . . Iniguez on cross-examination by
either attorney that changed the scenario, the facts, the parties involved or how it
occurred? Nope. Was any independent evidence brought in by them or me from
detectives, independent witnesses, prior statements, prior testimony, anything that
changed how it went down, who it went down with or by, and the end result? No.
Absolutely not.”
After the prosecutor finished, outside the presence of the jury, Chavez’s counsel
objected, “the D.A. during . . . his rebuttal argument place[d] the burden on the
defendants to disprove the charge.”
The trial court asked, “Is there something . . . that you would like me to do in
terms of this jury?” He replied, “I think just . . . stressing the CALCRIM that we don’t
have any burden of proof here . . . .” Sandoval’s counsel then joined in the objection.
After a lunch break, Chavez’s counsel restated his argument. Sandoval’s counsel
added, “I don’t think it’s a fair comment for the prosecutor to make a comment as to how
we exercise our right of confrontation. And [that] we didn’t exercise it . . . . [¶] That
also tramples on the right of self-incrimination.”
Again, the trial court asked, “Is there any remedy . . . ?” Chavez’s counsel replied,
“You’ve already indicated . . . that you’re going to read, you know, the issue of the
burden of proof, et cetera. I would submit to that.” Sandoval’s counsel added, “I’ll
submit . . . .”
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After the jury retired to deliberate, the trial court stated, “Yesterday there was a
comment from both [Chavez’s counsel] and [Sandoval’s counsel] about the possibility of
during his closing argument, [the prosecutor] may have done something to infer that
Mr. Chavez . . . and/or Mr. Sandoval should take the stand . . . .” The court and counsel
agreed that this issue invoked Griffin v. California (1965) 380 U.S. 609 (Griffin).
The court then stated, “[I]t struck me that you need a ruling . . . .” Accordingly, it
ruled: “I don’t find that it was prosecutorial misconduct. I don’t find that it was an
improper unconstitutional comment on the right of the defendants to remain silent.”
B. Discussion.
1. Forfeiture.
“A defendant cannot complain on appeal of error by a prosecutor unless he or she
made an assignment of error on the same ground in a timely fashion in the trial court and
requested the jury be admonished to disregard the impropriety. [Citations.] This
procedural requirement has been applied repeatedly to cases involving claims of Griffin
error. [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1006-1007.)
Here, defense counsel did not object during the prosecutor’s argument. They
objected only after the prosecutor had finished. Even then, when the trial court asked
them what they wanted it to do, they did not request an admonition. They agreed that the
standard CALCRIM instructions concerning the burden of proof would be an adequate
remedy. Thus, they forfeited the present contention. Sandoval and Chavez do not claim
that this forfeiture constituted ineffective assistance; hence, we have no occasion to
consider any such claim.
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2. Merits.
Separately and alternatively, we also reject this contention on the merits.
“‘“‘[A] prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.’”’ [Citations.]” (People v.
Jackson (2016) 1 Cal.5th 269, 368.)
Under Griffin, the Fifth Amendment prohibits the prosecution from commenting
on a defendant’s failure to testify at trial. (Griffin, supra, 380 U.S. at p. 615.) Thus,
“[t]he prosecutor’s argument cannot refer to the absence of evidence that only the
defendant’s testimony could provide. [Citation.]” (People v. Brady (2010) 50 Cal.4th
547, 565-566.)
“‘Although a prosecutor is forbidden to comment “‘either directly or indirectly, on
the defendant’s failure to testify in his defense,’” the prosecutor may comment “‘on the
state of the evidence, or on the failure of the defense to introduce material evidence or to
call logical witnesses.’” [Citation.]’ [Citation.]” (People v. Castaneda (2011) 51 Cal.4th
1292, 1333.) “‘“[A]s a general principle, prosecutors may allude to the defense’s failure
to present exculpatory evidence” [citation], and such commentary does not ordinarily
violate Griffin or erroneously imply that the defendant bears a burden of proof.”’
[Citations.]” (People v. Carr (2010) 190 Cal.App.4th 475, 483.)
The prosecutor’s statements to the effect that Iniguez’s testimony had not been
impeached or contradicted were appropriate comments on the state of the evidence.
Defendants themselves were not the only ones who could confirm or deny that testimony.
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Victim Romero’s out-of-court statements describing the crimes corroborated it. Garcia,
testifying pursuant to a plea agreement, also corroborated Iniguez. Alvarado’s out-of-
court statements, introduced through Garcia, further corroborated Iniguez. The DNA
evidence and cell phone evidence were both consistent with Iniguez’s account.
In addition, under People v. Ford (1988) 45 Cal.3d 431, the prosecutor could
properly comment on the failure of Alvarado and Rodriguez, who had already been
separately convicted, to testify in this case. In Ford, defendants Ford, Cooper, and Elder
were all charged with committing the same burglary. When Ford went to trial, Cooper
had pleaded guilty, and Elder had not yet been tried. (Id. at p. 436.) Ford took the stand
and testified that, at various times when prosecution witnesses placed him at the scene of
the burglary (id. at pp. 436-437), he was actually somewhere else with Cooper and/or
Elder. (Id. at pp. 437-438.) In closing argument, the prosecutor commented on Ford’s
failure to call Cooper and Elder to support his alibi. (Id. at p. 438.)
The Supreme Court held that there was no “statute, constitutional provision, or
rule [that] precludes comment by the prosecutor on defendant’s failure to call his former
codefendants as witnesses to support his alibi defense.” (People v. Ford, supra, 45
Cal.3d at p. 435; see also id. at pp. 442-447.) It noted that, assuming Ford’s testimony
that he had an alibi was true, the witnesses’ testimony would not incriminate them. (Id.
at p. 442.) And even if their testimony would incriminate them, they might be willing to
waive the privilege in order to give testimony that would exculpate Ford. (Id. at pp. 442-
443.) Thus, it was Ford’s burden to call these witnesses and thus to force them either to
testify or to assert their Fifth Amendment privilege. (Id. at pp. 442-443.) Alternatively,
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he could have sought a stipulation or a ruling before trial that comment would be
impermissible because the witnesses were unavailable. (Id. at pp. 447-448.)
Here, similarly, if Alvarado or Rodriguez could have contradicted Iniguez’s
testimony, defendants would have called them. Defendants did not show that these
witnesses would have claimed the Fifth Amendment20 and did not seek a ruling or a
stipulation that they were unavailable. Hence, the prosecutor could point out that Iniguez
was uncontradicted without necessarily alluding to defendants’ own failure to testify.
Finally, defendants did not put on an affirmative case; they did not introduce any
evidence, other than that which they elicited from prosecution witnesses on cross-
examination. Again, the prosecutor was entitled to point this out.
The prosecutor’s statement that there was no evidence of what Chavez was
thinking or of what Chavez was told comes closest to a Griffin violation, because
obviously Chavez himself could have provided such evidence. However, others,
including Iniguez, Alvarado, and Rodriguez, could have testified to what was said in
Chavez’s presence; they could have testified to what Chavez did; and, subject to hearsay
limitations, they could also have testified to what, if anything, Chavez said. (See, e.g.,
Evid. Code, § 1241 [hearsay exception for statement explaining declarant’s conduct].)
Thus, the prosecutor could properly argue that there was no evidence that Chavez was
coerced into participating.
We therefore conclude that there was no Griffin violation.
20 Significantly, in Ford, the Supreme Court did not simply assume that
Cooper’s testimony would incriminate him, even though he had already pleaded guilty.
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XIX
FAILURE TO STATE REASONS FOR THE UPPER TERM
Defendants contend that the trial court erroneously failed to state reasons for
imposing the upper term for active gang participation.
The authorized sentence for active gang participation is either 16 months, two
years, or three years in prison. (Pen. Code, § 186.22, subd. (a).) “[A] trial court is
required to state its reasons for any sentencing choice (e.g., imposition of an upper term)
on the record at the time of sentencing. [Citations.]” (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1371; see Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule
4.420(e).) Here, the trial court imposed the upper term of three years without stating any
reasons.
The People argue, however, that defendants forfeited the issue by failing to raise it
below. We agree. “[D]efects in the trial court’s statement of reasons are waived unless
challenged at the time of sentencing.” (People v. Scott (1994) 9 Cal.4th 331, 348.)
“Included in this category are . . . cases in which the court purportedly erred because it
. . . failed to state any reasons . . . .” (Id. at p. 353.)
We do not mean to suggest that this contention, if not forfeited, would have merit.
Defendants’ respective probation reports noted multiple aggravating factors, including
great violence (Cal. Rules of Court, rule 4.421(a)(1)), arming or use of a weapon (id., rule
4.421(a)(2)), planning, sophistication, and professionalism (id., rule 4.421(a)(8)), a taking
of great monetary value (id., rule 4.421(a)(9)), a large quantity of contraband (id., rule
4.421(a)(10)), and the abuse of trust or confidence (id., rule 4.421(a)(11)). While the
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reports noted the absence of some potential aggravating factors, they found no mitigating
factors other than the lack of a prior criminal record. (Cal. Rules of Court, rule
4.423(b)(1).) Thus, the probation reports recommended the upper term.
If defense counsel had insisted that the trial court state reasons, presumably it
would have stated the reasons listed in the probation reports. While there might have
been some room to quibble over whether every factor applied to every defendant, it
seems inescapable that the trial court would still have found that the aggravating factors
were compelling and therefore that the upper term was warranted.
Defendants therefore cannot show that the failure to state reasons was prejudicial.
XX
SENATE BILL NO. 620
As mentioned, enhancements for the discharge of a firearm by a principal in a
gang-related crime causing great bodily injury or death were found true. (Pen. Code,
§ 12022.53, subds. (d), (e)(1).) As a result, the trial court imposed additional consecutive
terms of 25 years to life.
When defendants were sentenced, the trial court had no power to strike a firearm
enhancement under Penal Code section 12022.53 . (See Pen. Code, former § 12022.53,
subd. (h), Stats. 2010, ch. 711, § 5.) While this appeal was pending, however, Senate Bill
620 was enacted and became effective. (Stats. 2017, ch. 682.) As a result, a trial court
now has discretion to strike such an enhancement. (Pen. Code, § 12022.53, subd. (h).)
Defendants argue that they are entitled to the benefit of this ameliorative change in
the law. The People concede the point, and we agree. (People v. Arredondo (March 19,
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2018, D072632) ___ Cal.App.5th ___, ___ [2018 Cal. App. LEXIS 217 at pp. *21-*24];
see also id. at pp. *29-*30 [conc. opn. of Benke, J.].) Also, the People do not argue that
it would be an abuse of discretion to strike the firearm enhancements. Accordingly, we
will remand with directions to consider whether to strike any of these firearm
enhancements. We express no opinion on how the trial court should exercise its
discretion.
XXI
DISPOSITION
As to each of the three defendants, the gang special circumstance and the
financial-gain special circumstance are reversed; in all other respects, the judgments with
respect to the conviction are affirmed. We express no opinion on whether these special
circumstances may be retried. (See People v. Zermeno (1999) 21 Cal.4th 927, 933, fn. 3;
People v. Swain (1996) 12 Cal.4th 593, 610.) However, if the People fail to bring any
defendant to a new trial in a timely manner (see Pen. Code, § 1382, subd. (a)(2)), our
remittitur shall be deemed to modify the judgment against that defendant by striking the
gang special circumstance and the financial-gain special circumstance.
The judgments with respect to sentencing are reversed. When the trial court
resentences defendants, it shall exercise its discretion with respect to whether to strike
any of the firearm enhancements under Penal Code section 12022.53.
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CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
We concur:
MILLER
J.
FIELDS
J.
88