People v. Almanza

Filed 6/28/18; Opinion following rehearing
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B270903
(Super. Ct. No. BA425421-02)
Plaintiff and Respondent, (Los Angeles County)

v. OPINION FOLLOWING
REHEARING
CHRISTIAN ALMANZA,

Defendant and Appellant.

When the retroactive application of a statute gives a trial
court discretion to reconsider imposing a lower sentence than one
previously imposed, it is the usual custom for an appellate court
to remand the case to the trial court. In this opinion on
rehearing, People v. McDaniels (2018) 22 Cal.App.5th 420
persuades us to follow that custom here.
A jury convicted Christian Almanza of first degree murder
(Pen. Code, §§ 187, subd. (a), 189)1 and assault with a firearm
(§ 245, subd. (b)). The jury found gang enhancement allegations

*Pursuant to California Rules of Court, rules 8.1100 and 8.1110,
this opinion is certified for partial publication. The portions of
this opinion to be deleted from publication are identified as those
portions between double brackets, e.g., [[/]].
1 All statutory references are to the Penal Code.
true on both counts. (§ 186.22, subd. (b)(1)(C).) On the murder
charge, the jury found a principal personally and intentionally
discharged a firearm causing death. (§ 12022.53, subd. (d).) The
trial court found Almanza suffered two prior strike convictions
within the meaning of the three strikes law (§ 667, subds. (a)-(i))
and one prior prison term (§ 667.5, subd. (b)).
The trial court sentenced Almanza to an aggregate term of
137 years to life, including 25 years to life for the firearm
enhancement imposed pursuant to section 12022.53, subdivision
(d). The court stayed two other firearm enhancements
(§ 12022.53, subd. (b) & (c)) pursuant to section 654.
Our Supreme Court granted review of our opinion
affirming the judgment (People v. Almanza (Sept. 12, 2017,
B270903) [nonpub. opn.]) and remanded the matter to us with
directions to vacate our opinion and reconsider the cause in light
of Senate Bill No. 620. (People v. Almanza (Nov. 29, 2017,
S244789).)
We remand so that the trial court may exercise its
independent discretion on whether to strike or dismiss the
firearm enhancement. In all other respects, we affirm.
FACTS
Robert Hernandez and his brother, Jesus, were members of
the Big Hazard criminal street gang. Jesus got into a dispute
with a Big Hazard “shot-caller,” Robert Gonzalez. As a result,
Jesus shot and killed Gonzalez. The Big Hazard leadership gave
a “green light” to kill Jesus and members of his family, including
Hernandez. A Big Hazard member who fails to carry out a green
light is subject to discipline for failure to follow orders.
Almanza was a Big Hazard gang member. On May 3, 2014,
he was at a barbeque attended by other members of his gang.
Hernandez and Anthony Rivas were at the barbeque. Almanza

2
gave Hernandez money to buy beer and Hernandez left for the
store. While Hernandez was gone, Almanza received a phone call
from gang leader Victor “Grizzly” Barrios, advising him that
Hernandez was in trouble with the gang. Barrios said that
Hernandez had pulled a gun on another Big Hazard member for
writing graffiti on a wall.
Almanza and Rivas left the barbeque to confront
Hernandez at the store. On the way, they stopped by Rivas’s
house and picked up a .38 handgun. When they arrived at the
store, Almanza went inside to see if Hernandez was there.
Almanza saw Hernandez and spoke to him briefly. Almanza left
the store with Hernandez behind him. When Hernandez came
into the store’s parking lot, Rivas shot Hernandez twice, killing
him. A bystander, Americo Beltran, was struck in the thigh by a
stray bullet.
Rivas gave the gun to Almanza. Almanza took the gun to
another gang member’s house where he left it.
Surveillance Videos
Surveillance cameras in and outside the store captured the
following:
Almanza and Rivas were walking toward the store. Rivas
was several seconds behind Almanza. Rivas appeared to be
holding a shiny object in his hand.
Almanza approached the entrance to the store and looked
around before entering. He spoke briefly with Hernandez in the
store. Almanza walked out of the store with Hernandez
immediately behind him.
In the meantime, Rivas entered the store’s parking lot.
Rivas made a gesture with his hand that Officer Alejandro Feria
opined was consistent with someone racking a handgun, but a
handgun could not be discerned from the video. Rivas stepped

3
out of the video before the shots were fired. Hernandez fell to the
ground. Almanza ran away from the store with a shiny object in
his hand.
Cell Phone Texts
On May 3, between 11:02 p.m. and 11:44 p.m., Almanza
made outgoing calls to Barrios, the gang leader who warned him
about Hernandez.
On May 4, starting at 12:36 a.m., Almanza received text
messages stating: “Oh my God. Why? You are so dumb. Leave.
Hide. Are you okay? Where are you?” Almanza responded, “I
just hope they don’t have me on camera” and “I’m sorry Gorda.”
At 3:49 a.m., Almanza sent a text message, “I’m good so far,
but if I do get busted, tell Diana.” Later Almanza texted, “I fudge
[sic] up. And what can I do? Just hope everything goes good.”
At 6:32 a.m., Almanza texted the same person, “Still here . . . .
Me and [Rivas] drinking. LOL.” The person responded, “It’s
going to get hot out there, babe.”
At 1:11 p.m., Almanza texted, “Babe, just got a call. The
video blank. They didn’t see me. Thank God.” Six minutes later
Almanza texted, “Gorda. The video at the store was blank. I’m
okay. I’m not on it. Thank God.”
On May 11, at 9:58 a.m., Almanza texted, “I did some shit
that I got to get out of here. I’m just waiting to do one big transa
[sic] and I’m gone.” Two minutes later Almanza texted, “Nobody
knows I’m leaving for good, but I’m just gonna ask you once. You
wanna leave with me, but nobody could know. R-E-A I’m
serious.”
Gang Testimony
Los Angeles Police Officer Brian Cook testified as a gang
expert. The Big Hazard and the Krazy Ass Mexican gangs were
his primary responsibility. The Big Hazard gang has

4
approximately 360 members. Cook has met more than 80 of
them.
Big Hazard’s primary activities include murder, attempted
murder, voluntary manslaughter, assault with deadly weapons,
robbery, burglary, felony vandalism and criminal threats. The
gang also is involved in narcotics sales.
Cook testified that Rivas is a Big Hazard gang member.
Cook has not personally met Rivas. But Cook identified Big
Hazard gang tattoos in a photograph of Rivas.
Cook testified that Almanza is also a gang member. Cook
has had numerous personal contacts with Almanza. Almanza
admitted to Cook that he is a Big Hazard gang member. He has
gang tattoos.
Cook testified that Hernandez was a member of the Big
Hazard gang. Cook did not know Hernandez personally, but saw
his body at the crime scene. Hernandez’s body had Big Hazard
tattoos.
The prosecution gave Cook a hypothetical based on the
facts of the case. Cook opined the shooting was done for the
benefit of, at the direction of, or in association with a criminal
street gang.
The prosecution introduced evidence of three predicate
offenses.
A certified court docket showed Ryan Zepeda was convicted
of two counts of attempted murder with a gang enhancement.
Cook testified he had numerous personal interactions with
Zepeda during which he admitted his membership in the Big
Hazard gang.
Hernandez’s brother, Jesus, was convicted of the murder of
Robert Gonzalez, the murder that led to the Hernandez family
being “green lighted.” Cook’s knowledge of the murder was based

5
on investigative reports and discussions with the investigator
and prosecutor.
Cook testified he personally knew Victor Barrios and knew
him to be a member of the Big Hazard gang. Later in the trial
Detective Miguel Barajas testified that he served a search
warrant on Barrios’s residence. He found narcotics, a scale, pay
and owe sheets and gang paraphernalia. Barrios was convicted
of possession of narcotics for sale.
Confession
After the shooting, Almanza voluntarily went to the police
station. He was advised of his rights and agreed to talk to the
police. The interview was recorded. After giving three false
statements, Almanza admitted to his involvement in the murder.
DISCUSSION
I
[[Almanza contends the gang-related charges (§ 186.22,
subds. (b)(1)(C)) must be reversed pursuant to People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez).
In Sanchez, our Supreme Court discussed the role of
hearsay in gang expert testimony. Sanchez held that a gang
expert may rely on hearsay in forming an opinion within his field
of expertise. (Sanchez, supra, 63 Cal.4th at p. 676.) But an
expert cannot relate “case-specific facts” about which he has no
independent knowledge unless they are independently proven by
competent evidence or are covered by a hearsay exception. (Ibid.)
“Case-specific facts are those relating to the particular events and
participants alleged to have been involved in the case being
tried.” (Ibid.)
Section 186.22, subdivision (e) requires the prosecution to
prove the commission or attempted commission of at least two
predicate offenses listed in that subdivision. Among the offenses

6
listed are unlawful homicide (subd. (e)(3)) and possession of a
controlled substance for sale (subd. (e)(4)).
A certified court docket showed Ryan Zepeda was convicted
of two counts of attempted murder. Admission of such records is
admissible as an exception to the hearsay rule. (Evid. Code,
§ 452.5, subd. (b).) Officer Cook testified he personally knows
Zepeda and Zepeda admitted to him his membership in the Big
Hazard gang.
Detective Barajas testified that while executing a search
warrant on Barrios’s residence, he found narcotics, a scale and
pay and owe sheets. Barajas testified Barrios was convicted of
possession of a controlled substance for sale. Given that Barajas
worked the case, the reasonable conclusion is that he has
personal knowledge of the conviction. Cook testified he
personally knows Barrios and knows him to be a member of the
Big Hazard gang.
Almanza’s current charged offense constitutes a third
predicate offense. (See People v. Loeun (1997) 17 Cal.4th 1, 10
[prosecution may rely on charged offense as a predicate offense].)
Officer Cook’s testimony concerning the murder of Robert
Gonzalez by Hernandez’s brother was based on hearsay. The
testimony was inadmissible under Sanchez to prove a predicate
offense, but the error is harmless by any standard. There was
admissible evidence of three other predicate offenses. The
prosecution needed only two.
Almanza argues Cook’s hearsay testimony on the murder of
Robert Gonzalez was improperly introduced to show motive.
Hearsay is evidence of an out-of-court statement that “is offered
to prove the truth of the matter stated.” (Evid. Code, § 1200,
subd. (a).) Evidence of motive is not hearsay because it is not
offered to prove the truth of the matter stated. The truth of the

7
matter is beside the point. One can be as motivated by an untrue
rumor as by a true statement. (See People v. Valdez (2011) 201
Cal.App.4th 1429, 1437 [evidence of statements on defendant’s
social media page showing gang membership not hearsay when
used to show motive for killing].)
Almanza argues Cook’s identification of Rivas as a gang
member was based on hearsay. This error is harmless beyond a
reasonable doubt. The People’s case did not depend on the
identification of Almanza’s accomplice or whether he was a
member of the Big Hazard gang.
Almanza argues Cook’s opinion that Almanza intended to
benefit the Big Hazard gang was also hearsay. But Cook’s
opinion was not hearsay because it was based on a hypothetical
question. In posing the question, the prosecutor said: “In my
hypothetical, two Big Hazard gang members go to the liquor store
at Soto and Alcazar. And they find somebody that has been
green lit by Big Hazard. One of the Big Hazard gang members
goes into the store and brings this person who has a green light
on him -- I’ll call that person the victim -- brings the victim
outside of the store. And when he gets outside the store, another
Big Hazard gang member shoots him.”
Cook testified that in his opinion such a shooting would be
committed for the benefit of a criminal street gang. Expert
testimony based on a hypothetical is approved by Sanchez.
(Sanchez, supra, 63 Cal.4th at p. 685 [a gang expert “can give an
opinion based on a hypothetical including case-specific facts that
are properly proven”].) Cook’s opinion that Almanza intended to
benefit the gang was properly admitted into evidence.
The facts of the case lead to the same conclusion. Almanza
was a member of Big Hazard. Hernandez had been “green
lighted” by the gang. Almanza had no personal animosity

8
against Hernandez. They were together at a barbeque and
Almanza had just given Hernandez money to buy beer. There
was simply no motive for the killing other than to benefit the
gang. Even without Cook’s opinion testimony, the only
reasonable conclusion the jury could reach is that Almanza
intended to benefit the gang.
II
Almanza contends his confession was involuntary.
Almanza voluntarily went to the police station. After being
advised of his Miranda rights (Miranda v. Arizona (1966) 384
U.S. 436), he agreed to talk to the police. The interview was
recorded and played for the jury.
Almanza told the detectives he gave Hernandez money to
buy beer. Hernandez left for the store but did not return.
Almanza went to the store to get his money back. He was leaving
when he heard shots. The police told Almanza the video shows
he is lying. A detective said, “You’re probably not gonna go home
today if you’re lying.”
Then Almanza told the police that Minor shot Hernandez.
Almanza denied that anybody sent him to the store to shoot
Hernandez. He said he went of his own accord to get his money
back. The police said Hernandez did not have any cash. He paid
for the beer with a credit card.
Later Almanza denied he knew who shot Hernandez. After
the police questioned Almanza more, he said, “I’m fucked.” When
a detective said, “Tell me what you know.” Almanza said,
“Regardless, I know I’m -- I’mma stay. I’m staying.” When a
detective asked why he is staying, Almanza replied, ‘Because I
know I fucked up. . . . This looks all fucked up, man.”

9
 After the police again expressed doubt that Almanza was
telling the truth, a detective said, ‘You tell me the right things,
you’re going home.”
Almanza denied he knew Hernandez was going to be killed.
A detective said, “Even though it makes you look bad, . . . you
need to come clean. . . . Because otherwise, it doesn’t look good
for you.” After Almanza acknowledged he had no choice, a
detective said, “Because if you don’t, you will be fucked.”
In an apparent reference to Almanza’s position as a paid
police informant, a detective said that Almanza had a lot to lose,
but he could still save it. A detective told Almanza, “[Y]ou’re not
under arrest.” The following colloquy then took place:
“[Detective:] [Y]ou got people that are gonna take care of
you, you know, once all this goes down. You got more to lose than
anybody.
“[Almanza:] Exactly. Yes.
“[Detective:] But you have an out, too. I mean, I didn’t
promise you anything.
“[Almanza:] Yes.
“[Detective:] You know? I mean, you got your thing going.
“[Almanza:] You just want what’s going on here. You want
the truth from here. That’s what you want.
“[Detective:] This is -- this is what you’ve been kind of paid
to do the last few years of your life, you know, working with other
entities that have taken care of you. And, you know, you’ve been
honest up to a certain point.”
Almanza continued to deny involvement in the shooting.
The following colloquy took place:
“[Detective:] Actually, I--I would be more worried about
lying and your handlers knowing you’re lying, because are they

10
gonna continue to help you? I don’t know. Are you ready to go
out on your own[?]
“[Almanza:] No.
“[Detective:] [W]ith no protection?
“[Almanza:] No.
“[Detective:] With no--I--you know, I don’t know. That’s--I
would be more concerned about that. It’s up to you, man.”
Almanza said that he had been lying. He said, “Little
Merico,” not Minor, shot Hernandez. Almanza continued to state
he had nothing to do with setting up Hernandez. Almanza also
continued to deny he carried a gun away from the scene. The
detectives told Almanza Little Merico could not have been the
shooter. He got shot.
A detective said, “If you want my help, the bullshit’s got to
stop.” Later a detective said, “But you’re gonna be taken care of
if you’re being honest.” After the detectives caught Almanza
lying again, a detective said, “I really want you to go home
tonight.”
Almanza then told the detectives Rivas shot Hernandez.
Almanza said that after he got the call telling him to look for
Hernandez, Rivas told him he got a similar call. Rivas told
Almanza he wanted to go to his house to “take a leak.” That is
when Rivas got his gun. When a detective asked Almanza
whether he knew Rivas had a gun, Almanza replied, “In a way,
yes. In a way, no. . . . I [have] never known of him doing
anything dirty from the neighborhood, sir.” Almanza said that as
he was walking out of the store with Hernandez behind him,
Rivas walked up and shot Hernandez. Then Rivas handed
Almanza the gun, and Almanza took it to Boris’s house.
Almanza filed a motion in limine to suppress the confession
as involuntary. The trial court found the only statements that

11
raised concern were the three statements made about Almanza
going home if he told the truth. In denying the motion, the court
noted that Almanza arrived at the interview voluntarily; the
comments by detectives about going home were ambiguous; and
the detectives were not overbearing, rude or threatening. The
court concluded Almanza’s confession was voluntary.
To be admitted into evidence, a confession must be the
product of an essentially free and unconstrained choice. (People
v. Jones (1998) 17 Cal.4th 279, 296.) The prosecution has the
burden of showing that the statements were voluntary by a
preponderance of the evidence. (Ibid.) The trial court’s
determination whether coercive police activity was present,
whether certain police conduct constituted a promise, whether
the conduct operated as an inducement, as well as the ultimate
issue of the voluntariness of the confession, are subject to
independent review. (Ibid.) The trial court’s findings as to the
circumstances of the confession, such as the characteristics of the
accused and the details of the interrogation, are reviewed for
substantial evidence. (Ibid.)
To render a confession involuntary, there must be not only
a promise or threat, expressed or implied, but also a causal
connection between the promise or threat and the defendant’s
statement. (People v. Perez (2016) 243 Cal.App.4th 863, 871.)
The question is whether a promise or threat caused the
defendant’s free will to be overborne. (People v. Tully (2012) 54
Cal.4th 952, 993.)
Here detectives told Almanza three times that if he told the
truth he could go home. They also told him that if he told the
truth he could continue as a paid police informant. Otherwise, he
would be left with no protection.

12
 Almanza’s background and sophistication possibly led the
trial court to conclude the confession was voluntary. At the time
of Almanza’s confession, he was 41 years old, a lieutenant in his
gang, and had served a prior prison term. He also had served as
a paid police confidential informant for over three years prior to
his arrest.
A reading of the confession as a whole could well lead to the
conclusion that Almanza confessed, not because of promises, but
because he knew the police had the evidence against him. Each
time he lied, the police confronted him with the surveillance
video or other objective evidence showing he lied.
In any event, any error in admitting the confession is
harmless beyond a reasonable doubt. Almanza appeared on a
surveillance video in the commission of the crime and later sent
text messages admitting his complicity. Under the
circumstances, a confession is superfluous.
III
Almanza contends the trial court erred in denying his
request for an instruction on voluntary intoxication.
The People’s theory at trial was that Almanza was not the
shooter but an aider and abettor. Both aiding and abetting and
the gang allegation require specific intent. (See People v.
Mendoza (1998) 18 Cal.4th 1114, 1131; People v. Albillar (2010)
51 Cal.4th 47, 67.) Evidence of voluntary intoxication is
admissible on whether the defendant actually formed a required
specific intent. (§ 29.4, subd. (b).)
Almanza points to evidence that he had been drinking
before the shooting. In his interview with the detectives, he said
he had about four 24-ounce mixed drinks at the barbeque and
was drinking “some beers” at Rivas’s house.

13
 But to support a voluntary intoxication instruction, it is not
enough to show evidence the defendant had been drinking. There
must be substantial evidence that the effect of the drinking on
the defendant’s mental state was sufficient to negate specific
intent. (People v. Ramirez (1990) 50 Cal.3d 1158, 1180-1181.)
Here there is no such evidence. In fact, when the detectives
asked Almanza whether he was drunk on the day of the shooting,
he replied, “I was buzzed. Good buzz. I wasn’t ‘drunk’ drunk.”
When a detective said, “But you’re not drunk where you’re doing
stupid shit.” Almanza replied, “Oh, hell no. Hell no. No. . . . I’m
in control.”
IV
Almanza contends the trial court erred in not ordering joint
and several liability with Rivas for victim restitution.
The trial court ordered Almanza to pay $10,819.50 in
victim restitution, but did not include Rivas in the order. Rivas
was convicted of the same matter in a separate trial.
But Almanza cites no authority giving the trial court
jurisdiction to impose restitution on a person who is not a party
to the proceeding. Rivas was a party to a different proceeding.
In People v. Leon (2004) 124 Cal.App.4th 620, on which Almanza
relies, the court imposed restitution on codefendants. Here Rivas
was not a codefendant. Almanza was the only defendant in this
proceeding.]]
V
On October 11, 2017, the Governor signed Senate Bill No.
620 into law, effective January 1, 2018. The bill amends
subdivision (h) of section 12022.53. The amended subdivision
provides: “The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.

14
The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.”
(§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
The People concede that Senate Bill No. 620 is a statute
that gives the trial court discretion to impose a lower sentence
and applies retroactively. (People v. Francis (1969) 71 Cal.2d 66,
75-76.) The People argue, however, that remand to the trial court
is not appropriate under the facts of this case because the record
shows the trial court “would not . . . have exercised its discretion
to lessen the sentence.” (People v. Gutierrez (1996) 48
Cal.App.4th 1894, 1896.)
The People point out that the trial court could have
imposed concurrent sentences for murder and assault with a
firearm. Instead, the court imposed consecutive sentences. Thus,
the People conclude the court exhibited no desire to be lenient
with Almanza.
Conflicts in the proper application of the law among
different courts of appeal may cause uncertainty and doubt for
attorneys, their clients and the public. Often these conflicts
require resolution by our Supreme Court. But courts of appeal
also enlighten one another in developing the law. Our opinion on
rehearing offers such an example and the resolution of what
could have been a conflict in the law.
In an earlier version of Almanza, we affirmed and did not
remand to the trial court, so that it could decide whether to strike
the enhancement. We reasoned that in light of Almanza’s crime
of premeditated murder, his record, and his sentence, it would be
an idle act to afford the trial court the opportunity to reconsider
its sentence.
Shortly after publication of our opinion, our colleagues in
the Third District in People v. McDaniels, supra, 22 Cal.App.5th

15
420 concluded we applied what amounted to an abuse of
discretion standard in our decision not to remand, citing People v.
Watson (1956) 46 Cal.2d 818, 836, and People v. Scott (1994) 9
Cal.4th 331, 355. Remand is not necessary when it is not
reasonably probable that a more favorable sentence would be
applied in the absence of error.
The persuasive reasoning in McDaniels prompted us to
grant rehearing and request further briefing on the appropriate
standard of review. Both the People and defense offered excellent
arguments on why remand would or would not be appropriate in
this case.
The McDaniels court and now we agree on what is the
appropriate standard to adopt when a trial court is unaware it
has the discretion to reduce a sentence. Remand is required
unless the record reveals a clear indication that the trial court
would not have reduced the sentence even if at the time of
sentencing it had the discretion to do so. (See People v. Gutierrez,
supra, 48 Cal.App.4th 1894.) Without such a clear indication of a
trial court’s intent, remand is required when the trial court is
unaware of its sentencing choices.
In light of the trial court’s initial sentence, choosing
consecutive sentences instead of concurrent sentences for murder
and assault with a firearm, the People argue that the court
“clearly indicated” it chose the firearm enhancement to achieve
its desired sentence.
We are persuaded, however, by McDaniels and defense
counsel that speculation about what a trial court might do on
remand is not “clearly indicated” by considering only the original
sentence. This is the case when there is a retroactive change in
the law subsequent to the date of the original sentence that

16
allows the trial court to exercise discretion it did not have at the
time of sentence.
We trust the trial court will not be influenced by our
previous opinion. We remand so that the trial court may exercise
its independent discretion on whether to strike or dismiss the
firearm enhancement. (§ 12022.53, subd. (h).) In all other
respects, we affirm.
CERTIFIED FOR PARTIAL PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

TANGEMAN, J.

17
 William N. Sterling, Judge

Superior Court County of Los Angeles

______________________________

Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Timothy L. O'Hair, Deputy Attorney General,
for Plaintiff and Respondent.

18