People v. Aguilar CA5

Filed 9/10/20 P. v. Aguilar CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F076890
Plaintiff and Respondent,
(Super. Ct. No. F14902005)
v.

JESSE AGUILAR, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 Appellant Jesse Aguilar was convicted following a jury trial of first degree murder
of Fernando Zapata Sr. (Zapata Sr.) (Pen. Code,1 § 187, subd. (a); count 1); attempted
murder of Fernando Zapata Jr. (Zapata Jr.) (§§ 664/187, subd. (a); count 2); and
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3). As to count 1, the
jury found true the special circumstance that appellant committed the murder while he
was an active participant in a criminal street gang, and the murder was carried out to
further the activities of the criminal street gang (§ 190.2, subd. (a)(22)). As to counts 1
and 2, the jury found true appellant had intentionally discharged a firearm in the
commission of the offenses (§ 12022.53, subd. (d)) and had committed the crime for the
benefit of, and in furtherance of, activities of a criminal street gang (§ 186.22,
subd. (b)(4)(B)).2 As to count 2, the jury found true that appellant had personally
inflicted great bodily injury upon Zapata Jr. (§ 12022.7, subd. (a)). Appellant admitted to
suffering two strike prior convictions (§§ 667, subds. (a)(1), (b)-(i) & 1170.12, subds. (a)-
(d)) and two prior prison terms (§ 667.5, subd. (b)).
As to count 1, the court sentenced appellant to a prison term of life without the
possibility of parole, plus a term of 25 years to life pursuant to section 12022.53,
subdivision (d), and a determinate term of 10 years (five years for each prior) pursuant to

1 All further undesignated statutory references are to the Penal Code.
2 Section 186.22, subdivision (b)(4)(B) is a gang enhancement regarding the
mandated minimum eligibility for parole that applies to home invasion robbery,
carjacking, shooting at an inhabited dwelling, and offenses involving discharge of a
firearm from a motor vehicle. The probation report pointed out the provision did not
seem to apply to appellant’s case. At appellant’s sentencing, the court addressed the
probation report’s comment, stating: “There is some notations … as to … what the
probation officer believes that an inaccurate section was used. Frankly, however, my
reading of it is that would affect a possible mandated minimum eligibility for parole in
Counts One and Two. It does not add time, necessarily. And so, I don’t believe that
would be a concern at this time that the Court has to address. [¶] … And I’m not passing
any rulings on the inaccuracy of that section.” The court did not sentence appellant to
any additional time under section 186.22, and the parties do not mention this on appeal.

2.
section 667, subdivision (a)(1). As to count 2, the court sentenced appellant to a term of
life with the possibility of parole, plus a term of 25 years to life pursuant to section
12022.53, subdivision (d), and a determinate term of 10 years (five years for each prior)
pursuant to section 667, subdivision (a)(1). The court imposed and stayed a three-year
term for the great bodily injury enhancement pursuant to section 12022.7, subdivision (a).
The court struck punishment for the 667.5, subdivision (b) offense because they arose
from the same felonies alleged pursuant to section 667, subdivision (a). As to count 3,
the court sentenced appellant to the aggravated term of three years, doubled to six years
due to appellant’s strike prior, to be served concurrently. Appellant’s total prison term is
a determinate term of 20 years, followed by two indeterminate terms of 25 years to life,
an indeterminate term of life with the possibility of parole, and an indeterminate term of
life without the possibility of parole.
On appeal, appellant contends (1) the court reversibly erred by allowing a law
enforcement officer to testify to hearsay contents of wiretap conversations in violation of
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); (2) the court interfered with
appellant’s right to the effective assistance of counsel by instructing the jury that they had
“heard eyewitness testimony identifying the defendant”; and (3) the matter must be
remanded for resentencing to allow the trial court to exercise its discretion under Senate
Bill Nos. 620 (2017-2018 Reg. Sess.) and 1393 (2017-2018 Reg. Sess.). We affirm.
FACTS3
Hermilo Cordero lived in a detached garage which had been converted into an
apartment and faced an alley. On December 31, 2013, Cordero hosted a New Year’s Eve
party at his residence. Appellant attended the party, along with 10-15 other people. Half
of the attendees, including appellant, stayed until the next day.

3 Our recitation of the facts excludes facts not relevant to this appeal.

3.
 Appellant is a member of the Calwa Varrio Locos gang also known as CVL or
Calwa. Appellant’s monikers are Payaso, Paya, and Big P. The CVL gang is a subset of
the Bulldog gang. The parties stipulated at trial that CVL was a criminal street gang.
On January 1, 2014, Zapata Sr. and Zapata Jr. went to Cordero’s residence to buy
drugs. The Zapatas identified as members of the Bond Street Bulldogs. Zapata Jr. had
the moniker “Baby” or “Baby Zap.” Zapata Sr. went by “Zap.” There had been issues
between CVL and Bond Street Bulldogs in the past.
Surveillance footage of the property where the party took place showed that at
12:38:224 on January 1, 2014, a van driven by Maria Rodriguez, Zapata Sr.’s niece,
pulled into the alley facing the converted garage. At 12:38:30, the Zapatas got out of the
van and entered through a gate toward the apartment. At 12:38:45, a security door which
led into the apartment “fl[ew] open.” At 12:38:47, the surveillance video shows birds
flying away from a wire. Several people ran out of the detached garage through the
security door. When the door was closed, Zapata Sr. could be seen laying on the ground
next to the apartment. At 12:38:50, the van quickly started to drive down the alley. The
video showed appellant chasing after the van holding a semiautomatic firearm and then
turning around to walk away putting the firearm into his waistband. At 12:40:15,
Zapata Jr. walked away from the scene. The surveillance footage did not show the actual
shooting, as it appears the security door obscured the view of the shooting.
Cordero testified he was asleep when the shooting took place and was wakened
just after the shooting. Cordero and a female then ran out the door and entered a car
driven by another female who had been at the party, with appellant already inside. They
did not discuss what had just happened.

4 The time references are to the 24-hour time stamp on the video. It was explained
at trial the time stamp was 55 minutes fast.

4.
 A resident of the primary residence on the property where Cordero lived testified
that she was cleaning outside her house when the shooting took place. She heard the gun
shots but assumed they were part of a New Year’s celebration. Because her dog was
sitting and barking toward the back of the house, however, she went to see what was
going on, and saw Zapata Sr. laying on the ground. She then saw Cordero and a female
run past her and get into a car that was sitting in the middle of the street “like a getaway
car.” The witness instructed her niece to call the police, and an ambulance arrived.
Zapata Sr. was taken to the hospital and later died from a gunshot wound to his
abdomen. The medical examiner who performed his autopsy determined the manner of
death was homicide. Police contacted Zapata Jr. at a nearby mini-mart in response to a
call by the store clerk reporting that a shooting victim was at the store. Zapata Jr. was
taken to the hospital for treatment of a gunshot wound. Zapata Jr. suffered multiple rib
fractures and a collapsed lung. Zapata Jr. was not cooperative with police and could not
be located for trial.
Rodriguez testified that on January 1, she was giving the Zapatas a ride to buy
drugs and was planning to drop them off. Rodriguez drove into the alley near Cordero’s
residence, and the Zapatas exited the vehicle; she had not even put the car in park when
she heard two to three gunshots. Rodriguez did not think much of it because shooting
firearms on New Year’s was common. Then her son, who was in the vehicle with her,
started screaming for “Zap,” and she looked up and saw the Zapatas on the ground.
Rodriguez testified she saw a “guy in black clothes with a thing on his face and a
gun in his hand” running toward her car. Rodriguez sped away because he had a gun in
his hand, and she thought she might get shot. Rodriguez testified the gun looked like a
revolver. Rodriguez was confronted with the surveillance footage at trial showing the
man running toward her vehicle did not have his face covered but insisted she
remembered he had something over his face. Rodriguez testified she did not know

5.
appellant, but knew of him because she went to high school with his brother’s girlfriend
and knows he is from Calwa and a member of the Calwa Bulldogs.
Sergeant Rafael Villalvazo testified that Rodriguez called the police twice soon
after the shooting to say she had information about it and that he spoke to Rodriguez on
January 3, 2014. When Rodriguez met with Villalvazo, she saw a recorder in
Villalvazo’s hand and told him she would not provide a statement if it were recorded.
Rodriguez told Villalvazo she was scared for her life because the shooter knew and saw
her. Villalvazo agreed not to record the statement. Villalvazo testified that Rodriguez
told him she saw the shooting and that appellant was the shooter as well as the individual
who had chased after her van. Rodriguez explained she had known appellant for 15 years
and referred to him as “Jesse,” “Paya,” and “Jesse Aguilar.” After Rodriguez told
Villalvazo what happened, he showed her the surveillance video and she identified
appellant as the person running after her van. Villalvazo showed Rodriguez a photograph
of appellant, and she confirmed that he was the shooter. Rodriguez told Villalvazo that
appellant had a silver firearm.
Appellant was arrested in late February 2014.
At trial, Rodriguez testified she spoke to Villalvazo a couple of days after the
incident but did not tell Villalvazo that she saw the shooter. Rodriguez testified at the
time of the incident, she did not even know appellant’s name and did not recognize the
person shown to her in the surveillance footage. Rodriguez testified “[appellant’s] name
never left my mouth.” On cross-examination, defense counsel asked Rodriguez, “[Y]our
testimony here today this morning is it wasn’t [appellant], it was not him. Is that [what]
you’re saying?” Rodriguez said, “I’m saying, no, that was not him.”
When the prosecutor asked Rodriguez if she was afraid of appellant, she
responded, “I don’t know him directly to be afraid of him, so.” When the prosecutor
asked Rodriguez if she was afraid of what would happen if she testified against appellant,
she said, “I can’t testify against him because I didn’t see him there, and I didn’t see the

6.
person that did this. They had a mask on their face.” She testified, however, that she
would be afraid to testify against anyone especially if they were a member of a gang.
California Highway Patrol Officer Ryan Yetter testified at trial. Yetter was a
member of the Multi-Agency Gang Enforcement Consortium (MAGEC) and part of the
FBI Safe Streets task force and gang task force, which meant he was cross-designated as
a federal agent. At the time of his testimony, Yetter had been a member of MAGEC for
about four years and had extensive gang training due to this membership.
In 2016, Yetter was one of the chief investigating officers on a number of crimes
involving the Calwa street gang. In the course of his investigation, he obtained a court
order authorizing the interception of cell phones and Facebook accounts for specified
gang members. As a result, Yetter intercepted phone calls of CVL gang members Pete
Romero aka “Peanut” and Gabriel Cortez aka “Black.”
Yetter testified that through the wiretaps, he determined that a gang member from
another Bulldog subset that went by the moniker of “Gangster” was being contracted to
kill Zapata Jr. or “Baby.” Yetter testified there were two calls between Peanut and Black
where they talked about needing to get a “heater” or a gun to take care of Zapata Jr. They
accurately described where Zapata Jr. lived. They discussed what times they thought he
would be there and what roads they should take to find and kill him.
Yetter also intercepted calls involving appellant. Yetter described a specific call
where another CVL gang member told appellant that “Gangster” was in the hood trying
to take care of what he was supposed to take care of, and appellant said, “Good. Good.
Keep him out there doing his thing.”
Yetter described another call between Peanut and Black where they said it was
shameful that CVL was not willing to kill Baby on behalf of appellant and that it was
embarrassing for the gang and they needed to step up and do it. They need to get a gun
and just do it and that appellant would be disappointed in them and disown them if they
did not do it themselves.

7.
 On April 13, 2017, a traffic stop was conducted on a vehicle without a rear license
plate. The vehicle tried to evade the police and when the vehicle eventually pulled over,
the passenger ran from the vehicle. The rear passenger of the vehicle was carrying a
paper in his right front pocket that was later identified as a “kite.” Yetter defined a “kite”
as a note that is written in very small handwriting and designed to be passed around jail
or eventually out of jail.
The kite seized from the passenger of the vehicle was admitted into evidence.
Yetter testified he believed the kite was written by appellant and based this opinion on
several factors. First, the kite was signed by “Papa. Big P Funk. Calwa Varrio Locos.”
Yetter testified that appellant goes by Payaso and several variations of that: Paya, Big P,
and Big P Funk. Yetter testified that appellant is a respected and feared member of CVL,
and many of the younger CVL members “attribute the … gang to him.” Yetter
explained, “the repercussions for [i]mpersonating [appellant] are—I don’t even think it’s
really in the realm of feasibility.” Further, a P.S. on the side of the kite stated, “Call
Leli,” and “tell her you have stuff for her.” The phone number written next to the P.S. on
the note was associated with Orelia Corona, a frequent jail visitor and recipient of phone
calls from appellant.
The kite was addressed to “Baby Paya.” Yetter explained that Baby Paya is a very
specific moniker used by Santos Tapia, a member of CVL. In the kite, the author wrote
that Tapia would have to step up and “becom[e] ‘me’ ” (referring to the author) in terms
of gang leadership. The kite went on to state: “Look son[,] baby [crossed out] lives at
this two-story pad on [cross streets]!!!!” Yetter said the significance of “baby” being
crossed out meant he was a rival or someone the author wanted killed or both. Yetter
also testified that Zapata Jr. lives right on the corner of the cross streets the author
referred to and that his residence is a single story but appears to be two stories from the
street.

8.
 The kite continued: “Need you to go thru with cholo & peep it out…. That puto
is strapped up, so when its confirmed & he’s there I need him dusted off already.” The
prosecutor asked Yetter if this was “consistent” with what he heard during the wire
intercept, and Yetter responded, “Yeah. I mean, all of it was the location. The kite
exactly matched up with what we had heard on the wire. And upon seeing the kite the
two kind of fit together.”
The kite further stated: “It took me ‘3’ days to get them putos why is it tak[ing] so
long for anyone to HELP me? … I’ve let to do & go out there for our fallen perrito Lil
Paya CIP … without a second guess cuz it’s what I’ve always done.” Yetter explained
that “Lil Paya” was a moniker for Angel Vasquez, a Calwa gang member who was killed
in August 2013. The author continued: “Also I ain’t worth a killing to hunt & kill Baby
[crossed out] … I did not finish off my kill & now I’m stuck, its how it goes in the kill
game, get sloppy, don’t finish job correctly.”
It was revealed at trial that Vasquez’s birthday was December 28. On the day of
his death, he had gotten into an argument with Zapata Jr. Law enforcement believed
Zapata Jr. may have possibly been involved in the homicide of Vasquez, but another
individual was arrested. Photographs taken on December 28, 2013, showed appellant
with two other Calwa gang members in front of a sign that said, “Happy 27th birthday Lil
Brother” and “RIP Angel.”
Appellant’s cell phone was found when the police searched the converted garage.
The phone contained a photograph of appellant holding a silver semiautomatic handgun
that was sent in a text message on January 1, 2014. Other text messages sent by appellant
before the shooting on January 1, 2014, stated: “J locs and Big Paya … standing strong
[for that] C side turf …” and “[B]oys posted and waiting on Dem sabes … C luv, you
always my loyalty.” Yetter testified that “C side turf” refers to Calwa.
FBI forensic document examiner Gabriel Watts testified he performed a
handwriting analysis on the kite. Watts explained the FBI has five possible conclusions

9.
resulting from a given handwriting analysis: identification, elimination, “may have,”
“may not have,” and “straight no conclusion.” Watts testified that “may have” means the
examiner was “leaning toward an identification” but there was some limitation that
prevented them from identifying. As for the kite, Watts testified appellant “may have”
prepared it. Watts testified he could not conclusively identify appellant due to
“overwriting, some characteristics not observed in the known writing[,] and limited
comparability.” Watts said the results were not inconclusive, and appellant could not be
excluded as the writer.
Appellant presented no evidence in his defense. Defense counsel argued there was
insufficient evidence to prove that appellant was the shooter, noting the screen door
obscured the actual shooting. Defense counsel pointed out there was no ballistics
evidence regarding the weapon or that it matched the firearm in appellant’s possession.
DISCUSSION
I. Admission of Wiretap Statements Through Yetter’s Testimony
A. Relevant Background
The prosecution sought to admit Yetter’s testimony about the wire intercepts to
show “consciousness of guilt, as well as further evidence on the gang aspect of the case.”
Defense counsel requested an Evidence Code section 402 hearing, objecting to the
authenticity of the wiretap contents. Following the hearing, defense counsel objected to
the admission on the grounds of relevance and hearsay. The trial court in turn asked the
prosecutor what tied the wiretap conversations to appellant, stating “certainly, this might
be material and relevant, but [the] prejudicial effect is just as high.” The prosecutor
requested that the court reserve ruling on the admissibility of the wiretap statements until
the court heard evidence on the kite, explaining the relevance would be made clear in
conjunction with the kite. The court did not make a ruling as to the admissibility of the
contents of the wiretap statements.

10.
 Following an Evidence Code section 402 hearing on the admissibility of the kite,
the court ruled the kite admissible. Defense counsel did not request a ruling on the
wiretap evidence, and the court made no such ruling. When Yetter testified to the
wiretap contents, defense counsel did not object.
B. The Parties’ Contentions
Appellant contends that Yetter’s testimony of the contents of the wiretap
conversations constituted inadmissible case-specific out-of-court-statements in violation
of Sanchez, supra, 63 Cal.4th at page 674. In Sanchez, the California Supreme Court
held: “When any expert relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to support the expert’s opinion,
the statements are hearsay” and inadmissible unless they fall under an exception. (Id. at
pp. 674, 686.) The Sanchez court also held: “If the case is one in which a prosecution
expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless
(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Id. at p. 686.)5
Respondent argues the issue was forfeited because appellant failed to renew his
objection to the admission of the contents of the wiretap evidence during trial. In the
event we do not find forfeiture, respondent argues the contents of the wiretaps were not
inadmissible because, though they were hearsay, they fell under the “co-conspirator”
hearsay exception in Evidence Code section 1223.6 In the event we find the statements
improperly admitted, respondent contends the error was harmless.

5 Appellant does not contend the admission of the statements constituted a
confrontation clause violation.
6 Evidence Code section 1223 provides: “Evidence of a statement offered against a
party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by
the declarant while participating in a conspiracy to commit a crime or civil wrong and in
furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or
during the time that the party was participating in that conspiracy; and [¶] (c) The
evidence is offered either after admission of evidence sufficient to sustain a finding of the

11.
 C. Analysis
We decline to decide the issue based on forfeiture and need not decide whether the
evidence was admissible under an exception to the hearsay rule because, in any event,
any alleged error was harmless.
The parties agree the proper harmless error standard for us to apply is the
reasonable probability standard described in People v. Watson (1956) 46 Cal.2d 818
(Watson).7 (See Sanchez, supra, 63 Cal.4th at pp. 685, 698.) Pursuant to this standard,
reversal is required only if it is reasonably probable that the defendant would have
achieved a more favorable result if not for the error. (People v. Wall (2017) 3 Cal.5th
1048, 1060.)8
Appellant argues the admission of the wiretap statements was prejudicial because
his identity as the shooter was the “sole issue” at trial, and that the “powerful motive”
evidence contained in the wiretap statements improperly “buttressed” the prosecution’s
case he was the shooter to prejudicial effect. We disagree and conclude there is not a
reasonable probability the admission of the wiretap statements through Yetter’s testimony
had any impact on the jury’s verdict, particularly with regard to whether appellant was
the shooter.
The basic facts established by the wire intercepts were that “Peanut” and “Black”
were discussing killing Zapata Jr., or having him killed, on behalf of appellant in 2016,

facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of
proof, subject to the admission of such evidence.”
7 Appellant argues the contents of the wiretap was inadmissible under state law but
makes no claim of a confrontation clause violation or any other constitutional claims.
8 We note that in describing the Watson standard in his briefing, appellant notes “the
question is whether absent the error a single juror could reasonably have reached a
different result,” citing this court’s decision in People v. Soojian (2010) 190 Cal.App.4th
491, 521. The standard is not whether a juror could reach a different conclusion, but if it
is probable a juror could have reached a different conclusion. (Ibid.)

12.
over two years after the shooting. They also discussed appellant being disappointed if
they did not do so. Another call indicated appellant appeared to approve of this plan.
This was not, however, the only evidence of appellant’s desire to have Zapata Jr. killed in
2016; the stronger evidence consisted of appellant’s own statements in the kite.9
Appellant crossed out Zapata Jr.’s moniker, which Yetter explained showed that
Zapata Jr. was an enemy or that the writer of the kite wanted him killed or both. This
read in conjunction with appellant’s statement that he wanted Zapata Jr. “dusted off”
along with the cross streets where he lived, as well as other statements in the kite, tend to
show it was the latter. In any event, though the evidence of the wiretap statements tended
to prove a plan to kill Zapata Jr. in 2016 was possibly being carried out, this fact
considered in the context of the totality of the evidence against appellant, had little to no
probative value to the issue of appellant’s guilt for the 2014 crimes.
Appellant frames the facts regarding the CVL’s plan to kill Zapata Jr. in 2016 as
“motive” evidence tending to support that appellant committed the charged crimes, but
the more compelling “motive” evidence was the totality of: (1) the evidence presented
that Zapata Jr. was thought to have some involvement in Vasquez’s death; (2) the
references made to Vasquez in the kite; (3) the photographs of appellant celebrating
Vasquez’s birthday on December 28, 2013; and (4) his comment in the kite that it took
him “ ‘3’ days to get them putos.” None of this was reliant on the wiretap statements.

9 We note that appellant does not challenge the admissibility of the kite on appeal.
Appellant does, however, attempt to undermine the kite’s evidentiary value and
demonstrate the prejudicial effect of the admission of the wiretap statements by arguing
that authorship of the kite was “much disputed” and the wiretap evidence “reinforced
[the] fact that [appellant] wrote the kite.” But the evidence that appellant wrote the kite
was strong and not reliant on the wiretap statements. Yetter’s testimony the kite was
written by appellant was strong evidence particularly based on Yetter’s experience
investigating gangs and being a member of MAGEC. The prosecutor’s handwriting
expert’s testimony that appellant “may have” written the kite did not weaken Yetter’s
testimony as appellant seems to suggest, but strengthened it. Based on this evidence, it
would have been unreasonable to conclude appellant did not write the kite.

13.
 More importantly, “motive” was not the only evidence pointing to appellant’s
guilt. Appellant said in the kite he did not “finish off my kill”; this, when read in the
context of the entire kite, indicated he was the perpetrator of the 2014 shooting.
Moreover, Rodriguez identified appellant as the shooter to Villalvazo just a couple of
days after the shooting. Though she denied doing so in her testimony, her statement to
Villalvazo was strengthened and her testimony weakened by the surveillance video.
The prosecutor relied strongly on the surveillance video in proving appellant was
the perpetrator. Among many references to the evidentiary strength of the video, the
prosecutor made the following comments in her closing argument:

“Take away the kite. Take away … Rodriguez. And you’re still left
with the one eye-witness that I have repeatedly referenced as not being able
to make up, forget, be intimidated. And I’ll show you the video of [the
surveillance footage]. [¶] This is the video. The door opens. Pay
attention. We may not be able to see through the door. You may not be
able to see the actual shooting take place. However, by process of
elimination you can determine who was already out and who came out
after, and by inference, who the shooter was.”
The prosecutor explained step by step as the video played why the only person who could
be responsible for the shooting was appellant based on the video and one of the
responding officer’s testimony that no one was present in the residence when they
arrived: “So everyone is present and accounted for as coming out of that garage. And
only one of those people went towards the … [victims]. Only one of those individuals
ran after [Rodriguez] with a gun in his hand. Only one of those individuals is caught
tucking that gun into his pants.”
At appellant’s sentencing, the trial court echoed the prosecutor’s comments
regarding the ability of the jurors themselves to be able to determine that appellant was
the shooter. The court stated: “The only reason that justice in this case was conducted
beyond that of the prosecution’s bringing the court’s attention to this matter is that
modern technology kicked in. Something, as [the prosecutor] said at the beginning of her

14.
opening statement, that doesn’t have a bias. Isn’t frightened. Isn’t threatened. It’s the
cold, hard truth of a surveillance camera that when you piece together leaves the only
person culpable as [appellant] clear as day. Clear as day.”
Finally, the relatively short period of time the jury deliberated indicated it was not
a close case. The jury was taken to the jury room to begin deliberations at 1:50 p.m.
They stood in recess from 3:10 to 3:18 p.m. At 3:44 p.m., the jury advised the court it
had reached a verdict. Thus, after approximately five days of testimony and over 100
exhibits, the jury only deliberated for approximately an hour and 45 minutes. (See, e.g.,
People v. Cardenas (1982) 31 Cal.3d 897, 907 [six hours of deliberations is evidence of a
close case].) The record does not reflect that the jurors requested a read back of any
testimony or asked any questions. (See People v. Pearch (1991) 229 Cal.App.3d 1282,
1295 [“Juror questions and requests to have testimony reread are indications the
deliberations were close.”].) The jurors signaled they were sure about their verdict.
We disagree with appellant’s characterization of the prosecutor’s reliance on the
wire intercepts as motive and therefore identity evidence and its importance to the
prosecution’s case. The prosecutor only briefly mentioned the wire intercepts in her
closing argument, and she does so in the context of whether the attempted murder of
Zapata Jr. was committed for the benefit of a criminal street gang, not in the context of
whether appellant committed the crimes. Thus, if the jury put any relevance onto the
wiretap statements, we believe, based on the prosecutor’s theory, it would be in reference
to the gang allegations, rather than appellant’s identity as the perpetrator.10 Appellant
does not claim in his briefing that the alleged error had any effect on the jury’s
determination of the murder special circumstance or any gang allegation.

10 Nor would any claim succeed on its merits, as there was ample, more compelling
evidence that appellant was an active participant in a criminal street gang and the crime
was committed to further the activities of the gang within the meaning of section 190.2,
subdivision (a)(22).

15.
 Appellant contends the prejudicial impact of the admission of the statements
“should not really be in dispute” because the trial court commented that the wiretap
evidence had prejudicial effect when determining its admissibility during motions in
limine. We are not bound by these statements as appellant seems to suggest. The
balancing of probative value against undue prejudice a trial court must do when
determining admissibility of evidence is not the same as the prejudice analysis reviewing
courts do under Watson. The latter analysis depends on viewing the alleged erroneously
admitted evidence in the context of the totality of the evidence and other circumstances of
the trial. The trial court was not in a position to do so at the time it made the comment
cited by appellant because evidence had not even been presented at that stage.
We conclude it is not reasonably probable the exclusion of the wiretap statements
would have changed a juror’s mind regarding whether appellant was the perpetrator in
light of the other strong evidence of his guilt and the way the prosecutor used the wiretap
evidence in her closing. For the forgoing reasons, we conclude that any error in
admitting the statements from Yetter’s wiretap investigation was harmless. Accordingly,
reversal is not necessary.

II. Alleged State Interference with Appellant’s Right to Effective Assistance of
Counsel
The jury was instructed with CALCRIM No. 315, entitled “Eyewitness
Identification.” The instruction read:

“You have heard eyewitness testimony identifying the defendant. As with
any other witness, you must decide whether an eyewitness gave truthful and
accurate testimony.

“In evaluating identification testimony, consider the following questions:

“● Did the witness know or have contact with the defendant
before the event?

“● How well could the witness see the perpetrator?

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 “● What were the circumstances affecting the witness’s ability
to observe, such as lighting, weather conditions, obstructions,
distance, and duration of observation?

“● How closely was the witness paying attention?

“● Was the witness under stress when he or she made the
observation?

“● Did the witness give a description and how does that
description compare to the defendant?

“● How much time passed between the event and the time when
the witness identified the defendant?

“● Was the witness asked to pick the perpetrator out of a group?

“● Did the witness ever fail to identify the defendant?

“● Did the witness ever change his or her mind about the
identification?

“● How certain was the witness when he or she made an
identification?

“● Are the witness and the defendant of different races?

“● Was the witness able to identify the defendant in a
photographic or physical lineup?

“● Were there any other circumstances affecting the witness’s
ability to make an accurate identification?

“The People have the burden of proving beyond a reasonable doubt that it
was the defendant who committed the crime. If the People have not met
this burden, you must find the defendant not guilty.”
Appellant argues that the court instructing the jury with this instruction,
particularly with the sentence, “You have heard eyewitness testimony identifying the
defendant,” amounted to state interference with appellant’s Sixth Amendment right to
effective assistance of counsel. Appellant contends the instruction was improper because

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Rodriguez, the eyewitness, did not identify appellant in her testimony but instead insisted
she did not see the shooter’s face. Appellant contends his trial counsel was precluded
from cross-examining Rodriguez on factors in the instruction such as how the description
of the defendant compares to the defendant and how certain the witness was when she
made the identification. Appellant asserts the error requires no showing of prejudice.
Appellant relies primarily on three United States Supreme Court cases where the
Supreme Court found violations of the defendant’s right to effective assistance of counsel
due to state interference to support his claim: Geders v. United States (1976) 425 U.S.
80; Herring v. New York (1975) 422 U.S. 853; and Brooks v. Tennessee (1972) 406 U.S.
605. In Geders, the trial court forbade the defendant from consulting with his attorney
overnight while the defendant was testifying on his own behalf. (Geders v. United States,
at pp. 82‒84.) The Supreme Court reversed, noting the sequestration order impeded on
counsel and the defendant’s opportunity to discuss the events of the day’s trial. (Id. at
pp. 88, 91.) In Herring, the trial court did not allow the defendant’s attorney to make a
closing argument pursuant to state statute. (Herring v. New York, at p. 856.) The United
States Supreme Court noted “[t]here can be no doubt that closing argument for the
defense is a basic element of the adversary factfinding process in a criminal trial.” (Id. at
p. 858.) In Brooks, the trial court denied defense counsel’s motion to allow the defendant
to testify after other defense witnesses had testified. (Brooks v. Tennessee, at p. 606.)
The Supreme Court found this violated the defendant’s rights to due process and against
self-incrimination. (Id. at pp. 612‒613.) As we explain, appellant has not persuaded us
the alleged error rose to the level of violation found in these cases. We find no violation
of any of appellant’s constitutional rights.
Here, as there was an eyewitness identification, defense counsel had every
motivation to discredit Rodriguez’s statement to Villalvazo. The court instructing with
CALCRIM No. 315 did not change this. Defense counsel did in fact appropriately
attempt to discredit the statement. While cross-examining Villalvazo, defense counsel

18.
pressed Villalvazo for more detail regarding how Rodriguez knew appellant. Defense
counsel asked Villalvazo if he showed Rodriguez the surveillance footage; Villalvazo
pinpointed for the jury the portion of the video from which Rodriguez made her
identification. Defense counsel asked Villalvazo if he had ever shown Rodriguez the
report he prepared regarding her statement, to which Villalvazo responded that he had
not. Defense counsel asked Villalvazo how long the interview lasted and whether
Villalvazo was the only detective present in the interview room. These areas of
questioning related to the confidence level of Rodriguez’s identification, as well as the
accuracy of Villalvazo’s testimony.
Further, defense counsel elicited testimony from Rodriguez that appellant was not
the shooter. Defense counsel highlighted Rodriguez’s testimony during his closing
argument, noting that her statement under trial was under oath and that relying on
Villalvazo’s testimony would require the jury to rely on his “notes” and “memory” of
what she told him while not under oath.
Appellant’s state-affected ineffective assistance of counsel claim is also weakened
by the fact that the instruction was properly given.11 Villalvazo testified that Rodriguez
was an eyewitness who identified appellant. Thus, the factors listed in CALCRIM
No. 315 were relevant to the jury’s consideration of Villalvazo’s testimony as to
identification. Appellant’s claim that the instruction “transform[ed]” Villalvazo’s
testimony into eyewitness testimony identifying appellant is not well taken. It is not
reasonably likely the jury would have taken this instruction to give Villalvazo’s
testimony weight as an “eyewitness.” The jury was instructed that words and phrases not
specifically defined in the instructions “are to be applied using their ordinary, everyday
meanings.” (CALCRIM No. 200.) “Eyewitness” is defined as “[a] person who has

11 Appellant acknowledges he did not object to the court’s giving of this instruction
below and briefly alleges his attorney’s failure to object constituted ineffective assistance
of counsel. Because we find the instruction was properly given, this claim fails as well.

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personally seen something happen and so can give a first-hand description of it.”12 We
presume jurors follow the court’s instructions. (People v. Holt (1997) 15 Cal.4th 619,
662.) The only reasonable way for the jury to apply CALCRIM No. 315 was to apply it
to the identification taken from Rodriguez’s statement as testified to by Villalvazo, which
was necessary for their consideration of all the facts.
There was no state interference with appellant’s right to effective assistance of
counsel, and the court did not err by giving the instruction.
III. Senate Bill Nos. 620 and 1393
Appellant contends we must remand his case to the trial court in light of two laws
that became effective after his initial sentencing but before his case became final. Senate
Bill Nos. 620 and 1393 both give trial courts discretion they previously did not have to
impose more lenient sentences. Senate Bill No. 620, which went into effect January 1,
2018, in part, amended section 12022.53 (Stats. 2017, ch. 682, § 2) to allow the trial
judge to strike or dismiss enhancements imposed pursuant to section 12022.53,
subdivision (d). At the time appellant was sentenced, section 12022.53, subdivision (d)
mandated a consecutive enhancement of 25 years to life. Similarly, Senate Bill No. 1393,
which went into effect January 1, 2019, amended sections 667 and 1385 (Stats. 2018,
ch. 1013, §§ 1, 2) to eliminate the statutory prohibition on a trial court’s ability to strike a
five-year enhancement imposed pursuant to section 667, subdivision (a)(1).
The parties agree, as do we, that the amendments implemented by Senate Bill
Nos. 620 and 1393 apply retroactively to cases not yet final on appeal; the parties
disagree, however, on whether remand is appropriate in this case. (People v. Brown
(2012) 54 Cal.4th 314, 323‒324; People v. Francis (1969) 71 Cal.2d 66, 75–76; In re

12 Lexico.com Dictionary, https://www.lexico.com/en/definition/eyewitness (last
visited Sept. 4, 2020).

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Estrada (1965) 63 Cal.2d 740, 745.) We conclude remand is not necessary in the present
case.
Generally, remand is necessary when the record shows the trial court proceeded
with sentencing on the erroneous assumption it lacked sentencing discretion. (People v.
Brown (2007) 147 Cal.App.4th 1213, 1228.) However, if the record shows the
sentencing court “ ‘ “would not have exercised its discretion even if it believed it could
do so, then remand would be an idle act and is not required.” ’ ” (People v. McDaniels
(2018) 22 Cal.App.5th 420, 425; People v. Jones (2019) 32 Cal.App.5th 267, 272.)
Here, the court made the following comment at sentencing: “I was not going to
say anything because this sentence is something that the Court has absolutely no
discretion in making any differences. And even if I did, I would not.” The court went on
to outline the reasons it would not exercise any discretion in the case: appellant’s lengthy
criminal record, including residential burglaries as a juvenile; armed robbery; possession
of firearms as a felon as an adult; and parole violations. The court continued: “The facts
of this case are atrocious.” The court then addressed appellant: “[Y]ou have been given
chance after chance after chance. This is not a second chance case.” The court told
appellant he would spend the rest of his natural life in prison, and

“[Prison is] not freedom … [prison is] not joy. You had the smarts to be
something a lot better than what you were in life…. And that’s a shame
because you wasted your talents. Cause you don’t have the right to take
someone else’s life, period. And you chose to. And at the same time
you’re loved ones are still here, which is a remarkable observation that you
are still loved by many. But that is not something that I can factor into the
sentence in this case…. [¶] … You’ve le[d] a long life of crime and,
unfortunately, you’ve now taken a life given your extreme recklessness.
You are deserving of the punishment as available in this case.”
The court expressly indicated it would not exercise discretion even if it had it and
moreover that appellant was deserving of the punishment “as available,” which we
interpret to mean the maximum sentence.

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 Appellant points to the following sentencing choices to argue the court tended
toward “leniency”: the fact that the court ordered appellant’s sentence for count 3 to run
concurrently with count 1; stayed the great bodily injury enhancement for count 2; and
struck the section 667.5, subdivision (b) enhancements. We note that, pursuant to the
probation report, which the court expressly followed, the section 667.5, subdivision (b)
prison priors were stricken because they arose from the same case as the prior serious
felonies pursuant to section 667, subdivision (a)(1). Probation recommended the
sentence for count 3 should run concurrently because the crimes were “committed so
close in time and place as to indicate a single period of aberrant behavior.” We note the
court imposed the upper term for count 3. We do not find the reasoning behind these
sentencing choices to be indicative of the court’s desire to be lenient. Neither the court
nor the probation report indicated why the section 12022.7 enhancement was stayed;
however, in light of the court’s comments, we do not find the court’s staying of the three-
year great bodily injury enhancement is an indication it would have struck any firearm or
prior serious felony enhancement.
Appellant contends his case is like People v. Billingsley (2018) 22 Cal.App.5th
1076. There, the appellate court remanded for resentencing despite the trial court’s
refusal to run the enhanced sentence concurrently and made the following comments:
“ ‘[T]his is not the kind of case I would stay the gun allegation. I have no say as to the
actual penalty for that particular allegation. It’s set at 20 years, but as far as staying or
striking the allegation, the court does not have authority to do so, nor would it do so
under the circumstances of this case.’ ” (Id. at p. 1080.)
Billingsley is inapposite. There, the appellate court noted the trial court thought
the case “ ‘could have been a lot worse,’ … [it] did not express an intention to impose the
maximum possible sentence [and] also expressed concern the consequences for
Billingsley’s sentence were ‘unfortunate’ and ‘tragic.’ ” (People v. Billingsley, supra,
22 Cal.App.5th at p. 1081.) Here, in contrast, though the court observed the presence of

22.
appellant’s family members, and noted appellant was loved, it did not express sympathy
for appellant. Rather, we interpret the court’s comments as expressing surprise there
were so many people supporting appellant in light of his actions. The court too
commented the facts of the case were “atrocious” and that appellant was “deserving” of
the multiple life sentences imposed.
We conclude remand for resentencing for the court to determine whether or not to
exercise its discretion pursuant to the amendments made by Senate Bill Nos. 620 and
1393 would be an idle act and accordingly decline to do so.
DISPOSITION
The judgment is affirmed.

DE SANTOS, J.
WE CONCUR:

POOCHIGIAN, Acting P.J.

PEÑA, J.

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