Filed 9/15/20 P. v. Moreno CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B291857
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA141778)
v.
ANTHONY MORENO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed and remanded
with directions.
Richard A. Levy, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Noah P. Hill and Corey J.
Robins, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Anthony Moreno appeals from a judgment entered after the
jury convicted him of first degree murder and possession of a
firearm by a felon. The jury found true Moreno personally used
and intentionally discharged a firearm causing the victim’s
death. The jury also found Moreno committed the crimes for the
benefit of a criminal street gang.
On appeal, Moreno contends (1) the trial court prejudicially
erred by failing to instruct the jury that a conspirator can be an
accomplice, whose testimony must be viewed with caution and
corroborated by other evidence; (2) the court prejudicially erred in
limiting the defense gang expert’s testimony and admonishing
him in a threatening manner; (3) the court prejudicially erred in
failing to provide a playback of the audiotape of a witness
interview in response to the jury’s request during deliberations
for the direct examination of the witness; (4) the court
prejudicially erred in admitting a detective’s description of
Moreno as “crazy,” but knowing what he was doing, and Moreno’s
jail-cell statements to a confidential informant; and (5) the court
committed instructional error in defining the primary activities
element of the gang enhancement.
Moreno also claims multiple sentencing errors. He argues
the trial court erred by not staying the sentence on the firearm
2
possession conviction pursuant to Penal Code section 654.1
Moreno also contends, the People concede, and we agree the
abstract of judgment must be corrected to reflect the court’s
imposition and stay of the firearm enhancement for Moreno’s
personal use of a firearm under section 12022.53, subdivision (b).
Finally, Moreno requests we remand for the trial court to conduct
a hearing on his ability to pay the court assessments and
restitution fines pursuant to this court’s opinion in People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm the
judgment as modified but remand for the trial court to allow
Moreno to request a hearing and present evidence demonstrating
his inability to pay the court assessments and restitution fines.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Amended Information
The amended information charged Moreno with willful,
deliberate, and premediated murder (§ 187, subd. (a); count 1)
and possession of a firearm by a felon (§ 29800, subd. (a)(1); count
2). As to count 1, the amended information specially alleged
Moreno personally used a firearm (§ 12022.53, subd. (b)),
personally and intentionally discharged a firearm (id., subd. (c)),
and personally and intentionally discharged a firearm causing
death (id., subd. (d)). As to both counts, the amended information
alleged the offenses were committed for the benefit of, at the
direction of, or in association with a criminal street gang.
(§ 186.22, subd. (b)(1)(C) [count 1]; id., subd. (b)(1)(A) [count 2].)
1 All further undesignated statutory references are to the
Penal Code.
3
B. The Prosecution’s Case
1. The murder
Moreno was a member of the Artesia 13 gang. Moreno and
fellow gang members used a detached garage in Artesia as a
hangout. The garage walls were covered with Artesia 13 gang
graffiti. Fellow gang member James “Lonely” Roberts2 testified
Moreno lived in either the front house or the garage, but on cross-
examination Roberts admitted he had no “specific knowledge” of
that fact.3
On the night of November 24, 2015, Moreno and fellow
gang members Roberts, Austen “Risky” Evans, and Dennis
“Meklo” Mello, gang member or associate Raul “Sean John” Ruiz,
gang associate Christina “Boxer” Martin,4 and Dawn “Molly”
McEveety5 were together in the garage. Everyone was smoking
crystal methamphetamine. Roberts testified Moreno sat on a
couch about five to six feet from McEveety, who was seated on a
2 Roberts testified pursuant to a grant of immunity while in
custody as a witness in the case.
3 Moreno told a confidential informant he only used the
house as his mailing address. The house and garage were located
in territory claimed by the Artesia 13 gang.
4 Evans and Mello testified pursuant to a grant of immunity.
Evans was in custody for three months because he refused to
appear on a subpoena in the case. Martin was also given a grant
of immunity, but she repeatedly refused to testify at trial.
5 Nineteen-year-old McEveety had a drug addiction and
started socializing with Artesia gang members sometime in 2015.
McEveety lived in the front house on the same property as the
garage.
4
reclining chair looking at her smartphone. According to Evans,
Moreno was sitting in a wheelchair, “off by himself” and “just real
quiet.” Evans, his girlfriend Martin, Roberts, Mello, and Ruiz
were in a group seated on plastic chairs across from Moreno and
McEveety, talking and “getting high a little bit.” Another group
of eight people were talking by a computer in the back corner of
the garage. At some point Roberts and Evans saw a police car on
the television monitor, which was connected to a security camera
facing the alley next to the garage.
Approximately 15 minutes after the police car drove by,
Moreno pulled out a rifle case from under the couch where he was
sitting, and he removed a .22-caliber rifle from the case.6 Moreno
sat holding the rifle for two minutes on his lap before saying,
“Nobody—not everybody run at one time.” Then, without saying
anything further, Moreno chambered a round, pointed the rifle at
the side of McEveety’s head, and pulled the trigger. When the
bullet hit McEveety’s head, she raised her hands to the side of
her head, jumped slightly, and looked over at Moreno. Moreno
chambered another round and shot McEveety in the head a
second time.
Mello did not see the shooting, but he heard two shots.
After the first shot, Mello looked around and saw McEveety
holding the left side of her head with her left hand. There was a
pause, and then Mello heard a second shot. Moreno said, “Don’t
fuckin’ run.” Mello looked at Moreno and realized Moreno had
shot McEveety. Mello was certain Moreno had shot McEveety
because Moreno was the only one in the garage with a gun.
6 Roberts testified he knew the rifle was a .22-caliber because
he had seen it before and “it was for the house.”
5
Evans testified everyone “was taken by surprise” and “in
shock.” According to Evans, after the shooting Moreno looked
around the garage and said, “All right. Help me bag her up.”
Mello was the first person to run outside after the shooting.
Roberts testified he got up and said, “What the hell?” Then he
exited the garage in shock. Evans and Martin remained in the
garage for two to three minutes before leaving.
Evans, Mello, and Roberts testified they did not know
Moreno was going to shoot or kill McEveety and did not take part
in her killing. Roberts had been intimate with McEveety a week
before her death and considered her a friend. Evans and Roberts
were not aware of any paperwork showing McEveety was a snitch
working with law enforcement.
2. The investigation
On November 29, 2015 Los Angeles County Sheriff’s
Deputy Jesus Perez and another deputy responded to a radio call
reporting an abandoned red hatchback car7 located by the
boundary of Pico Rivera and Whittier. When Deputy Perez
arrived, the other deputy asked him to assist in opening the
hatchback door to inspect an ice chest in the back seat.8 They
opened the ice chest and found a dead body inside. They closed
7 The owner testified his vehicle was stolen from his
apartment complex in La Habra in the early morning of
November 25, 2015 (described by him as the day before
Thanksgiving).
8 The vehicle’s owner testified the ice chest did not belong to
him. Roberts testified he had seen a large ice chest about three
feet long in the garage.
6
the ice chest and the hatchback door, secured the scene, and
called the homicide bureau.
Los Angeles County Sheriff’s Detective Domenick Recchia
arrived at the scene that afternoon. He saw the body of a young
female in the ice chest. The body was transported to the
coroner’s office, where it was identified as McEveety based on her
fingerprints. Detective Recchia viewed McEveety’s body at the
coroner’s office and observed her pants were low on her waist and
“one of her pant legs was kind of exposed over her foot as if
someone either tried to take her pants off or put her pants back
on.” DNA recovered from the ice chest handle matched that of
Ruiz. Moreno’s DNA and fingerprints were not recovered from
the ice chest or vehicle.
Deputy medical examiner Job Augustine concluded
McEveety died from two gunshots wounds to the left side of her
head in a homicide. In addition, McEveety suffered a gunshot
wound on her left hand. Augustine opined one of the bullets went
through McEveety’s left hand before entering her head. There
was no evidence McEveety had been sexually assaulted.
After learning of McEveety’s identity, Detective Recchia
contacted her family. McEveety’s mother provided Detective
Recchia with McEveety’s Facebook account and username. One
of McEveety’s sisters notified Detective Recchia of two Facebook
posts by Lorna Ramos, one of McEveety’s Facebook friends.
Ramos knew McEveety through her son Robert Villasenor, who
was an Artesia 13 gang member. Ramos’s computer password
was Arta 13.
On November 28, 2015 at 6:32 p.m., Ramos had posted on
her Facebook profile, “RIP Molly.” The next morning Ramos
posted a second Facebook message, “So young, so sad.” Ramos
7
made both Facebook posts before law enforcement found
McEveety’s body. Ramos initially told Detective Recchia she
heard about McEveety’s death on the news. When Detective
Recchia told Ramos the media did not report about McEveety’s
death until after Ramos’s posts, Ramos stated she saw someone
else post about the death on Facebook. Ultimately Ramos
admitted her cousin Delia had told her about McEveety’s death.
Ramos was not sure if her cousin was an Artesia 13 gang
member.
McEveety’s family reported McEveety did not have a cell
phone plan, and therefore her smartphone “would only be active
if she was connected to the internet [with] an I.P. address.”
Detective Recchia subpoenaed McEveety’s Facebook and cell
phone records, which showed she last accessed her Facebook
account on the day of the shooting at 7:34 p.m. at the location of
the back house on the property where the garage was located.
Detective Recchia visited the garage, turned on his cell phone,
and was able to pick up the wireless internet signal from the
owner of the back house, as well as two or three other wireless
internet signals. Detective Recchia observed furniture had been
moved outside the garage, including a sofa. The garage had been
cleaned with bleach and the graffiti on the walls had been freshly
painted over. He did not find any DNA in the garage that
matched that of Moreno.
3. Moreno’s jail-cell admissions
On January 28, 2016 Detective Recchia learned Moreno
was in custody unrelated to the shooting. Detective Recchia
8
placed a confidential informant (CI)9 in the same jail cell as
Moreno. To stimulate conversation, Detective Recchia and his
partner, Detective John O’Brien, showed Moreno photographs of
McEveety and told Moreno he was a suspect in her sexual assault
and murder. Moreno told the detectives he did not know
McEveety.
Once Moreno was back in the jail cell with the CI, they
talked over the course of three to four hours, a portion of which
was played to the jury. According to Detective Recchia, most of
the conversation about the shooting occurred after Moreno and
the CI had spent about three hours together. During their initial
exchange about the shooting, the CI raised a concern about how
the gang would respond to Moreno shooting a female. The CI
stated, “It’s not good. Doesn’t mean it’s over, homey, you know?
What you have to do, if you did it, homey, your reason why for
doing it, homey because to begin with, it’s a hina. Nobody wants
to owe fucking smoke to hina. . . . It’s like, if it’s a mother fucker,
fuck, yeah, I did him out. But a bitch? You know how it is.” The
CI then suggested, “It’s how you spin it. Hey, if she did
something, homie, she was a rata. She was fucking doing some
way-out shit. She tried to burn you for some shit or something.
Hey, that’s your explanation. That’s why I did it. It’s simple.
You fabricate the shit.”
9 The detectives gave the CI “a synopsis” of the shooting.
The CI had visible gang tattoos, wore inmate clothing, and was
placed in a wheelchair for the ruse. Detective Recchia, who had
used the CI in the past, paid him $1,500 for the operation. Both
the CI and the jail cell were wired to record the conversation.
Detective Recchia listened to Moreno’s conversation with the CI
from a different room.
9
At some point after this exchange, Moreno said to the CI, “I
know I could beat it, holmes. They ain’t—they don’t have nothing
on me.” Moreno denied knowing McEveety. But later Moreno
admitted he shot McEveety “twice in the dome” while he was
sitting on the couch. Moreno then explained, “She was an
informant, homey. And my homeboy just brought her around,
but the homies didn’t know that she was one . . . .” When the CI
asked if Moreno acted alone, Moreno responded, “I took action on
my own, dog.” Moreno said he knew McEveety was a former
prostitute who worked as an informant because he “saw the
papers.”10 The paperwork showed McEveety’s first name was
Dawn, but she was using Molly as her “fake name.” Moreno did
not say anything in front of McEveety because “[s]he’ll be in there
just like—she’ll smoke a little dope, play on the phone” and
“[h]ear everybody fucking talking.”
Moreno said that after he shot McEveety, he told his 10
“homeboys” not to leave, but they all left the garage. Moreno
explained why his fellow gang members may have turned on him,
“I guess some of the homies were freaked out because I did that.
And I’m like, ‘Fuck that bitch, homey. She’s a snitch, fool.’”
Moreno later added, “I should’ve just handled all of them, right—
right when they walked out the door, I’m plugging them, pop,
pop, pop.”
Moreno stated the .22-caliber weapon did not “make a big
splat,” but the blood “sorta splattered on the couch.” Moreno
indicated other gang members, not the ones that left the garage
after the shooting, helped him by disposing McEveety’s body and
10 Detective Recchia conducted a search of department
records and could not find any documents that suggested
McEveety had previously worked with law enforcement.
10
scrubbing the blood off the couch. Moreno did not help put
McEveety’s body in the ice chest. Moreno stated his DNA was
not on McEveety. He added, “No blood is on my wheelchair or
nothing, dog, no gunpowder or nothing.” Moreno told the CI he
took the barrel off the weapon, threw the barrel in the ocean, and
burned the rest of the weapon “to ash.”
4. The witness interviews
Based on Ramos’s Facebook posts and her son’s connection
with the Artesia 13 gang, in February 2016 Detectives Recchia
and O’Brien interviewed Artesia 13 gang members and
associates, including Evans, Roberts, Mello, and Ruiz.11 During
his February 2, 2016 interview, Evans initially denied he was
present when McEveety died. Later in the interview, Evans
identified Moreno as the person who shot and killed McEveety.
Evans also stated Ruiz told him “they took care of” McEveety’s
remains.
In his February 9, 2016 interview, Mello also initially
denied being present during McEveety’s death. But he later
admitted to being present after the detectives told him his DNA
was on the ice chest and he could be charged as an accessory to
11 The detectives interviewed Evans, Roberts, Mello, and Ruiz
while they were in custody on matters unrelated to McEveety’s
killing. Detective Recchia surreptitiously recorded the interviews
and used ruses to induce them to talk. Evans and Mello
responded to questions about the interviews during their
examination at trial. The prosecutor also played the audio
recording of Robert’s interview to the jury during Roberts’s
redirect examination.
11
McEveety’s murder. Mello told the detectives he saw Moreno
holding a rifle at the time McEveety was shot.
In his February 10, 2016 interview, Ruiz initially denied
knowing McEveety or witnessing her death. Detective O’Brien
told Ruiz eight or nine other people told him the same story and
if Ruiz said something different, Ruiz could become an accessory.
Ruiz continued to deny any involvement with McEveety’s death.
But when Detective O’Brien stated “the guy we arrested for this
is special needs,” Ruiz responded, “Hot Wheels?” Detective
O’Brien replied, “Yeah . . . . So I—I can’t lead you in a direction
here. That’s why I need you to be truthful with me.” Ruiz said,
“I don’t want them to think that I’m a, fucken, a rat or something
like that.”
Eventually Ruiz provided details of the incident. He stated
he had his back to McEveety, so he did not see anything, but he
heard “a little pellet gun” fire twice. After he heard the first
gunshot, he turned and told Moreno, who was pointing the gun at
McEveety, “Man, why do you gotta point that thing at people?”
He heard a second gunshot, and Moreno said, “Nobody run.”
Ruiz then followed Roberts out the door. Ruiz said Moreno was a
“wacko” and “wasn’t all there.” Ruiz denied he helped move
McEveety’s body. The large ice chest in the garage was used to
store drinks, and Ruiz sometimes would get a beer or soda from
the ice chest.
In his February 25, 2016 interview, Roberts initially denied
he was at the garage on the evening McEveety was killed or had
any role in moving McEveety’s body. Detective Recchia continue
to push Roberts to tell his side of the story to “clear [him]” of
responsibility for the killing. Roberts ultimately admitted he was
in the garage the night of the shooting. He was sitting across the
12
room when he heard a gunshot and saw McEveety looking
shocked and dazed. Then Roberts saw Moreno point the gun at
McEveety and fire a second gunshot. Roberts saw McEveety’s
head drop, and she was “fucken gone.” Roberts did not hear any
argument between Moreno and McEveety before the shooting,
but he speculated there was some tension between them because
Moreno tried to talk to her for a hook up, but she would “shine
him on.” Roberts described the gun as a small rifle.
5. Prosecution’s gang expert testimony
Los Angeles County Sheriff’s Detective Esteban Soliz, who
was assigned to the gang unit for eight and a half years, testified
as the prosecution’s gang expert. Detective Soliz described the
Artesia 13 gang as a primarily Hispanic gang with approximately
160 documented members, some of whom were not active.
Detective Soliz opined Moreno was a documented member of the
gang with the moniker “Sharkey,” based on his gang tattoos and
his admission of gang membership to Detective Soliz in a 2004
consensual street encounter.
Detective Soliz testified that within Hispanic gangs, a gang
member would be disciplined or killed if he commits a violent
crime against a woman without cause. An acceptable reason for
violence would be documentation the female was a snitch (an
informant). In the gang culture, “[i]f someone’s snitching, they
will be killed” The level of violence that is appropriate for a
female (or any gang member) who is documented to be a snitch is
determined by the person in charge, called the “llavero of [the]
gang.” For an Artesia 13 gang member to obtain approval to kill
or seriously injure a snitch, the member must substantiate with
documentation that the person was serving as an informant.
13
Detective Soliz explained, “So there is a vote in some ways in the
street level because the llavero can tell that person that found the
documentation, ‘no, you can’t’ or ‘you found it, you finish it.’”
This is in contrast to the Mexican Mafia that operates in state
prison, in which a gang member needs to obtain the unanimous
vote of the gang members in charge of the gang to kill a fellow
gang member.
Detective Soliz opined in response to a hypothetical based
on the facts of this case that the killing of McEveety was
committed at the direction of and for the benefit of the Artesia 13
street gang. Killing an informant working with law enforcement
benefited the gang. Further, the murder was in association with
the gang because the shooter was physically disabled and needed
the help of fellow gang members to dispose of the victim’s body.
Detective Soliz also opined the unlawful possession of a firearm
by the shooter was for the benefit of the gang.
On cross-examination, Detective Soliz opined if the
investigating officer did not find any documentation that the
victim was an informant, the murder would still be for the benefit
of the gang, but may not have been at the direction of the gang.
Detective Soliz explained, “If he didn’t have paperwork and didn’t
check with the person with the keys of the neighborhood or in
some way verify, he can [still] be doing it for the benefit of the
gang in some way. He can still be taking credit for the murder of
a rat or snitch. But then when the crime is completed he would
still need to show why he did it and have to deal with the
consequences . . . .” Assuming the gang member shot a woman
who was neither a snitch nor a gang member and no one else
knew in advance he would shoot her, the shooting was not done
at the direction of the gang.
14
Detective Soliz admitted that at the preliminary hearing he
incorrectly testified the Artesia 13 gang required the vote of 30 to
40 active gang members before a suspected snitch could be killed.
He testified about the need for approval of the llavero for the first
time at trial. Detective Soliz explained that at the preliminary
hearing he was confused and was thinking about the Mexican
Mafia when he testified about the required vote of the Artesia 13
gang. However, Detective Soliz admitted he “never handled a
case” where a snitch was killed by an Artesia 13 gang member
without there first being a vote.
C. The Defense Case
Martin Flores, who was on the Los Angeles Superior Court
gang expert panel, testified on behalf of Moreno. Flores stated
the sexual assault or killing of a woman who was not a gang
member or a snitch was not tolerated by Hispanic gangs and
would result in the gang member’s beating or death. Defense
counsel presented a hypothetical in which an active Artesia 13
gang member in a garage shoots a female who was not a gang
member and was not an informant, there was no paperwork
suggesting she was an informant, both gang and nongang
members were present, everyone was doing drugs, and the gang
members were caught by surprise by the shooting. Flores opined
that under those facts the crime was not committed for the
benefit of, at the direction of, or in association with the gang.
Flores explained, “Based on this hypothetical the individual is
not following anybody’s instructions, the individual is not
associating in the capacity to commit the act, and the act in itself
is not one that is warranted in gang culture.”
15
When defense counsel added to the hypothetical that a
gang member who was present was asked after the shooting if he
was proud of it and he responded, “‘Well I wouldn’t be,’” Flores
again opined on those facts the shooting was not committed for
the benefit of, at the direction of, or in association with the gang.
When asked to assume the shooter was “barking orders at the
other people” after the shooting and needed assistance because of
his disability, Flores stated this would not change his opinion
because “the individual is barking . . . [his] personal
instructions[,] not authorized gang instructions.”
D. The Verdicts and Sentences
The jury found Moreno guilty of the willful, deliberate, and
premediated first degree murder of McEveety (§ 187, subd. (a);
count 1). The jury also found true the special allegations Moreno
personally used and personally and intentionally discharged a
firearm causing McEveety’s death (§ 12022.53, subds. (b)-(d)).
The jury further found Moreno guilty of possession of a firearm
by a felon (§ 29800, subd. (a)(1); count 2).12 As to both counts, the
jury found true the special allegation the crimes were committed
for the benefit of, at the direction of, or in association with a
criminal street gang (§ 186.22, subd. (b)(1)(C)).
The trial court sentenced Moreno on count 1 to 25 years to
life for first degree murder plus 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d).13 On
12 The parties stipulated during the trial Moreno had suffered
a felony conviction in 2015.
13 The court also imposed a 10-year firearm enhancement
under 12022.53, subdivision (b), and a 20-year firearm
16
count 2, the court selected the middle term of two years for
possession of a firearm by a felon plus the middle term of three
years for the gang enhancement (§ 186.22, subd. (b)(1)(C)) for a
five-year determinate term to run concurrently with the sentence
on count 1.
The court imposed a $30 court facilities assessment (Gov.
Code, § 70373) and a $40 court operations assessment (Pen Code,
§ 1465.8, subd. (a)(1)) on each count. The court also imposed a
restitution fine of $300 (id., § 1202.4, subd. (b)) and imposed and
suspended a parole revocation restitution fine in the same
amount (id., § 1202.45). At sentencing, Moreno did not object to
imposition of the assessments and fines or raise his inability to
pay.
Moreno timely appealed.
DISCUSSION
A. Any Error in the Trial Court’s Failure To Provide a
Complete Instruction on Accomplice Testimony Was
Harmless
Moreno contends the trial court erred in failing to instruct
the jury on accomplice testimony with respect to conspirators
because there was evidence the witnesses in the garage, as
members of the Artesia 13 gang, would have voted to approve the
killing of McEveety, making them conspirators but not aiders and
enhancement under 12022.53, subdivision (c). But the court
stayed both enhancements pursuant to section 12022.53,
subdivision (f), because of its imposition of the firearm
enhancement under section 12022.53, subdivision (d).
17
abettors. Even if the trial court should have instructed the jury
on a broader definition of an accomplice, any error was harmless.
1. Jury instruction on accomplice testimony
During trial, defense counsel requested the trial court
instruct the jury on accomplice testimony with CALCRIM
No. 334. Defense counsel argued the jurors could believe the
witnesses were accomplices “because the gang expert Detective
Soliz had previously testified that Artesia 13 would all have to
agree to have a hit on a snitch. [¶] If the jurors believe his
previous testimony instead of his testimony here where he says
he made a mistake and wasn’t thinking of Artesia 13, these
people could be accomplices and in that case the law with respect
to how their testimony can be considered changes.” The People
opposed the trial court giving the instruction, arguing there was
no evidence to support prosecution of the witnesses in the garage
for the murder. Neither counsel addressed whether the
instruction should include coconspirators. The trial court
indicated it would rule after it had time to research the issue.
The trial court later instructed the jury with CALCRIM
No. 334 as modified, “Before you may consider the statement or
testimony of Christina Martin, Austen Evans, James Roberts,
Raul Ruiz and Dennis Mello as evidence against the defendant
regarding the crime of murder, you must decide whether
Christina Martin, Austen Evans, James Roberts, Raul Ruiz and
Dennis Mello were accomplices to that crime. [¶] A person is an
accomplice if he or she is subject to prosecution for the identical
crime charged against the defendant. Someone is subject to
prosecution if 1, he or she personally committed the crime; or 2,
he or she [] knew the criminal purpose of the person who
18
committed the crime; and 3[,] he or she intended to and did in
fact aid, facilitate, promote[,] encourage or instigate the
commission of the crime. [¶] The burden is on the defendant to
prove that it is more likely than not that Christina Martin,
Austen Evans, James Roberts, Raul Ruiz and Dennis Mello were
accomplices. [¶] A person may be an accomplice even if he or she
is not actually prosecuted for the crime. [¶] If you decide that a
declarant or witness was not an accomplice then supporting
evidence is not required and you must evaluate his or her
testimony—statement or testimony as you would that of any
other witness.” The trial court did not include in its instruction
the alternative language in CALCRIM No. 334 that a person may
be an accomplice if he or she “participate[s] in a criminal
conspiracy to commit the crime.”
The trial court continued, “If you decide that a declarant or
witness was an accomplice then you may not convict the
defendant of murder based on his or her statement or testimony
alone. You may use that statement or testimony of an accomplice
to convict the defendant only if, 1, the accomplice’s statement or
testimony is supported by other evidence that you believe; 2, that
supporting evidence is independent of the accomplice’s statement
or testimony; 3, the supporting evidence tends to connect the
defendant to the commission of the crime. [¶] Supporting
evidence, however, may be slight. It does not need to be enough
by itself to prove that the defendant is guilty of the charged
crime . . . . [¶] Any statement or testimony of an accomplice that
tends to incriminate the defendant should be viewed with
caution. [¶] You may not, however, arbitrarily disregard it. You
should give that statement or testimony the weight you think it
19
deserves after examining it with care and caution and in light of
all the other evidence.”
2. Governing law
“An accomplice is someone subject to prosecution for the
charged crimes by reason of aiding and abetting or being a
member of a conspiracy to commit the charged crimes.” (People v.
Houston (2012) 54 Cal.4th 1186, 1224; accord, People v.
Manibusan (2013) 58 Cal.4th 40, 93 [the definition of accomplice
“‘encompasses all principals to the crime [citation], including
aiders and abettors and coconspirators’”].) “‘“An accomplice must
have ‘“guilty knowledge and intent with regard to the commission
of the crime.”’”’” (Houston, at p. 1224; accord, People v. Lewis
(2001) 26 Cal.4th 334, 369.) “If there is evidence to permit a jury
to find by a preponderance of the evidence the witness was an
accomplice, ‘“the trial court must instruct the jury that the
witness’s testimony should be viewed with distrust.”’” (People v.
Hinton (2006) 37 Cal.4th 839, 879; accord, Lewis, at p. 369.)
“‘“But if the evidence is insufficient as a matter of law to support
a finding that a witness is an accomplice, the trial court may
make that determination and, in that situation, need not instruct
the jury on accomplice testimony.”’” (Hinton, at p. 879; accord,
Lewis, at p. 369.)
“[S]ection 1111 provides that an accomplice’s testimony
cannot support a conviction without corroboration by other
evidence ‘as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the
circumstances thereof.’” (People v. Hoyt (2020) 8 Cal.5th 892,
945; accord, People v. Gomez (2018) 6 Cal.5th 243, 307.) “A court
20
must instruct on the need for corroboration only for accomplice
testimony (§ 1111); ‘“‘testimony’ within the meaning of . . . section
1111 includes all oral statements made by an accomplice or
coconspirator under oath in a court proceeding and all out-of-
court statements of accomplices and coconspirators used as
substantive evidence of guilt which are made under suspect
circumstances.”’” (People v. Williams (1997) 16 Cal.4th 635, 682;
accord, Hoyt, at p. 946.) “‘“The most obvious suspect
circumstances occur when the accomplice has been arrested or is
questioned by the police.”’” (Hoyt, at p. 946; accord, People v.
Williams (1997) 16 Cal.4th 153, 245.)
“In order for the jury to rely on an accomplice’s testimony,
‘“[t]he corroborating evidence may be circumstantial or slight and
entitled to little consideration when standing alone, and it must
tend to implicate the defendant by relating to an act that is an
element of the crime. The corroborating evidence need not by
itself establish every element of the crime, but it must, without
aid from the accomplice’s testimony, tend to connect the
defendant with the crime.”’” (People v. Gomez, supra, 6 Cal.5th at
p. 308; accord, People v. Abilez (2007) 41 Cal.4th 472, 505.) “‘“The
entire conduct of the parties, their relationship, acts, and conduct
may be taken into consideration by the trier of fact in
determining the sufficiency of the corroboration.” [Citations.]
The evidence “need not independently establish the identity of
the victim’s assailant” [citation], nor corroborate every fact to
which the accomplice testifies [citation], and “‘may be
circumstantial or slight and entitled to little consideration when
standing alone.’”’” (People v. Beck and Cruz (2019) 8 Cal.5th 548,
628; accord, People v. Romero and Self (2015) 62 Cal.4th 1, 32.)
21
3. Even if the trial court erred in failing to include
conspirators as accomplices in the jury instruction,
any error was harmless
Moreno points to Detective Soliz’s preliminary hearing
testimony that before an Artesia 13 gang member could kill a
snitch, the member needed the vote of 30 to 40 active gang
members to approve the killing. Although Detective Soliz
clarified at trial he was confused when he offered this testimony
and was thinking of the Mexican Mafia, he admitted he had
never handled a case where a snitch was killed by an Artesia 13
gang member without there first being a vote. On this basis
Moreno claims witnesses Evans, Mello, Roberts, and Ruiz14 were
conspirators to the murder because as fellow Artesia 13 gang
members they would have voted to approve Moreno using a gun
to kill McEveety for being a snitch.
Detective Soliz’s testimony that there needed to be an
Artesia 13 gang vote before Moreno could kill McEveety would
have been thin evidence to support the prosecution of Evans,
Mello, Roberts, and Ruiz as conspirators in the murder of
McEveety and Moreno’s possession of a firearm given the lack of
any evidence to tie them to a vote, their denial of knowledge
Moreno was going to kill McEveety, and Moreno’s statements to
14 Moreno acknowledges there was conflicting evidence as to
whether Ruiz was a gang member or associate. Ruiz told the
detectives he was not an Artesia 13 gang member, but Mello
testified Ruiz was a member. At trial Detectives Recchia and
Soliz both thought Ruiz was an associate. However, Detective
Recchia opined at the preliminary hearing that Ruiz was a gang
member.
22
the CI that he “took action on [his] own” and “the homies didn’t
know” that McEveety was an informant.
But even if the trial court erred by failing to instruct the
jury that the accomplice testimony instruction applied to
conspirators, the error was harmless because there was sufficient
evidence to corroborate the witnesses’ testimony. (People v.
Anderson (2018) 5 Cal.5th 372, 411 [error in failing to instruct as
to need for corroboration of accomplice testimony “‘is harmless if
the record contains “sufficient corroborating evidence”’”]; People
v. Valdez (2012) 55 Cal.4th 82, 147 [“A trial court’s error in
instructing on accomplice liability under section 1111 is harmless
if the record contains ‘sufficient corroborating evidence.’”]; People
v. Manibusan, supra, 58 Cal.4th at p. 95 [same].) Moreno’s
admission to the CI that he shot McEveety “twice in the dome”
and killed her was sufficient independent corroboration of the
testimony of Evans, Roberts, Mello, and Ruiz. (See People v.
Whalen (2013) 56 Cal.4th 1, 56 [defendant’s statement he “was
expecting to get picked up sooner or later” connected him to
robbery and murder and “was sufficient independent
corroboration” of accomplice testimony]; People v. Davis (2005)
36 Cal.4th 510, 546 [defendant’s recorded comments linking him
to murder, robbery, and kidnapping provided sufficient
corroboration under § 1111]; People v. Brown (2003) 31 Cal.4th
518, 556 [defendant’s statements that he killed the victim and
took her truck corroborated accomplice’s out-of-court statements];
People v. Williams, supra, 16 Cal.4th at pp. 659, 680 [defendant’s
admission he was present at the murder scene provided
corroboration for the accomplice testimony].)
Moreno argues his admission to the CI did not provide
sufficient corroboration because the jurors asked for readback of
23
Roberts’s testimony about Moreno’s relationship with McEveety,
suggesting they disbelieved Moreno’s statement to the CI that he
killed McEveety because she was a snitch. Moreno also argues
he lied to the CI about seeing paperwork showing McEveety was
an informant, that McEveety was a former prostitute, and that
he burned the gun “to ash.” Thus, Moreno argues, the jury could
have believed he fabricated the entire confession. Maybe so. But
Moreno’s confession, especially given his specificity in saying he
shot McEveety twice in the head, provided sufficient independent
corroboration of the witness testimony. On these facts, any error
was harmless. (People v. Anderson, supra, 5 Cal.5th at p. 411;
People v. Valdez, supra, 55 Cal.4th at p. 147.)
B. Moreno Forfeited His Challenges to the Trial Court’s
Exclusion of a Portion of Flores’s Testimony and the Court’s
Subsequent Admonition
1. The trial court’s rulings and witness admonition
At trial, defense counsel asked Flores to respond to the
following hypothetical: “So assume a male with Artesia tattoos is
in a garage, he shoots a female, the female is not a gang member,
the female is not a snitch, there’s no paperwork that backs up the
person was a snitch, and the shooting is committed in the
presence of gang members and non Arta gang members, and
everybody in the room is using drugs. Do you have an opinion as
to whether or not a crime such as that would have been
committed for the benefit of the gang?” Flores answered, “Well,
based on the hypothetical my opinion would be that that was a
spontaneous act, an unplanned act, an unauthorized act for the
fact that there [were] non gang members in the room. Factors
that—.”
24
The trial court interrupted, “I’m going to stop him. I’m
going to ask counsel to approach the bench.” At sidebar outside
the presence of the jury, the court explained, “This goes too
closely on the specific intent question. I think your question was
fine, but the answer was not fine, and I’m concerned about that.”
Defense counsel replied, “I didn’t know.” The court stated, “I
don’t think counsel was asking for that, but he does this. I’m
going to strike his answer and you can ask it again.” In open
court, the trial court struck Flores’s answer and instructed the
jury to not consider it for any purpose.
Defense counsel asked the hypothetical again and elicited
Flores’s opinions the shooting was not committed for the benefit
of, at the direction of, or in association with the gang. Then
defense counsel added to the hypothetical that there was no
readily available getaway car and asked whether that would
change Flores’s opinion. Flores answered, “Again, it does not
change my opinion because it furthers my opinion that this was
an unplanned act. It further[s] my opinion—.” The court again
interrupted and struck Flores’s answer as nonresponsive.
On the second day of Flores’s testimony, the court
addressed Flores before he took the stand (outside the presence of
the jury): “Mr. Flores the court wants to admonish you that as an
expert witness you may not testify to the ultimate facts for which
the jury is sworn to decide. You know that. And I am
admonishing you that if you venture once again into that
territory then the court will recommend to the experts committee
that you no longer be on a panel of experts. This court is on the
experts committee, knows how experts are selected and vetted for
our list and I want to make that clear to you. Do you
understand?” Flores responded, “Yes. Can you be clear about
25
what—what part I’m missing?” The court answered, “You tried
to testify Mr. [Moreno] couldn’t form the intent. You know that.
You’ve been an expert for a number of years. If you don’t know
the parameters you shouldn’t be on the expert list.” Flores
replied, “I’m fully aware.” The court added, “I’m not going to put
up with it. . . . I don’t appreciate this act either, by the way, and I
understand you want clarification but you know what? If you’d
listen carefully to [defense counsel’s] questions she’s asking you
very specific things and I want the record to reflect [defense
counsel] has not tried to solicit inappropriate information. I
think you just continued to expand and expand and whatever
avenue you think is beneficial to your position, and I don’t
appreciate it and I’m not going to have it. So I think I made
myself clear.”
Following the trial court’s admonition, defense counsel
posed another hypothetical based on the facts of the shooting and
asked Flores whether the crimes were committed for the benefit
of, at the direction of, or in association with the gang. Flores
answered that they were not. Flores added that the shooting was
not done in association with the gang because the “hypothetical
indicates that the people in the room were all caught by
surprise.”
2. Governing law
“California law authorizes qualified experts to offer opinion
testimony if the subject matter is ‘sufficiently beyond common
experience’ such that the expert’s opinion ‘would assist the trier
of fact.’ (Evid. Code, § 801, subd. (a).) In general, ‘“[t]he subject
matter of the culture and habits of criminal street gangs . . .
meets this criterion.”’” (People v. Flores (2020) 9 Cal.5th 371,
26
398; accord, People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang).)
“An expert opinion may be rendered in the form of responses to
hypothetical questions that ask the expert to assume the truth of
certain facts rooted in the evidence.” (Flores, at p. 398; accord,
Vang, at p. 1045.) “But ‘the expert’s opinion may not be based
“on assumptions of fact without evidentiary support [citation], or
on speculative or conjectural factors . . . .”’” (Flores, at p. 398;
accord, Vang, at p. 1046 [“‘“Exclusion of expert opinions that rest
on guess, surmise or conjecture [citation] is an inherent corollary
to the foundational predicate for admission of the expert
testimony: will the testimony assist the trier of fact to evaluate
the issues it must decide?”’”].) We review the trial court’s
decision to admit or exclude expert testimony for an abuse of
discretion. (Flores, at p. 397; People v. Lindberg (2008)
45 Cal.4th 1, 45; People v. Gana (2015) 236 Cal.App.4th 598,
612.)
3. Moreno forfeited his claims of error
Moreno contends the trial court erred in striking Flores’s
responses that the shooting was a spontaneous, unplanned, and
unauthorized act because the opinion was in response to a
hypothetical question. Moreno is correct that Flores did not
improperly testify as to Moreno’s specific intent, instead
explaining that “[b]ased on the hypothetical” his opinion was that
the shooting was a spontaneous, unplanned, and unauthorized
act. (See Vang, supra, 52 Cal.4th at p. 1048 [“‘Testimony in the
form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be
decided by the trier of fact.’”]; People v. Perez (2017)
18 Cal.App.5th 598, 607 [“While a gang expert is prohibited from
27
opining on a defendant’s specific intent when committing a crime,
the prosecution can ask hypothetical questions based on the
evidence presented to the jury whether the alleged crime was
committed to benefit a gang and whether the hypothetical
perpetrator harbored the requisite specific intent.”].)
However, we do not reach whether the trial court abused
its discretion in excluding Flores’s testimony and then
admonishing him because Moreno forfeited his claim of error by
failing to object. (Evid. Code, § 353, subd. (a); People v. Cage
(2015) 62 Cal.4th 256, 282 [“Defendant forfeited his claims by
failing to object to any of the testimony on the grounds he now
raises.”]; People v. Fuiava (2012) 53 Cal.4th 622, 721 [“‘“In
accordance with [section 353 of the Evidence Code], we have
consistently held that the ‘defendant’s failure to make a timely
and specific objection’ on the ground asserted on appeal makes
that ground not cognizable.”’”].) The first time the trial court
struck Flores’s response for too closely addressing Moreno’s
specific intent, defense counsel only responded outside the
presence of the jury, “I didn’t know.” The second time the court
struck Flores’s response, defense counsel was silent. Defense
counsel likewise did not object when the trial court admonished
Flores, even though it was done outside the presence of the jury.
To the extent Moreno argues the trial court’s admonition
chilled Flores’s testimony in violation of Moreno’s Sixth
Amendment rights to present a defense, compulsory process, and
due process, we agree the admonition was improper, but Moreno
fails to show the admonition hampered Moreno’s defense in
violation of the Sixth Amendment. The tenor of the trial court’s
admonition was inappropriately harsh (especially given that it
was based on an incorrect premise) and did not comport with the
28
obligation of a judge to “be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers, and others with whom the
judge deals in an official capacity . . . .” (Cal. Code of Jud. Ethics,
canon 3B(4).) Although a judge may properly admonish a witness
who has strayed from limitations the judge placed on the
witness’s testimony, the judge should never threaten a witness
with a nonjudicial penalty, such as removing him or her from an
expert panel (thereby threatening the expert’s livelihood), as the
judge did here. However, the record does not reflect that Flores
was intimidated by the judge’s admonition in responding to
defense counsel’s additional hypothetical. Indeed, as to defense
counsel’s third hypothetical based on the facts of this case, Flores
again testified the shooting was not for the benefit of, at the
direction of, or in association with a gang. Although the trial
court struck Flores’s response that the shooting was
“spontaneous,” the court allowed Flores to testify based on the
hypothetical that “the people in the room were all caught by
surprise.”
The admonition at issue here is dramatically different from
the intimidation at issue in In re Martin (1987) 44 Cal.3d 1,
30-32, relied on by Moreno. There, the California Supreme Court
found a violation of the Sixth Amendment and the California
Constitution where a defense witness was arrested as an
accessory to murder in front of prospective defense witnesses
immediately after his trial testimony, and as a result other
defense witnesses refused to give substantive testimony out of
fear of prosecutorial retaliation. (In re Martin, at pp. 33-34.)
Moreno’s reliance on People v. Hill (1998) 17 Cal.4th 800, 835,
People v. Schroeder (1991) 227 Cal.App.3d 784, 789, 793, and
Webb v. Texas (1972) 409 U.S. 95, 97-98 is similarly misplaced.
29
In Hill, the prosecutor improperly threatened a defense witness
“in advance of trial with a perjury prosecution.” (Hill, at p. 835
[“Threatening a defense witness with a perjury prosecution also
constitutes prosecutorial misconduct that violates a defendant’s
constitutional rights.”].) Similarly, in Webb, the United States
Supreme Court held the trial court’s “threatening remarks,
directed only at the single witness for the defense, effectively
drove that witness off the stand, and thus deprived [the
defendant] of due process of law” where “the judge implied that
he expected [the witness] to lie, and went on to assure him that if
he lied, he would be prosecuted and probably convicted for
perjury, that the sentence for that conviction would be added on
to his present sentence, and that the result would be to impair
his chances for parole.” (Webb, at p. 97-98.) In Schroeder, the
trial court improperly dissuaded the defense witness from
testifying “[b]y its frequent interruptions, admonishments and
questions” concerning her privilege against self-incrimination,
making it clear to the witness that the court disagreed with her
decision to testify. (Schroeder, at p. 793.)
C. The Trial Court Did Not Abuse Its Discretion in Providing
Readback of Testimony Requested by the Jury
1. Readback of Roberts’s testimony
During jury deliberations, the jury sent a note requesting
readback of Roberts’s trial testimony. The jury wrote,
“Requesting transcript of James Roberts[’s] direct examination by
prosecution. Looking for testimony related to defendant wanting
relationship [with] victim and what the relationship was between
James Roberts and the victim.” The trial court informed the
parties of the request and noted “[t]he jurors were quite specific.”
30
Defense counsel responded, “That’s true, your Honor. However I
think there is more discussion that came in through his audio
that explains the relationship between him and the victim and
the statements that he made regarding [Moreno] wanting a
relationship with the victim. That was in the audio portion
played to them. They have that back there but I don’t know how
the court wants to address that at all.”
The court proposed giving the jurors “what is responsive to
their request” and any exhibit on which the parties agreed. The
prosecutor responded, “Well, I don’t want to infringe upon the
jurors. Your honor, I think this is exactly in line with what they
requested and we’ll see if they need more[,] they can ask for
more.” Defense counsel replied, “I mean, I agree. This is what is
responsive but I don’t think it answers the question that they’re
asking because that’s all in his audio recorded statement that
was played.” In response, the court stated, “I guess what we can
do[,] say this is what is responsive and let them ask another
question. To me that’s the safest.”
After the court reporter read back Roberts’s testimony, the
trial court told the jury, “That’s all the testimony that [relates] to
the issues you addressed in your note. So I’m going to send you
back to deliberate. If there is something further you think the
court can do to assist you just write us a note like you did and
we’ll try to do our best to get the information for you.”
31
2. Governing law
“Section 1138 gives deliberating jurors the right to rehear
testimony and instruction on request.”15 (People v. Solomon
(2010) 49 Cal.4th 792, 824; accord, People v. Gurule (2002)
28 Cal.4th 557, 649.) “Section 1138 ‘does not forbid giving the
jury more than it requests so [that] it also receives the context’ of
the testimony.” (People v. Robinson (2005) 37 Cal.4th 592, 635;
accord, People v. Hillhouse (2002) 27 Cal.4th 469, 506.) However,
the trial court “does not have to order read any part of the
testimony not requested by the jury foreman.” (People v. Gordon
(1963) 222 Cal.App.2d 687, 689; see People v. Ayala (2000)
23 Cal.4th 225, 289 [where jury requested readback but stopped
the readback because it had heard enough before reaching a
verdict, “defendant could not have compelled the trial court to
order the jury to continue to listen to the rereading of
testimony”].) The trial court’s response to the jury’s request to
rehear testimony is reviewed for an abuse of discretion. (People
v. Cox (2003) 30 Cal.4th 916, 968, disapproved on another ground
in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Gurule, at
p. 649.) “[A] violation of section 1138 ordinarily will not result in
reversal of a conviction unless prejudice is shown . . . .”
(Robinson, at p. 635.)
15 Section 1138 provides, “After the jury have retired for
deliberation, if there be any disagreement between them as to the
testimony, or if they desire to be informed on any point of law
arising in the case, they must require the officer to conduct them
into court. Upon being brought into court, the information
required must be given in the presence of, or after notice to, the
prosecuting attorney, and the defendant or his counsel, or after
they have been called.”
32
3. The trial court did not abuse its discretion
Moreno contends the trial court abused its discretion in
failing to provide to the jury in response to its request for
readback of Roberts’s testimony a transcript (or playback) of
Roberts’s recorded police interview in which he discussed
Moreno’s desire for a relationship with McEveety and Roberts’s
relationship with McEveety. The trial court did not abuse its
discretion.
As noted by the trial court, the jury requested readback of
the “transcript of James Roberts[’s] direct examination by
prosecution.”16 The jury did not request a playback of Roberts’s
recorded police interview (or to review a transcript of the
interview), nor did it request readback of testimony from
Roberts’s redirect examination, in which the prosecutor played
the audio recording. Further, the trial court informed the jury
after the readback, “If there is something further you think the
court can do to assist you just write us a note like you did and
16 Moreno’s reliance on People v. Triplett (2020)
48 Cal.App.5th 655 is misplaced. In Triplett, during
deliberations the jury requested “transcripts” of two witnesses,
which request the court denied without informing the jury it
could have readback of the testimony. (Id. at pp. 659-660.) The
Court of Appeal concluded this was error, explaining the trial
court “erred in construing the jury’s request narrowly as a
request for transcripts—not a request for a readback of
testimony—and in failing to inform or remind the jury of their
right to a readback of testimony.” (Id. at p. 662.) Here, the trial
court properly construed the jury’s request for a “transcript of
James Roberts[’s] direct examination by prosecution” as a request
for readback of Roberts’s trial testimony.
33
we’ll try to do our best to get the information for you.” The jury
did not request anything further. As the court explained People
v. Gordon, supra, 222 Cal.App.2d at page 689, “Had [the jurors]
wanted further testimony read to them, or other further
clarification, they certainly would have so requested. If the
testimony actually read to them did not contain the matters they
wished to hear, they surely would have said so.” Moreover, the
jury here was provided with the audio recording of Roberts’s
interview, admitted as a trial exhibit, along with a laptop to play
the recording.17
D. The Trial Court Did Not Abuse Its Discretion in Overruling
Moreno’s Evidentiary Objections
1. Detective O’Brien’s statements to Roberts describing
Moreno
During Roberts’s February 25, 2016 interview, Detective
O’Brien stated as to Moreno, “Everybody tells us that this guy
is—how do I put it? I’m not saying crazy. He’s not crazy. He
knows exactly what he’s doing.” Roberts responded, “Uh-huh.”
17 Moreno contends the court did not provide a laptop to the
jury for it to play the audiotape, pointing to the prosecutor’s
closing argument in which he stated: “[K]eep in mind the audio is
the evidence. [I]f you need headphones or playback you have that
option available”; and “if you need playback of the audio be very
precise what you are trying to listen to because that’s going to
take time to present to you.” However, following counsel’s closing
arguments, the trial court instructed the prosecutor to provide a
laptop, stating, “People to provide a clean laptop so [the jurors]
can listen to the recordings.” There is nothing in the record to
suggest the jury did not have a laptop in the jury room to use to
play the taped interview.
34
Detective O’Brien then said, “But he’s—tries to be intimidating.
Let me put it that way. Does that make sense to you?” Roberts
replied, “Right.”
The trial court overruled Moreno’s objection to Detective
O’Brien’s statements that Moreno was “not crazy” and knew
“exactly what he’s doing.” Notwithstanding the ruling, Moreno
acknowledges the prosecutor excised Detective O’Brien’s
challenged statements from the audio recording before playing it
to the jury. Although the jury was provided with the transcript of
the Roberts interview, which included Detective O’Brien’s
statements, the trial court instructed the jury that the transcript
was not evidence: “Ladies and gentlemen, I am admonishing you
that the transcript is being provided to you to assist you.
However, the actual evidence is the recorded voices on the CD.
So if you believe there is a difference between the voices on the
CD and the transcript, you must follow the recorded voices
because that is evidence.”
Moreno contends the trial court erred in overruling his
evidentiary objection because Detective O’Brien did not have
personal knowledge of Moreno’s mental state. Moreno
alternatively argues even if Detective O’Brien’s statement was
admissible, the statement should have been excluded because its
probative value was substantially outweighed by the risk of
undue prejudice because the statement that Moreno “knows
exactly what he’s doing” supported the People’s theory the
shooting was premediated. (Evid. Code, § 352.) The trial court
did not abuse its discretion.
“A lay witness generally may not give an opinion about
another person’s state of mind, but may testify about objective
behavior and describe behavior as being consistent with a state of
35
mind.” (People v. Sanchez (2016) 63 Cal.4th 411, 456; People v.
Chatman (2006) 38 Cal.4th 344, 397.) Moreno fails to show how
Detective O’Brien’s statements during the interview constituted
an improper lay opinion about Moreno’s mental state. Rather,
the statement was made as part of an interview technique to
encourage Roberts to talk about Moreno’s involvement in the
murder.
Moreover, any error in admitting Detective O’Brien’s
statements was harmless. We review the erroneous admission of
evidence under the harmless error standard of People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson). (People v. DeHoyos (2013)
57 Cal.4th 79, 118; People v. Fuiava (2012) 53 Cal.4th 622, 671.)
Under Watson, “‘[t]he reviewing court must ask whether it is
reasonably probable the verdict would have been more favorable
to the defendant absent the error.’” (People v. Watson (2008)
43 Cal.4th 652, 686; accord, People v. Partida (2005) 37 Cal.4th
428, 439.) The prosecutor excised the statements from the audio
recording played to the jury. Even though the transcript of the
Roberts interview included Detective O’Brien’s statements, the
trial court properly instructed the jury to consider only the
recorded voices on the audiotape as evidence. “We presume the
jury followed the trial court’s instruction absent evidence to the
contrary.” (People v. Fayed (2020) 9 Cal.5th 147, 192; accord,
People v. Flores (2020) 9 Cal.5th 371, 405.) It is therefore not
reasonably probable the verdict would have been more favorable
to Moreno absent admission of the evidence. (DeHoyos, at p. 118;
Watson, at p. 686; see Evid. Code, § 353, subd. (b).)
36
2. Moreno’s statements to the CI about killing witnesses
During trial, Moreno objected to the admission of two
statements he made indicating he should have killed the
witnesses who left the garage after the shooting. Moreno told the
CI, “I should’ve just handled all of them, right—right when they
walked out the door, I’m plugging them, pop, pop, pop.” Moreno
later added, “I should have smoked everybody, fool.” The
prosecutor responded, “[Moreno] said he wishes there were no
witnesses that were in the garage that he left alive, and that he
should have killed everyone present in the garage at the time.
[¶] I’d argue it’s directly relevant and goes to his consciousness of
guilt.” The trial court overruled Moreno’s objections,
acknowledging its obligation to perform a balancing of the factors
under Evidence Code section 352.
Moreno contends his statements were inadmissible under
Evidence Code section 1101, subdivision (a), because their sole
relevance was to show his propensity to commit violent crimes.
Evidence Code section 1101, subdivision (a), provides, with
exceptions not applicable here, “[E]vidence of a person’s character
or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances
of his or her conduct) is inadmissible when offered to prove his or
her conduct on a specified occasion.” Moreno’s statements that he
should have killed the witnesses to the shooting were admitted to
show consciousness of guilt, not as character evidence. (See
People v. Anderson, supra, 5 Cal.5th at p. 391 [“Evidence showing
consciousness of guilt . . . is generally admissible within the trial
court’s discretion.”]; People v. Jones (2017) 3 Cal.5th 583, 604,
606-607, 609-610 [trial court did not abuse its discretion in
admitting taped conversation in which defendant in custody told
37
his brother he needed a district attorney “hit” and wanted a
transcript of proceedings (arguably to intimidate witnesses), and
brother said he had given away two pistols (arguably linked to
murder), to show consciousness of guilt].)
Further, the trial court did not abuse its discretion in
declining to exclude the statements under Evidence Code section
352 because the statements’ probative value was not
substantially outweighed by undue prejudice. “‘‘The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ (Evid. Code, § 352.)” (People v. Hardy
(2018) 5 Cal.5th 56, 87; accord, People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 405-407.) “‘[T]he prejudice which
exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence. “[A]ll
evidence which tends to prove guilt is prejudicial or damaging to
the defendant’s case. The stronger the evidence, the more it is
‘prejudicial.’ The ‘prejudice’ referred to in Evidence Code section
352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which
has very little effect on the issues. In applying section 352,
‘prejudicial’ is not synonymous with ‘damaging.’”’” (People v.
Jones, supra, 3 Cal.5th at p. 610; accord, People v. Bell (2019)
7 Cal.5th 70, 105 [“‘“‘Evidence is not prejudicial, as that term is
used in a [Evidence Code] section 352 context, merely because it
undermines the opponent’s position or shores up that of the
proponent.’”’”].) “‘[T]he trial court is vested with wide discretion
38
in determining relevance and in weighing the prejudicial effect of
proffered evidence against its probative value. Its rulings will
not be overturned on appeal absent an abuse of that discretion.’”
(Hardy, at p. 87; accord, Bell, at p. 71.)
The evidence that Moreno wished he had concealed his
crime by killing the witnesses is harmful to Moreno precisely
because it is relevant to Moreno’s guilt, not because it is designed
to evoke an emotional reaction in the jury. Thus, the trial court
did not abuse its discretion in overruling Moreno’s objection to
admission of the statements under Evidence Code section 352.18
E. The Trial Court’s Instructional Error on the “Primary
Activities” Element of the Gang Enhancement Was
Harmless
1. Governing law
“[Section 186.22,] subdivision (b)(1) enhances the sentence
for any ‘felony committed for the benefit of . . . any criminal street
gang.’ The definition of a criminal street gang in section 186.22,
subdivision (f) requires that the gang have ‘as one of its primary
activities’ the commission of one or more of the criminal acts
enumerated in subdivision (e). Evidence of both past offenses
18 Moreno contends the trial court’s errors were cumulatively
prejudicial. Because we reject Moreno’s claims of error or find
any error was harmless, there was no cumulative prejudice.
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 672 [jury
instruction error and three assumed errors were “not prejudicial
when considered cumulatively”]; People v. Powell (2018) 6 Cal.5th
136, 194 [no cumulative prejudice where “[a]ny errors, actual or
arguable, were minor”]; People v. Edwards (2013) 57 Cal.4th 658,
746 [no cumulative prejudice because there was no error, or if
assuming error, there was no prejudice].)
39
and the currently charged offenses may be considered in
determining whether one of the primary activities of the gang is
committing one or more of the offenses enumerated in the
statute.” (People v. Nguyen (2015) 61 Cal.4th 1015, 1068; accord,
People v. Sengpadychith (2001) 26 Cal.4th 316, 323
(Sengpadychith) [“The phrase ‘primary activities,’ as used in the
gang statute, implies that the commission of one or more of the
statutorily enumerated crimes is one of the group’s ‘chief’ or
‘principal’ occupations.”].) “‘Sufficient proof of the gang’s primary
activities might consist of evidence that the group’s members
consistently and repeatedly have committed criminal activity
listed in the gang statute. Also sufficient might be expert
testimony . . . .’ ” (Nguyen, at p. 1068, quoting Sengpadychith, at
p. 324.)
Under section 186.22, subdivision (e), the enumerated
crimes include: “(1) Assault with a deadly weapon or by means
likely to produce great bodily injury as defined in Section 245”;
“(3) Unlawful homicide or manslaughter as defined in Chapter 1
(commencing with Section 187) of Title 8”; “(9) Grand theft, as
defined in in subdivision (a) or (c) of Section 487”; “(10) Grand
theft of any firearm, vehicle, trailer or vessel”; “(19) “Felony
extortion, as defined in Sections 518 and 520”; and “(25) Theft
and unlawful taking or driving of a vehicle, as defined in Section
10851 of the Vehicle Code.”
For felonies punishable by a determinate term of
imprisonment (here, the firearm possession charge), a trial
court’s error in instructing on an element of the gang
enhancement is federal constitutional error reviewable under the
harmless error standard of Chapman v. California (1967)
386 U.S. 18, 24 (Chapman) because the gang enhancement
40
increases the punishment for the offense. (Sengpadychith, supra,
26 Cal.4th at p. 320.) Under Chapman, reversal is required
“unless it can be shown ‘beyond a reasonable doubt’ that the error
did not contribute to the jury’s verdict.” (Sengpadychith, at
p. 326; accord, People v. Lamas (2007) 42 Cal.4th 516, 526; see
Chapman, at p. 24.)
For felonies punishable by a life sentence where the gang
enhancement does not increase the mandatory minimum term
the defendant must serve (here, the murder charge), instructional
error on an element of the gang enhancement is only a violation
of California law, which we review under the harmless error
standard in Watson, supra, 46 Cal.2d at page 836. (People v.
Nunez and Satele (2013) 57 Cal.4th 1, 39 & fn. 6 [applying
Watson harmless error standard because gang enhancement did
not increase minimum term of 25 years in prison for first degree
murder]; Sengpadychith, supra, 26 Cal.4th at pp. 320-321.)
Under Watson, we assess whether it is reasonably probable that a
result more favorable to the defendant would have been reached
had the jury been correctly instructed. (Nunez and Satele, at
p. 39; see Watson, at p. 836.)
2. The gang testimony and jury instruction
Detective Soliz testified, “The [gang’s] primary activities
goes from the misdemeanor cases to petty theft, assault, to grand
theft, vehicle thefts, attempted murders, murder. I’ve handled
cases where we actually had an Artesia gang member for
extortion and assault on a peace officer.” Further, Detective Soliz
testified about two predicates acts: (1) an Artesia 13 gang
member was convicted of an October 2009 assault with a deadly
weapon; and (2) another Artesia 13 gang member was convicted
41
of an August 2009 assault with a semiautomatic firearm. On
cross-examination, Detective Soliz testified that in 2012 he
suspected the Artesia 13 gang committed three murders, but he
“couldn’t prove it.” In 2013 there were six suspected gang-related
murders; in 2014 there was one; and in 2018 there were four.
However, Detective Soliz testified that since 2012 Artesia 13
gang members committed 60 to 70 attempted murders or assaults
with a deadly weapon. Car thefts “fluctuat[ed] between 60 to 100
through the years.” Detective Soliz was unable to give a precise
number for petty and grand thefts because thefts were
“almost . . . everyday action[s].”
The trial court instructed the jury with CALCRIM
No. 1401, as modified, which stated, “In order to qualify as a
primary activity, the crime must be one of the group’s chief or
principal activities rather than an occasional act committed by
one or more persons who happen to be members of the group. [¶]
A pattern of criminal gang activity, as used here, means: [¶]
1. The commission or conviction of any combination of two or
more of the following crimes: theft, vehicle theft, extortion,
assault, attempted murder and murder; [¶] 2. At least one of
those crimes was committed after September 26, 1988; [¶] 3.
The most recent crime occurred within three years of one of the
earlier crimes; and [¶] 4. The crimes were committed on
separate occasions or were personally committed by two or more
persons. [¶] . . . [¶] If you find the defendant guilty of a crime
in this case you may consider that crime in deciding whether one
of the group’s primary activities was commission of that crime,
and whether a pattern of criminal gang activity has been proved.”
42
3. The instructional error was harmless
Moreno contends, the People concede, and we agree the
trial court’s jury instruction on the “primary activities” element
was erroneous.19 The jury instruction failed to specify a
qualifying assault must be with a deadly weapon or by means
likely to produce great bodily injury (§ 186.22, subd. (e)(1)), and a
qualifying theft must be grand theft or theft of a firearm, trailer,
or vehicle (§ 186.22, subds. (e)(9), (e)(10) & (e)(25)).
However, the instructional error was harmless beyond a
reasonable doubt.20 (Sengpadychith, supra, 26 Cal.4th at p. 327;
19 The People argue Moreno forfeited his claim of error
because his attorney consented to the jury instruction on the
primary activities element. But we review any claim of
instructional error that affects a defendant’s substantial rights
whether or not trial counsel objected. (§ 1259 [“The appellate
court may also review any instruction given . . . even though no
objection was made thereto in the lower court, if the substantial
rights of the defendant were affected thereby.”]; People v. Burton
(2018) 29 Cal.App.5th 917, 923 [“‘Failure to object to instructional
error forfeits the issue on appeal unless the error affects
defendant’s substantial rights.’”]; People v. Bedolla (2018)
28 Cal.App.5th 535, 544 [same].) Of course, “[w]e can only
determine if [a] defendant[’s] substantial rights were affected by
deciding whether the instruction was given in error and, if so,
whether the error was prejudicial.” (People v. Medina (2019)
33 Cal.App.5th 146, 154, fn. 7.) That is, if Moreno’s claim has
merit, it has not been forfeited. We therefore necessarily review
the merits of his contention there was instructional error.
20 Because the Chapman harmless error standard under
Chapman, supra, 386 U.S. at page 24 applies to count 2 for
possession of a firearm by a felon, we apply this more stringent
standard for our analysis.
43
Lamas, supra, 42 Cal.4th at p. 526; see Chapman, supra,
386 U.S. at p. 24.) Detective Soliz testified about two predicates
acts of assault with a deadly weapon and assault with a firearm
in 2009, both qualifying offenses under section 186.22,
subdivision (e)(1). Further, Detective Soliz testified gang
members committed 60 to 70 attempted murders and assaults
with a deadly weapon. Detective Soliz also testified gang
members committed between 60 to 100 car thefts, which are
qualifying offenses under section 186.22, subdivisions (e)(10) and
(e)(25). Detective Soliz’s testimony that gang members
consistently and repeatedly committed assaults with a deadly
weapon and car thefts was sufficient to prove the gang’s primary
activities. (See People v. Nguyen, supra, 61 Cal.4th at p. 1068
[gang expert’s testimony “that some of primary activities of the
Nip Family gang were ‘homicides, attempted homicides, assaults,
assault[s] with deadly weapons, home invasion robberies,
burglaries, auto theft, [and] narcotic sales’” was sufficient
evidence]; People v. Vy (2004) 122 Cal.App.4th 1209, 1226 [“proof
of the ‘primary activities’ element was satisfied through
testimony by a police gang expert” of gang’s “criminal actions
that constituted predicate crimes under the gang statute”].)
F. The Trial Court Did Not Err in Refusing to Stay the
Sentence for Possession of a Firearm by a Felon
1. Moreno’s request to stay the sentence on count 2
At sentencing, defense counsel argued the sentence for
count 2 should be stayed under section 654 because there was no
evidence Moreno possessed the firearm prior to or after the
murder. The trial court found section 654 did not apply,
explaining, “I understand the statement of law and the
44
arguments of counsel that obviously [section] 654 is a very fact-
driven decision. However, they do require different intents and
based upon that and the facts gleaned at trial, I don’t believe
[section] 654 applies. However, I will indicate that based upon
the facts of the trial although this was a heinous killing, a killing
for no reason, there was testimony about where the gun came
from, from one of the individuals at trial, it was sort of a gang
gun which is common that a particular gang possesses the gun
then it’s sort of moved around or it’s used in different crimes or
held in a gang location for purpose of committing crimes. [¶] So
given that that’s the only testimony the court does accept the
testimony. It also makes sense, given the other facts in the trial.”
2. Governing law
Section 654, subdivision (a), provides in part, “An act or
omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision.” “Whether a defendant may be subjected to multiple
punishment under section 654 requires a two-step inquiry,
because the statutory reference to an “act or omission” may
include not only a discrete physical act but also a course of
conduct encompassing several acts pursued with a single
objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311; accord,
People v. Kelly (2018) 28 Cal.App.5th 886, 904.) “We first
consider if the different crimes were completed by a ‘single
physical act.’” (Corpening, at p. 311; accord, People v. Jones
(2012) 54 Cal.4th 350, 358.) “If so, the defendant may not be
punished more than once for that act. Only if we conclude that
45
the case involves more than a single act—i.e., a course of
conduct—do we then consider whether that course of conduct
reflects a single ‘“intent and objective”’ or multiple intents and
objectives.” (Corpening, at p. 311; accord, Jones, at p. 359.)
“Whether a defendant will be found to have committed a single
physical act for purposes of section 654 depends on whether some
action the defendant is charged with having taken separately
completes the actus reus for each of the relevant criminal
offenses.” (Corpening, at p. 313.)
“Whether multiple convictions are based upon a single act
is determined by examining the facts of the case.” (People v.
Mesa (2012) 54 Cal.4th 191, 196; accord, People v. Corpening,
supra, 2 Cal.5th at p. 312.) Similarly, “[i]ntent and objective are
factual questions for the trial court, which must find evidence to
support the existence of a separate intent and objective for each
sentenced offense.” (People v. Jackson (2016) 1 Cal.5th 269, 354;
accord, People v. Vasquez (2020) 44 Cal.App.5th 732, 737.) “A
trial court’s express or implied determination that two crimes
were separate, involving separate objectives, must be upheld on
appeal if supported by substantial evidence.” (People v. Brents
(2012) 53 Cal.4th 599, 618; accord, Vasquez, at p. 737 [“In
analyzing whether section 654 bars the imposition of multiple
sentences, we consider the evidence in the light most favorable to
the judgment and affirm the trial court’s sentencing decision—
whether express or implied—if it is supported by substantial
evidence.”].) But “[w]hen th[e] facts are undisputed . . . the
application of section 654 raises a question of law we review de
novo.” (Corpening, at p. 312.)
46
3. Section 654 does not apply to Moreno’s conviction for
possession of a firearm by a felon
Moreno contends the trial court erred in refusing to stay
his conviction of possession of a firearm by a felon because he did
not possess the rifle until he arrived at the house, retrieved the
rifle from under the sofa, and used it to shoot McEveety. The
trial court did not err.
Many appellate courts have addressed the circumstances in
which section 654 applies to a conviction of possession of a
firearm where the firearm was used to commit another offense.
As the Court of Appeal explained in People v. Wynn (2010)
184 Cal.App.4th 1210, 1217, “[S]ection 654 applies where the
defendant obtained the prohibited weapon during the assault in
which he used the weapon.” (Accord, People v. Bradford (1976)
17 Cal.3d 8, 22 [defendant who seized officer’s revolver and fired
several shots at officer could not be punished for both assault
with a deadly weapon on a peace officer and possession of a
firearm by a felon because “[d]efendant’s possession of [the
officer’s] revolver was not ‘antecedent and separate’ from his use
of the revolver in assaulting the officer”].)
But “section 654 is inapplicable when the evidence shows
that the defendant arrived at the scene of his or her primary
crime already in possession of the firearm.” (People v. Jones
(2002) 103 Cal.App.4th 1139, 1145; accord, People v. Venegas
(2020) 44 Cal.App.5th 32, 38 [possession of gun by felon was
conduct divisible from commission of murder because defendant
possessed the gun before arriving at the murder scene].) Further,
section 654 does not bar punishment for possession of a firearm
where the defendant possesses the firearm after the primary
offense. (People v. Garcia (2008) 167 Cal.App.4th 1550,
47
1565-1566 (Garcia) [§ 654 inapplicable where defendant used
firearm to commit two robberies, then was arrested in different
location with firearm]; People v. Ratcliff (1990) 223 Cal.App.3d
1401, 1413-1414 [§ 654 did not apply where defendant possessed
handgun before, during, and after the robberies]; cf. People v.
Atencio (2012) 208 Cal.App.4th 1239, 1247 [§ 654 applied to
defendant’s continued possession of gun, distinguishing Garcia on
the basis the defendant’s “use of the gun in the robberies and his
continued possession of the gun after the robberies, including at
the time he contemplated a shootout with police, were
distinguishable for purposes of section 654”].)
Substantial evidence supports the trial court’s refusal to
stay the sentence for firearm possession by a felon under section
654.21 According to Roberts, Moreno grabbed the rifle case from
under the couch, took out the rifle from its case, and held the rifle
for two minutes on his lap before shooting McEveety. Arguably,
Moreno’s retrieval and possession of the firearm was solely for
the purpose of shooting McEveety (a single intent and objective),
with Moreno only possessing the firearm for two minutes.
21 Although the trial court in finding section 654 did not apply
focused on the gun being a “gang gun” that moved around, the
court also stated there were different intents “given the other
facts in the trial.” We will uphold the trial court’s implied
determination that the murder and firearm possession were
separate crimes involving separate intents and objectives if it is
supported by substantial evidence. (People v. Brent, supra,
53 Cal.4th at p. 618 [“A trial court’s express or implied
determination that two crimes were separate, involving separate
objectives, must be upheld on appeal if supported by substantial
evidence.”]; accord, People v. Vasquez, supra, 44 Cal.App.5th at
p. 737 [same].)
48
However, as in Garcia, supra, 167 Cal.App.4th at pages
1565-1566, Moreno retained possession of the rifle after the
shooting (according to Moreno’s own account to the CI), throwing
the barrel in the ocean and burning the rest of the weapon. The
murder and continued possession of the firearm to destroy the
evidence therefore reflects two separate intents and objectives.
(See People v. Corpening, supra, 2 Cal.5th at p. 311.)
G. The Abstract of Judgment Must Be Corrected
In addition to the firearm enhancement the trial court
imposed on count 1 under section 12022.53, subdivision (d), the
trial court imposed a 10-year firearm enhancement under section
12022.53, subdivision (b), and a 20-year firearm enhancement
under 12022.53, subdivision (c), both of which it stayed pursuant
to section 12022.53, subdivision (f). However, the abstract of
judgment incorrectly states the court imposed and stayed two
firearm enhancements under section 12022.53, subdivision (c).
Moreno contends, the People concede, and we agree the abstract
of judgment must be corrected to conform to the trial court’s
imposition and stay of a firearm enhancement on count 1 under
section 12022.53, subdivision (b). (People v. Jones (2012)
54 Cal.4th 1, 89 [“When an abstract of judgment does not reflect
the actual sentence imposed in the trial judge’s verbal
pronouncement, this court has the inherent power to correct such
clerical error on appeal, whether on our own motion or upon
application of the parties.”]; People v. Mitchell (2001) 26 Cal.4th
181, 185 [“Courts may correct clerical errors at any time . . . .”].)
49
H. Moreno Is Entitled to an Ability-to-pay Hearing on the
Assessments and Fines Imposed by the Trial Court
In his supplemental opening brief, Moreno requests we
remand for the trial court to conduct a hearing on his ability to
pay $60 in court facilities assessments, $80 in court operation
assessments, the $300 restitution fine, and the parole revocation
restitution fine in the same amount. Moreno notes the probation
report indicated he was unemployed and “disabled and in a
wheelchair” at the time of sentencing. In response, the People
contend Moreno forfeited his constitutional challenges and did
not show his inability to pay the fees and fines in the trial court.
The People also argue imposition of the fines did not violate the
excessive fines clause of the Eighth Amendment. Moreno is
entitled to an ability to-pay hearing pursuant to this court’s
opinion in Dueñas, supra, 30 Cal.App.5th at page 1160.
1. Dueñas and its progeny
In Dueñas, this court concluded “the assessment provisions
of Government Code section 70373 and Penal Code section
1465.8, if imposed without a determination that the defendant is
able to pay, are . . . fundamentally unfair; imposing these
assessments upon indigent defendants without a determination
that they have the present ability to pay violates due process
under both the United States Constitution and the California
Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord,
People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 (Belloso),
review granted Mar. 11, 2020, S259755.)22 In contrast to court
22 Several Courts of Appeal have applied this court’s analysis
in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923,
50
assessments, a restitution fine under section 1202.4, subdivision
(b), “is intended to be, and is recognized as, additional
punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso, at
p. 655.) Section 1202.4, subdivision (c), expressly provides a
defendant’s inability to pay a restitution fine may not be
considered as a “compelling and extraordinary reason” not to
impose the statutory minimum fine. However, as this court held
in Dueñas, to avoid the serious constitutional questions raised by
imposition of a restitution fine on an indigent defendant,
“although the trial court is required by Penal Code section 1202.4
to impose a restitution fine, the court must stay the execution of
929-934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review
granted Nov. 13, 2019, S257844 [applying due process analysis to
court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028,
1030-1035), or partially followed Dueñas (e.g., People v. Valles
(2020) 49 Cal.App.5th 156, 162-163, review granted July 22,
2020, S262757 [concluding due process requires ability-to-pay
hearing before imposition of court facilities fee, not restitution
fines]). Other courts have rejected this court’s due process
analysis (e.g., People v. Cota (2020) 45 Cal.App.5th 786, 794-795;
People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v.
Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26,
2019, S258946), or concluded the imposition of fines and fees
should be analyzed under the excessive fines clause of the Eighth
Amendment (e.g., People v. Cowan (2020), 47 Cal.App.5th 32, 42,
review granted June 17, 2020, S261952; People v. Aviles (2019)
39 Cal.App.5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive
fines analysis to restitution fines]). The Supreme Court granted
review of the decision in Kopp to decide the following issues:
“Must a court consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments? If so, which
party bears the burden of proof regarding defendant’s inability to
pay?”
51
the fine until and unless the People demonstrate that the
defendant has the ability to pay the fine.” (Dueñas, at p. 1172;
accord, Belloso, at p. 655.)
In Belloso we rejected the argument “a constitutional
challenge to imposition of fines and fees on an indigent defendant
should be analyzed under an excessive fines analysis instead of a
due process framework.” (Belloso, supra, 42 Cal.App.5th at
p. 660.) We observed, “As the California Supreme Court
explained in [People ex rel. Lockyer v. R.J. Reynolds Tobacco Co.
(2005) 37 Cal.4th 707, 728], in its analysis of the constitutionality
of civil penalties imposed by the trial court, ‘It makes no
difference whether we examine the issue as an excessive fine or a
violation of due process.’” (Belloso, at p. 660.)
2. Moreno did not forfeit his challenge to the imposition
of the assessments and fees
The People contend Moreno forfeited his challenge to
imposition of the assessments and fines because he did not assert
his inability to pay at sentencing. However, at the time Moreno
was sentenced, Dueñas had not yet been decided, and we have
declined to find forfeiture based on a defendant’s failure to object
to fines and fees prior to our opinion in Dueñas. As we explained
in People v. Castellano (2019) 33 Cal.App.5th 485, 489, “[N]o
California court prior to Dueñas had held it was unconstitutional
to impose fines, fees or assessments without a determination of
the defendant’s ability to pay. . . . When, as here, the defendant’s
challenge on direct appeal is based on a newly announced
constitutional principle that could not reasonably have been
anticipated at the time of trial, reviewing courts have declined to
find forfeiture.” (Accord, Belloso, supra, 42 Cal.App.5th at p. 662;
52
People v. Santos (2019) 38 Cal.App.5th 923, 931-932; People v.
Johnson (2019) 35 Cal.App.5th 134, 137-138; contra, People v.
Bipialaka (2019) 34 Cal.App.5th 455, 464 [defendant forfeited
challenge by not objecting to the assessments and restitution fine
at sentencing]; People v. Frandsen (2019) 33 Cal.App.5th 1126,
1153-1154 [same].)
In light of Moreno’s burden to prove his inability to pay
(People v. Castellano, supra, 33 Cal.App.5th at page 490), we
remand the matter to the trial court to give Moreno an
opportunity to request an ability-to-pay hearing and to present
evidence of his inability to pay the assessments and fines.
DISPOSITION
The superior court is directed to prepare a corrected
abstract of judgment that reflects the court’s imposition and stay
of firearm enhancements on count 1 under section 12022.53,
subdivisions (b) and (c). The judgment is affirmed as modified.
The matter is remanded for the trial court to allow Moreno to
request a hearing and present evidence demonstrating his
inability to pay the court assessments and restitution fines. The
superior court is directed to forward the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
FEUER, J.
We concur:
PERLUSS, P. J. SEGAL, J.
53