People v. Valdez CA2/8

Filed 10/28/20 P. v. Valdez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B298544

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA449493)
v.

ALEX R. VALDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County. Charlaine F. Olmedo, Judge. Affirmed as
modified.
John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Medeo, Supervising Deputy
Attorney General, and Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.
 ________________________________

INTRODUCTION
A jury found defendant Alex R. Valdez guilty of first degree
murder. (Pen. Code, § 187, subd. (a).) It also found true the
special circumstance allegation of killing a witness to a crime to
prevent her from testifying (Pen. Code, § 190.2, subd. (a)(10)) and
that the principal was armed with a firearm (Pen. Code, § 12022,
subd. (a)(1)). It was further alleged, and Valdez admitted, that
he had served three prior prison terms. (Pen. Code, § 667.5,
subd. (b).) Valdez was sentenced to a prison term of life without
the possibility of parole, plus six years. Substantial evidence
supports the conviction, and the there was no evidentiary or
instructional error. We affirm the judgment but modify the
sentence as to the enhancements only to reflect primarily a
recent amendment to Penal Code section 667.5, subdivision (b).

FACTS AND PROCEDURAL HISTORY
The body of Kimberly Harvill was found in a remote,
desolate area just above a dead-end road that spurs off Gorman
Post Road near Highway 138. She was lying in a pool of blood
with two bullet wounds to the base of the neck and one in her
shoulder. Found under her was a fired .380 auto caliber
cartridge case.
The prosecution’s theory was that Valdez gave a firearm to
his close friend, Josh Robertson, to murder Harvill because she
was a witness to a shooting, and it was thought she was going to
“snitch” on them to the police. The only issue was whether
Valdez had intent to kill. Valdez was charged by information
with one count of first degree murder with a witness-murder
special circumstance allegation.

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I. The Fresno Shooting
The prosecution first called Zachary Dotson. He met Josh
Robertson, Britney Humphrey (who was Robertson’s girlfriend
and Harvill’s half sister), and Harvill and her children, on an
August morning in 2016 at a gas station in Gorman. Dotson had
crashed his motorcycle along Interstate 5, and they agreed to give
him a ride to Los Angeles. Expecting to travel to Los Angeles the
following day, he rented everyone a motel room in Gorman. But
then Robertson said he first wanted to travel to Fresno to pick up
his son, so they all went north.
After dropping off Harvill’s children at a relative’s house,
they picked up Valdez. Robertson then drove everyone to an
apartment at the Knights Inn in Fresno. While Dotson stayed in
the vehicle, the rest of them walked up to the front door of the
apartment and started “smacking” the door. Dotson did not hear
what they were saying, but a window curtain moved and a female
in the apartment said to “ ‘get the F out of my freaking
doorway,’ ” and closed the curtain. He had no idea why they were
there; he had only heard some “crosstalk” that whoever was in
the apartment had Harvill’s children’s Social Security cards and
other personal property of hers.
Dotson saw Robertson and Valdez standing next to each
other. Immediately after the curtain closed, Robertson turned to
Valdez and said, “ ‘Give me the gun.’ ” Valdez “pulled the pistol
out of his waistband and gave it to [him].” Robertson, still
banging on the door, took the weapon, “smacked the glass door
and then shot through it where the lady’s head was.” It all took
about 10 to 15 seconds. Dotson thought it was all “crazy.”
Everyone then ran back to the vehicle and drove back to Valdez’s

3
residence. Robertson and Valdez went off into a room together
but he could not hear what they were talking about. About 10
minutes later, they left Valdez’s residence to pick up Harvill’s
children and drive back to Gorman. Dotson said he had no idea
why Robertson had fired the gun. He left the following day for
Los Angeles with someone else.
The prosecution then called Britney Humphrey, Harvill’s
half sister. She testified that she had a conversation with
Robertson about going to Fresno “to get my sister’s things back,”
and that if they did not get them “they were going to beat up
whoever was in the room.” Harvill drove, and she dropped off the
children at a relative’s house in Fresno. They then went to
Valdez’s house. Humphrey only knew him by his nickname
“A-1,” but knew Robertson called Valdez his “homie.” After going
into the house, Robertson and Valdez went into a bedroom for
about 10 minutes. She does not know what they talked about.
When they came out, Valdez joined everyone in the vehicle.
Harvill drove to the Knights Inn and parked in front of the
apartment. Robertson and Valdez “went on the side of the wall”
to conceal themselves; she and Harvill went to the front door;
Dotson remained in the truck. Harvill first knocked but when
there was no response she started banging on the door. A woman
cracked open the door and then shut it again. Valdez “pulled a
gun out of his waistband, and [Robertson] grabbed it from him.”
Robertson tried to force open the door, but then he just shot at
the door where the woman had been standing. Everybody started
running; they jumped back into the truck and returned to
Valdez’s house. Robertson and Valdez went into the backyard for
about 10 minutes but she could not hear what they said. When
Robertson returned, they picked up the children and returned to

4
Gorman. Dotson left later that night to return to Los Angeles
with someone else.
Humphrey said that Harvill was distraught and panicking
because the woman was shot. She “wanted to turn herself in.”
Robertson, who was about 20 to 30 feet away from them during
this conversation, did not seem to react. But later, he became
very upset about it. Robertson said he wanted to return to
Fresno; they had brought his son with them and he wanted to
take him back.

II. The Second Trip to Fresno, and the Murder
Humphrey testified that she, Robertson, and Robertson’s
son left for Fresno while Harvill stayed behind in the motel.
They dropped off the child with his grandmother and then went
to Valdez’s business. Robertson went into the business for a
couple of minutes and then emerged with Valdez. The two of
them talked for a few more minutes away from the truck and she
did not know what they said. When Robertson returned to the
vehicle they drove back to Gorman.
As soon as they arrived in Gorman, Robertson told her he
wanted to talk to Harvill. Humphrey woke her up and relayed
the message. Harvill went outside while Humphrey continued to
pack, and sometime later Harvill and Robertson left. When
Robertson came back about an hour later, he told Humphrey that
he had “blasted” her sister and threatened Humphrey. He pulled
out the gun, which looked like the one he had used at the Knights
Inn, and said he killed Harvill, “ ’Cause they thought—he
thought she was going to snitch.” It was the first time she heard
him say “he thought she was going to tell on him and A-1.”

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 It was undisputed that the gun used to kill Harvill was
Valdez’s gun. The following stipulation was read to the jury: “A
fired .380 auto caliber cartridge case marked as item number 8
was recovered from the Gorman Post Road by victim Kim
Harvill’s body. [¶] A fired .380 auto caliber cartridge case was
recovered by Fresno Police Department in an open parking stall
directly in front of Michelle Madewell’s motel’s room front door at
the Knights Inn in Fresno, California on August 12, 2016,
marked number 20. [¶] LASD criminalist Philip Terramoto from
the firearms identification section examined these two fired .380
auto caliber cartridge cases and identified both of them as having
been fired from the same firearm.” It was further stipulated that
the two bullets recovered from Harvill’s body “were determined to
be most consistent with bullets commonly loaded in .380 auto
caliber cartridges.”

III. The Police Interview with the Defendant
On March 26, 2017, and after Mirandizing him, Sergeant
Perry of the Los Angeles Sheriff’s Department, interviewed
Valdez.
According to Perry, Valdez admitted that Robertson and
Harvill were involved in the Knights Inn shooting. Valdez
“brought the gun” and “gave it to” Robertson at the scene. He
took the gun back after they returned to his house. Valdez
related that a couple of days later Robertson called him and was
fearful Harvill was going to turn herself in and tell on them.
Robertson was considering killing her to silence her. He went up
to Fresno a few days later and met with Valdez at his business.
Robertson repeatedly said he was going to kill Harvill. Valdez

6
said he gave him the same firearm used at the Knights Inn
shooting so “Robertson could kill” Harvill.
The recorded interview, marked as Exhibit 13A, was played
for the jury.
At the beginning of the interview, Valdez was asked about
his gang affiliation. He admitted he was a member of Northside
Pleasant, Diamond Crips, also known as Six Deuce, and had been
in gangs since he was 13 or 14. He said they call him “A-1,” he
had been involved in street crimes, and had been sent “to the
joint” a couple of times. He has known Robertson since he was a
little kid; he is also from Diamonds and is known as “White Boy.”
At one time, they were codefendants and both did time “for gun
possession.” Later in the interview, he explained he has the gun
at his business because he is an active gang member in Fresno
and needed it for protection from his enemies.
Valdez said Robertson and the others came to his house
shortly before the Knights Inn incident to buy drugs and he gave
them some methamphetamine. Then, Robertson said he needed
to talk. “So, we go back downstairs to the basement and we start
talking and he was talking about the Knights Inn. He was
saying that somebody at the Knights Inn had all his stuff and
they didn’t want to give it back to him.” He wanted Valdez as
“backup” because “it’s a bunch of dudes over there.” He had
known Valdez all his life and knew he had a gun. “And
[Robertson’s] like you should probably bring it because there’s
going to be probably be some peckerwoods over there or
something.” Valdez then told Perry, “I had a gun. I gave the gun
to him.” He added, “I told him just in case anything else
happens, like if they got guns or anything, here you go to handle
your business.” He explained that, “well, he told me he was just

7
going to—he was just going to scare her. So, I wasn’t thinking he
was going to shoot.” When the woman in the unit would not turn
over anything, he thought it was over. “I turn around. I’m about
to start walking back to the car. [¶] When I started walking
back to the car, all I heard is pop, pop. Two shots.” He sees
Robertson waving a gun and Valdez calls him a “dumb ass.” And
then, “I told everybody, man, let’s get in the car. Let’s get out of
here because two shots just went off and heck of people out here
and the police are going to come any minute now.”
Valdez then said that a couple of days later, Robertson
calls. Harvill was panicking, “[s]aying that she can’t go to jail.”
Robertson said that they “put a warrant out for her arrest or
something because the girl at the motel had got shot.” Valdez
said he was “talking crazy. Talking about doing something to the
girl.” When Robertson asked whether he should take her out,
Valdez told him that was “[his] decision.” Robertson then said
that “she’s going to tell on everybody.”
Later, Robertson drove up to Fresno to Valdez’s business to
talk. Valdez said, “He’s crying to me. He [doesn’t] know what to
do.” Robertson keeps asking for the gun because, “ ‘I feel like the
girl’s going to tell on me. She going to—I can’t go do life. I can’t
go do 15 years . . . .’ ” Valdez said he was “basically, just saying
that he wants to knock her down,” kill her. Robertson then tells
him that he and Humphrey, his girlfriend, Harvill’s half sister,
had “been talking about it,” and “they’re both willing to do it and
they just need the gun.” Valdez then said, “So, I give him the
gun.” It is the same gun he had given Robertson for the Knights
Inn shooting. Valdez said the gun was a .380 and he had loaded
it. When asked what he thought his role in the murder was, he

8
said, “just because I gave him the gun. . . . [¶] But I talked—
tried to talk him out of it.”

DISCUSSION

I
A. Admission of Limited Gang Evidence
Valdez argues he was denied effective assistance of counsel
when trial counsel did not oppose the introduction of highly
inflammatory and prejudicial gang evidence even though there
was no gang allegation. We disagree.
Prior to trial, Valdez moved to exclude his entire interview
with Sergeant Perry. The motion was denied.1 The prosecution
asked for a hearing on the admissibility of evidence that Valdez
and Robertson were gang members, claiming it would show a
close relationship between Robertson and Valdez “which goes
towards the circumstances surrounding the defendant giving
Robertson the gun and having specific intent to kill someone.” To
be admissible, gang evidence must be relevant to a material issue
in the case and may not be introduced “only to ‘show a
defendant’s criminal disposition or bad character as a means of
creating an inference the defendant committed the charged
offense. [Citations.]’ ” (People v. Avitia (2005) 127 Cal.App.4th
185, 192.) Its introduction is especially problematic where, as
here, there was no Penal Code section 186.22 gang enhancement
allegation, and there was no suggestion the crime was related to
gang activity. The trial court stated it would not allow the
introduction of gang evidence because evidence they hang out
together and have committed other crimes with each other would

1 There is no claim this ruling was in error.

9
be coming out in other testimony, and “that makes the admission
of the gang evidence less probative” and potentially “prejudicial.”
The court then turned from general gang evidence to
specific statements in the police interview where Valdez admitted
his gang membership. When asked if the defense was moving to
keep out those statements, counsel said, “No, I’m not.” He
explained that “they are going to introduce the entire statement,
and that is exactly what I want, the good, bad and ugly. Because
I think if we start to redact his statement, it’s going to look, kind
of, fishy.” Counsel was also concerned that the other statements
that were going to come out might need to be contextualized so
the jury would not speculate there was something more
“nefarious.” Defense counsel then pointed out that Valdez had
visible tattoos, which the court described as “visible on his face at
the corner of his eyes, tattoos that are typical for anyone who is
familiar with gang tattoos that are consistent with tattoos in
their placement of what a gang member would have done to their
face . . . .” The trial court decided not to redact the interview
statement, noting that this was a tactical decision by counsel.
The court then crafted a limiting instruction: “You may
consider evidence of gang membership and activity only for the
limited purpose of evaluating the nature of the friendship
between Joshua Robertson and Alex Valdez. You may not
consider this evidence for any other purpose. You may not
conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit crime.” After the
parties agreed to the giving of that instruction, the court
admonished the prosecution that while it could use the gang
evidence to show they “know each other and how close their
relationship may be,” it could not argue “that gang members

10
share guns with one another or anything of that nature as to how
gangs operate.”
During closing, the prosecution argued that, “So when you
start looking beyond the surface, beyond just Mr. Valdez’s
statement and what Mr. Valdez wanted the detectives to believe,
you’re going to discover who Mr. Valdez really is. And who is he?
He says he’s tight with Josh Robertson; he’s really close. They
were in a gang together. They commit crimes together. They
grew up together. They have monikers that they refer to each
other by together. [¶] . . . They are tied at the hip.” Later in
closing, the prosecution pointed out while Valdez said he was a
“gangster” and needed a gun for protection, he brought the gun to
work that morning and gave it to Robertson “because they both
had a shared motive to kill [Harvill] and Robertson was going to
do his dirty work again, which is what Robertson has done before
in the past. And Robertson didn’t have to beg and plead because
they had agreed to it already.”
Valdez does not argue the trial court erred by allowing in
the unredacted police interview.2 Rather, he asserts trial counsel
was constitutionally ineffective for not objecting to the gang
evidence in it. To establish this claim on direct appeal, Valdez
must first show that counsel’s performance fell below an objective
standard of professional reasonableness, and second that
prejudice flowed from trial counsel’s performance. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688.) Where, as here, the

2 Although this was a tactical choice by defense counsel, the
trial court still considered the reasons given for the decision. We
review its decision under the abuse of discretion standard.
(People v. Brown (2003) 31 Cal.4th 518, 547.) From our review of
the record, we conclude there was no abuse of discretion.

11
challenge is made to trial counsel’s tactical decision not to oppose
the introduction of specific evidence, Valdez must demonstrate
from the record that trial counsel had no rational tactical purpose
for the choice or there could be no such purpose. (People v. Pettie
(2017) 16 Cal.App.5th 23, 80.) We review trial counsel’s
decisionmaking in the context of the facts known and defer to
counsel’s reasonable tactical decisions because there is a strong
presumption that the decisions are made within the broad scope
of reasonable professional assistance. (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 80–81, 86.)
Defense counsel was presented with a difficult choice. The
only issue below was intent to kill. Counsel knew the police
interview was going to come in, and it offered potentially
exculpatory and inculpatory statements. One explanation Valdez
gave for turning the gun over to Robertson was that he felt
compelled to because of their close relationship. Another was
that he could see any refusal would be futile because it was clear
Robertson was not going to leave without the gun. Defense
counsel could rationally conclude that Valdez’s admission about
gang membership could help explain why he did not have the
intent to kill. He had told Robertson that whether to kill Harvill
was “[his] decision,” that he had “tried to talk him out of it,” and
that he was not worried about her going to the police because he
had no significant exposure in the Fresno shooting as he was not
the shooter. As defense counsel argued in closing, there was no
intent because Valdez felt “pressure” by his close, personal
relationship with Robertson to turn over the gun. It did not help
that Valdez had visible gang tattoos; defense counsel could have
rationally concluded that under the circumstances there was

12
unlikely any prejudice in including statements that
contextualized that pressure.
Defense counsel also pointed out any redaction would look
“fishy.” Nothing in the record suggests how the videotaped
interview could have been redacted to eliminate the reference to
gangs. There was not just one discrete block; there were a couple
of places in the interview where gangs were mentioned directly
and indirectly. Without any indication in the record as to
whether this videotape could have been redacted in a way that
did not look “fishy,” we cannot find that defense counsel’s
performance was constitutionally deficient. (People v. Stewart
(2004) 33 Cal.4th 425, 483.)
Based on our review of the record in this direct appeal, we
conclude Valdez has not established that defense counsel’s
performance was constitutionally deficient under an objective
standard of professional reasonableness.

B. The “1101(b)” Evidence
The prosecution made a motion under Evidence Code
section 1101, subdivision (b), to admit evidence of an uncharged
threat Valdez allegedly made to a witness after a high-speed
pursuit in Fresno in May 2014. According to the motion, Valdez
and a woman by the name of Brittni Osha were passengers in a
car being driven by Robertson. When the police tried to pull
them over, Robertson took off at high speed. At one point,
Robertson pulled a handgun from under the seat and handed it to
Valdez who threw it out the window. When the car collided with
something and stopped, Robertson and Valdez “threatened to
kill” Osha “if she didn’t run.” Osha was later arrested and placed
in the back seat of a police car. When Valdez was arrested, he

13
was placed in the back of the same vehicle while the police
continued to look for Robertson. Valdez then told Osha: “ ‘You
fucking ratted on us bitch, we’re going to get you.’ ”
At the Evidence Code section 402 hearing, defense counsel
argued, “The issue in this case is intent, intent to kill. And this
incident with a gun, it actually could work in our favor. But I
would prefer that it be excluded because it’s a trial within a trial,
whether it’s true or not. And I don’t think that Mr. Valdez should
have to prove his innocence . . . .” The court found the evidence
“to be highly probative. You know, according to the proffer . . .
both Mr. Valdez and Mr. Robertson threatened to kill her if she
didn’t run, and that Mr. Valdez believed she is a snitch, so I think
it does go directly to the issue of intent to kill when someone or a
particular female suspected to not assist in the crime or, perhaps,
go to the police or not go along with their plan.” The court
further found the evidence “to be more probative than
prejudicial.”
At trial, Osha told the same story but with some colorful
additions. She testified that during the chase Robertson and
Valdez were throwing heroin and methamphetamine out the
windows. When Robertson gave Valdez a gun he threw that out
the window, too; a second gun was also thrown out the window.
After Robertson crashed the car into a median they both told
Osha “to run or else they would fucking kill [her].” She ran
across the street and, once they were gone, sat down. On her
arrest, she gave the police a description of Robertson and Valdez.
After she was placed in the back of the police vehicle, Valdez was
put in with her. “He was handcuffed. He was, like, kicking his
legs and trying to get out of the handcuffs, asked me if I had

14
ratted on them, and if I did, then he was going to kill me.” She
said Valdez was very angry and she was scared.
“ ‘Evidence of uncharged crimes is admissible to prove
identity, common design or plan, or intent only if the charged and
uncharged crimes are sufficiently similar to support a rational
inference of identity, common design or plan, or intent.’ ” (People
v. Foster (2010) 50 Cal.4th 1301, 1328; People v. Johnson (2013)
221 Cal.App.4th 623, 635.) And, “the uncharged act must be
relevant to prove a fact at issue [citation], and its admission must
not be unduly prejudicial, confusing, or time consuming.” (People
v. Leon (2015) 61 Cal.4th 569, 597–598.) We review the trial
court’s decision under the abuse of discretion standard. (Foster,
supra, at pp. 1328–1329.)
There was no abuse of discretion here. The facts of the
uncharged and charged crimes were sufficiently similar. In each
case, a female witness observed Valdez and Robertson commit a
crime; in the uncharged crime he threatened the witness with
physical violence if she had “ratted,” and in the charged offense
the witness was killed allegedly to keep her from becoming a
“snitch.” The evidence was being introduced to show a rational
inference of the same intent, and the trial court’s conclusion that
the probative value of the evidence outweighed its prejudice is
well supported. Valdez suggests the two incidents were too
remote in time. But the uncharged threat occurred in 2014 and
the killing occurred in 2016.

II

Substantial Evidence Supports the Verdict
Valdez asserts there is no substantial evidence in the
record to support the conviction or the special circumstance true

15
finding. “Upon a challenge to the sufficiency of evidence for a
jury finding, ‘ “ ‘ “we review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” ’ ” ’ ”
(People v. Rivera (2019) 7 Cal.5th 306, 323–324.)
Valdez was alleged to be an aider and abettor. “To be
guilty as an aider and abettor, a person must have knowledge of
the direct perpetrator’s unlawful purpose; have the intent or
purpose of committing, encouraging, or facilitating the
commission of the direct perpetrator’s offense; and by act or
advice aid, promote, encourage, or instigate the commission of
that offense.” (In re White (2020) 9 Cal.5th 455, 464, citing People
v. Nguyen (2015) 61 Cal.4th 1015, 1054.) Here, there was
evidence from which a reasonable jury could conclude Valdez
knew what Robertson intended to do and that he gave him the
gun so Harvill could be silenced. Harvill witnessed the shooting
at the Knights Inn in Fresno and Robertson and Valdez knew
that if she went to the police, she could identify them as being
involved. When she indicated she wanted to go to the police,
Robertson went to Valdez and told him that he and Harvill’s half
sister were ready to kill Harvill to silence her. Valdez gave
Robertson the gun knowing that was his intent and that the
killing would benefit both of them. That evidence is sufficient to
show intent to kill.
Substantial evidence also supports the witness-murder
special circumstance finding. To establish the truth of that
allegation, the evidence must show that, “[t]he victim was a
witness to a crime who was intentionally killed for the purpose of

16
preventing his or her testimony in any criminal . . . proceeding,
and the killing was not committed during the commission or
attempted commission, of the crime to which he or she was a
witness . . . .” (Pen. Code, § 190.2, subd. (a)(10).) Here, there was
substantial evidence Robertson killed Harvill with Valdez’s gun
to keep her from talking to the police and implicating them in the
Fresno shooting. Valdez admitted in the police interview that
that was the reason Robertson needed the gun. The evidence is
sufficient to establish the witness-murder special circumstance.

III

There Was No Instructional Error
A. Sua Sponte Duty to Instruct on Lesser Included
Valdez complains the court had a sua sponte duty to
instruct on a lesser included offense of involuntary manslaughter
because there was evidence in the police interview that he had
tried to talk Robertson out of killing Harvill. Involuntary
manslaughter is a lesser included offense of murder (People v.
Thomas (2012) 53 Cal.4th 771, 813; People v. Gutierrez (2002) 28
Cal.4th 1083, 1145), and an instruction on a lesser included
offense must be given “only if there is substantial evidence from
which a jury could reasonably conclude that the defendant
committed the lesser, uncharged offense but not the greater,
charged offense.” (Thomas, supra, at p. 813.) “An instruction on
involuntary manslaughter is required whenever there is
substantial evidence indicating the defendant did not actually
form the intent to kill.” (People v. Rogers (2006) 39 Cal.4th 826,
884 (Rogers).)
However, we need not address the specifics of the argument
here. Any error in failing to sua sponte instruct on involuntary

17
manslaughter was harmless. As the Supreme Court stated in a
Rogers: “In addition to being fully instructed on first degree
premeditated murder, the jury also was instructed on the lesser
included offenses of implied malice second degree murder and
heat-of-passion voluntary manslaughter, both of which require
higher degrees of culpability than does the offense of involuntary
manslaughter. The jury rejected the lesser options and found
defendant guilty of first degree premeditated murder. Under the
circumstances, there is no reasonable probability that, had the
jury been instructed on involuntary manslaughter, it would have
chosen that option.” (Rogers, supra, 39 Cal.4th at p. 884.)
The same is true here. The jury was instructed on both
first and second degree murder. The jury found Valdez guilty of
first degree murder. The mere fact Valdez told Robertson not to
do anything stupid, or that any decision to kill was “his” decision,
does not change the dynamics. Any error was harmless.

B. CALCRIM No. 375 Was Properly Given
Valdez argues it was error to give CALCRIM No. 375
because it allowed the jury to use the evidence from an
uncharged offense (i.e., the 2014 uncharged threat to Osha),
which may be proved by preponderance of the evidence, to
establish intent in the charged offense, which must be proved
beyond a reasonable doubt. He asserts this is structural error
because it lessened the prosecution’s burden of proof.3

3 The court read the following CALCRIM No. 375
instruction:
“The People presented evidence that defendant previously
committed another offense or act.

18
 Valdez recognizes that this structural error argument has
been rejected by our high court: “We have explained before,
however, that these different standards of proof are reconciled by
the different purposes for which the evidence is used. When
evidence of uncharged misconduct is admitted for the purpose of
establishing identity or intent, we have explained that the crimes
are mere ‘evidentiary facts.’ [Citation.] The jury cannot consider
them at all unless they find them proven by a preponderance of

“You may consider this evidence only if the People have
proved by a preponderance of the evidence that the defendant in
fact committed the other prior offense or act. Proof by a
preponderance of the evidence is a different burden of proof than
proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more
likely than not that the fact is true.
“If the People have not met this burden, you must
disregard this evidence entirely.
“If you decide that the defendant committed the other prior
offense or act, you may, but are not required to, consider the
evidence for the limited purpose of deciding whether:
“The defendant acted with the specific intent to kill or acted
with the specific intent required for the special circumstance of
killing a witness in this case;
“Do not consider this evidence for any other purpose.
“Do not conclude from this evidence that the defendant has
a bad character or is disposed to commit crime.
“If you conclude that the defendant committed the other
prior offense or act, that conclusion is only one factor to consider
along with all the other evidence. It is not sufficient by itself to
prove that the defendant is guilty of the charged offense or that
the charged special circumstance has been proved. The People
must still prove each charge, special circumstance and allegation
beyond a reasonable doubt.”

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the evidence. ‘If the jury finds by a preponderance of the
evidence that defendant committed the other crimes, the evidence
is clearly relevant and may therefore be considered.’ [Citation.]
If the jury finds the facts sufficiently proven for consideration, it
must still decide whether the facts are sufficient, taken with all
the other evidence, to prove defendant’s guilt beyond a
reasonable doubt.” (People v. Virgil (2011) 51 Cal.4th 1210,
1259–1260.)4 He further recognizes Virgil’s holding is binding on
this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
Valdez attempts to draw a distinction between evidence in
the guilt phase with a special circumstance allegation, such as
here, which, he argues, goes to punishment. Relying on language
in People v. Medina (1995) 11 Cal.4th 694 that holds the
reasonable doubt standard applies “to evidence of ‘other crimes’
sought to be admitted as aggravating evidence at the penalty
phase of trial” (id. at p. 763, italics omitted), he posits that, by
“parity of reasoning,” evidence of other uncharged crimes that
support a special circumstance allegation must also be proved
beyond a reasonable doubt. We are not persuaded. The evidence
of the 2014 threat was introduced in the guilt phase of the trial,
and Virgil is clear that at that point the other crimes are merely
“evidentiary facts.” Moreover, to establish the witness-murder
special circumstance, the evidence must show the victim witness
was intentionally killed “for the purpose of preventing his or her
testimony” in any criminal proceeding. (Pen. Code, § 190.2, subd.
(a)(10).) Because the purpose of this other crime evidence is to
show that intent, it is still an “evidentiary fact” even though it

4 Virgil dealt with CALJIC Nos. 2.50, 2.50.1, and 2.50.2, the
precursors to CALCRIM No. 375.

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goes to the special circumstances allegation and the holding in
Virgil controls.5

IV

Sentencing Issues
A. Prior Prison Term Enhancements
The trial court imposed three, one-year prior prison term
enhancements. (Pen. Code, § 667.5, subd. (b).) The prison terms
were for infliction of corporal injury and possession of a firearm
by a felon. At the time of sentencing, those enhancements were
properly imposed.
However, effective January 1, 2020, Penal Code section
667.5, subdivision (b) was amended to provide that prior prison
term enhancements applied only to those terms served for
sexually violent offenses, as defined in Welfare and Institutions
Code section 6600, subdivision (b). The 2020 amendment applies
retroactively to all pending cases, even those on appeal. (People
v. Winn (2020) 44 Cal.App.5th 859, 872–873.) Because Valdez’s
prior prison terms do not qualify under the amended statute,
they must be stricken.

B. Armed Firearm Enhancement
The court imposed a three-year enhancement under Penal
Code section 12022, subdivision (a)(1). Valdez argues that

5 Valdez argues we should follow People v. Nicolas (2017) 8
Cal.App.5th 1165, where the giving of CALCRIM No. 375 was
found to be error. But there the court declared there was clear
error because “there were, in fact, no uncharged acts admitted
into evidence.” (Id. at p. 1178.)

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section only allows for a one-year enhancement and requests the
sentence be modified accordingly.
Prior to trial, the information was amended to include an
enhancement allegation under subdivision (a)(1) of section 12022,
that the principal was armed with a firearm. The jury found the
allegation true, and the court sentenced Valdez to an additional
term of three years. But subdivision (a)(1) provides in relevant
part that, “Except as provided in subdivisions (c) and (d), a
person who is armed with a firearm in the commission of a felony
. . . shall be punished by an additional and consecutive term of
imprisonment pursuant to subdivision (h) of Section 1170 for one
year . . . .” (Italics added.)
The Attorney General argues that the three-year
enhancement was proper under subdivision (d) of Penal Code
section 12022. But the enhancement was not alleged under
subdivision (d), the true finding was not under subdivision (d),
and subdivision (d) is on its face inapplicable. That subdivision
only applies to “commission of an offense or attempted offense
specified in subdivision (c),” which are drug offenses. The
charged offenses here did not involve drugs. The court should
only have imposed a one-year enhancement.

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 DISPOSITION
The judgment is affirmed; however, the sentence is
modified to strike the prior prison term enhancements and to
modify the firearm enhancement to one year. Upon remand, the
clerk of the superior court is directed to modify the abstract of
judgment accordingly and to send a copy to the Department of
Corrections and Rehabilitation.

SALTER, J.
We Concur:

GRIMES, Acting P. J.

STRATTON, J.


Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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