Filed 7/20/21 P. v. Aguilar CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301406
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA451748)
v.
OSCAR AGUILAR et al.,
Defendants and
Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Kathleen Kennedy, Judge. Affirmed as
modified.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant Oscar Aguilar.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant Esau Rios.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General, Michael
Keller and Paul S. Thies, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________________
A jury found Oscar Aguilar and Esau Rios guilty of first
degree murder and shooting at an occupied vehicle and also
found Aguilar guilty of unlawful possession of a firearm by a
felon. On appeal Aguilar and Rios raise a number of challenges
to their convictions, including sufficiency of the evidence to
support the finding of premeditation, evidentiary and
instructional error and prosecutorial misconduct. Except for
correction of an error regarding sentencing, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Amended Information
On January 28, 2019 Aguilar and Rios were charged in an
amended information with one count of murder (Pen. Code, § 187,
subd. (a))1 and one count of shooting at an occupied motor vehicle
(§ 246). Both charges included special firearm-use allegations
pursuant to section 12022.53. Aguilar was also charged with one
count of possession of a firearm by a felon (§ 29800, subd. (a)(1)).
It was further alleged each offense had been committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A) & (C)).
The amended information also specially alleged Aguilar had
suffered two prior serious or violent felony convictions within the
meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12)
and one prior serious felony conviction under section 667,
1 Statutory references are to this code unless otherwise
stated.
2
subdivision (a), and had served three seperate prison terms for
prior felony convictions within the meaning of section 667.5,
subdivision (b).
2. The Evidence at Trial
a. The shooting
On the night of September 16, 2016 Carlos Segovia was in
his car leaving his girlfriend’s house when he saw Aguilar, Rios
and Ricky Valente peering into a parked car. Segovia called his
girlfriend, Kimberly Perez, and told her “some youngsters” were
“snooping” into her mother’s car. Perez overheard Segovia ask
the men to step away from the parked car. One of the men
responded, “What the fuck, you’re not from around here.” Perez
also heard Segovia say, “Don’t worry about where I’m from. I
don’t rep anything.” Perez was able to hear some cursing before
the call ended. She recalled Segovia’s tone was stern, while the
other men sounded aggressive.
During the exchange Valente walked down the street away
from the group. Segovia followed Valente and pulled his car to
the side of the road to speak to Valente through the open driver’s
side window. While they were talking, Aguilar ran near where
Valente was standing and shot Segovia once in the head. Segovia
died three days later as a result of the gunshot wound.
b. Valente’s testimony
Valente testified he was friends with Rios, but he did not
know Aguilar well. Valente believed Rios was a member of the
Harpys criminal street gang based on Rios’s tattoos and because
Rios had encouraged Valente to join the gang. Valente believed
Aguilar was a member of the Hobart criminal street gang based
3
on statements made to him by Rios. Valente said he lived in
Harpys gang territory.
On the night of September 16, 2016 Valente, Aguilar and
Rios were at Aguilar’s house with Valente’s brother, Kevin
Valente, and Valente’s two cousins. The men were drinking beer
and smoking marijuana. Valente testified he was drunk and he
believed Aguilar and Rios were also drunk because they could not
walk straight. At some point the group decided to leave Aguilar’s
house and go to Valente’s house a few blocks away.
Valente walked to his house with Rios and Aguilar.
Valente testified he knew Aguilar had a gun because the group
had been discussing it and handling it earlier in the evening. As
they were walking, Segovia drove up alongside them and said, in
an aggressive tone, “You guys better not be fucking with these
cars.” Valente responded they were not disturbing the cars and
continued walking. Aguilar and Rios stayed to talk to Segovia.
Valente heard Rios ask Segovia, “Where are you from?” Valente
understood Rios to be asking Segovia whether he was a gang
member. Segovia answered, “I am from nowhere.” Valente then
heard Rios tell Aguilar, “Pop that shit off” and heard the “click
clack” sound of the slide on a handgun being pulled back to load a
bullet into the chamber.
At that point Segovia drove down the street and stopped
alongside Valente, who hid behind a parked car because he
thought Segovia might be armed and preparing to shoot him.
Valente recalled he was hiding for “maybe thirty” seconds when
Segovia saw him and asked, “Why are you kicking it with these
fools?” Valente answered, “Why are you fucking with these guys?
They are just drunk.” Segovia and Valente had been talking for
4
“thirty seconds at least” when Aguilar ran up and shot Segovia
once in the head.
After the shooting Valente ran toward his house. He
passed his cousins on the street, and they ran after him. He was
the first to arrive home, followed by his cousins, then Aguilar and
finally Rios. Valente testified the men were all very quiet and
everyone seemed to be in shock. Valente did not know what
happened to the gun after the shooting. Valente ultimately
pleaded guilty to one count of accessory after the fact and
admitted a criminal street gang sentencing enhancement.
c. The investigation and arrests of Aguilar and Rios
In the days following the shooting a Los Angeles Police
Department homicide investigator obtained security camera
footage from several businesses in the area. One of the videos,
recorded at approximately 11:30 p.m. the night of the shooting,
depicted four men running around the corner from the direction
of the shooting followed by a fifth man walking. The homicide
investigator was able to track the men to a particular house,
which he later identified as the home of Valente and his brother.
On November 10, 2016 police detained Rios, Aguilar and
Valente in connection with the shooting. Valente was
interviewed first, and he initially said he did not know anything
about the shooting. However, after an hour of questioning and
being shown the surveillance footage, Valente admitted he had
witnessed Aguilar shoot Segovia.
At the conclusion of his interview with police, Valente was
placed in a cell with Rios for approximately one hour. Rios was
then questioned and shown the surveillance videos, after which
Rios was placed in a cell with Aguilar, who had not yet been
questioned by police. Police recorded the conversation between
5
Rios and Aguilar with a hidden microphone. Excerpts of that
conversation were played for the jury.
While in the jail cell Rios told Aguilar that Valente had
confessed to witnessing the shooting, stating, “He already fucked
it up, that fool Ricky, man. That fool fucked up. . . . But this
dumbass threw everything, fool.” Rios explained the police had
told him he was being arrested for murder. Aguilar responded
that Valente should go to Mexico so he would not have to testify.
Rios then told Aguilar, “You should have just left him alone.”
Later Aguilar said, “They’re gonna see that they got the wrong
people,” and the men laughed. Aguilar continued, “We went to go
get some tacos . . . . The word was out that it was probably a
group of black people.” Rios responded, “Man, I wish I would
have stuck to that story.”
d. The gang evidence
The parties stipulated the Hobart and Harpys gangs were
both criminal street gangs for purposes of section 186.22.
Officer Rene Gonzalez of the Los Angeles Police
Department testified as the People’s gang expert. In addition to
his training and experience regarding gangs generally, Gonzalez
had served on a task force specifically investigating the Harpys
gang. Gonzalez testified Rios had tattoos identifying him as a
member of the Harpys gang, specifically the 5th Avenue clique,
and Aguilar had tattoos identifying him as a member of the
Hobart gang. Gonzalez stated he was not aware of any rivalry
between the Harpys and Hobart gangs, and it was not uncommon
for their members to associate with one another.
Officer Gonzalez explained gangs typically claim a specific
territory within which they operate without interference from
other gangs. According to Gonzalez, it is “absolutely necessary”
6
for a gang to instill fear in individuals within their territory both
to discourage other gangs from encroaching on their claimed
territory and to prevent the public from cooperating with police
investigations into the gang. Gonzalez testified Segovia’s
murder occurred within Harpys’s territory.
Given a hypothetical similar to the shooting in this case,
Officer Gonzalez opined the shooting was committed for the
benefit of, and in association with, a criminal street gang. He
explained gangs obtain power through intimidation and violence;
killing someone boosts an individual’s status in the gang and
contributes to the gang’s reputation in the community. This is
the case even if the individual gang member is not the shooter
but has given the order for the shooting to occur. Further, even if
the shooter was not acting within the territory of his own gang,
the shooting still benefits him within his gang and contributes to
the reputation of the gang in whose territory he acted.
Neither Aguilar nor Rios testified or presented any
witnesses in his own defense.
3. The Verdict and Sentence
The jury found Aguilar and Rios guilty of first degree
murder and of shooting at an occupied vehicle. As to those
counts, the jury found true the firearm-use allegations and the
allegations the offenses were committed for the benefit of a
criminal street gang. The jury also found Aguilar guilty of
possession of a firearm by a felon and found true the allegation
the offense had been committed for the benefit of a criminal
street gang.2 In a bifurcated bench trial the court found the
2 During trial Aguilar stipulated he had been convicted of
three prior felonies for purposes of the gun possession charge.
7
People had proved Aguilar previously committed the serious or
violent felony offenses and had served the prison terms alleged in
the amended information.
The trial court sentenced Aguilar as a third strike offender
to an aggregate indeterminate term of 100 years to life.3 Rios
was sentenced to an aggregate indeterminate term of 50 years to
life.4
In regard to Aguilar’s sentence, despite the jury’s finding
the offenses were committed for the benefit of a criminal street
gang, at sentencing the trial court failed to impose the 15-year
minimum parole eligibility provision of section 186.22,
subdivision (b)(5).5 (See People v. Lopez (2005) 34 Cal.4th 1002,
3 Aguilar’s sentence consisted of 25 years to life for murder,
tripled under the three strikes law, plus 25 years to life for the
firearm enhancement under section 12022.53, subdivision (d),
and a concurrent term of 25 years to life for being a felon in
possession of a firearm. The court imposed and stayed pursuant
to section 654 a sentence of 70 years to life for shooting at an
occupied vehicle (15 years to life pursuant to section 186.22,
subdivision (b)(4), tripled under the three strikes law, plus
25 years to life for the firearm enhancement). The court struck
the section 667, subdivision (a), and section 667.5 sentence
enhancements.
4 Rios’s sentence consisted of 25 years to life for murder, plus
25 years to life for the firearm enhancement under
section 12022.53, subdivisions (d) and (e)(1). The court imposed
and stayed pursuant to section 654 a sentence of 15 years to life
for shooting at an occupied vehicle (§ 186.22, subd. (b)(4)).
5 Because the court imposed the section 12022.53,
subdivisions (d) and (e)(1), firearm enhancement on Rios’s
sentence for murder, he is not subject to the 15-year minimum
parole eligibility alternate penalty under section 186.22,
8
1009 [although the 15-year minimum may have little practical
effect when defendant receives an indeterminate sentence of
25 years to life, the true finding under section 186.22,
subdivision (b)(5), may be considered by the Board of Prison
Terms when considering defendant’s release date “‘even if it does
not extend the minimum parole date per se’”].) We modify the
judgment as to Aguilar and direct the trial court to correct the
abstract of judgment to indicate the minimum parole eligibility
date.6 (See People v. Arauz (2012) 210 Cal.App.4th 1394, 1405
[modifying judgment to strike 10-year gang enhancements “and
impose, in their place, 15-year minimum parole eligibility
terms”]; People v. Ramos (2004) 121 Cal.App.4th 1194, 1209 [“as
to count 1, the term should have been life with the possibility of
parole with a minimum term of 15 years before parole
eligibility”].)
subdivision (b)(5). (See § 12022.53, subdivision (e)(2) [“[a]n
enhancement for participation in a criminal street gang . . . shall
not be imposed on a person in addition to an enhancement
imposed pursuant to this subdivision, unless the person
personally used or personally discharged a firearm in the
commission of the offense”].)
6 The parties do not raise this issue on appeal. However, we
have an obligation to correct an unauthorized sentence whenever
it comes to our attention. (See People v. Cunningham (2001)
25 Cal.4th 926, 1044-1045; People v. Dotson (1997) 16 Cal.4th
547, 554, fn. 6].)
9
DISCUSSION
1. Substantial Evidence Supports the First Degree Murder
Conviction and the Criminal Street Gang Findings
a. Standard of review
In considering a claim of insufficient evidence in a criminal
case, “a reviewing court considers the entire record in the light
most favorable to the judgment below to determine whether it
contains substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—from which a rational
trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.)
“In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence.
[Citation.]’ [Citation.] A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support”’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357;
accord, People v. Dalton (2019) 7 Cal.5th 166, 243-244; People v.
Penunuri (2018) 5 Cal.5th 126, 142.)
“‘“In cases in which the People rely primarily on
circumstantial evidence, the standard of review is the same.”’”
(People v. Salazar (2016) 63 Cal.4th 214, 242; see People v.
10
Brooks (2017) 3 Cal.5th 1, 57 [“[s]ubstantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence’”].) “Mental state and intent are rarely
susceptible of direct proof and must therefore be proven
circumstantially.” (People v. Thomas (2011) 52 Cal.4th 336, 355.)
“‘An appellate court must accept logical inferences that the jury
might have drawn from the circumstantial evidence.’” (People v.
Elliot (2005) 37 Cal.4th 453, 466.) “Although it is the duty of the
jury to acquit a defendant if it finds the circumstantial evidence
is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the
appellate court[,] which must be convinced of the defendant’s
guilt beyond a reasonable doubt. If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the
judgment.” (People v. Ghobrial (2018) 5 Cal.5th 250, 278,
internal quotation marks omitted; accord, People v. Clark (2016)
63 Cal.4th 522, 626.)
b. Substantial evidence supports the jury’s finding of
deliberation and premeditation as to Aguilar
“First degree murder ‘has the additional elements of
willfulness, premeditation, and deliberation which trigger a
heightened penalty.’ [Citation.] These elements require ‘more
than a showing of intent to kill.’” (People v. Gomez (2018)
6 Cal.5th 243, 282.) “‘“Deliberation” refers to careful weighing of
considerations in forming a course of action; “premeditation”
means thought over in advance.’” (People v. Brooks, supra,
3 Cal.5th at p. 58.)
11
“‘An intentional killing is premeditated and deliberate if it
occurred as the result of preexisting thought and reflection rather
than unconsidered or rash impulse.’ [Citation.] The reflection
may be arrived at quickly; it need not span a specific or extended
period of time.” (People v. Lopez (2018) 5 Cal.5th 339, 354-355;
see People v. Gomez, supra, 6 Cal.5th at p. 282 [“‘“‘The true test is
not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity
and cold, calculated judgment may be arrived at quickly’”’”].)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson)
the Supreme Court “identified three categories of evidence that
tend to establish a premeditated and deliberate murder—
planning, motive, and method.” (People v. Ghobrial, supra,
5 Cal.5th at p. 278; see People v. Gomez, supra, 6 Cal.5th at
p. 282 [Supreme Court has “previously noted that evidence of
planning, motive, and manner of killing is often relevant to this
inquiry”].)7 But “these factors do not ‘“exclude all other types and
7 In Anderson, supra, 70 Cal.2d at pages 26-27 the Supreme
Court stated, “The type of evidence which this court has found
sufficient to sustain a finding of premeditation and deliberation
falls into three basic categories: (1) facts about how and what
defendant did prior to the actual killing which show that the
defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing—what may be
characterized as ‘planning’ activity; (2) facts about the
defendant’s prior relationship and/or conduct with the victim
from which the jury could reasonably infer a ‘motive’ to kill the
victim, which inference of motive, together with facts of type (1)
or (3), would in turn support an inference that the killing was the
result of ‘a pre-existing reflection’ and ‘careful thought and
weighing of considerations’ rather than ‘mere unconsidered or
rash impulse hastily executed’ [citation]; (3) facts about the
12
combinations of evidence that could support a finding of
premeditation and deliberation.”’” (People v. Lopez, supra,
5 Cal.5th at p. 355.) Rather, “‘[t]hey are simply an “aid [for]
reviewing courts in assessing whether the evidence is supportive
of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere
unconsidered or rash impulse.”’” (Ghobrial, at p. 278; accord,
People v. Gonzalez (2012) 54 Cal.4th 643, 663 [“[a]s we have
repeatedly pointed out, and now reaffirm, ‘[t]he Anderson
guidelines are descriptive, not normative. [Citation.]’ [Citation.]
They are not all required [citation], nor are they exclusive in
describing the evidence that will support a finding of
premeditation and deliberation”].) Nevertheless, “‘[w]hen the
record discloses evidence in all three categories, the verdict
generally will be sustained.’” (People v. Stitely (2005) 35 Cal.4th
514, 543; see People v. Disa (2016) 1 Cal.App.5th 654, 665.)
Aguilar argues there was insufficient evidence to support a
finding the murder of Segovia was deliberate and premeditated.
However, viewed in light of the Anderson guidelines, the record
amply supports the jury’s finding. As to motive, a reasonable
inference from the circumstances leading to the shooting is that
Aguilar shot Segovia because Segovia had aggressively or sternly
accused Aguilar of tampering with cars in Aguilar’s
neighborhood. Additional motive was provided by Rios’s order to
nature of the killing from which the jury could infer that the
manner of killing was so particular and exacting that the
defendant must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way
for a ‘reason’ which the jury can reasonably infer from facts of
type (1) or (2).”
13
Aguilar to “pop that shit off.” Aguilar disputes these motives,
pointing out there was no evidence of a “preexisting motive” but
only of a “spontaneous confrontation.” Contrary to Aguilar’s
assertion, a finding of motive does not require the defendant to
have known or interacted with the victim for any prescribed
length of time—or, indeed, for any time at all. (See, e.g., People v.
Cardenas (2020) 53 Cal.App.5th 102, 122 [reasonable jury could
infer motive based on defendant perceiving victim as aggressor
even though encounter was spontaneous, defendant and victim
never spoke to one another and entire incident lasted only 30
seconds]; People v. Martinez (2003) 113 Cal.App.4th 400, 404, 413
[jury could reasonably infer the motive for the shooting involved
gang rivalry even though encounter was spontaneous and only
interaction before shooting was defendant asking, “Where are you
guys from?”].)
There was also substantial evidence of planning. That
Aguilar brought a loaded gun with him to walk through his
neighborhood reasonably supports the inference he had planned
for the possibility of a violent encounter even if he did not know
he would meet Segovia. (See People v. Salazar, supra, 63 Cal.4th
at p. 245 [“defendant brought a loaded gun with him to the
[restaurant], demonstrating preparation” even though meeting
victim was unplanned]; People v. Lee (2011) 51 Cal.4th 620, 636
[“defendant brought a loaded handgun with him on the night
Mele was killed, indicating he had considered the possibility of a
violent encounter”]; People v. Cardenas, supra, 53 Cal.App.5th at
p. 122 [“the act of taking a loaded weapon with him to the
restaurant is evidence of preparation and planning for
involvement in a violent encounter” even though confrontation
with victims was spontaneous].) Aguilar also pulled the slide
14
back on his gun to ensure a round was in the chamber and ran
across the street to get closer to Segovia’s car before shooting.
These facts also provide evidence of planning. (See Salazar, at
p. 245 [“[d]efendant and Echeverria both cocked their guns as
they approached Guevara, strongly suggesting they were
contemplating a shooting”].)
Finally, the manner of the murder supports a finding of
deliberation and premeditation. Despite the fact that Segovia
had driven away from Aguilar and was no longer interacting with
him, Aguilar deliberately moved closer to Segovia and fired the
gun at Segovia’s head. (See People v. Gomez, supra, 6 Cal.5th at
p. 283 [“the manner of killing tended to show that Gomez acted
with premeditation and deliberation: Acosta and Dunton were
shot from close range in the head or neck”]; People v. Marks
(2003) 31 Cal.4th 197, 230 [“the manner of the killing, a close-
range shooting without any provocation . . . or evidence of
struggle, likewise demonstrates premeditation and
deliberation”].)
In sum, the record discloses evidence in all three Anderson
categories of motive, planning activity and manner of the killing
from which a jury could reasonably find Aguilar’s murder of
Segovia was deliberate and premeditated. Substantial evidence
supports this finding.
15
c. Substantial evidence supports the finding the shooting
was committed with the specific intent required by the
criminal street gang enhancement8
To obtain a true finding on a criminal street gang
enhancement allegation, the People must prove the crime at issue
was “committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members.” (§ 186.22, subd. (b)(1).) The parties stipulated that
Harpys and Hobart are criminal street gangs within the meaning
of section 186.22.
As to the first prong, that the shooting was committed for
the benefit of, at the direction of or in association with any
criminal street gang, Officer Gonzalez testified the shooting
occurred in Harpys gang territory and benefitted the Harpys
gang by enhancing its reputation for violence and by intimidating
rival gangs and potential witnesses. This testimony constituted
ample evidence the crime was committed for the benefit of a
criminal street gang. (see People v. Vang (2011) 52 Cal.4th 1038,
1048 [“‘[e]xpert opinion that particular criminal conduct
benefited a gang’ is not only permissible but can be sufficient to
support [a] . . . gang enhancement”].)
Having concluded the shooting was gang-related, there was
compelling evidence to support the findings Aguilar and Rios
committed the shooting with the specific intent to promote,
8 Aguilar does not contest the sufficiency of the evidence to
support the criminal street gang enhancement on his conviction
of being a felon in possession of a firearm.
16
further or assist criminal conduct by gang members.9 Aguilar
and Rios unquestionably intended to promote or assist each
other’s criminal conduct in shooting Segovia—Rios by directing
Aguilar to shoot Segovia and Aguilar by complying. As for their
gang membership, Officer Gonzalez testified Aguilar and Rios
had tattoos identifying them as members of Hobart and Harpys,
respectively. Valente testified he believed Aguilar was a member
of Hobart and Rios was a member of Harpys based on statements
made to him by Rios. This evidence supported the finding
Aguilar was a member of the Hobart gang and Rios was a
member of the Harpys gang.
Aguilar and Rios contend the prosecution failed to establish
the elements of the gang enhancement because it failed to prove
the distinct Harpys subset to which Rios belonged was the same
gang as Harpys in general. Relying on People v. Prunty (2015)
62 Cal.4th 59 (Prunty), Aguilar and Rios argue, “[W]here the
evidence in support of a gang enhancement involved two different
groups, the prosecution must prove an ‘associational or
organizational connection uniting’ them. [¶] [I]n this case the
prosecution had to present sufficient evidence—apart from
9 Aguilar and Rios argue the specific intent element was not
met because there was insufficient evidence they had the “specific
intent to further, assist or promote a criminal street gang.”
However, the statute does not require a defendant to have the
specific intent to benefit the gang, but only to “promote, further,
or assist in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1) & (b)(4); People v. Albillar (2010) 51 Cal.4th 47, 67
[“[t]here is no further requirement that the defendant act with
the specific intent to promote, further, or assist a gang; the
statute requires only the specific intent to promote, further, or
assist criminal conduct by gang members”].)
17
[Rios’s] tattoos—from which the jury could infer that the 5th
Avenue clique was unified in act and deed with Harpys.”
It is not clear how Aguilar and Rios believe their argument
is relevant to application of the enhancement in this case, but,
regardless, it is based on a fundamental misunderstanding of the
Supreme Court’s holding in Prunty. In Prunty the Supreme
Court considered “what type of showing the prosecution must
make when its theory of why a criminal street gang exists turns
on the conduct of one or more gang subsets.” (Prunty, supra,
62 Cal.4th at p. 67.) The prosecution in that case presented
evidence the defendant identified as a member of the Norteño
gang. However, the evidence of predicate offenses offered by the
prosecution pertained to activities of two subsets of the Norteño
gang. The prosecution’s expert did not “offer any specific
testimony contending that these subsets’ activities connected
them to one another or to the Sacramento Norteño gang in
general.” (Ibid.) The Court held this lack of a connection
between the subsets and the larger “umbrella” gang precluded
application of the criminal street gang enhancement, explaining,
“[W]hen the prosecution seeks to prove the street gang
enhancement by showing a defendant committed a felony to
benefit a given gang, but establishes the commission of the
required predicate offenses with evidence of crimes committed by
members of the gang’s alleged subsets, it must prove a connection
between the gang and the subsets.” (Id. at pp. 67-68; see id. at
p. 81 [“the prosecution must show that the group the defendant
acted to benefit, the group that committed the predicate offenses,
and the group whose primary activities are introduced, is one and
the same”].)
18
Contrary to Aguilar and Rios’s assertion, Prunty does not
apply where, as here, the prosecution need not establish
predicate offenses of the gang because the parties have stipulated
the gang exists and meets the statutory definition of a criminal
street gang. (See Prunty, supra, 62 Cal.4th at pp. 67-68 & p. 71,
fn. 2; id. at p. 91 (conc. & dis. opn. of Corrigan, J.) [“The issue we
address is a narrow one. It arises only when the prosecution
seeks to prove a street gang enhancement by showing the
defendant committed a felony to benefit a broader umbrella gang,
but seeks to prove the requisite pattern of criminal gang activity
with evidence of felonies committed by members of subsets to the
umbrella gang. Our decision is limited to that factual scenario”].)
Here, as discussed, there was substantial evidence Rios
was a member of Harpys, stipulated to be a criminal street gang;
Aguilar was a member of Hobart, also stipulated to be a criminal
street gang; the murder was committed for the benefit of the
Harpys gang; and Rios and Aguilar acted with the specific intent
to assist each other (gang members) in their criminal conduct.
Nothing more is needed to prove the criminal street gang
enhancement under section 186.22. (See People v. Garcia (2016)
244 Cal.App.4th 1349, 1369-1370 [substantial evidence supported
finding of specific intent to assist gang members in criminal
activity even though defendants were members of different
gangs]; see also People v. Albillar (2010) 51 Cal.4th 47, 68 [“if
substantial evidence establishes that the defendant intended to
and did commit the charged felony with known members of a
gang, the jury may fairly infer that the defendant had the specific
intent to promote, further, or assist criminal conduct by those
gang members”].)
19
2. The Trial Court Did Not Abuse Its Discretion in
Admitting Evidence Segovia Was a Marine
Prior to trial Aguilar and Rios requested exclusion of
testimony that Segovia was a member of the United States
Marine Corps. on weekend leave at the time of the shooting. In
overruling their Evidence Code section 352 objections, the trial
court noted there had been significant media coverage of the
murder, including a request to have cameras in the courtroom
during trial, most of which coverage had referred to the victim as
a Marine. If the jurors were unaware Segovia was a Marine, the
court reasoned, they would not know to avoid news coverage
regarding the trial of the killing of a Marine and might
inadvertently violate their obligation to avoid such coverage. The
court further found evidence of a Marine sticker on the back of
Segovia’s car and of a Marine bag in the car could be admitted
because, if the jury believed Aguilar and Rios had seen the
sticker and/or the bag, it might undermine the argument the
defendants had been afraid Segovia was a gang member who was
going to harm them. The court also permitted a photograph of
Segovia in uniform to be shown to the jury but cautioned it
should not be shown multiple times to multiple witnesses.
Evidence Code section 352 authorizes a court to exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will necessitate undue
consumption of time or create substantial danger of undue
prejudice, confusing the issues or misleading the jury. Undue
prejudice in this context means “‘evidence that tends to evoke an
emotional bias against the defendant with very little effect on
issues, not evidence that is probative of a defendant’s guilt.’”
(People v. Valdez (2012) 55 Cal.4th 82, 133.) The trial court has
20
broad discretion to admit or exclude evidence under Evidence
Code section 352, and its ruling will not be disturbed unless it is
arbitrary or irrational. (People v. Mills (2010) 48 Cal.4th 158,
195; People v. Williams (2008) 43 Cal.4th 584, 634.)
Here, the prospective jurors were informed the victim in
the case had been a Marine;10 and during trial, the evidence
Segovia had been a Marine consisted of a photograph of him in
uniform that was shown to Perez for identification purposes;
Perez’s testimony Segovia had been on weekend leave at the time
of the murder; testimony of the police officer who first responded
to the scene of the shooting that he noticed a Marine sticker on
the rear window of Segovia’s car and a Marine bag in the back
seat; and a statement on the recorded jail conversation between
Aguilar and Rios in which Aguilar said, “We’re fucked. . . .
Because, like, they—they think ‘Marine.’ You know, Marine and
a cop, whatever.”
Aguilar and Rios argue the only purpose of this evidence
was “to encourage jurors to feel respect, admiration, and greater
sympathy” for Segovia based on his Marine status. However, the
trial court weighed the relevance of the evidence against its
prejudicial effect and found it was not substantially more
prejudicial than probative. As discussed, the evidence was
relevant to whether Aguilar and Rios had known at the time of
the shooting that Segovia was a Marine and whether they feared
he was a rival gang member. Given that the jury already knew
Segovia was a Marine from voir dire, the three brief and
unsensational references to that fact during trial did not result in
10 Rios does not contest the propriety of the disclosure to
prospective jurors that Segovia had been a Marine.
21
undue prejudice. (See People v. Wallace (2008) 44 Cal.4th 1032,
1059 [testimony about victim’s poor eyesight and use of cane not
unduly prejudicial where jury already knew of her age and frailty
and testimony was “brief and matter of fact”].)
3. The Trial Court Did Not Commit Prejudicial Error in
Ruling on Objections to Officer Gonzalez’s Testimony
a. Relevant proceedings
During cross-examination Aguilar’s attorney asked
Officer Gonzalez about his training and experience regarding the
Hobart gang. Gonzalez responded his “specific expertise” in the
Hobart gang was “very limited.” In response to a question
regarding Hobart’s size Gonzalez estimated there were fewer
than 100 members. Aguilar’s counsel then asked if Gonzalez had
read the preliminary hearing testimony of Officer Denward Chin,
who had testified as the prosecution’s gang expert during the
preliminary hearing. Gonzalez testified he had read the
testimony. Aguilar’s counsel proceeded to asked Gonzalez what
area Hobart claimed as its territory, at which point the
prosecutor objected based on relevance.
Outside the hearing of the jury the court inquired as to why
Aguilar’s counsel was eliciting background information regarding
Hobart given the stipulation that Hobart was a criminal street
gang. Counsel explained he was attempting to establish Officer
Gonzalez was not qualified to testify regarding operations of the
Hobart gang, its relationship to the Harpys gang or whether
committing a shooting in Harpys’s territory would benefit a
Hobart member. The prosecutor stated Gonzalez was called as a
gang expert generally, as well as an expert on Harpys, but he was
not an expert on Hobart. Aguilar’s counsel responded he had
been expecting Officer Chin, who was an expert on Hobart, to
22
testify. Counsel argued Gonzalez’s statement Hobart had fewer
than 100 members conflicted with Chin’s statement Hobart had
50 members, and counsel wanted to question Gonzalez about the
discrepancy. He stated, “I feel I should be able to explore some of
the issues that were testified to by Mr. Chin, or else—otherwise
find out what the extent of [Gonzalez’s] expertise is in this
area. . . . Experts are allowed to rely upon other experts.”
The court reminded counsel Officer Gonzalez had said he
had read Officer Chin’s testimony, but, “He didn’t say he relied
upon it in forming his opinion. . . . [H]e said he did not talk to
[Chin] about it. . . . And whether he is relying upon that
transcript, I guess you can find out.” The court further told
Aguilar’s counsel he could ask Gonzalez about his opinions on the
relationship between Hobart and Harpys but reiterated Gonzalez
was not testifying as an expert on Hobart.
Resuming cross-examination Aguilar’s counsel asked
Officer Gonzalez generally about the territory claimed by Hobart;
but he did not ask any additional questions regarding Gonzalez’s
experience with Hobart, the basis of his opinions or whether he
relied on or referred to Officer Chin’s testimony in forming his
opinions. Nor did counsel inquire about how the size or location
of the Hobart gang might affect Gonzalez’s opinion on the
hypothetical given by the prosecution.
b. Governing law and standard of review
“In order to prove the elements of the criminal street gang
enhancement, the prosecution may, as in this case, present
expert testimony on criminal street gangs.” (People v. Hernandez
(2004) 33 Cal.4th 1040, 1047-1048.) In general an expert witness
may “state on direct examination the reasons for his [or her]
opinion and the matter . . . upon which it is based, unless he [or
23
she] is precluded by law from using such reasons or matter as a
basis for his [or her] opinion.” (Evid. Code, § 802.) An expert
may “rely on hearsay in forming an opinion, and may tell the jury
in general terms that he did so. Because the jury must
independently evaluate the probative value of an expert’s
testimony, Evidence Code section 802 properly allows an expert
to relate generally the kind and source of the ‘matter’ upon which
his opinion rests. . . . [¶] What an expert cannot do is relate as
true case-specific facts asserted in hearsay statements, unless
they are independently proven by competent evidence or are
covered by a hearsay exception.” (People v. Sanchez (2016)
63 Cal.4th 665, 685-686.)
Evidence Code section 721 permits an expert to be cross-
examined about “the matter upon which his or her opinion is
based and the reasons for his or her opinion.” (Evid. Code § 721,
subd. (a).) “The scope of this inquiry is broad and includes
questions about whether the expert sufficiently considered
matters inconsistent with the opinion. [Citation.] Thus, an
adverse party may bring to the attention of the jury that an
expert did not know or consider information relevant to the issue
on which the expert has offered an opinion.” (People v. Doolin
(2009) 45 Cal.4th 390, 434; accord, People v. Nieves (2021)
11 Cal.5th 404, 495 [“‘[t]he scope of cross-examination permitted
under section 721 is broad, and includes examination aimed at
determining whether the expert sufficiently took into account
matters arguably inconsistent with the expert’s conclusion’”].)
“Although the scope of cross-examination may be extensive,
it is not boundless. Indeed, the trial court has wide discretion in
determining the appropriate scope of cross-examination.” (People
v. Royal (2019) 43 Cal.App.5th 121, 149; accord, People v. Steskal
24
(2021) 11 Cal.5th 332 [“‘[i]t is settled that the trial court is given
wide discretion in controlling the scope of relevant cross-
examination’”].) “The defense is typically given wide latitude to
test the credibility of [expert] witnesses, but the trial court may
still place reasonable limits on defense counsel’s inquiries.”
(Royal, at p. 149.)
We review the trial court’s evidentiary rulings for an abuse
of discretion. (People v. Mora and Rangel (2018) 5 Cal.5th 442,
502; People v. Homick (2012) 55 Cal.4th 816, 859; People v. Royal,
supra, 43 Cal.App.5th at p. 149.)
c. The trial court’s limited exclusion of questions
regarding Officer Chin’s preliminary hearing
testimony was harmless
Aguilar argues the court abused its discretion by
“prohibit[ing] the defense from cross-examining the gang expert
concerning his minimal knowledge about important facets of the
Hobart gang . . . .” Specifically, Aguilar contends the court
should have permitted Aguilar’s counsel to question Officer
Gonzalez regarding particular statements from Officer Chin’s
testimony.
As discussed, Evidence Code section 721 permits an expert
to be broadly cross-examined regarding the matters on which his
or her opinion is based and the reasons for that opinion. Further,
“experts may relate information acquired through their training
and experience, even though that information may have been
derived from conversations with others, lectures, study of learned
treatises, etc.” (People v. Sanchez, supra, 63 Cal.4th at p. 675;
see Evid. Code, § 721.) Here, however, as the trial court correctly
pointed out, Officer Gonzalez did not testify he had relied on
Officer Chin’s statements in forming an opinion. Without
25
establishing Gonzalez relied on or referred to Chin’s preliminary
hearing testimony in formulating his opinions, the trial court
acted within its discretion in limiting defense counsel’s
questioning concerning those hearsay statements,
notwithstanding the broad scope of cross-examination afforded by
section 721. (See People v. Royal, supra, 43 Cal.App.5th at
pp. 150-151 [trial court did not abuse its discretion in prohibiting
defense counsel from asking prosecution’s expert witness about
matters upon which the expert did not rely and for which there
was no admissible evidence; “[a]lthough the scope of cross-
examination is typically broad [citation], this principle does not
require a trial court to ignore the rules of evidence”].)
Notwithstanding the court’s ruling, Aguilar’s counsel could
have explicitly asked Officer Gonzalez whether he relied on
Officer Chin’s testimony and how, if at all, it impacted his opinion
regarding the Hobart gang; but he chose not to pursue that line of
inquiry. Similarly, the trial court did not restrict Aguilar’s
counsel from asking whether the extent of the Hobart gang’s
physical territory or the number of its members might have
affected his opinions, including his answer to the prosecutor’s
hypothetical question. All that was precluded was counsel’s
attempt to use specific data from Chin’s preliminary hearing
testimony, none of which Gonzalez had relied on, and all of which
was inadmissible hearsay.
Even if the court’s ruling was an abuse of discretion,
however, it is not reasonably probable the court’s minimal
restriction on the scope of cross-examination of Officer Gonzalez,
who conceded he was not an expert on the Hobart gang,
26
prejudiced Aguilar.11 Gonzalez readily acknowledged he had only
limited knowledge and experience with the Hobart gang. Any
further inquiry into this topic, even if the result of the trial
court’s evidentiary ruling and not defense counsel’s trial tactics,
would not have added anything of significance to Aguilar’s
defense to the prosecutor’s theory the killing was gang motivated.
Ample evidence was before the jury on this point. (See People v.
Franklin (1994) 25 Cal.App.4th 328, 337 [exclusion of additional
evidence during cross-examination going to the witness’s
credibility was cumulative and, therefore, harmless].)
4. The Trial Court Did Not Err by Failing To Instruct the
Jury on Accomplice Testimony
Contending Valente was properly considered an accomplice,
Aguilar argues the trial court erred by not instructing the jury
with CALCRIM No. 334, which requires the jury to decide
whether a particular witness is an accomplice whose testimony
must be corroborated.
11 Because the trial court placed only a limited restriction on
Aguilar’s counsel’s cross-examination of Officer Gonzalez and
evidence of Gonzalez’s lack of knowledge and experience with the
Hobart gang was presented to the jury, we evaluate the
evidentiary ruling under the harmless error standard for state
law error articulated in People v. Watson (1956) 46 Cal.2d 818,
836, not the standard for federal constitutional error in Chapman
v. California (1967) 386 U.S. 18, 24 that would be used had an
erroneous ruling created a fundamentally unfair trial. (See
People v. Brown (2003) 31 Cal.4th 518, 545-546 [unless the
prohibited cross-examination would have produced a significantly
different impression of the witness’s credibility, the trial court’s
exercise of discretion limiting questioning does not violate the
defendant’s federal constitutional rights].)
27
Section 1111 provides “[a] conviction cannot be had upon
the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the
commission of the offense; . . . An accomplice is hereby defined as
one who is liable to prosecution for the identical offense charged
against the defendant on trial in the cause in which the
testimony of the accomplice is given.” Accordingly, to be
considered an accomplice within the meaning of section 1111, a
witness “must act ‘with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing,
or of encouraging or facilitating commission of, the offense.’”
(People v. Clark, supra, 63 Cal.4th at p. 606; accord, People v.
Lewis (2001) 26 Cal.4th 334, 369 [“[a]n accomplice must have
‘“guilty knowledge and intent with regard to the commission of
the crime”’”].) “An accessory, however, is not liable to prosecution
for the identical offense, and so is not an accomplice.”12 (People v.
Fauber (1992) 2 Cal.4th 792, 833-834.)
“If sufficient evidence is presented at trial to justify the
conclusion that a witness is an accomplice, the trial court must so
instruct the jury, even in the absence of a request.” (People v.
Brown (2003) 31 Cal.4th 518, 555.) “‘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
12 Section 32 defines an accessory as: “Every person who,
after a felony has been committed, harbors, conceals or aids a
principal in such felony, with the intent that said principal may
avoid or escape from arrest, trial, conviction or punishment,
having knowledge that said principal has committed such felony
or has been charged with such felony or convicted thereof . . . .”
28
testimony.’” (People v. Lewis, supra, 26 Cal.4th at p. 369; accord,
People v. Boyer (2006) 38 Cal.4th 412, 466 [“[t]he court need give
such instructions only where there is substantial evidence that
the witness was an accomplice”].) We review the record de novo
to determine whether substantial evidence supported giving a
particular jury instruction. (See People v. Nelson (2016) 1 Cal.5th
513, 538; People v. Trujeque (2015) 61 Cal.4th 227, 271.)
Aguilar argues a finding of Valente’s accomplice liability
was supported by evidence Valente knew Aguilar was armed, was
present at the shooting, believed Segovia was in danger
immediately before the shooting, fled after the shooting and
initially lied to the police. However, none of this evidence was
sufficient to support a finding Valente shared Aguilar’s intent to
shoot Segovia or intended to encourage or facilitate Aguilar in
doing so. (See People v. Lewis, supra, 26 Cal.4th at pp. 369-370
[“there was no evidence other than speculation that [witness]
planned, encouraged or instigated the murder and robbery to give
rise to accomplice liability” even though witness had been present
and had “intimate knowledge” of the crime]; People v. Sully
(1991) 53 Cal.3d 1195, 1228 [evidence witness was present during
murder did not support inference witness was an accomplice];
People v. Stankewitz (1990) 51 Cal.3d 72, 90 [“[n]or is an
individual’s presence at the scene of a crime or failure to prevent
its commission sufficient to establish aiding and abetting”];
see also People v. Hoover (1974) 12 Cal.3d 875, 879 [assisting
principal to escape does not result in liability as principal or aider
and abettor, but merely as accessory]; People v. Snyder (2003)
112 Cal.App.4th 1200, 1220 [“[i]t is not sufficient if the person
simply gives assistance with knowledge of the perpetrator’s
criminal purpose. Merely giving assistance without sharing the
29
perpetrator’s purpose and intent establishes liability only as an
accessory, not as an accomplice”].) Because there was no
evidence from which the jury could reasonably conclude Valente
was an accomplice, the trial court did not err in failing to give an
accomplice testimony instruction.
5. The Trial Court’s Instructions Regarding Voluntary
Intoxication Did Not Constitute Prejudicial Error
a. Relevant proceedings
Aguilar and Rios requested the court instruct the jury it
could consider evidence of voluntary intoxication in deciding
whether they had the specific intent or mental state required to
commit first degree murder and whether they had the specific
intent necessary for the gang allegation. Rios also requested an
instruction regarding the effect of voluntary intoxication in
deciding whether he had the specific intent required as an aider
and abettor to either murder or shooting at an occupied vehicle.
The trial court found there was evidence Aguilar and Rios were
intoxicated the night of the shooting and, thus, the instructions
were warranted. The prosecutor stated he had no objection.
The trial court gave two instructions on voluntary
intoxication. The court used a modified version of CALCRIM
No. 625: “You may consider evidence, if any, of the defendant’s
voluntary intoxication only in a limited way. You may consider
that evidence only in deciding whether the defendant acted with
an intent to kill, or the defendant acted with deliberation and
premeditation, or the defendant had the specific intent required
in a homicide charge as defined in Instructions 520 and 521 or
571. A person is voluntarily intoxicated if he or she becomes
intoxicated by willingly using any intoxicating drug, drink, or
other substance knowing that it could produce an intoxicating
30
effect, or willingly assuming the risk of that effect. You may not
consider evidence of voluntary intoxication for any other
purpose.” The court also gave a modified version of
CALCRIM 3426: “In addition to the previous instruction relating
to voluntary intoxication #625, as to defendant Esau Rios you
may consider evidence, if any, of the defendant Rios[’s] voluntary
intoxication in an additional limited way. You may consider that
evidence in deciding whether the defendant acted with the
specific intent required as an aider and abettor to either murder
or shooting at an occupied motor vehicle. . . .”
b. Governing law
A jury may consider evidence of voluntary intoxication
“solely on the issue of whether or not the defendant actually
formed a required specific intent, or, when charged with murder,
whether the defendant premeditated, deliberated, or harbored
express malice aforethought.” (§ 29.4, subd. (b).) A defendant is
entitled to an instruction on voluntary intoxication only when
there is substantial evidence he or she was intoxicated at the
time of the crime. (People v. Williams (1997) 16 Cal.4th 635,
677.) However, the defendant must request such an instruction;
the trial court has no sua sponte duty to give any instruction on
the relevance of intoxication. (People v. Bolden (2002) 29 Cal.4th
515, 559 [“an instruction on voluntary intoxication . . . is a form
of pinpoint instruction that the trial court is not required to give
in the absence of a request”]; People v. Saille (1991) 54 Cal.3d
1103, 1119.)
“Instructional error that limits the jury’s consideration of
voluntary intoxication evidence ‘is thus subject to the usual
standard for state law error [under which] “the court must
reverse only if it also finds a reasonable probability the error
31
affected the verdict adversely to defendant.”’” (People v. Mendoza
(1998) 18 Cal.4th 1114, 1134-1135; accord, People v. Pearson
(2012) 53 Cal.4th 306, 325, fn. 9 [“[t]he failure to give a fully
inclusive pinpoint instruction on voluntary intoxication did
not . . . deprive [defendant] of his federal fair trial right or
unconstitutionally lessen the prosecution’s burden of proof”];
People v. Larsen (2012) 205 Cal.App.4th 810, 830-831 [“erroneous
failure to give a pinpoint instruction is reviewed for prejudice
under the Watson harmless error standard”; the question in such
circumstances “‘is not what a jury could have done, but what a
jury would likely have done if properly instructed’”].)
c. Aguilar and Rios have not forfeited their claim of error
The Attorney General argues Aguilar and Rios have
forfeited their claim of instructional error on appeal by failing to
object to the voluntary intoxication instructions that were given.
The Attorney General is correct that generally, because the trial
court has no sua sponte duty to instruct on voluntary
intoxication, failing to raise the issue in the trial court may result
in forfeiture. (See People v. Virgil (2011) 51 Cal.4th 1210, 1260
[failure to object to instruction forfeits claim on appeal]; People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 1037 [same].) However,
as the Supreme Court has recognized, when a court “does choose
to instruct, it must do so correctly.” (People v. Castillo (1997)
16 Cal.4th 1009, 1012; accord, People v. Pearson, supra,
53 Cal.4th at p. 325.) Accordingly, the argument an instruction
was legally incorrect is not forfeited for failure to object in the
trial court. (See People v. Capistrano (2014) 59 Cal.4th 830, 875,
fn. 11 [“[w]here, however, defendant asserts that an instruction is
incorrect in law an objection is not required”]; People v. Smith
32
(2017) 12 Cal.App.5th 766, 778, fn. 5 [no forfeiture of argument
that instruction incorrectly stated the law].)
Here, Aguilar and Rios do not merely argue an instruction
tying intoxication to the gang enhancement was omitted; they
argue the intoxication instructions as given were legally
incorrect. We agree. The jury was specifically told it could not
consider intoxication for any purpose other than intent and state
of mind in relation to the murder charge or, as to Rios, intent to
aid and abet. The instructions affirmatively and erroneously
precluded the jury from considering the intoxication evidence in
connection with the specific intent required for the gang
enhancement. Failure to provide complete and accurate
instructions was error.
d. The error was harmless
Aguilar and Rios have not established a reasonable
probability that they would have obtained a more favorable result
had the jury been instructed it could consider evidence of
intoxication in connection with the gang enhancement. The jury
rejected the notion Aguilar and Rios were too intoxicated to form
the specific intent necessary for first degree murder and aiding
and abetting. There is no reasonable basis on which to find they
could have been simultaneously incapable of forming the specific
intent to assist one another in criminal conduct. (See § 186.22,
subd. (b).) In fact, the finding Rios was able to form the specific
intent to aid and abet Aguilar in shooting Segovia necessarily
requires a finding he was capable of forming the specific intent to
assist or promote a gang member in criminal conduct. Likewise,
having found Rios told Aguilar to shoot Segovia and having found
Aguilar complied, the jury necessarily found Aguilar intended to
33
assist a gang member in criminal conduct. The instructional
error was harmless.
6. Aguilar and Rios Forfeited Their Prosecutorial
Misconduct Argument and Have Not Established
Ineffective Assistance of Counsel
a. Governing law and standard of review
““‘A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the
jury.’”” (People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332;
accord, People v. Cortez (2016) 63 Cal.4th 101, 130.) Bad faith by
the prosecutor is not required. (People v. Hill (1998) 17 Cal.4th
800, 821.) In this regard, “‘[t]he term prosecutorial “misconduct”
is somewhat of a misnomer to the extent that it suggests a
prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.’” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno); see People v.
Sandoval (2015) 62 Cal.4th 394, 438.)
A prosecutor enjoys wide latitude in commenting on the
evidence, including identifying reasonable inferences derived
from the evidence. (See People v. Edwards (2013) 57 Cal.4th 658,
736 [“[a] prosecutor’s ‘argument may be vigorous as long as it is a
fair comment on the evidence, which can include reasonable
inferences or deductions to be drawn therefrom’”]; People v. Hill,
supra, 17 Cal.4th at p. 823 [same].) Comments that go beyond
the evidence to appeal solely to the passions or prejudices of the
34
jury are not permitted. (See People v. Redd (2010) 48 Cal.4th
691, 742 [“‘[i]t is, of course, improper to make arguments to the
jury that give it the impression that “emotion may reign over
reason,” and to present “irrelevant information or inflammatory
rhetoric that diverts the jury’s attention from its proper role, or
invites an irrational, purely subjective response”’”]; People v.
Kipp (2001) 26 Cal.4th 1100, 1130 [“‘[a]n appeal for sympathy for
the victim is out of place during an objective determination of
guilt’”].) Nor may a prosecutor engage in “personal attacks on the
integrity of opposing counsel.” (People v. Gionis (1995) 9 Cal.4th
1196, 1215.) “Ultimately, the test for misconduct is whether the
prosecutor has employed deceptive or reprehensible methods to
persuade either the court or the jury.” (People v. Dennis (1998)
17 Cal.4th 468, 522.)
The failure to object and request an admonition forfeits the
issue unless “the prosecutor’s argument [was] so extreme or
pervasive that a prompt objection and admonition would not have
cured the harm.” (Centeno, supra, 60 Cal.4th at p. 674; accord,
People v. Charles (2015) 61 Cal.4th 308, 327 [““‘[t]o preserve a
claim of prosecutorial misconduct for appeal, a defendant must
make a timely and specific objection and ask the trial court to
admonish the jury to disregard the improper argument’””].)
When the issue has been preserved, we review a trial
court’s ruling regarding prosecutorial misconduct for abuse of
discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) A
defendant’s conviction will not be reversed for prosecutorial
misconduct that violates state law “‘unless it is reasonably
probable that a result more favorable to the defendant would
have been reached without the misconduct.’” (People v. Wallace,
35
supra, 44 Cal.4th at p. 1071; accord, People v. Lloyd (2015)
236 Cal.App.4th 49, 60-61.)
b. The prosecutorial misconduct argument has been
forfeited
Aguilar and Rios argue the prosecutor committed
misconduct during his closing argument by improperly eliciting
sympathy for Segovia. The prosecutor showed the jurors a
photograph of Segovia in his Marine uniform and a photograph of
Segovia wearing a shirt with the words “Got Compassion” written
on it. The prosecutor told the jury these photographs were two of
his “favorites” from the trial, and he referred to Segovia as a
“compassionate protector.” Aguilar and Rios also contend the
prosecutor improperly disparaged defense counsel by stating
their arguments were unreasonable and telling the jury defense
counsel was “trying to mislead you” and was “trying to twist the
law.”
Neither Aguilar’s nor Rios’s counsel objected to any of the
statements now identified as misconduct. Accordingly, the
argument has been forfeited. (People v. Charles, supra,
61 Cal.4th at p. 327; People v. Williams (2013) 58 Cal.4th 197,
274.)
c. Aguilar and Rios have not demonstrated their trial
counsel were constitutionally ineffective
Acknowledging counsel’s failure to object in the trial court
may lead to the argument being forfeited, Aguilar and Rios
contend their trial counsel was ineffective in not objecting to the
prosecutor’s remarks. “‘A defendant whose counsel did not object
at trial to alleged prosecutorial misconduct can argue on appeal
that counsel’s inaction violated the defendant’s constitutional
right to the effective assistance of counsel.’” (Centeno, supra,
36
60 Cal.4th at p. 674; accord, People v. Lopez (2008) 42 Cal.4th
960, 966.) To prevail on their claim of ineffective assistance of
counsel, Aguilar and Rios must demonstrate their counsel’s
performances were deficient because they fell below an objective
standard of reasonableness under prevailing professional norms
and, because of those deficiencies, there exists a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Strickland
v. Washington (1984) 466 U.S. 668, 694; accord, Centeno, at
pp. 674, 676.)
“‘Unless a defendant establishes the contrary, we shall
presume that “counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions
can be explained as a matter of sound trial strategy.”’ When the
record on direct appeal sheds no light on why counsel failed to act
in the manner challenged, defendant must show that there was
‘“‘no conceivable tactical purpose’” for counsel’s act or omission.’
‘[T]he decision facing counsel in the midst of trial over whether to
object to comments made by the prosecutor in closing argument is
a highly tactical one,’ and ‘a mere failure to object to evidence or
argument seldom establishes counsel’s incompetence.’” (Centeno,
supra, 60 Cal.4th at pp. 674-675, citations omitted; accord, People
v. Jackson (2016) 1 Cal.5th 269, 349.)
Here, while the prosecutor’s statements regarding Segovia’s
character may have improperly invoked the jury’s sympathy, the
remarks were fleeting. Further, the prosecutor’s statements
about defense counsel’s theory of the case did not misconstrue the
evidence or attack defense counsel’s integrity. (See People v.
Demetrulias (2006) 39 Cal.4th 1, 31-32 [prosecutor’s argument
that the defense’s portrayal of the defendant as a victim
37
constituted an “‘attempt to distract’” the jury from the “‘real
victims’” and “that the jury should ‘[l]et that disingenuous
attempt fall on deaf ears’” was proper and did not “improperly
impugn[ ] defense counsel’s integrity”].) It is entirely possible
defense counsel elected not to object to expedite argument and
avoid continued emphasis on the prosecutor’s interpretations of
evidence. At the very least, on this record, which is silent on
counsel’s reasons for not objecting, we cannot say there was no
conceivable tactical reason for counsel’s failure to object to the
remarks Aguilar and Rios now challenge on appeal.
7. Aguilar Has Failed To Demonstrate Cumulative Error
Compelling Reversal
Aguilar contends the errors he described, at least when
considered cumulatively, compel reversal. For the reasons we
have explained, none of the errors alleged deprived Aguilar of a
fair trial. (See People v. Bradford (1997) 15 Cal.4th 1229, 1382
[no cumulative error where court “rejected nearly all of
defendant’s assignments of error”].)
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DISPOSITION
The judgment as to Rios is affirmed. The judgment as to
Aguilar is modified to reflect minimum parole eligibility of
15 years on the murder count. As modified, Aguilar’s judgment is
affirmed. The trial court is to prepare a corrected abstract of
judgment for Aguilar and forward it to the Department of
Corrections and Rehabilitation.
PERLUSS, P. J.
We concur:
SEGAL, J.
McCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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