Filed 11/1/21 P. v. Flores CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307423
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA146717)
v.
HERBERT NIXON FLORES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Connie R. Quiñones, Judge. Affirmed.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Wyatt E. Bloomfield,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Herbert Nixon Flores was
sentenced to 40 years to life in prison for the shooting death of
Everardo Soto. He contends the trial court committed
evidentiary error by excluding impeachment of a prosecution
witness, instructional error in failing to instruct the jury
regarding accomplice testimony, and cumulative error.
Finding no reversible error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged, along with codefendants Santiago
Ortega and Anthony Moreno, with one count of murder (Pen.
Code, § 187, subd. (a); count 1) and one count of assault with a
semiautomatic firearm (§ 245, subd. (b); count 2). Ortega and
Moreno were also charged as accessories after the fact (neither
codefendant is a party to this appeal). Gang and firearm use
allegations were alleged as to both counts (§ 186.22,
subd. (b)(1)(C), § 12022.53, subds. (b)–(e)(1), § 12022.5).
The charges arose from the fatal shooting of Everardo Soto
on June 22, 2018. That morning, Maximiliano Estrada ran into
Soto while he was running an errand. Soto was friends with
Estrada’s older brother and treated Estrada like he was his own
brother. Estrada had several tattoos, including one that said
“Watts” and three dots that stood for “my crazy life,” but denied
being a gang member.
Estrada and Soto were walking down Central Avenue when
a car turned the corner and slowed down next to them. An adult
male sitting in the front passenger seat “hit [them] up” (asked
where they were from). Estrada knew asking where someone
was from was a “gang thing.” He was scared, tried not to look at
them, and just kept walking.
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After the front passenger asked a second time where they
were from, Soto responded “Watts.” By then the car had stopped
and the driver (another adult male) got out. Estrada feared
something bad was going to happen, so he ran into a nearby
beauty salon. He heard four gunshots. When Estrada went back
out to the street, he saw Soto on the ground, bleeding. Several
people had gathered around. Someone told him not to touch Soto
and that paramedics were on the way.
The police officers who responded to the scene found Soto
lying unresponsive on the sidewalk with multiple gunshot
wounds. They recovered videotape from security cameras in
nearby businesses that captured the incident and showed the
suspects leaving the scene in a white SUV. Four 9-millimeter
shell casings were recovered from the scene. Soto did not survive.
An autopsy confirmed Soto died from multiple gunshot wounds,
including one that entered his lower back and two additional
“back to front” wounds to his legs.
One of the responding officers, Officer Agustin Hernandez,
was told by the owner of the beauty salon that Estrada had been
with Soto when the shooting occurred and ran into the salon.
Officer Hernandez spoke with Estrada and asked him if he was
injured. Estrada looked “shocked” and “scared” but denied being
injured.
Detective Mario Aguilar and his partner interviewed
Estrada at the station after the shooting. Estrada told them Soto
was known as Solo and was a member of the Colonia Watts street
gang. Estrada said Soto had picked him up in a car to run an
errand. They drove into downtown, parked and were walking on
Central Avenue when a car pulled up next to them. Estrada told
the detectives both he and Soto yelled out “Watts.” The driver of
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the car got out. Estrada then heard shooting and took off
running.
Detective Aguilar and his partner reviewed the
surveillance video that depicted the shooting. It showed the
suspects were in a white SUV. The driver got out first, then the
rear passenger behind the driver got out, extended his arm, and
started shooting in the direction of Soto and Estrada on the
sidewalk. The driver of the SUV ducked down. The two men got
back into the SUV and it sped off. Additional videotape recovered
by the officers from other security cameras showed the SUV
traveling to Ortega’s house a short distance away and the three
men getting out and going into Ortega’s home. Officers were
familiar with the home because Ortega was a known gang
member.
Ortega was arrested. Detective Aguilar had Ortega placed
in a holding cell with a recording device and an informant.
Ortega and the informant eventually started talking.
Detective Aguilar interviewed Ortega after listening to the
holding cell conversation. Ortega expressed concern about
talking to the detectives, mostly fear that his family members
would be retaliated against for him snitching on another gang
member. Ortega eventually identified defendant as the shooter.
Detective Aguilar believed Ortega’s explanation of the incident
was largely corroborated by the surveillance videotape they had
recovered.
Defendant was interviewed after his arrest. Detective
Aguilar was unable to confirm many aspects of defendant’s
statement. Defendant said he was working on the day of the
incident, but Detective Aguilar confirmed with the alleged
employer that defendant was not working for them that day.
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Defendant denied being at Ortega’s house, but surveillance video
showed defendant at Ortega’s home on multiple occasions,
including the day of the incident, and showed defendant take an
Uber ride from that location after the shooting.
Detective Aguilar obtained a search warrant for
defendant’s Facebook account. The records showed a photograph
of defendant holding a handgun posted to his account the day
before the shooting, as well as another post on the day of the
shooting with the message “tryna to go bust.” Detective Aguilar
worked gang enforcement prior to becoming a homicide detective
and knew that was gang terminology that meant someone was
going to shoot someone, often a rival gang member.
In August 2019, the case went to trial.
Estrada, Detective Aguilar, the medical examiner, and the
officers who responded to the scene testified to the above facts.
During cross-examination, Estrada was impeached on
several points. Estrada testified inconsistently with what he told
detectives at the police station. He denied knowing Soto had a
gang moniker and said he just knew Soto as his brother’s friend
Everardo. Estrada also denied telling Detective Aguilar that
Soto was his “big homie.” He conceded he had not been
cooperative with the police investigating the shooting but said it
was only because he had moved to Bakersfield to get away from
the gang violence in his neighborhood.
Codefendant Ortega testified for the prosecution pursuant
to an immunity-leniency agreement. He admitted lying to
investigating officers about many facts. He acknowledged he was
in custody because of the shooting and was testifying pursuant to
a leniency agreement in exchange for pleading guilty to being an
accessory after the fact and admitting the gang allegation.
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Ortega admitted his membership in KMT, a clique of the
South Side Watts street gang. KMT stood for Krazy Mexican
Town. Ortega said his gang moniker was Dodger. Ortega
acknowledged having suffered several prior convictions, including
for vandalism and felony gun possession. He said he had known
codefendant Moreno since they were children, and he had known
defendant for several years. Both Moreno and defendant were
also members of the KMT gang. Defendant’s gang moniker is
Boxer. Moreno’s gang moniker is Chucky, and in 2018, Moreno
drove a white SUV.
Ortega testified he was with defendant and Moreno on the
morning of June 22, 2018. They were on their way to a funeral.
Moreno was driving, Ortega was in the front passenger seat, and
defendant was seated behind Moreno. As they were slowing
down to stop at a signal, they saw two guys walking on the
sidewalk. Moreno pointed them out and asked Ortega if he
thought they were from “Fifth and Hill,” another street gang in
the area. Moreno stopped the SUV and Ortega called out
through the front passenger window, “where you fools from?”
Ortega said the older of the two men answered back
“Watts” and then said “Colonia.” Colonia Watts was another
rival gang of KMT. Both Moreno and defendant had been shot in
the past by members of the Colonia Watts gang. Ortega heard
defendant yell out “KMT” from the back seat. Ortega thought
they would get out and beat up the two guys, since it was three
against two. He started to unbuckle his seat belt to get out when
he heard gunshots. Everything happened very fast. Moreno and
defendant were already out of the SUV. Without getting out of
the car, Ortega saw one of the two guys lying on the sidewalk.
Ortega realized it was defendant who had been shooting after
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defendant jumped back into the SUV with Moreno. They
immediately drove to Ortega’s house a short distance away.
Ortega confirmed surveillance videotape showing Moreno’s
SUV coming to a stop next to Estrada and Soto, Soto exchanging
words with him, and defendant shooting at Estrada and Soto. He
said that as they fled the scene, the three of them were yelling
inside the SUV. Ortega said “it should not have happened . . . .
It was wrong place, wrong time.”
Once they got back to Ortega’s house, Ortega changed
clothes, and he and Moreno went to the funeral. Defendant did
not go with them because Moreno did not want defendant back in
his car. Ortega confirmed video footage from security cameras on
his house showing defendant leaving his house, walking across
the street, and eventually being picked up by another car.
Ortega denied having a gun with him that day and denied
knowing defendant had brought one with him. Ortega said there
was never any discussion or plan to go out and shoot that day,
reiterating they were headed to a funeral. Ortega said several
days later, defendant told him he shot at Soto and Estrada
because they were rival gang members, and he had been shot by
members of that gang before. Defendant told Ortega he had
gotten rid of the gun.
On cross-examination, Ortega admitted he initially lied to
the investigating officers about numerous facts. He denied being
present; he said Estrada and Soto initiated the contact by yelling
out to him, when in fact, he was the one who “bang[ed]” on them;
he said both Estrada and Soto yelled out “Watts,” when in fact,
only the older one (Soto) yelled out a response; he denied knowing
defendant’s first name or that he knew him very well, although
he had known defendant for years; and he said only defendant
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got out of the SUV, even though Moreno got out with him,
because he wanted to protect Moreno.
Ortega testified Soto raised his shirt up when defendant
and Moreno got out of the SUV, but he did not recall seeing
anything in Soto’s hands, and he never saw Soto with a weapon.
Ortega said he was in fear for his life when the shooting started
because he was not sure where it was coming from.
Ortega denied disliking defendant or that his trial
testimony was revenge for defendant flirting with his girlfriend.
He said that if gang members think another gang member acted
out of line, they have their own way of disciplining that
individual. Ortega said he did not immediately tell the truth
about what happened because he did not want to be a snitch and
put himself and his family at risk of being harmed.
Evidence was presented from several officers about the
KMT gang, including Detective Hebert Ybanez who testified as
the prosecution’s gang expert. It was generally known that South
Side Watts KMT and the Colonia Watts gang feuded and were
regularly confrontational.
Defendant testified and admitted his membership in KMT.
He said he had known codefendants Ortega and Moreno for five
years and they were both members of KMT. One of his gang
tattoos is three dots meaning “my crazy life,” and one cannot get
that tattoo without being a member of the gang.
Defendant said that on the morning of June 22, 2018, he,
Ortega and Moreno were on their way to a funeral. Moreno was
driving, defendant was seated behind Moreno, and Ortega was in
the front passenger seat. Defendant denied having any intention
of shooting anyone that day. Defendant admitted that prior to
the shooting he sent a text to a girl he liked that said “tryna go
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bust,” which normally means you are going out to shoot someone,
but he said he was only trying to impress the girl.
Defendant admitted he had a gun in his waistband, but it
was only for protection because they were headed to a funeral for
another gang member. When they saw Soto and Estrada walking
down the street, Moreno pulled over and Ortega yelled out to
them, asking where they were from. They did not answer at first,
but after Ortega asked a second time, they both responded
“Colonia Watts,” a rival gang.
Defendant said he was scared when he heard Colonia
Watts because he had been shot a couple of years before by a
member of that gang. Moreno got out of the car, and defendant
got out with him. Defendant saw Soto reach under his shirt, and
he believed Soto was grabbing for a gun. Defendant saw a small
black object in Soto’s hand. He feared getting shot, so he fired
four times in Soto’s direction. Defendant said he did not shoot at
Estrada because he did not believe Estrada was a threat. He and
Moreno then immediately got back into the car and they drove
off.
Defendant admitted he lied to the investigating detectives
who interviewed him after his arrest, because he was a gang
member, and he did not think they would believe him about what
happened.
The jury found defendant guilty as charged.
The court sentenced defendant to 40 years to life on count 1
(15 to life on the murder charge and a consecutive 25 to life for
the firearm use enhancement, § 12022.53, subd. (d)). The court
imposed a concurrent 10-year determinate term on count 2.
This appeal followed.
9
DISCUSSION
1. The Trial Court Did Not Commit Error in Excluding
the Proffered Impeachment.
Defendant contends the court committed error during the
testimony of prosecution witness Maximiliano Estrada, who was
walking with Soto just before Soto was shot and killed.
During cross-examination of Estrada, the court and counsel
discussed a few matters outside the presence of the jury,
including the fact Estrada had an open misdemeanor case for a
violation of Health and Safety Code section 11377 (possession of
methamphetamine). When cross-examination resumed, defense
counsel asked Estrada about marijuana use, and he admitted he
smoked marijuana but denied using other drugs. In response to a
follow-up question, Estrada specifically denied using or ever
being “caught with methamphetamines.”
Defense counsel asked for a sidebar. The prosecutor said
“[j]ust ask. I’m not going [to] object.” The court asked counsel to
approach and said, “[y]ou know better [than] to ask about a case
that is pending. You know you need him to have an attorney.”
Defense counsel said it was relevant to Estrada’s credibility. The
court did not think the testimony was admissible. Defense
counsel responded, “I’ll move on then,” and did not pursue the
matter further.
Defendant now contends on appeal he should have been
permitted to inquire about the pending case to show that Estrada
was lying about never having been caught with
methamphetamines in his possession. Defendant says he was
not planning to inquire further about the facts of that open case.
Defendant says the prosecutor did not oppose the question being
asked, and it was important impeachment that would
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demonstrate Estrada’s willingness to lie to the jury. Defendant
contends the preclusion of this evidence violated his Sixth
Amendment rights to present a defense and to confront the
witnesses against him. We do not agree.
“ ‘[T]he federal Constitution guarantees an opportunity for
effective cross-examination, not a cross-examination that is as
effective as a defendant might prefer.’ [Citations.]” (People v.
Homick (2012) 55 Cal.4th 816, 861.) While wide latitude should
ordinarily be given to cross-examination intended to test the
credibility of prosecution witnesses in a criminal case, the trial
court nonetheless retains broad discretion to restrict “ ‘cross-
examination which is repetitive or only marginally relevant.
[Citation.] There is no Sixth Amendment violation at all unless
the prohibited cross-examination might reasonably have
produced “a significantly different impression of [the witness’s]
credibility. . . .” [Citation.]’ ” (People v. Belmontes (1988)
45 Cal.3d 744, 780 (Belmontes), overruled in part on other
grounds in People v. Cortez (2016) 63 Cal.4th 101, 118.)
Whether or not Estrada lied about being arrested for
possession of methamphetamine was collateral and irrelevant to
the murder charge against defendant. Our Supreme Court has
said the trial court has broad discretion to exclude such
impeachment under Evidence Code section 352 in order to
“prevent criminal trials from degenerating into nitpicking wars of
attrition over collateral credibility issues.” (People v. Wheeler
(1992) 4 Cal.4th 284, 296 (Wheeler); see also People v. Jennings
(1991) 53 Cal.3d 334, 372 [no infringement on the defendant’s
Sixth Amendment rights where excluded evidence would have
impeached “witnesses on collateral matters and was only slightly
probative of their veracity”].)
11
The proffered impeachment pertained to a misdemeanor
charge for drug possession only, which is not a crime of moral
turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317; People v.
Vera (1999) 69 Cal.App.4th 1100, 1103.) Moreover, the
misdemeanor charge was pending, and Estrada had not been
convicted. “Additional considerations apply when the proffered
impeachment evidence is misconduct other than a prior
conviction. This is because such misconduct generally is less
probative of immoral character or dishonesty and may involve
problems involving proof, unfair surprise, and the evaluation of
moral turpitude.” (People v. Clark (2011) 52 Cal.4th 856, 931–
932, italics added; accord, Wheeler, supra, 4 Cal.4th at pp. 296–
297.)
Defense counsel effectively impeached Estrada on cross-
examination, by exposing significant inconsistencies in his
testimony as compared to his initial interview with Detective
Aguilar. There is no reason to think the jury would have had a
“significantly different impression” of Estrada had it heard he
was facing a pending misdemeanor charge for possession of
methamphetamines. (Belmontes, supra, 45 Cal.3d at p. 780.)
Nor is there reason to believe defendant would have obtained a
better outcome at trial.
2. The Instructional Error Was Harmless.
Defendant contends the trial court erred by failing to sua
sponte instruct the jury with either CALCRIM No. 334 or
CALCRIM No. 335 regarding accomplice testimony. Defendant
says the failure of the court to inform the jury that it must view
codefendant Ortega’s testimony with caution was prejudicial and
violated his right to due process and a fair trial.
12
We agree the court should have given the jury one of those
instructions but find the instructional error was harmless by any
standard. “A trial court’s failure to instruct on accomplice
liability under [Penal Code] section 1111 is harmless if there is
‘sufficient corroborating evidence in the record.’ ” (People v. Avila
(2006) 38 Cal.4th 491, 562; accord, People v. Manibusan (2013)
58 Cal.4th 40, 95 (Manibusan); People v. Williams (2010)
49 Cal.4th 405, 456; & People v. Battle (2011) 198 Cal.App.4th 50,
68.)
The record contains ample corroborating evidence.
“ ‘Corroborating evidence may be slight, entirely circumstantial,
and entitled to little consideration when standing alone.
[Citations.] It need not be sufficient to establish every element of
the charged offense or to establish the precise facts to which the
accomplice testified. [Citations.] It is “sufficient if it tends to
connect the defendant with the crime in such a way as to satisfy
the jury that the accomplice is telling the truth.” [Citation.]’ ”
(Manibusan, supra, 58 Cal.4th at p. 95; accord, People v.
Williams (1997) 16 Cal.4th 635, 680–681.)
Defendant’s own testimony, without more, was sufficient to
corroborate Ortega. Defendant admitted he fired four shots at
Soto. (People v. Williams, supra, 16 Cal.4th at p. 680 [“The
necessary corroborative evidence for accomplice testimony can be
a defendant’s own admissions.”].)
In light of defendant’s admissions, the only material issue
in contention was whether defendant shot in self-defense or shot
without provocation. Despite defendant’s argument to the
contrary, there was sufficient corroboration, independent of
Ortega’s testimony, that he did not act in self-defense.
13
There was videotape of the incident substantially
consistent with Ortega’s version of the shooting. The medical
examiner testified that Soto suffered three gunshot wounds, all of
which were “back to front,” suggesting Soto was turned or
turning away from defendant at the time he was shot, not facing
and threatening defendant. There was no evidence that a gun
was recovered from the vicinity of Soto’s body or that he had been
armed at the time. Detective Aguilar testified that defendant
had posted, on his Facebook page, photographs holding a
handgun along with slang terms indicating he was going out to
shoot someone within 24 hours of the shooting.
Moreover, Ortega admitted during his testimony he had
been charged in the shooting and was testifying pursuant to an
immunity agreement. Defense counsel was able to elicit several
inconsistencies in Ortega’s pretrial interviews and trial testimony
and obtain admissions from Ortega that he had in fact lied to the
police on several matters before agreeing to talk to them and
accept a deal. The jury would have been inclined to view Ortega’s
testimony with caution even in the absence of the instruction.
(People v. Williams, supra, 49 Cal.4th at p. 456 [failure to
instruct on accomplice testimony harmless where there was
sufficient corroboration and evidence jury would have viewed
accomplice’s testimony pursuant to an immunity agreement with
caution].)
3. There Was No Cumulative Error.
Finally, defendant urges us to find cumulative error,
arguing the two trial errors combined to undercut his defense
because they cloaked the two main prosecution witnesses
(Estrada and Ortega) with a false aura of credibility.
14
We are not persuaded. As we already explained, we
conclude there was no evidentiary error. And, as for the court’s
instructional error, it was harmless by any standard in light of
the ample corroborating evidence. Defendant has not
demonstrated trial errors that combined to render his trial
fundamentally unfair.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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