People v. Frenes CA4/2
E072198
| Cal. Ct. App. | Oct 22, 2021Background
- Defendant Martin Frenes was convicted by jury of first‑degree murder and robbery; jury found true firearm and two special circumstances (killing a witness to prevent testimony; killing in furtherance of a criminal street gang). Sentence: 26 years (robbery) consecutive to life without parole (murder).
- Robbery: victim A.E. exchanged cash with defendant at a gas station on Jan 20, 2017; defendant followed A.E. home, pointed a gun and took his wallet; A.E. identified defendant in lineup and at trial.
- Murder: Jesus Garcia (a police informant/witness to an earlier gang murder) was shot and killed near a friend’s residence on Jan 23, 2017; defendant was linked by witness reports, admissions to acquaintances, possession/transfer of the murder weapon, and ballistics matching casings to the recovered handgun.
- Gang evidence: multiple sources tied defendant to the Southside Criminals (SSC) gang (tattoos, task‑force contacts, gang expert testimony); a jail “kite” (roster/notes) listing defendant and identifying him as a Sureños affiliate was admitted and relied on by the gang expert.
- Procedural: prosecution consolidated separate robbery and murder cases; defense unsuccessfully sought severance and an in‑camera hearing. On appeal court affirmed convictions but ordered strike of a one‑year prison‑prior under SB 136 and correction of the abstract to show a jury trial; remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consolidation / Severance (and denial of in camera hearing) | Joinder proper under §954; evidence cross‑admissible; joint trial efficient | Joinder prejudicial: strong robbery paired with weak murder; needed in camera hearing to show he might testify in one case but not the other | Denial affirmed: crimes same class, cross‑admissible evidence, no clear showing of undue prejudice; in‑camera hearing discretionary and defendant failed to make specific offer of proof (no abuse of discretion). |
| Eyewitness ID instruction (CALCRIM No. 315, certainty factor) | Instruction properly lists factors; prosecution met burden; Lemcke controls | Certainty factor misleads jurors and lowers burden of proof by overstating confidence’s probative value | Affirmed: Lemcke rejects due process challenge to including certainty as one of many factors; any error non‑prejudicial given strong ID and overall evidence. |
| Admission of jail “kite” and failure to give CALCRIM No. 418 (coconspirator instruction) | Kite admissible under coconspirator/conspiracy hearsay exception with independent foundation; admissible as gang evidence and for gang expert’s opinion | Kite was hearsay, irrelevant, unduly prejudicial; needed CALCRIM 418 to limit juror use | Kite admissible: independent evidence of inmate conspiracy and kite usage supported exception; §352 ruling not an abuse; failure to give CALCRIM 418 harmless (no reasonable probability of different outcome). |
| Gang special‑circumstance instructions and sufficiency of gang evidence | CALCRIM No. 736 adequately instructed special‑circumstance elements; gang expert evidence proved primary activities and pattern | Court should have sua sponte instructed on elements of underlying predicate crimes; expert testimony insufficient for primary activities | Affirmed: defendant forfeited request to amplify instructions; even if omission error, harmless — ample expert testimony and records proved predicate crimes and pattern; special‑circumstance finding supported. |
| Witness‑killing special circumstance sufficiency | Evidence (admissions, context linking victim as informant, expert op.) supports motive to silence witness | No proof defendant knew victim would testify or was instructed to kill; victim was not a key witness | Affirmed: substantial evidence supported that victim was an informant/witness and defendant killed him to prevent testimony or in retaliation; jury reasonable to infer motive. |
Key Cases Cited
- People v. Lemcke, 11 Cal.5th 644 (Cal. 2021) (upheld CALCRIM identification instruction including certainty factor; urged revision)
- People v. Memro, 11 Cal.4th 786 (Cal. 1995) (cross‑admissibility dispels severance prejudice inquiry)
- People v. Sandoval, 4 Cal.4th 155 (Cal. 1992) (criteria for severance; spillover effect and need for specific showing)
- People v. Montes, 58 Cal.4th 809 (Cal. 2014) (in‑camera offers of proof for severance discretionary; prosecutor’s interests implicated)
- People v. Sengpadychith, 26 Cal.4th 316 (Cal. 2001) (gang expert and evidence may suffice to prove gang’s primary activities)
- People v. Gardeley, 14 Cal.4th 605 (Cal. 1997) (expert testimony admissible to establish gang primary activities)
- People v. Thomas, 53 Cal.4th 771 (Cal. 2012) (standard for severance when defendant claims need to testify in one count but not another)
- People v. Mil, 53 Cal.4th 400 (Cal. 2012) (trial court’s duty to instruct on special‑circumstance elements)