102 Cal.App.5th 178
Cal. Ct. App.2024Background
- On March 18, 2020, Omar Herrera and juvenile A.M. approached Manuel Sac Ajtzalam and a sex worker; surveillance and eyewitnesses show a brief confrontation followed by gunfire that killed Sac Ajtzalam.
- Police recovered a 9mm semiautomatic (no serial number) from a car the two fled in; ballistics matched casing at the scene; Herrera was arrested with his phone and cash; marijuana with his DNA found in the car.
- Herrera told police and his girlfriend he had the gun, denied intending a robbery, claimed he shot the ground to scare Sac Ajtzalam, but also admitted A.M. had earlier stolen an iPhone (Herrera was present) and said A.M. "wanted to go rob that dude."
- Trial evidence included multi-camera surveillance clips (some lightened/zoomed/spliced), Muni bus video of the earlier iPhone theft, and recordings of Herrera’s interrogation and a jail call.
- Jury convicted Herrera of first degree murder (later reduced to second degree), attempted robbery, unlawful carrying of a loaded firearm, and resisting arrest; sentenced to 15 years to life.
- On appeal Herrera raised numerous claims (insufficient evidence, evidentiary and Confrontation Clause rulings, suppression issues, jury misconduct, instructional handling, cumulative error, and a Second Amendment challenge); the Court of Appeal affirmed in part published and in part unpublished, rejecting his claims.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Herrera) | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted robbery and felony-murder theory | Evidence (surveillance, eyewitnesses, Herrera’s statements, prior iPhone theft showing A.M.’s intent) supports that A.M. intended robbery and Herrera knew and aided | Herrera lacked intent to aid robbery; many alternate motives plausible; prior iPhone theft dissimilar and irrelevant | Affirmed: substantial evidence supports that A.M. intended robbery and Herrera aided/was aware, supporting felony-murder theory |
| Admissibility of prior iPhone theft (Evid. Code §1101(b) / §352) | Prior theft is admissible to show A.M.’s intent and Herrera’s knowledge of that intent; probative value outweighs prejudice | Evidence was impermissible character evidence and unduly prejudicial; dissimilar to charged robbery | No abuse of discretion: theft sufficiently similar to show intent/knowledge and not unduly prejudicial |
| Confrontation Clause re: victim of iPhone theft (S.N.) | S.N.’s out-of-court statements were non-testimonial (spontaneous/ongoing emergency) and admissible; alternative harmless if error | Admission violated Crawford; her statements were testimonial and could not be cross-examined | Admissible: statements were non-testimonial under Davis/Bryant/Chism analysis; even if error, any error was harmless beyond a reasonable doubt |
| Admission of cell‑phone texts after prior warrant suppression | Texts were properly obtained under a subsequent narrowed warrant; admission supported probative value | Earlier judge quashed first warrant; subsequent warrant tainted/overbroad so texts should be suppressed | Any error in admitting the texts was harmless beyond a reasonable doubt (similar content shown in jail call; no reasonable probability of a different outcome) |
| Trial court responses to jury questions about aiding-and-abetting intent | Responses correctly pointed jurors to CALCRIM language requiring specific intent to aid/abet | Responses were inadequate and could have allowed conviction without finding intent to aid the robbery | Forfeited: defense counsel requested/approved the jury answers; appellate review declined under §1259 discretion |
| Jury manipulation of surveillance videos during deliberations | Jurors used computer to slow, loop, overlay videos, creating new/unexamined evidence prejudicial to Herrera | Viewing in slow motion/looping was reexamination of admitted evidence, not new evidence | No prejudicial misconduct: activity was critical reexamination within scope of admitted exhibits (Collins analysis); motion for new trial denied |
| Jury discussion of punishment / "leniency" note and alleged vote‑trading | Jurors improperly considered punishment and one juror traded vote for leniency note, undermining unanimity | Although misconduct occurred (punishment discussion), no reasonable probability of prejudice; verdicts were unanimous on polling | Misconduct (punishment) occurred but was not prejudicial; no evidence of vote-trading that affected unanimity; conviction stands |
| Cumulative error | Combined errors rendered trial unfair | Errors individually harmless or forfeited; cumulative effect insufficient | No reversible cumulative prejudice |
| Second Amendment challenge to §25850 (Bruen) | Regulation of public carrying conflicted with Bruen; statute facially invalid because of prior "good cause" licensing scheme | Section is valid as applied/facially; licensing infirmity severable; §25850 falls within permissible historical traditions of regulation | Rejected: Herrera’s facial challenge fails; Bruen and Heller discussed but statute not shown unconstitutional in all applications |
Key Cases Cited
- People v. Manibusan, 58 Cal.4th 40 (2013) (substantial-evidence standard; review in light most favorable to verdict)
- People v. Anderson, 51 Cal.4th 989 (2011) (robbery intent does not require intent to cause fear; intent to permanently deprive suffices)
- People v. Jones, 51 Cal.4th 346 (2011) (degree of similarity required for uncharged acts admitted to prove intent)
- Davis v. Washington, 547 U.S. 813 (2006) (testimonial vs. nontestimonial statements; ongoing emergency test)
- Michigan v. Bryant, 562 U.S. 344 (2011) (factors for determining primary purpose of police questioning in confrontation analysis)
- People v. Chism, 58 Cal.4th 1266 (2014) (enumerating factors to decide whether statements are testimonial)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars testimonial hearsay absent prior cross-examination)
- People v. Collins, 49 Cal.4th 175 (2010) (distinguishing improper juror experiments from permissible reexamination of admitted evidence)
- People v. Flores, 70 Cal.App.5th 100 (2021) (jury misconduct prejudice where punishment discussion affected outcome)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (individual right to possess firearms in the home and permissible regulatory exceptions)
- New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022) (historic‑tradition test for public‑carry regulations under Second Amendment)