THE PEOPLE, Plaintiff and Respondent, v. ISAK ESPINO, Defendant and Appellant.
D083213
(Super. Ct. No. SCE407562)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 7/7/25
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Frank L. Birchak, Judge. Affirmed with directions.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Caelle Oetting, Deputy Attorneys General for Plaintiff and Respondent.
INTRODUCTION
Isak Espino appeals a judgment of conviction after a jury found him guilty of the first degree murder of Dante Lopez (
We agree with Espino that the trial court violated state law by restricting his cross-examination of the witness who named him as the presumed killer. However, we conclude the error of state law was harmless. We reject Espino‘s contention that the court violated his rights under the Confrontation Clause and conclude any instructional error was harmless. Finally, we agree with Espino that the abstract of judgment includes a clerical error requiring correction. Therefore, we affirm the judgment and direct the trial court to prepare an amended abstract of judgment deleting the checkmarks under Item 8 (which mistakenly indicate that Espino was sentenced under the Three Strikes law) and deliver the amended abstract of judgment to the Department of Corrections and Rehabilitation.
BACKGROUND
A. Factual Background
One afternoon, Espino and his friends, George Gomez III and Rudy M., went to a bowling alley in Chula Vista where they bowled, drank alcohol, and played pool. While they hung out, Rudy mentioned that his older friend, Demetri H., had suffered a leg injury, was living out of his car, and was unwell. Espino and Gomez were acquaintances with Demetri and sometimes socialized with him in group settings. Rudy said he planned to give $200 to Demetri to help him out. Gomez also agreed to give $200 to Demetri, who had given money to Gomez in the past. Espino agreed to match his friends’ contributions.
At 6:00 or 7:00 p.m., Espino, Gomez, and Rudy drove to a bar in Spring Valley called The View to continue drinking. Demetri joined them an hour or two later. When he arrived, he had a visible limp due to his injury and wore a leg brace that extended from his knee down to his foot.2 Espino, Gomez, and Rudy gave Demetri the money they had pledged him—$600 in total—and the four men drank and socialized.
After about an hour, the men went to a nearby bar called Joycee‘s. They ordered drinks and played pool. At one point, Espino started playing pool with the victim, Lopez, who was not previously known to the four men
When they returned inside, Gomez and Demetri learned that Espino had placed a bet on his pool game, lost the bet, and left the bar—ostensibly to pull out money from an ATM. However, instead of pulling out money, Espino called 911. Espino identified himself using a false name and told the operator he had played a game of pool with men at Joycee‘s, he had won the game, and the men had gotten angry. He said the men had pulled guns on him, threatened to shoot him, and “were chasing [him] with guns.”
Back at Joycee‘s, Espino‘s companions texted and called him, but he did not answer. After a few minutes, Lopez approached Espino‘s companions and demanded they cover his debt, which totaled $500. Although Lopez seemed upset, he did not threaten anyone, physically touch anyone, or pull a gun on anyone. Using most of the money Demetri had been given earlier that evening, Gomez, Rudy, and Demetri paid off Espino‘s debt to defuse the situation. They then left the bar and drove around in search of Espino.3
After 15 minutes, Espino called his friends and asked them to pick him up at a nearby restaurant. When they picked him up, he initially seemed frightened and claimed Lopez had threatened him at the bar. However, he soon became angry when he learned his friends had covered his debt and wanted him to repay Demetri for the money they had given Lopez. The men returned to The View for a brief stop and Rudy separated from the group and drove home in his own vehicle.
Espino, Gomez, and Demetri drove to Gomez‘s house and dropped him off while Espino and Demetri waited outside. Gomez then walked inside and pretended to settle in for the night to appease his father, who wanted him to stay home for the evening. However, Gomez snuck out and rejoined his companions after 10 or 15 minutes. According to Gomez, he at some point noticed Espino had changed his attire from a white shirt and shorts to dark black clothing.
At trial, Gomez testified that Espino—apparently still upset his companions had paid off his debt—wanted to return to Joycee‘s and try to get the money back from Lopez. Gomez testified that he and Demetri tried, but failed, to talk Espino out of returning to the bar. Gomez also testified that Espino drove the group to the bar and parked around the corner.
At trial, Gomez testified that Espino was the first person who exited the driver seat, Gomez was the second person who exited the rear passenger seat, and Demetri was the purported third person who remained seated in the front passenger seat. Gomez testified he exited the vehicle to throw out a beer can, not to act as a lookout According to Gomez, Espino called to him as he crossed the street and told him to sit down in the driver seat, which he did. Gomez testified that Espino then said he would “walk by,” walked down the street, and turned the street corner towards Joycee‘s. In the meantime, Demetri remained “half asleep” in the passenger seat.
Shortly after, at 11:15 p.m., several gunshots erupted and Lopez was shot and killed next to his car, which was parked across the street from Joycee‘s. The apparent shooter—who Gomez identified as Espino—ran back to the car and climbed into the rear passenger seat. According to Gomez, Espino urged Gomez to drive and told his companions it had been “perfect timing,” presumably a reference to his fatal encounter with Lopez outside the
A few days later, Espino texted the coworker from whom he had borrowed money to repay Demetri. Espino‘s text included a shushing emoji— i.e., an emoji of a face with an index finger pressed to its lips—and a message that read, “Nothing to no one.” The coworker replied, “I know,” and told Espino they both needed a “limpia,” or cleanse. According to Gomez, Espino also sent him a photograph of Espino‘s daughter on Snapchat with a message stating that he had to be there for his daughter.
The police identified Espino and Gomez as suspects and arrested them a few days later. After the police arrested Gomez, they questioned him in a recorded interview that was played for the jury. During the interview, Gomez initially lied and said he went home at about 10:30 p.m. and stayed there the rest of the night. However, almost immediately afterwards, Gomez admitted he returned to Joycee‘s with his companions. He also identified Espino as the person who exited the car before the shooting and came running back to the car after the shooting.
Bullets obtained from Lopez‘s body came from a single ghost gun, but the murder weapon was never recovered. A search of Espino‘s residence uncovered a ghost gun that was not involved in the shooting.
The police swabbed several items for DNA and compared them to DNA samples obtained from Espino, Gomez, Demetri, and the victim. Analysis of swabs from the driver‘s side interior door handle and seatbelt clip of Espino‘s car showed DNA strongly consistent with Espino and Gomez, but not Demetri. The police also recovered a medical face mask from the ground near where the car was parked around the corner from Joycee‘s. Analysis of the face mask revealed DNA consistent with Espino‘s DNA.
B. Procedural Background
The district attorney charged Espino and Gomez with Lopez‘s murder (
At the conclusion of trial, the jury found Espino guilty of first degree murder and returned true findings on the firearm enhancement allegations. The trial court sentenced Espino to state prison for an aggregate term of 50
III
DISCUSSION
A. The Trial Court Did Not Commit Prejudicial Error by Limiting Espino‘s Cross-Examination of Gomez
On appeal from the judgment of conviction, Espino claims the trial court abused its discretion under
1. Additional Background
A central disputed issue at trial concerned the identity of the presumed killer—the person who exited the driver seat of the car, walked to Joycee‘s before the shooting, and ran back to the car after gunfire erupted. The prosecution theorized the person in question was Espino, while the defense posited that the person was Demetri. To support its theory, the prosecution relied on the testimony of Gomez, who—in both his post-arrest interview with police and at trial—identified Espino as the presumed killer. The defense, in
To that end, the defense filed a motion in limine seeking to admit third-party culpability evidence, including evidence that Demetri could have been the killer and evidence that Gomez was frightened of Demetri. Relevant here, the defense sought admission of two prior criminal convictions suffered by Demetri—a 2003 conviction for armed robbery and a 2020 conviction for narcotics possession for purposes of sale. The defense sought to admit the convictions, in part, to show that Gomez was aware of the convictions and feared Demetri because of them. Additionally, the defense sought to admit Demetri‘s prior convictions as impeachment evidence.
The People, for their part, moved in limine to exclude third-party culpability evidence, subject to an evidentiary hearing under
Ruling on the motions in limine, the trial court allowed the defense to impeach Demetri with both of his prior criminal convictions. Further, the court permitted the defense to discuss third-party culpability in its opening statement and reserved a ruling on whether third-party culpability could be discussed during closing arguments, “depend[ing] on the evidence as it comes out.”
These issues arose again during the defense‘s cross-examination of Gomez. During the cross-examination, the defense asked Gomez whether he was afraid of Espino or had ever been afraid of him. Gomez replied “No” to both questions. Then, the defense asked whether Gomez was afraid of Demetri, to which Gomez replied, “No.” The defense followed up by asking if Gomez was familiar with Demetri‘s “past at all.” Gomez stated he “heard
During the next break in the proceedings, outside the presence of the jury, the trial court summarized the sidebar for the record as follows:
“We had an off the record sidebar discussion related to the issue of questioning Mr. Gomez if he was aware of [Demetri‘s] criminal history. [¶] The court during that sidebar conversation asked defense counsel if there was any offer of proof after Mr. Gomez denied, indicated that he was not afraid of [Demetri] or asked for an offer of proof of any other evidence that would demonstrate that fear. Quite frankly, the court also – I did explicitly discuss it during the chambers discussion about – as it related to [Evidence Code section] 352 in terms of the appearance of Mr. Gomez‘s knowledge of that at this time. [¶] And so the plan as I understood it, [defense counsel] is going to request to have Mr. Gomez subject to recall so that if this particular information comes out, she may be able to ask him that question if there is something that makes it appear more relevant and change that [Evidence Code section] 352 balance.”
On redirect, Gomez repeated that he was not afraid of Espino or Demetri, and testified that he had no reason to be afraid of Demetri.
Thereafter, Demetri was called to the stand as a prosecution witness. At the outset of his direct examination, the prosecution elicited testimony from Demetri concerning his prior criminal convictions in anticipation that the defense would introduce the convictions as impeachment evidence.7
Demetri‘s prior criminal history arose again during closing arguments. In her closing argument, defense counsel argued Demetri was the shooter,
2. Analysis
We begin with Espino‘s claim that the trial court exceeded its authority under state law by limiting his cross-examination of Gomez on the topic of his awareness of Demetri‘s criminal past. As all parties agree, the trial court excluded the evidence pursuant to
Espino contends the court abused its discretion under
As Espino notes, Gomez appeared to have a foundation to testify about his knowledge of Demetri‘s criminal conduct. When asked about his familiarity with Demetri‘s past, Gomez stated on the record that he had “heard about it.” Further, evidence of Gomez‘s awareness of Demetri‘s criminal past had some probative value insofar as it tended to show that Gomez may have been afraid of Demetri (despite the fact he claimed he was unafraid). That potential fear, in turn, could have supplied Gomez a bias or motive to identify someone other than Demetri—Espino, as it turns out—as the killer. Thus, the evidence was probative, to some extent, of Gomez‘s credibility.8 (See People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1285 (Castaneda-Prado) [” ‘A party can offer evidence, by proffered extrinsic evidence or by cross-examination of a witness, to attack the credibility of a witness, if such evidence tends reasonably to establish that the witness has a motive to fabricate, or some other motive, that tends to cause the giving of untruthful testimony, even though there may be no reasonable basis for the existence of such a motive.’ “]; see also United States v. Abel (1984) 469 U.S. 45, 52 [“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.“].)
On the other side of the
Having concluded the court violated state law, we turn to the distinct question of whether the court‘s rulings violated Espino‘s rights under the Confrontation Clause. “The Sixth Amendment to the United States Constitution, applicable to the states through the due process clause of the Fourteenth Amendment [citation], ‘guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” ’ ” (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1279.) ” ’ [T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” ’ ” (People v. Gonzalez (2012) 54 Cal.4th 1234, 1265.) “Restrictions on the impeachment of witnesses do not violate the [C]onfrontation [C]lause when the jury would not have had a ‘significantly different impression’ of the witness‘s credibility had the proffered evidence been allowed.” (People v. Wilson (2024) 16 Cal.5th 874, 925; see People v.Gonzalez (2021) 12 Cal.5th 367, 406 [” ’ ” ’ [U]nless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witness‘s] credibility” [citation], the trial court‘s exercise of its discretion ... does not violate the Sixth Amendment.’ ” ’ “].)
On the record before us, we fail to see how the jury would have received a significantly different impression of Gomez‘s credibility if the proffered evidence had been allowed. The court permitted the defense to vigorously attack Gomez‘s credibility on a number of fronts, including his incentives to testify against his codefendant, Espino. Specifically, the defense questioned Gomez about his plea agreement with the district attorney, which allowed Gomez to escape liability for the murder charge if, in exchange, he testified as a witness for the prosecution in its case against Espino. The court also allowed the defense to cast doubt on Gomez‘s veracity by questioning him extensively about falsehoods he told on the night of the shooting and various inconsistencies related to his accounting of that night. For example, the defense cross-examined Gomez about his false statement to police that he remained home for the evening after Espino obtained money from his coworker. The defense also questioned Gomez about his efforts to deceive his father into believing he would remain home for the evening when in fact he planned to sneak out of the house and rejoin his companions.
Most importantly, the defense elicited third-party culpability evidence to show that Demetri was the true killer and Gomez was aware of this
Because the trial court‘s evidentiary ruling violated state law, but did not impinge upon Espino‘s federal constitutional rights, we review the error for prejudice using the traditional standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Hin (2025) 17 Cal.5th 401, 482.) “This requires us to examine whether it was ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (People v. Johnson (2022) 12 Cal.5th 544, 611.)
Applying the Watson test, we conclude the error was harmless. Evidence of Gomez‘s knowledge about Demetri‘s prior criminal convictions would have had some relevance to the case, as described above, because it would have had some tendency to show he had a bias or motive to falsely identify Espino as the presumed shooter. However, the probative value of the evidence was limited by the fact that Gomez repeatedly testified he was unafraid of Demetri. It was further limited by the fact that the court allowed the defense to forcefully attack Gomez‘s credibility through a variety of means, including by highlighting his self-interested incentives to identify Espino as the presumed shooter. Further, as just discussed, the court admitted other evidence tending to show that Gomez was physically present for at least one violent criminal act that—if the defense‘s narrative was to be believed—Demetri perpetrated (the shooting of Lopez). Thus, the excluded testimony would have been somewhat cumulative of other evidence tending to show that Gomez was aware Demetri had engaged in criminal conduct.
The prosecution‘s case against Espino was also very strong. As noted, Gomez consistently identified Espino as the presumed shooter, both in his recorded interview with the police and at trial. Indeed, he identified Espino
There was also evidence that Espino had a strong motive to shoot Lopez. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1017 [” ’ [p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence’ “].) Espino lost a sizable bet to Lopez while playing pool with him earlier that night. Although Espino‘s companions settled the debt by handing most of Demetri‘s money over to Lopez, Espino repaid Demetri by using the money he borrowed from his coworker. Espino thus had a strong motive to shoot Lopez, either as a retaliatory measure for Lopez having beat him at pool or potentially to try to recover the money his companions had given Lopez. By contrast, Demetri did not have a strong motive to shoot Lopez because he had already been repaid in full.
There was strong DNA evidence linking Espino to the crime as well. As discussed, the surveillance footage showed the presumed killer exiting the driver side of the car and walking towards the crime scene. DNA testing of swabs from the driver‘s side interior door handle and seatbelt clip of Espino‘s Lexus showed DNA strongly consistent with Espino and Gomez—but not Demetri. Further, testing was performed on a medical face mask recovered from the ground near where the car was parked and it revealed DNA
Finally, the prosecution introduced convincing evidence of Espino‘s consciousness of guilt. (See People v. Flinner (2020) 10 Cal.5th 686, 719 [“a defendant‘s efforts to suppress harmful evidence can be probative of the defendant‘s consciousness of guilt“].) The prosecution introduced into evidence a recorded jailhouse conversation in which Espino urged his coworker—the coworker who gave Espino money and offered to bring him “the bitch“—to lie to the police by telling them “the bitch” referred to the coworker‘s girlfriend, rather than a gun. Additionally, the prosecution introduced a text message that Espino sent his coworker after the shooting, which included a shushing emoji and the statement, “Nothing to no one.”
In light of this highly persuasive evidence of Espino‘s guilt, we conclude it is not reasonably probable Espino would have obtained a more favorable outcome if the court had allowed him to cross-examine Gomez about his knowledge of Demetri‘s prior criminal convictions.
B. The Trial Court Did Not Commit Prejudicial Instructional Error
Next, Espino argues the court erroneously instructed the jury regarding its consideration of accomplice testimony. At trial, the court instructed the jury to decide whether Gomez was an accomplice to the murder and, if the jury found he was an accomplice, to rely on incriminating testimony from Gomez to convict Espino only if Gomez‘s testimony was supported by independent corroborating evidence.10 The court did not
“Section 1111 bars any conviction predicated on ‘testimony of an accomplice unless it [is] corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.’ ” (People v. Johnsen (2021) 10 Cal.5th 1116, 1155 (Johnsen).) “The reason for the rule is manifest: ‘Of course, an accomplice has a natural incentive to minimize his
“Before you may consider the statement or testimony of George Gomez, III, as evidence against Isak Espino, you must decide whether George Gomez, III, was an accomplice to that crime. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against Isak Espino. Someone is subject to prosecution if: [¶] 1. He or she personally committed the crime; [¶] OR [¶] 2. He or she knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 3. He or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime. [¶] The burden is on Isak Espino to prove that it is more likely than not that George Gomez, III, was an accomplice.”
[¶] ... [¶]
“If you decide that George Gomez, III, was not an accomplice, then supporting evidence is not required and you should evaluate his statement or testimony as you would that of any other witness. [¶] If you decide that George Gomez, III, was an accomplice, then you may not convict Isak Espino of Murder based on his statement or testimony alone. You may use a statement or testimony of an accomplice that tends to incriminate Isak Espino to convict Isak Espino only if: [¶] 1. The accomplice‘s statement or testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice‘s statement or testimony; [¶] AND [¶] 3. That supporting evidence tends to connect Isak Espino to the commission of the crime.”
“An accomplice is ‘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.’ [Citation.] ‘To be chargeable with an identical offense, a witness must be considered a principal under section 31.’ ” (Johnsen, supra, 10 Cal.5th at p. 1155.) “That section defines principals as ‘[a]ll persons concerned in the commission of a crime, whether ... they directly commit the act constituting the offense, or aid and abet in its commission ....’ ” (People v. Sattiewhite (2014) 59 Cal.4th 446, 472, quoting
” ’ [W]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,’ including the need for corroboration.” (People v. Tobias (2001) 25 Cal.4th 327, 331.) “Only when there is ‘substantial evidence that a witness who has implicated the defendant was an accomplice’ must the trial court instruct on ‘the principles regarding accomplice testimony.’ [Citations] ’ “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
We need not determine whether the trial court should have included Demetri within the accomplice corroboration instruction it provided to the jury because any possible error was harmless. Instructional error of the kind alleged “is harmless if the record contains ‘sufficient corroborating evidence.’ [Citation.] ‘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.” ’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 95.)
The record before us contains ample corroborating evidence. In addition to the testimony of Gomez, who consistently identified Espino as the presumed killer, the record includes: (1) surveillance footage showing a car resembling Espino‘s Lexus parked around the corner from the crime scene at the time of the killing; (2) evidence that Espino‘s DNA—but not Demetri‘s DNA—matched DNA found on the driver seat of Espino‘s car; (3) a medical face mask found on the ground near the crime scene, which had DNA on it that was consistent with Espino‘s DNA; (4) evidence that Espino had a strong retaliatory and financial motive to kill the victim; (5) a text message Espino sent his coworker asking for a firearm on the night of the murder; (6) evidence that Demetri had a knee injury at the time of the murder, which tended to exculpate him due to the fact that the presumed killer was captured on surveillance footage running without any visible physical impairment; (7) a recorded jailhouse conversation in which Espino urged his
On this record, any error in the court‘s failure to include Demetri within the accomplice corroboration instruction was harmless.
C. The Abstract of Judgment Includes a Clerical Error
Finally, Espino argues the abstract of judgment includes a clerical error that requires correction. The People agree, and so do we.
The abstract of judgment includes checkmarks under Item 8 indicating that Espino was sentenced pursuant to the Three Strikes law (
The abstract of judgment is a contemporaneously prepared “clerical record of the conviction and sentence.” (People v. Delgado (2008) 43 Cal.4th 1059, 1070, italics omitted.) “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) “As with other clerical errors, discrepancies between an abstract and the actual judgment as orally pronounced are subject to correction at any time, and should be corrected by a reviewing court when detected on appeal.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
To achieve consistency with the oral pronouncement of judgment, the abstract of judgment must be amended by deleting the checkmarks under Item 8 indicating that Espino was sentenced under the Three Strikes law.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment deleting the checkmarks under Item 8 (which mistakenly indicate that Espino was sentenced under the Three Strikes law) and deliver the amended abstract of judgment to the Department of Corrections and Rehabilitation.
McCONNELL, P. J.
WE CONCUR:
BUCHANAN, J.
KELETY, J.