THE PEOPLE, Plаintiff and Respondent, v. ROBERT HINOJOS, Defendant and Appellant.
B325167
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 4/8/25
CERTIFIED FOR PARTIAL PUBLICATION*
(Los Angeles County Super. Ct. No. BA457195)
Benjamin Owens, under appointment by the Court of Appeal; Marvin E. Vallejo for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to
Robert Hinojos appeals from a judgment of conviction after a jury found him guilty of first degree murder and found true the special circumstance that he committed the murder by shooting from a motor vehicle. On appeal, Hinojos contends the trial court erred in sustaining the prosecution‘s objection to defense counsel‘s use of a peremptory challenge to a prospective juror, by admitting excessive gang evidence at trial, and by excluding certain proposed expert testimony. He also argues the special circumstance of murder by shooting from a motor vehicle is unconstitutional.
In the published portion of this opinion, we address Hinojos‘s argument that the trial court erred in sustaining the prosecution‘s objection under
We also address, in the published portion, Hinojos‘s contention that the trial court abused its discretion in admitting certain gang evidence at trial. Trial was bifurcated under
murder phase of trial. The prosecution‘s theory was that Hinojos killed Hector Velasquez to fulfill a condition to become a Mexican Mafia member. Although Hinojos maintains too much gang evidence was admitted, we discern no abuse of discretion.
In the unpublished portion of this opinion, we uphold the trial court‘s exclusion of the expert testimony and reaffirm that the drive-by murder special circumstance does not violate the Eighth Amendment.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Day Before the Shooting, Hinojos Talks About the Prospect of a “Promotion” If He Completes a Task
On May 12, 2016, the day before the shooting, Hinojos talked to his girlfriend, Tricia Tafollа, on the telephone. Because Tafolla was in custody at the time, the telephone call was recorded. Hinojos and Tafolla spoke in coded language, which was interpreted by the prosecution‘s gang expert. Hinojos told Tafolla that he was working “real hard” to achieve a “promotion,” which the expert opined referred to Hinojos‘s desire to move up the gang hierarchy from a member of a Southern California street gang to a “made man” of the Mexican Mafia. In order to earn the promotion, Hinojos had to complete a task and needed to do it “a little bit quicker.” Hinojos conveyed to Tafolla that he was having trouble getting in contact with someone he wanted to “take on a date,” which the expert explained meant to kill the person. Hinojos also confirmed his mother was aware of his potential promotion.
On May 13, 2016, the next morning, Hinojos went to a diner to meet with Velasquez, Juan Acosta, and others. According to Acosta, the group had gathered that morning to discuss a drug debt owed by Mario Chavarria, also known as “Snaps.” Velasquez had sold Chavarria drugs, and Acosta had been assisting Velasquez in trying to collect payment. Acosta did not know Hinojos. When Chavarria could not be reached and did not show up fоr the meeting, the group finished its food and went looking for Chavarria on a street near where Chavarria lived.2
When Acosta reached the agreed-upon street, Velasquez directed him to park his car. Acosta sat in his SUV, rolling a marijuana cigarette while he waited. Acosta saw Hinojos drive around a bit and then stop in the middle of the street near where Velasquez was standing. Velasquez approached Hinojos‘s car and leaned towards the front passenger-side window, which was open. Acosta then heard three or four gunshots, saw Velasquez collapse, and realized Hinojos had shot him. Hinojos immediately drove away.
Acosta drove up to Velasquez, who asked to be taken to the hospital and said, “He shot me.” Acosta understood Velasquez was referring to Hinojos. Velasquez was able to climb into Acosta‘s SUV without assistance. Acosta drove Velasquez to a nearby hospital and arrived a few minutes after the shooting.
Law enforcement arrived at the hospital moments later. Sheriff‘s deputies found Velasquez in the front passenger seat of
Acosta‘s SUV and observed him with a gunshot wound to the chest. Velasquez told one of the deputies, “Help me, please. I‘ve been shot. I don‘t want to die.” The deputy tried to help Velasquez maintain consciousness by talking to him. Velasquez told the deputy that he had been shоt by a bald, Hispanic man, 30 to 35 years old, with extensive tattoos and that the shooter drove a black Chrysler 300 with black rims. His description matched Hinojos and his car. Velasquez went on to say “he shot me from the car” and confirmed that no one else was in the car with Hinojos. After losing consciousness, Velasquez was taken in an ambulance to another hospital and died shortly thereafter.
Law enforcement found an expended bullet in the crease of the front passenger seat where Velasquez was sitting. The bullet was from either a .38 special or a .357 magnum revolver. Later investigation turned up five expended nine-millimeter casings on the same street where Velasquez was
C. A Few Hours After the Shooting, Hinojos‘s Mother Discusses How Hinojos Got “Promoted” and Was Lying Low
A few hours after the shooting, Tafolla called Hinojos‘s mother. Tafolla indicated that she was unable to reach Hinojos. Hinojos‘s mother explained to Tafolla that Hinojos “got that promotion, so he‘s gonna be offline for, like, a week.” Hinojos‘s mother reiterated, “he barely got promoted today” and would not be answering his phone. The prosecution‘s gang expert opined that going “offline” was to avoid law enforcement detection and that Hinojos‘s mother appeared to be under the mistaken impression that Hinojos was made a Mexican Mafia member immediately after completing his assignment to kill Velasquez.
D. Three Days After the Shooting, Hinojos Confirms He Completed His Task and His Bosses Were Pleased but the Official “Promotion” Could Take Several More Months
On May 16, 2016, three days after the shooting, Tafolla called Hinojos. She asked Hinojos whether “congratulations” were in order. He responded that he “finished the project [him]self” and was just waiting for the “paperwork, basically, to be filed.” He suggested it might not be final for several more months. Tafolla expressed surprise throughout the call because she had understood from Hinojos‘s mother that Hinojos had already received the “promotion.” Hinojos reassured her that “the project‘s done” and “they liked it,” and that he assumed his mother had simply “misunderstood.” He reiterated that “[t]hey just had to wait for the paperwork.” According to the prosecution‘s gang expert, Hinojos‘s statements confirmed that he committed the killing himself and that he was just waiting for
the Mexican Mafia members to vote on his membership, which the expert confirmed could take several months.
Months later, on October 26, 2016, law enforcement located the black Chrysler that Hinojos drove on the day of the shooting. The car was registered to Patricia Aragon, another of Hinojos‘s girlfriends (or possibly his wife), with whom Hinojos had lived. Law enforcement searched the car and found Hinojos‘s wallet and a large amount of marijuana. Gunshot residue was also found inside the car near the front passenger-side door. This was consistent with a gun having been fired nearby. A search of homes connected to Hinojos turned up $10,000 in cash and a box of .38-caliber ammunition, consistent with the type of bullet found in the SUV near Velasquez after the shooting. Hinojos was arrested the same day on an unrelated arrest warrant.
On November 15, 2016, a couple weeks later, a detective interviewed Hinojos. During the interview, the detective asked Hinojos about the black Chrysler. He also asked, “How do you know Snaps [Chavarria]?” and “What if I told you somebody can point you out?”
That same evening, Hinojos talked to his cellmate, a Mexican Mafia member. The conversation was recorded. Hinojos asked, “How long do you think gun powder will stay on like, on a seat or something like that?” When the cellmate answered that he thought it had to be tested “immediately,” Hinojos replied,
“they‘rе trying to say since May“—i.e., the month in which the shooting took place.
F. Hinojos Discusses the Possibility Chavarria Is Cooperating with Law Enforcement, and Chavarria Is Killed the Same Day
On November 20, 2016, Aragon visited Hinojos in custody. During the visit, Hinojos told Aragon about the meeting with the detective, including that law enforcement had impounded her black Chrysler and believed it was used in a murder. He also conveyed that there was an eyewitness who could identify him.
Aragon left and came back the same day. Apparently unaware they were being video recorded (and not just audio recorded), the two communicated by silently mouthing words and using hand gestures. The prosecution‘s gang expert again interpreted the conversation. Aragon gestured with her hand to indicate talking and then snapped her fingers—the combination of gestures suggested she believed “Snaps” (i.e., Chavarria) had been cooperating with the police. She also became upset and made vague comments seemingly indicating she had warned Hinojos that Chavarria would speak to the police
The gang expert opined that although a layperson might believe Aragon and Hinojos had been discussing common personal relationship issues, they were actually discussing Aragon‘s belief that Chavarria was an informant, how she was upset Hinojos had not agreed with her on the point, and that she would “take care” of the problem by the end of the day.
That same day, Chavarria was killed, and the next day, Aragon conveyed the fact to Hinojos, again through code. Following Chavarria‘s killing, Hinojos and his cellmate had several discussions, which were recorded and audible despite their whispering. Over the course of a few weeks, Hinojos and his cellmate discussed how Chavarria‘s death was a good development for Hinojos, how Hinojos would soon learn what evidence law enforcement had against him for Velasquez‘s killing, whether there was a “rat,” and the possibility of pinning the homicide on the deceased Chavarria.
G. Hinojos Becomes a Member of the Mexican Mafia
Ultimately, Hinojos became a made member of the Mexican Mafia. This was confirmed by gang expert analysis of later conversations and Hinojos‘s particular gang tattoos.
H. Charges, Trial, Verdict, and Sentence
The People charged Hinojos with murder (
a serious-felony enhancement (
Trial on the gang enhancement and gang-murder special circumstance allegations was bifurcated from trial on the substantive offenses and other allegations.
The trial court sentenced Hinojos to life in prison without the possibility of parole, plus 25 years to life for the firearm enhancement, plus a determinate term of five years for the prior serious felony conviction.
Hinojos timely appealed.
DISCUSSION
A. The Trial Court Did Not Err in Sustaining the Prosecution‘s Section 231.7 Objection to Defense Counsel‘s Use of a Peremptory Challenge
Hinojos contends the trial court erred in sustaining the prosecution‘s
perceived race, among other protected categories. As a threshold matter, we determine that the sustaining of a
1. Voir Dire and the Section 231.7 Ruling
Voir dire was conducted in groups. Juror No. 10,5 the juror at issue here, was part of the second group of prospective jurors. In response to defense
thoughts about Hinojos‘s having “a bald head” and “tattoos,” Juror No. 10 responded thаt he had “no thoughts regarding that” and the only idea he had about Hinojos was “that that‘s an innocent man.” Defense counsel asked whether the prospective jurors would have issues trusting witnesses, and Juror No. 10 said he “d[id]n‘t have any issues with trusting witness testimony . . . . [I]f someone is going to be swearing an oath, [he] then would trust them.” If someone had lied to him before, the effect “depends on the new scenario and whether or not . . . [the person is] stating that it‘s truthful and [whether] there‘s consequences with it not being so.”
Following a few days of voir dire of several groups of prospective jurors, the trial court heard challenges for cause and then seated 20 of the remaining prospective jurors in order from one to 20. The court next entertained peremptory challenges of the first 12 prospective jurors outside their presence. The prosecution accepted the panel as constituted. Defense counsel began exercising peremptory challenges.
After defense counsel‘s second peremptory challenge, the prosecution objected, indicating counsel had exercised both peremptory challenges to dismiss Hispanic6 males. The court overruled the objection, which the prosecutor also attempted to withdraw. Defense counsel exercised several more peremptory challenges. On his seventh peremptory, the prosecutor objected. She noted this was the fourth peremptory challenge the defense had used on a White person. Defense counsel explained that he
was exercising the peremptory challenge because the prospective juror had a nephew in law enforcement and counsel did “very little voir dire on gangs in this particular group.” The court expressed confusion over the latter reason but overruled the objection.
Thereafter, defense counsel challenged Juror No. 10, and the prosecutor objected, indicating that it was “another White juror.” Defense counsel said he thought Juror No. 10 was Hispanic and pointed out that he had a Hispanic-sounding name. Counsel explained he exercised the peremptory challenge because he did not conduct “enough gang voir dire” of the juror. Defense counsel explained that, because trial on the gang allegations was bifurcated, he “made a strategic decision” to ask fewer questions about gangs during voir dire of the earlier groups, such as the one of which Juror No. 10
At defense counsel‘s request, the trial court allowed counsel to review the voir dire transcript and his notes over the lunch recess. Defense counsel reported back the details of his voir dire of Juror No. 10, noting he received “rather satisfactory answers,” he had some positive notes about the juror, and he had “put a star next to his name, which . . . [is] . . . code for that‘s a good juror.” Counsel further explained that his notes indicated “MH,” which meant “male Hispanic” but he had a question mark next to the “H.” He seemed to accept that Juror No. 10 could be White.
Defense counsel explained that he asked questions about Hinojos‘s bald head and tattoos, but “did not go heavily into gangs.” Ultimately, counsel confirmed that the “only reason” he exercised the peremptory challenge against Juror No. 10 was because he had not asked him enough questions about gangs.
Before ruling, the trial court made several observations. First, the court noted defense counsel had challenged a number of both White and Hispanic jurors. Second, the statute incorporated acts of implied bias and did not require a finding that thе reason given for the challenge was pretextual. Third, defense counsel‘s written note indicated Juror No. 10‘s responses suggested he would be a good juror. Fourth, the court appeared to agree with the prosecutor that defense counsel had engaged in a pattern regarding his use of peremptory challenges and seemed unconvinced by counsel‘s attempt to differentiate based on whether the juror was White or Hispanic.7
The trial court sustained the prosecutor‘s
Additionally, the trial court found defense counsel‘s questioning of the challenged juror was “cursory.” Specifically,
the court explained that the “presumption of innocence” and the “beyond a reasonable doubt” burden of
The court also reviewed Juror No. 10‘s questionnaire,8 which revealed a “White banker who gave no remarkable answers to any questions that would raise a suspicion as to anything that would take him off the jury.”
The court concluded:
“To state that your failure to question would justify exercise [of] a peremptory challenge leaves me no other conclusion than it was done for race, whether conscious or subconscious or implied. . . .
“I do make the finding that there is a substantial likelihood an objectively reasonable person would view race or perceived membership of that race, specifically White, for the use of the peremptory challenge, and I am sustaining the objection.
“And I just point out, if you did it knowing the person was Hispanic, you have taken off a number of Hispanics, too.
“But this is a peremptory that‘s got no justification in this court‘s mind, and the court does find that it‘s an improper exercise of a peremptory.”
As a remedy, the court seated Juror No. 10 on the jury. Hinojos filed a petition for writ of mandate and immediate stay, which this court denied in case No. B318881.
2. The Legal Background on Objections to Putatively Impermissible Peremptory Challenges and the Framework of Section 231.7
The use of peremptory challenges to strike prospective jurors because of their race is prohibited by our state and federal Constitutiоns. (Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276–277 (Wheeler), overruled on other grounds in Johnson v. California (2005) 545 U.S. 162 (Johnson); see also Georgia v. McCollum (1992) 505 U.S. 42, 59 [use
To evaluate a party‘s constitutional objection to an opposing party‘s exercise of a peremptory challenge purportedly based on race, trial courts engage in a three-step procedure: first, the objecting party must make out a prima facie case “‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose‘“; second, if the objecting party makes a prima facie showing, the “‘burden shifts‘” to the party seeking to exercise the peremptory challenge “‘to explain adequately the racial exclusion‘” by offering permissible race-neutral justifications for the strikes; and third, if the party offers a race-neutral explanation, the trial court then decides whether the objecting party has proven purposeful discrimination. (Johnson, supra, 545 U.S. at p. 168, quoting Batson, supra, 476 U.S. at pp. 93–94; see also People v. Sattiewhite (2014) 59 Cal.4th 446, 469.)
Having found the Batson/Wheeler procedure ineffective in eliminating the discriminatory exclusion of potential jurors, the Legislature passed Assembly Bill No. 3070 (2019–2020 Reg.
Sess.), effective January 1, 2021. (Stats. 2020, ch. 318, § 1, subd. (b) [“The Legislature . . . finds that the existing procedure for determining whether a peremptory challenge was exercised on the basis of a legally impermissible reason has failed to eliminate . . . discrimination. In particular, the Legislature finds that requiring proof of intentional bias renders the procedure ineffective . . . .“]) The law added
Under these procedures, as pertinent here, “[a] party . . . may object to the improper use of a peremptory challenge” based on a “prospective juror‘s race” or “perceived” race. (
to justify the peremptory challenge in light of the totality of the circumstances.” (
Unlike in the Batson/Wheeler analysis, the ultimate question for the trial court is not whether the party exercising the peremptory challenge engaged in “purposeful discrimination.” (Compare
An “objectively reasonable person” is defined as one who is “aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California.” (
If the trial court finds the standard met and sustains the objection, the court must take one or more actions prescribed by
statute, which include “[s]eat[ing] the challenged juror.” (
3. The Standard of Review When the Trial Court Sustains a Section 231.7 Objection
We must first identify the standard of review for trial court decisions to sustain
As the California Supreme Court has observed:
“The standards of review for questions of pure fact and pure law are well developed and settled. Trial courts and juries are better situated to resolve questions of fact, while appellate courts are more competent to resolve questions of law.
review of the ultimate judgment itself, in which a reviewing court makes an original appraisal of all the evidence“].) Where, as here, we defer to the trial court‘s factual findings if supported by substantial evidence, such review is generally described as “independent review.” (See In re George T. (2004) 33 Cal.4th 620, 634 [when an appellate court defers to the trial court‘s factual findings while “exercis[ing] its independent judgment to determine whether the facts satisfy the rule of law,” this is “independent” rather than “de novo” review].) Nevertheless, we use the term “de novo” for the sake of consistency with
Second,
4. The Trial Court Correctly Concluded There Was “More Than a Mere Possibility” an “Objectively Reasonable Person” Would View Race as “a Factor in the Use of the Peremptory Challenge”
Applying the standard of review set forth above, we conclude “in light оf the totality of the circumstances . . . there is a substantial likelihood that an objectively reasonable person would view race [or perceived race] as a factor in the use of the peremptory challenge.” (B. The Trial Court Did Not Abuse Its Discretion in Admitting the Prosecution‘s Gang Evidence at Trial
Hinojos argues that, although gang evidence was admissible to prove motive for murder, some of the evidence should have been excluded. We find no abuse of discretion.1. The Trial Court‘s Ruling on the Admission of Gang Evidence and the Gang Expert‘s Testimony
Before trial, Hinojos sought to bifurcate trial on the gang enhancement (2. The Law on the Admission of Gang Evidence and the Standard of Review
California courts have long been circumspect in the admission of gang evidence in criminal trials. Such evidence “creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged.” (See People v. Williams (1997) 16 Cal.4th 153, 193 (Williams).) The admission of gang evidence was historically more complicated when the prosecution also alleged gang enhancements—i.e., that the defendant committed the charged offense “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in3. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Hinojos‘s Motive
The trial court bifurcated the trial on the substantive murder charge from the gang enhancement and the gang-murder special circumstance allegations.Contrary to Hinojos‘s assertion, Enriquez was offering his personal killings in explaining the process by which he became a member of the Mexican Mafia. The brief colloquy was relevant not only to help establish Enriquez‘s credibility as an expert but also to advance the idea that willingness to commit murder is a criterion used by the Mexican Mafia in evaluating a person for membership. Fourth, and finally, Hinojos identifies a line in the transcript where Enriquez says that “[t]he organization comes first, even if that means you have to kill a family member.” There was no evidence in this case that any Mexican Mafia member or Hinojos killed a family member. Rather, the purpose of the statement was to explain the importance of loyalty to the organization. While the point could have been conveyed without that specific flourish, we cannot say it was so unduly prejudicially as to outweigh its probative value. In conclusion, the People‘s gang evidence was relevant to Hinojos‘s motive for murder and was therefore admissible in the first phase of trial. (See People v. Valdez (2012) 55 Cal.4th 82, 129-131 [evidence of defendant‘s membership and level of commitment to a gang, allegiance to the Mexican Mafia, and the workings and activities of the gang was admissible as relevant to motive and identity]; Williams, supra, 16 Cal.4th at pp. 193–194 [evidence of defendant‘s leadership role in a gang, rivalry with another gang, and the gang‘s behavior and areas of influence was admissible as relevant to prove motive].) Much of the gang expert‘s testimony was also dedicated to deciphering gang code in various communications, which Hinojos does not challenge. Accordingly, given the highly probative value of the gang evidence to the People‘s theory of motive and to understanding the coded communications in this case, the trial court acted within its discretion in finding that the probative value of the gang evidence was not substantially outweighed by the risk of undue prejudice. (Cf. Garcia, supra, 107 Cal.App.5th at p. 1054 [trial court abused its discretion in admitting gang evidence in first phase of bifurcated“[Prosecutor]: And then in terms of the point at which you got made, how is it that you actually achieved that goal?
[Enriquez]: How did I end up being made?
[Prosecutor]: Yes, yes. Did you have to commit a particular crime in addition to the grooming process? [Enriquez]: Yeah. I had stabbed four individuals before that.”
C. The Trial Court Did Not Abuse Its Discretion or Violate Hinojos‘s Right to Due Process by Excluding Some Expert Testimony
Hinojos argues the trial court erred in limiting the testimony of one of his experts (Dr. Hammers) and in excluding the testimony of another (Dr. Firestone). As we explain below, we determine the trial court did not abuse its discretion. We also conclude the trial court‘s rulings did not violate Hinojos‘s due process right to present a defense.1. The Trial Court Acted Within Its Discretion To Limit Dr. Hammers‘s Testimony and To Exclude Dr. Firestone‘s
A person is qualified to testify as an expert if the person has sufficient special knowledge, skill, experience, training, or education on the subject to which the testimony relates. (a. The Trial Court Was Within Its Discretion To Limit Dr. Hammers‘s Expert Testimony to Her Areas of Expertise
The defense sought to call Dr. Hammers, a forensic pathologist, to testify at trial. The purpose of her testimony was to cast doubt on the probability that Hinojos shot Velasquez from inside the car while Velasquez was leaning into the passenger-side window. While her proposed testimony included matters squarely within the purview of forensic pathology—namely that the physical evidence showed the bullet entered and exited Velasquez‘s body perpendicularly rather than at an angle—it also relied on her review of witness statements and police reports, a bullet path trajectory analysis, ballistic evidence, and her view of the gunshot residue analysis. The trial court acted within its discretion to permit Dr. Hammers to testify as to matters related to forensic pathology but to exclude Dr. Hammers‘s proposed testimony beyond that. During a hearing regarding the permissible scope of her testimony, Dr. Hammers acknowledged she was a trained forensic pathologist who worked for years as a medical examiner; she was not an expert in bullet path trajectory, ballistics, or criminology. While she attended some seminars that touched on those latter subject matters, they were not part of her expertise. Dr. Hammers further acknowledged medical examiners, like her, do not make assessments beyond the scope of what can be ascertained from the decedent‘s body alone. This was confirmed by Dr. Odey Ukpo, the official medical examiner in the case, who testified that determining a shooter‘s location relative to a victim or a bullet‘s trajectory before striking the body required expertise in ballistics, bullet trajectory, and gunshot residue—subject matters outside a forensic pathologist‘s domain. Hinojos contends “the trial cоurt severely limited Dr. Hammers‘[s] testimony to no more than basically regurgitating what was in the autopsy report, and to no more than what the prosecution‘s medical examiner witness had already testified.” Not so. Dr. Hammers testified the evidence showed the difference in height between the entrance and exit wounds was “closer to a three to four-inch difference rather than a once-inch difference” as Dr. Ukpo had calculated. She further disagreed with Dr. Ukpo‘s assessment that the bullet perforated a rib bone and changed direction within the body, noting that any mention of deflection was oddly absent from Dr. Ukpo‘s report and that, in her experience, the bullet would travel on a straight path. Dr. Hammers also testified that the nature of the wound indicated the bullet entered perpendicularly to Velasquez‘s body, and the bullet‘s path through the body revealed certain positions that Velasquez could have been in when he was shot. She went on to summarize, “Basically the body has to be facing the bullet so that it can enter perpendicular, but then the body would need to be bent in a way that allows the bullet to travel downward as opposed to just going from the front to the back of the body.” In other words, Dr. Hammers was ultimately permitted to opine on what the bullet‘s entry angle showed regarding how Velasquez‘s body might have been positioned when he was shot—which was the reason the defense sought to introduce her testimony in the first place. Finally, Hinojos cites three cases—People v. Edwards (2013) 57 Cal.4th 658, People v. Robinson (2005) 37 Cal.4th 592, and People v. Catlin (2001) 26 Cal.4th 81—to argue that Dr. Hammers‘s excluded testimony was proper subject matter for a forensic pathologist. These cases do not assist him. In each of those cases, the reviewing court was tasked with deciding whether the trial court abused its discretion in admitting testimony not in excluding it. The trial court‘s broad discretion in admitting or excluding evidence means that on the same facts one judge could reasonably exclude evidence that another judge could reasonably admit. “We do not consider whether a trial court reasonably could have admitted the expert opinion evidence in this case. Our only inquiry . . . is whether the trial court‘s decision to exclude the expert opinion testimony constituted an abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 428, fn. 22, citing Alcala, supra, 4 Cal.4th at pp. 788–789.) We conclude it did not.b. The Trial Court Acted Within Its Discretion To Exclude Dr. Firestone‘s Proposed Testimony
Hinojos argues Dr. Firestone, a physicist, would have testified that (1) for Hinojos, from inside the car, to shoot Velasquez, standing at the passenger-side window, Hinojos “would have had to hold the firearm in an extremely awkward manner, such as very high up within the vehicle, pointed in a very acute downward[] angle, which was not a likely scenario”; and (2) “given the amount of evidence that he believed was missing, whether not report[ed], collected or obtainеd, it was not possible for him to determine how the shooting took place in this case” and “the physical evidence he reviewed in this case . . . was not sufficient to establish that the shooting occurred from within a vehicle at a victim that was positioned outside of the vehicle in some fashion.” We discuss each in turn and conclude the trial court was within its discretion to exclude this proffered testimony. With respect to Dr. Firestone‘s proposed testimony about the unlikelihood that the shooter fired from inside the car, this was based entirely on the location of two bullet fragments found at the scene—one in the road; the other in a driveway. Based on his calculations of bullet trajectory, Dr. Firestone concluded that the bullet fragment found in the road was in a place that “didn‘t fit any scenario” where it could have been fired from inside the car. While the bullet fragment in the driveway could have been fired from inside the car, it would have required the firearm to have been held up high pointing downward, which “doesn‘t make any sense” because it is the “most extreme way” to shoot. The problem with this opinion is that no one claimed either bullet fragment came from Hinojos‘s firearm. Although there was never a satisfactory explanation of the details, the evidence showed that there were likely other firearms discharged at the scene. Even the defense‘s firearm examiner stated that “[t]he amorphous lead fragments recovered from the scene . . . could not be associated with any other evidence recovered at that location[;] its [sic] source remains ambiguous.” And, importantly, the People‘s position was that Velasquez was killed by the bullet found in the passenger seat of Acosta‘s SUV, where law enforcement discovered Velasquez sitting wounded. Dr. Firestone‘s opinion that unaccounted-for bullet fragments found at the scene were not likely fired from inside the car was of minimal, if any, probative value. Similarly, Dr. Firestone‘s proposed testimony about how, in his view, physical evidence was missing and therefore inconclusive would not have assisted the jury. Dr. Firestone observed that given the number of cartridges or casings found at the scene, additional bullets should have been recovered; “[i]f those bullets were found,2. The Trial Court Did Not Violate Hinojos‘s Due Process Right To Present a Defense
Hinojos further argues that the trial court‘s exclusion of expert testimony, even if not an abuse of discretion, nonetheless violated his due process right to present his defense. “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused‘s right to present a defense.” (People v. Turner (2020) 10 Cal.5th 786, 818, quoting People v. Hall (1986) 41 Cal.3d 826, 834.) Indeed, “[o]nly rarely” is “the right to present a complete defense . . . violated by the exclusion of defense evidence under a state rule of evidence.” (Nevada v. Jackson (2013) 569 U.S. 505, 509.) This is not one of those rare cases. Here, the limitations on Dr. Hammers‘s testimony and the exclusion of Dr. Firestone‘s testimony did not deprive Hinojos of an opportunity to present his defense. On the contrary, Hinojos presented a robust defense in which he marshalled an array of experts to cast doubt on the prosecution‘s evidence that Hinojos was the shooter. As discussed, Dr. Hammers testified about the probable path of the bullet and position of Velasquez‘s body. Additionally, a criminalist testified that there was no blood on the expended bullet that matched Hinojos‘s ammunition and was found in the seat where Velasquez sat after he was shot. A forensic consultant testified that the gunshot residue found on Hinojos‘s car was not of a forensically significant amount. A firearm examiner opined, based on the location of the nine-millimeter casings and other measurements, that there was gunfire at the scene from a weapon other than the one that fired the .38 or .357 caliber bullet found near Velasquez. Hinojos further presented a gang expert to counter the prosecution‘s gang expert, a cellphone tower expert to dispute the prosecution‘s cellphone analysis, and a psychologist to cast doubt on eyewitness testimony by explaining the problems with memory and suggestibility. All in all, we cannot say that the trial court‘s decision to limit Dr. Hammers‘s testimony and to exclude Dr. Firestone‘s testimony deprived Hinojos of his due process right to present a complete defense.D. The Drive-by Murder Special Circumstance Does Not Violate the Eighth Amendment
Finally, Hinojos challenges his sentence to life without the possibility of parole based on the drive-by murder special circumstance. (DISPOSITION
The judgment is affirmed.PULOS, J.*
We concur:
SEGAL, Acting P. J.
FEUER, J.
* Judge of the San Diego County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.