People v. NavarroPeople v. Navarro
A jury convicted defendant Anthony Navarro of the first degree murder of David Montemayor and of conspiracy to commit his murder (
Following the penalty phase of the trial, the jury returned a verdict of death. Defendant moved for a new trial and for modification of his sentence to life without the possibility of parole. The trial court denied those motions and sentenced defendant to death. This appeal is automatic. (
We affirm the judgment.
I. FACTS
A. Guilt Phase Evidence
1. Prosecution evidence
The murder victim, David Montemayor, was the manager and part owner of a trucking company, Interfreight Transport,
In early 2002, Perna hired Edelmira Corona to work as an office assistant at Interfreight. Around May that year, Perna asked Corona if she knew anyone who could have Montemayor killed.2 Corona put her off, but Perna was persistent. At some point, Perna gave Corona a handwritten note bearing Montemayor‘s home address and telephone number and asked again whether Corona could arrange for Montemayor‘s killing. Corona was again noncommittal and stashed the note in her desk.
According to Corona, she introduced defendant to Perna in August 2002, when he came to Interfreight to deliver methamphetamine to Corona.3 Soon after, Perna suggested that Corona give defendant the note with Montemayor‘s address and phone number and ask him to kill her brother. When
In mid-August, defendant drove Corona to northern California to visit her father, an inmate at the state prison at Pelican Bay, and her then-boyfriend, who was jailed in Humboldt County. Corona told defendant that her father was a leader in the Mexican Mafia, a southern California prison gang. During the drive, Corona received a call from Perna. When Perna learned Corona was with defendant, she asked whether Corona had mentioned the killing of Montemayor. When Corona told defendant about the conversation, he asked for Montemayor‘s address, but Corona did not have the address with her.
Corona and defendant made plans to meet about another matter a week later, and defendant asked Corona to bring Perna‘s handwritten note to the meeting. Before giving defendant the note that day, Corona wrote “one hand” on it, indicating that Montemayor was an amputee. She also told defendant that Perna said he could keep anything he found in Montemayor‘s home, in particular the cash Perna believed was hidden in the garage. When Corona told defendant that Perna wanted him to make Montemayor “disappear,” he responded, “yes.”
During a later phone call, Corona asked defendant about the note. He said he had lost it and asked her to get him the information again, but she never did so. In early September, Perna asked Corona when defendant was going to kill Montemayor. Corona told her defendant had lost the note and
Montemayor‘s weekday routine was to leave his Orange County home at 6:00 a.m., drive to Interfreight in his Ford Expedition, and open the business. On the morning of October 2, the business was already open when the other employees began to arrive, but Montemayor was not there. Around 6:45 a.m., a neighbor spotted Montemayor‘s Expedition driving down the street near his home, followed closely by another SUV. A few minutes later, shortly before 7:00 a.m., near an intersection about a half-mile from Montemayor‘s home, several gunshots were heard. Police found Montemayor‘s body lying near his Expedition, along with spent bullet casings. He had been killed by a gunshot to the head.
At the time of the shooting, the driver of a vehicle near the intersection saw two men running around a vehicle, one of them firing a handgun. The two men entered a blue Chevrolet Blazer with a license plate containing “3L” and drove off. Soon after, a police officer driving an unmarked car spotted a Chevrolet Blazer matching the description of the vehicle seen at the site of the shooting. After a high-speed chase, during which two firearms were thrown from the Blazer, police arrested the three occupants, Armando Macias, Alberto Martinez, and Gerardo Lopez. One of the handguns thrown from the vehicle was later matched to the bullet that killed Montemayor, and the other gun was linked to a bullet and spent casings found at the scene of the shooting.
On the day before Montemayor‘s killing, Macias had rented a car. Investigating police found Macias‘s rented car parked in front of defendant‘s home. The Blazer used by the three was registered at the address of defendant‘s home, although not in defendant‘s name. Around 9:00 a.m. on the morning of the killing, defendant‘s wife called police to report that the Blazer had been stolen, but a subsequent search of the Blazer revealed keys in the ignition and no signs of forced entry. The registered owner of the Blazer never sought its release from police impoundment after the killing.
In subsequent testimony, defendant acknowledged that he maintained a series of cell phones for the use of gang members who worked with him.5 Telephone records showed that one of
Two weeks later, police stopped defendant while he was driving a Lexus vehicle. In the glove compartment of the Lexus were Perna‘s handwritten note with Montemayor‘s address and phone number and a CD case containing a photograph of Corona. During the stop, defendant confirmed to a detective that he was “an older member or elder member” of the Pacoima Flats street gang. Following his arrest in connection with Montemayor‘s murder, defendant wrote several letters from jail
A local police detective, Nathaniel Booth, testified as an expert concerning matters relating to street gangs. Booth was a member of the gang unit of the Buena Park police department and had participated in a search of defendant‘s home during its investigation of the Montemayor killing. He testified that gang members are expected to “put[] in work” for the gang by committing crimes or violence for the benefit of the gang. Older members of the gang “often are more like supervisors,” with younger members committing “the majority of the violent crime” in order to prove their mettle.
Booth testified that gangs generally acquire a name, which often refers to the neighborhood in which they operate, and individual members are given monikers used within the gang. Graffiti is used to promote the gang or individual members, mark turf, and challenge other gangs. One form of graffiti is the “roll call,” in which a gang member records a list of the gang members with which that member regularly associates. Tattoos are also used to indicate gang membership and identity. Citing several of defendant‘s tattoos, Booth identified him as a member of the Pacoima Flats gang, which is affiliated with the Mexican Mafia. When Booth searched defendant‘s residence, he saw words spray painted and written on the walls of the garage in the manner of graffiti. Among others, these illustrated the words or terms PF, Droop, Droops, Droop Baby, Lil Droops, Crook, Pirate, Lil Pirate, Chito, Blackie, D‘Sta, Dee, and Weaz. Booth identified “Droopy” as defendant‘s gang moniker, while Crook and Pirate are the monikers of Martinez and Macias, respectively, both of whom Booth also
2. Defense evidence
Defendant testified that he became a member of the Pacoima Flats gang in 1978, at the age of 12. He decided to become an informer for the Federal Bureau of Investigation (FBI) in 2000, after the Mexican Mafia killed his cousin. Thereafter, he cooperated with the Los Angeles office of the FBI from April to October 2000, the San Diego office of the FBI from November 2000 to November 2001, and the Bureau of Alcohol, Tobacco, and Firearms (ATF) for two months in mid-2002.
As an aspect of his cooperation, defendant attended meetings of members of the Mexican Mafia while wearing a listening device and camera. He was able to relate extensive information about planned gang activities. Defendant was also provided funds by the FBI that he turned over to a senior member of the Mexican Mafia, passing the money off as protection payments extorted from other gang members, referred to as “rent.” This enhanced defendant‘s status in the
Defendant believed that he began to be viewed with suspicion within the gang no later than March 2002, when he was arrested for possession of a firearm by a felon, a potential third strike crime, but was released on low bail and never formally charged. He received the lenient treatment because of his status as an informant. The Los Angeles FBI terminated defendant as an informant in 2000 because it learned that rumors of his cooperation were circulating within the gang.
Defendant said he first met Corona in April 2002, when Macias introduced her to him. Corona told him she was the daughter of Felipe Vivar, a “mafia boss” whom defendant knew by reputation, and that Vivar had put her in charge of gang activities in the area. Corona told defendant that Vivar wanted him to commit a killing in Orange County. By that time, defendant had been terminated as an informant, was no longer receiving government funds, and had stopped making rent payments to the gang. He was concerned that the gang assumed he was collecting and withholding the payments and had ordered his killing.
In June 2002, defendant was the victim of a freeway shooting, which he interpreted as a warning from the gang. He sought a second meeting with Corona, hoping that she could help him set things right. Corona told him she could arrange for
After this meeting, defendant attempted to report the requested killing to his handler for the ATF, James Starkey, but Starkey told defendant he was too busy and instructed defendant to contact Rod Rodriguez, a Los Angeles police detective with whom defendant had also worked. Defendant thereafter spoke with Rodriguez and told him that Vivar‘s daughter said Vivar “wanted somebody from the San Fernando area to come out to Orange County to kill somebody.” Defendant told Rodriguez he did not know the name of the victim but had his address. Because the note with the address was in his car, defendant was unable to provide Rodriguez the address, nor did he provide Corona‘s phone number. Rodriguez instructed him to find out the name of the intended victim, telling defendant he could not do anything without that name.
Defendant acknowledged driving to northern California with Corona, characterizing the trip as a further attempt to straighten out his relations with the gang, as well as to get more information about the requested killing for Detective Rodriguez. During the drive, Corona told defendant about the money thought to be hidden in Montemayor‘s garage, but she refused to give him the victim‘s name. This time, rather than asking defendant to commit the killing, Corona suggested that he “get
Defendant testified that he believed the prosecution‘s theory of the crime was implausible because no senior gang member would permit a car registered at his address to be used in a killing; the same is true regarding his cell phones. Further, by the time of the killing defendant believed he was regarded as a turncoat by the gang. Defendant had been shot at twice while driving on the freeway, suffering a wound the second time. In addition, his car was shot at while being driven by a friend. After his arrest, defendant was attacked by Macias and Lopez while detained in a holding cell. They stabbed him eleven times, calling him a “rat.”
The account by defendant of his activities as an informant was largely corroborated by the testimony of law enforcement agents from the FBI and ATF. Their recollections of defendant‘s communications about the Montemayor murder plot, however, differed from his own. Starkey confirmed that in early June 2002, defendant called him and said “somebody was going to hit somebody.” Defendant was unable to provide any additional information, such as the potential victim, location, or timing of the killing. Starkey told defendant to get more information and to deal with Rodriguez because Starkey was busy with another matter. Starkey said that if defendant had provided sufficient
When Rodriguez, a Los Angeles police detective in 2002, first met defendant, he was aware that defendant was regarded as an effective informant. Because defendant was, as Rodriguez characterized him, a “shot caller” in the gang, he was in a unique position to gather information. In July 2002, defendant called Rodriguez to ask if he was interested in “some type of a kidnap for ransom or a murder for hire case.” At the time, defendant said he did not have any additional information. In particular, defendant did not mention Corona or the note with the victim‘s address and telephone number. Rodriguez told defendant he needed more information, such as the name of the victim, and asked defendant to find out as much additional information as he could. Defendant mentioned the matter again in a telephone call two weeks later, suggesting that the killing would occur in Orange County. Rodriguez said he needed more information to put defendant in touch with appropriate law enforcement officials in Orange County. Again, defendant did not provide any other information. He said he would get back to Rodriguez, but he never did.
B. Penalty Phase Evidence
1. Prosecution case in aggravation
Laurie Fadness testified that in February 2002, several men entered her home and attacked three men — David Gallegos, Gallegos‘s cousin, and a roommate of Fadness. Fadness had left the house that evening. When she returned, she saw several unfamiliar vehicles parked in front, including a black SUV. As she approached the back door, she heard “two loud bangs.” Entering, she saw several men scattering toward
Gallegos testified that five men entered Fadness‘s house that night. He identified all five, without naming defendant. When they entered, one of the men said to Gallegos‘s cousin, “Droopy wants to talk to you.” The cousin responded that he had nothing to say to Droopy. At that point, the men began beating them, and Gallegos heard two gunshots. He later saw that his cousin had suffered a gunshot wound to the head. Gallegos acknowledged that he told police he heard the name “Droopy” that day and knew defendant by that name, but he said that defendant was not present.
Gallegos also testified regarding an incident about six weeks later, in March 2002. At that time, he was asked to deliver a letter to a member of the Pacoima Flats gang by a member of a rival gang. Two weeks after he made the delivery, Gallegos learned that Droopy wanted to talk to him. Gallegos was eventually taken to defendant‘s house at gunpoint. Defendant was in the garage with several other men, including the men to whom Gallegos had delivered the letter. Defendant asked about Gallegos‘s delivery of the letter. When Gallegos told them who had given it to him, defendant and the other men began to beat and torture him. Eventually, Gallegos heard defendant say, “He‘s got to go,” after which Gallegos was taken away and shot 14 times. Gallegos identified defendant to police as one of the shooters in a photographic line up.
Paul Parent was a mechanic hired by defendant in September 2001 to service the vehicles of defendant, his family, and his friends. At defendant‘s insistence, Parent moved into
Karensa Spellman met defendant through a friend and began selling defendant methamphetamine. At some point, defendant sought information from her about one of his rivals in the gang, whom she knew. When Spellman told defendant she had no information, he beat and kicked her repeatedly. He then locked Spellman in his garage, where she remained for two weeks without food before Parent helped her escape.
The prosecution also provided evidence of two prior adjudicated crimes. In 1983, when he was 16 years old, defendant participated with between 25 and 30 other gang members in the shooting of two rival gang members. There was no evidence that defendant was among the shooters, and he was convicted of voluntary manslaughter. In 1995, defendant arranged to meet Francisco Chavez in a parking lot to purchase some clothing. When defendant arrived, he and three other men
There was, in addition, testimony about the impact of Montemayor‘s death. His wife and daughters testified about their personal losses, and Montemayor‘s death led to the failure of Interfreight, putting its employees out of work.
2. Defense case in mitigation
Detective Rodriguez testified that defendant continued to act as an informant even after his arrest in this case, providing useful information to law enforcement. Two FBI agents provided additional detail about defendant‘s work as an informant for the FBI. His cooperation was valuable and was undertaken at great risk, placing the lives of both defendant and his family members in danger. For several years, defendant also had participated in outreach programs for youth directed at preventing gang participation. Defendant‘s brother and daughter testified about his positive role in their lives.
II. DISCUSSION
A. Guilt Phase Claims
1. Defendant‘s convictions are supported by the evidence
Defendant‘s convictions are necessarily premised on a finding that he conspired with or acted as an accomplice to the actual killers to bring about Montemayor‘s murder. Defendant contends that the jury was not presented with sufficient evidence of his participation in such a conspiracy to support the convictions. We find sufficient evidence to support the jury‘s judgment.
“When reviewing a challenge to the sufficiency of the evidence, we ask ’ “whether, after viewing the evidence in the
” ’ “Conspiracy requires two or more persons agreeing to commit a crime, along with the commission of an overt act, by at least one of these parties, in furtherance of the conspiracy.” ’ ” (People v. Dalton (2019) 7 Cal.5th 166, 244 (Dalton).) ” ‘Evidence is sufficient to prove a conspiracy to commit a crime “if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime.” ’ ” (People v. Thompson (2016) 1 Cal.5th 1043, 1111, italics omitted (Thompson).) “Evidence of an agreement does not require proof that the parties met and expressly agreed; a criminal conspiracy can be shown through circumstantial evidence.” (People v. Penunuri (2018) 5 Cal.5th 126, 145.) “If the agreement between the conspirators is the crux of criminal
The testimony and forensic evidence, viewed in the light most favorable to the prosecution, demonstrated that Perna wanted her brother killed and solicited Corona‘s aid to that end. Corona, who had ties to the Mexican Mafia, contacted defendant, a well-positioned gang member, about that possibility. By Corona‘s account, she introduced Perna to defendant and later conveyed to him Perna‘s request for the killing. By defendant‘s account, Corona passed on a request, which could have been understood as a demand, for the killing from a highly placed member of the Mexican Mafia. Either way, it was not disputed that Corona solicited defendant to commit the murder, generally described the victim to him, and provided him a writing with the victim‘s address and telephone number. From defendant‘s acceptance of the note, which was still in his possession at the time of the murder, and Corona‘s description of his conduct in accepting it, the jury could have inferred that he was willing to consider undertaking the assignment.
Detective Booth testified that the typical street gang is disciplined and hierarchical. Junior members of the gang are expected to serve the interests of more senior members; senior members, in turn, leave the execution of criminal activities to more junior members. Defendant was a longtime member of the Pacoima Flats street gang. By his own admission, he was
Between two and six months after Corona first proposed the murder, Montemayor was killed by three gang members, all of whom were members of the same gang as defendant.7 Two of the three were sufficiently close to defendant within the gang that their monikers were among those of a small number of associates painted on the walls of his garage. In committing the killing, these associates used a vehicle registered to defendant‘s address. In the hours prior to the shooting, two of the gang members were repeatedly in contact with cell phones associated with defendant and Corona.8 Further, the 1600 cell phone linked to defendant was in constant communication with Macias, Martinez, Corona, and defendant‘s wife beginning on the evening prior to the killing, continuing through the night
Accordingly, the evidence could be understood to demonstrate that: (1) defendant, a relatively senior member of the Pacoima Flats, a criminal street gang, was asked or directed to commit the Montemayor killing by Corona, whose father was a highly placed gang member; (2) defendant received and retained Montemayor‘s address and phone number from Corona; (3) Montemayor was subsequently killed by two Pacoima Flats gang members who were among a small group closely associated with defendant, along with a third member of the same gang; (4) these gang members were permitted to use and did use defendant‘s car and cell phones in committing the killing; (5) the two gang members closest to defendant were in repeated contact with him and Corona in the hours leading up to the killing; and (6) defendant was similarly in constant communication with these two and Corona in the twelve hours leading to the murder. This pattern is consistent with Detective Booth‘s testimony about street gang culture, in which, he said, older members tend to supervise, while younger members are tasked with the actual commission of violent crime.
As noted above, when reviewing the sufficiency of the evidence to support a criminal conviction, we apply a deferential standard. We view the evidence in the light most favorable to the prosecution and, taking that view, ask whether ” ’ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (Banks, supra, 61 Cal.4th at p. 804, italics omitted.) Given defendant‘s standing within the Pacoima Flats gang, a jury reasonably could
Defendant offers several alternative, contrary interpretations of the evidence. The interpretations vary in their plausibility, but our consideration of them is, in any event, constrained by our deferential standard of review. We must accept the jury‘s verdict if it represents a rational conclusion from the evidence, and, for the reasons discussed above, we find it so. We analyze defendant‘s interpretations below, while recognizing that, in the end, they address matters that were the jury‘s to resolve.
Defendant first contends that the foregoing evidence was sufficient to support only a “suspicion” that he “might” have been a member of the conspiracy. This characterization underestimates the probative force of the evidence, which readily supported the conclusion that defendant was, in effect, the killers’ boss in a criminal enterprise. He was solicited to commit the killing; his subordinates committed the shooting using his property; and these subordinates were in repeated contact with him before and during the killing. The inference that the gang members were working in concert with defendant therefore finds solid support in the evidence. It is true, as defendant argues, that there was no direct evidence of his
Defendant also contends that his mere association with the shooters is insufficient to support a finding that he conspired with them. (See, e.g., Simmonds v. Superior Court (1966) 245 Cal.App.2d 704, 708 [“the law recognizes that mere association or mere presence cannot alone furnish the basis for a charge of coconspiracy“].) That is correct as a principle of law, but the prosecution provided evidence of more than mere association. As noted above, it could be concluded that defendant had a personal motive to commit the killing; was, pursuant to his standing in the gang, the shooters’ boss; permitted them to use his property in committing the crime; and was in communication with them before and at the time of the shooting.
Defendant suggests the killing was staged in a manner designed to frame him, perhaps because of the suspicions that he was an informant. As noted, he testified that no person in his position would knowingly permit gang underlings to use his car in committing a homicide or would communicate with those underlings by cell phone in the course of the crime. Although these aspects of the killing certainly inculpated defendant in the killing, the jury was not required to accept them as the result of an attempt to frame him. They could simply be explained as incaution.
Defendant contends that it “defies logic” to infer that he was involved in the killing after having told two law enforcement officers about it. Though defendant was free to argue, as he did, that this evidence was helpful to him, the jury was entitled to discount it. (See Reed, supra, 4 Cal.5th at p. 1007.) Defendant knew considerably more about the planned killing than he told the officers, including the involvement of Corona and the address and telephone number of the proposed victim. Yet he told the detectives little more than that a homicide would occur at some unspecified time in Orange County, perhaps involving unidentified gang “big homies.” As a result, nothing defendant told the detectives would permit them to connect the crime, if and when it occurred, to him personally.
Finally, defendant contends the evidence is “just as consistent” with his innocence and points to several circumstances that, he asserts, are inconsistent with his participation in the killing. In particular, defendant cites (1) his disclosures to law enforcement, (2) his move to Las Vegas prior to the killing, (3) the use of his vehicle in the crime, (4) the suspicions within the gang that he was an informant, and (5) his poor relations with his wife, who was a friend of Corona. We acknowledge that these factors, if accepted as true, weighed against the conclusion that defendant was involved in the killing. Our task in reviewing the sufficiency of the evidence to support a criminal conviction, however, is not to weigh the evidence to determine the most likely interpretation. Rather, we view the evidence and the reasonable inferences therefrom in the light most favorable to the jury‘s determination, taking at face value evidence that is not inherently improbable, and presuming the existence of every fact reasonably deduced from that evidence. (Flores, supra, 9 Cal.5th at p. 411; Reed, supra, 4 Cal.5th at p. 1006.) We ask not whether the jury‘s judgment was the most probable interpretation of the evidence, but simply whether it was a rational one. (Banks, supra, 61 Cal.4th at p. 804.) For the reasons discussed above, we conclude that the jury‘s judgment here was rational. None of the circumstances cited by defendant persuades us otherwise.
2. Defendant failed to demonstrate that he withdrew from the conspiracy
Defendant contends that, assuming he was involved in the homicide, he withdrew from the conspiracy by reporting the plan
Defendant argues, alternatively, we should hold that “a person may withdraw from a conspiracy by communicating the pending plot to law enforcement,” although he acknowledges that he is unaware of any California decision announcing such a rule of law. Even if we were to adopt his proposed rule, it would presumably require that the defendant make a more fulsome disclosure of the planned crime than occurred here. As discussed above, defendant disclosed no genuinely useful information to law enforcement, while withholding information that likely would have permitted the officers to prevent the killing — for example, the address and phone number of the victim or Corona‘s solicitation. We decline to rule that the limited nature of defendant‘s disclosure to the law enforcement officers was sufficient to constitute a withdrawal from the conspiracy.
Relying on our decision in Banks, supra, 61 Cal.4th 788, defendant contends the evidence was insufficient to support a finding that he was a “major participant” in the killing, as required by
The clear distinction between this case and Banks is the underlying crime. The defendant in Banks participated in an armed robbery that incidentally involved a killing; defendant in the present case conspired to commit a murder that incidentally involved an attempted robbery and kidnapping. Although not all of the theories of murder on which defendant was tried required a finding of intent to kill, both conspiracy to murder and a special circumstance for murder committed for the benefit
Sufficient evidence supported the jury‘s finding that defendant possessed intent to kill. From the beginning, the result sought by Perna and Corona was Montemayor‘s death. Any kidnapping was merely a means to that end, and the robbery was intended to compensate the killers for their efforts. The jury was entitled to infer that in participating in this scheme, defendant knew and intended that Montemayor would be killed. Accordingly, neither Banks nor
4. Sanchez error does not require reversal of defendant‘s gang-related conviction and special circumstance
Because the trial featured testimony by an expert concerning gang activities, we requested that the parties file supplemental briefing addressing the possible application of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In Sanchez, we held that “case-specific out-of-court statements” cited by an expert witness to support an expert opinion are offered for their truth. (Id. at p. 684.) Such evidence must therefore be admissible under an exception to the hearsay rule or supported by competent evidence in the record. (Id. at p. 686.) In a subsequent decision, we held that a claim of error from the admission of Sanchez hearsay is not forfeited by a defendant‘s failure to object at a trial that occurred prior to the issuance of Sanchez. (People v. Perez (2020) 9 Cal.5th 1, 9 (Perez).)
Defendant raises two issues under Sanchez. First, he contends the prosecution‘s gang expert, Detective Booth, relied on hearsay in testifying regarding defendant‘s gang affiliation. Second, defendant argues that because Booth‘s testimony about predicate criminal activity by members of the Pacoima Flats gang was based on hearsay, his gang-related conviction and special circumstance were not supported by the evidence. Assuming Booth‘s testimony regarding defendant‘s gang affiliation was admitted in violation of Sanchez, it was plainly harmless, given his own later admission of that membership. Although we agree with defendant that Booth‘s testimony about predicate criminal activity was inadmissible under Sanchez,
a. Defendant‘s participation in the Pacoima Flats gang
Defendant contends that Booth related the following items of case-specific hearsay in his testimony addressing defendant‘s gang affiliation: (1) defendant was a member of the Pacoima Flats gang; (2) defendant had been a member of the gang “all of his life“; and (3) defendant‘s moniker within the gang was “Droopy.” Defendant is correct that Booth identified hearsay sources when testifying to these three matters, but that does not necessarily make the admission of the testimony error under Sanchez. Its admission was improper only if the expert‘s testimony about the case-specific facts was not otherwise supported by competent evidence in the record. (See Sanchez, supra, 63 Cal.4th at p. 686 [“What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception“].)
There was abundant competent evidence admitted at trial to demonstrate that defendant was a longtime member of the Pacoima Flats gang, notably including his own testimony, and that his moniker within the gang was Droopy. Because most of this evidence was admitted after Booth‘s testimony, however, it arguably cannot be cited to support admission of his testimony. (See, e.g., People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510 [“If prior unobjected testimony supported the prosecution experts’ case-specific testimony, the testimony was not objectionable under Sanchez“].)
Here, we conclude that the admission of Booth‘s testimony about defendant‘s gang ties was harmless under either standard. Competent, credible evidence establishing his gang membership and moniker was ultimately admitted, including, as noted, defendant‘s own admissions. The jury therefore would have learned these facts independently of Booth‘s testimony.
b. Defendant‘s membership in a criminal street gang
Defendant also contends that Sanchez was violated when Booth relied on hearsay in testifying with respect to various predicate gang crimes, assertedly resulting in insufficient evidence to support his gang-related conviction and special circumstance. Although we agree with defendant that some of
In contending that the evidence was insufficient to support his convictions, defendant misunderstands the effect of a finding of Sanchez error. Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission. (E.g., People v. Story (2009) 45 Cal.4th 1282, 1296–1297 [erroneously admitted evidence is considered in deciding whether the evidence at trial was sufficient to support a conviction, thereby permitting a retrial after a reversal for prejudicial error in the admission of the evidence]; see also People v. Potts (2019) 6 Cal.5th 1012, 1031 [“But the evidence here was admitted, and its probative value bears on the sufficiency of the evidence at trial“].) Sanchez error therefore does not affect the sufficiency of the evidence to convict. Instead, the question before us, as with any other erroneously admitted hearsay, is whether the error in admitting that evidence was prejudicial. Unlike a finding of insufficient evidence, a finding of prejudice does not bar retrial of the overturned conviction. (People v. Hernandez (2003) 30 Cal.4th 1, 6 [“As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial“].) We evaluate defendant‘s claim of error from this perspective.
To prove defendant‘s participation in a criminal street gang, it was necessary for the prosecution to establish that the Pacoima Flats gang qualified as a “criminal street gang” under the governing statute,
To establish the commission of the predicate offenses constituting a pattern of criminal gang activity, Detective Booth testified about his examination of documents maintained by the Department of Corrections and Rehabilitation regarding the crimes committed by four men he identified as members of the Pacoima Flats gang. As defendant acknowledges, Booth‘s reliance on these materials to establish the commission of the predicate offenses did not violate Sanchez because the documents were admitted into evidence.11
Defendant persuasively argues, however, that Booth relied on hearsay materials in testifying that the men who committed these crimes were associated with the Pacoima Flats
We conclude, however, that the error was harmless under either standard. (See Valencia, supra, 11 Cal.5th at p. 840.) In People v. Turner (2020) 10 Cal.5th 786 (Turner), which provides helpful guidance, an expert witness offered her opinion that a fetus killed by the defendant was viable at the time of its death, which was then an element of the crime of murder of a fetus. The conclusion was based on the contents of an autopsy report that was not admitted into evidence. We found admission of the expert‘s testimony on this point to have been in violation of Sanchez. Because there was little other evidence in the record to support the jury‘s presumed finding that the fetus was viable at the time of its death, we concluded that the defendant likely would have been acquitted of this charge in the absence of that testimony and reversed the fetal murder conviction. (Id. at pp. 821–825.)
With respect to proof of the predicate offenses, the Attorney General argues that, in the absence of Booth‘s testimony, the jury would have been entitled to consider for this purpose the crimes committed by defendant and Montemayor‘s killers, citing People v. Loeun (1997) 17 Cal.4th 1 (Loeun). The defendant in Loeun and a fellow gang member each assaulted and struck a person they believed to be a member of a rival gang. (Id. at p. 6.) The jury convicted the defendant of assault with a deadly weapon and found true an allegation that the crime was committed for the benefit of a criminal street gang, despite the absence of proof of any other crimes committed by alleged gang members. (Id. at p. 7.) Acknowledging that the jury could consider evidence of his own crime, the defendant argued that “to establish the requisite ‘pattern of criminal gang activity,’ the prosecution must in addition present evidence of at least one prior offense of gang activity.” (Ibid, italics in original.) We rejected the contention, finding the evidence at trial sufficient to support the enhancement allegation. As we explained,
Under Loeun, supra, 17 Cal.4th 1, the evidence of the crimes committed by defendant, Macias, Martinez, and Lopez in the course of the Montemayor killing was sufficient to support the jury‘s finding that the Pacoima Flats gang qualified as a criminal street gang. One of those crimes, of course, was the underlying homicide, a crime committed by defendant and all three direct participants. Further, as demonstrated by this jury‘s true finding of the two special circumstances, each also committed, at a minimum, attempted robbery and kidnapping.12
All of these crimes qualify as a predicate offense under
We further conclude that admission of Booth‘s testimony about the four individuals was harmless under either standard for assessing prejudice. (See Valencia, supra, 11 Cal.5th at p. 840.) Wholly apart from evidence sufficient to satisfy the statutory “pattern” requirement, voluminous evidence was offered at trial suggesting that the Pacoima Flats gang operated as a criminal gang. Defendant testified as much, describing for the jury his role in the gang and its activities. As he acknowledged, he acted as an informant for federal agencies investigating the gang‘s criminal activities, while acting as a leader in the gang. Booth offered similar, unobjectionable testimony. Because (1) the statute‘s technical requirements were satisfied by evidence of the crimes committed in connection with Montemayor‘s death and (2) there was copious other evidence that the Pacoima Flats gang operated as a street gang, the jury had no reason to hesitate in concluding that the Pacoima Flats gang qualified as a criminal street gang under
5. The trial court did not abuse its discretion in anticipating potentially objectionable assertions in defendant‘s opening statement
Prior to trial, the defense kept from the prosecution its decision to present testimony by defendant, but defense counsel disclosed this intent in confidence to the court. During an ex parte hearing shortly before the parties were to deliver their opening statements, the trial court discussed with defense counsel an outline of his planned opening statement. The court was concerned that a series of factual assertions contained in the outline had no obvious evidentiary source other than defendant‘s planned testimony. As the trial court recognized, the assertions might be viewed as objectionable by the prosecution, given its ignorance of defendant‘s intention to testify and the absence of any other known witness competent to testify about the assertions. In an effort to anticipate such objections, the court suggested that the defense either (1) disclose the potentially objectionable assertions to the prosecution, (2) disclose defendant‘s intent to testify, or (3) defer its opening statement until the close of the prosecution‘s case-in-chief. Defense counsel elected to defer the opening statement. Defendant now contends that the trial court rulings leading to this decision constituted a prejudicial abuse of discretion.
We find no error. The trial court‘s rulings were a reasonable and proper attempt to prevent a likely disruption of trial while preserving the confidentiality of defendant‘s intent to testify.
During pretrial proceedings, the prosecution lodged an objection to a defense proposal to elicit testimony from law enforcement officers Starkey and Rodriguez that defendant reported the possible killing to them. The prosecution contended that defendant‘s statements to the officers were both irrelevant and hearsay. After a lengthy but inconclusive hearing on the objection, defense counsel asked for an ex parte hearing in camera. There, counsel informed the court that defendant intended to testify, a tactical decision that counsel did not want to reveal to the prosecution. The court acknowledged that the officers’ testimony might be admissible to corroborate defendant‘s testimony. The court declined to overrule the prosecution‘s objection on that basis, however, because “I don‘t know whether defendant [will] or will not take the stand until such time as he actually gets sworn in,” given his constitutional right not to testify.
When the matter arose again in open court, the trial court ruled, without further explanation, that defendant‘s statements to Starkey and Rodriguez were inadmissible, but it couched the ruling as open to reconsideration during trial, recognizing that “there are several contingencies that could take place.” As a result of the ruling, however, the court instructed the defense that it could not refer, during its opening statement, “to any alleged statement by the defendant to Starkey or Rodriguez.”
Defense counsel again asked for an ex parte hearing, at which counsel reiterated the plan to present defendant‘s testimony. Although the court accepted counsel‘s representation, it continued to express the belief that a “legal standard” prevented it from making any ruling premised on
A week before the commencement of trial, the court had asked both parties to submit “a brief summary of your opening statement.” The court did not explain the purpose of the request, but it appears to have been part of the court‘s efforts to organize and control the proceedings. On the day before opening statements were to be given, the court requested an ex parte hearing with defense counsel. During the hearing, the court told counsel that it had reviewed the outline of defendant‘s planned opening statement.13 The court was concerned because “a large portion of [the planned opening statement] is really predicated on [defendant‘s testimony], and the prosecution is not aware that that‘s going to take place. That‘s going to trigger objections during your opening statement . . . .”14 Further, the court
During the ensuing discussion, the court identified several matters in defendant‘s proposed opening statement for which there was no obvious evidentiary source other than defendant. According to the court, these were found on a single page of the confidential outline. As a possible means of obviating the need to defer defendant‘s opening statement, the court suggested that defense counsel give the prosecution a copy of that page to determine whether the prosecution objected to any of the assertions. If the prosecution raised no valid objection, the court noted, “then I‘m going to leave the opening statement alone.” Although objecting to this approach, defense counsel tentatively agreed to the disclosure.15 At this point in the hearing, the court
When the ex parte hearing resumed, defense counsel immediately informed the court that, in light of its rulings, “I think we would like to withdraw the proposed opening statement that we intended to use and reserve the right to present to the court a new and different opening statement predicated upon what we hear in court from the People‘s case-in-chief, as well as what we intend to introduce on the defense.” In response to a question from the court, counsel confirmed that defendant had decided to defer his opening statement until completion of the prosecution‘s case-in-chief.
b. Discussion
” ‘[T]he function of an opening statement is not only to inform the jury of the expected evidence, but also to prepare the jurors to follow the evidence and more readily discern its materiality, force, and meaning.’ ” (People v. Gurule (2002) 28 Cal.4th 557, 610.) Although the assertions made in an opening statement do not constitute evidence (Cox v. Griffin (2019) 34 Cal.App.5th 440, 451), “the statement does offer a ‘story line’ into which the pieces of evidence should fit.” (People v. Harris (1989) 47 Cal.3d 1047, 1085, fn. 19.) “[I]t is requisite that when [a party] elects to make an opening statement the facts shall be fairly presented by counsel, and that there shall be no statement of facts which he cannot, or will not, be permitted to prove.” (People v. Stoll (1904) 143 Cal. 689, 693–694.) For that reason, counsel must have a good faith belief that
Under
We conclude that in making the rulings leading to deferral of the opening statement, the trial court acted within the bounds of its broad discretion to manage trial proceedings. The trial court‘s suggestion that it was prepared to defer the defense‘s opening statement was made in response to defendant‘s resolve not to inform the prosecution of his intent to testify. In the ensuing discussions, the court presented counsel with a set of choices. The defense could provide a copy of one page of the outline of its opening statement to the prosecution to determine whether the prosecution objected to statements in the outline, or it could reveal defendant‘s intent to testify, or it could defer the opening statement. As the court told the defense, if the prosecution expressed no objection to the outline, “[T]hen I‘m going to leave the opening statement alone.” As noted, counsel initially agreed to provide a copy of the page to the prosecution. It was only after his return from lunch that defense counsel
We find no abuse of discretion in the trial court‘s actions. Defense counsel planned to make assertions in an opening statement that had no disclosed evidentiary source. As the trial court recognized, it was possible that the prosecution would raise ostensibly well-founded objections to these assertions because it was unaware of defendant‘s intent to testify. Further, the prosecution had previously secured favorable rulings that appeared to cover at least some of the content of the proposed opening statement. From the prosecution‘s point of view, the assertions would have been improper because they were not supported by evidence that is reasonably available and admissible. (See Hawk, supra, 42 Cal.App.3d at p. 121.) Such objections, in turn, would have presented the trial court with the choice either of overruling the objections based on the defense‘s ex parte communications about its trial strategy or sustaining the objections despite its knowledge that defendant planned to testify. Within those confines, the court would have had little choice but to sustain the objections to avoid reliance on confidential ex parte communications. At that point, the defense would have been faced with the decision either of (1) disclosing for the first time to the prosecutor and the jury its plan for defendant to testify, (2) amending its opening statement in light of the sustained objections, or (3) deferring its opening statement. Its choices, in other words, would have been little different from those presented to the defense by the court at the ex parte hearing.
By presenting this set of choices to the defense prior to the commencement of trial, the court sought to avoid the disruption and possible prejudice to defendant that might have occurred
Defendant contends the trial court‘s ruling was an improper interference with defense counsel‘s tactical decisions. Any interference, however, was within the trial court‘s broad discretion. The trial court did not prevent defendant from giving an opening statement or calling witnesses. Nor did it order disclosure of defendant‘s intent to testify or the contents of such testimony. As discussed above, the trial court‘s ruling merely sought to anticipate and prevent a possible disruption of trial. As a result of the court‘s diligence, defense counsel had a meaningful opportunity to consider the options the court made available to avoid the disruption, and defendant chose the option of deferring his opening statement until after the prosecution‘s case. That decision presumably reflected the defense‘s view of the best tactical course in dealing with the realities of trial,
Defendant contends he was prejudiced by the deferral of his opening statement, relying on a contemporary scientific theory of communications. For the reasons discussed above, we find no error in the trial court rulings that led to the deferral of defendant‘s opening statement, which attempted to accommodate defendant‘s desire to maintain as confidential his intent to testify under the circumstances. We therefore have no occasion to reach the issue of prejudice.17
6. The trial court‘s discovery sanction was not prejudicial
Defendant contends the trial court committed a prejudicial abuse of discretion when it imposed a discovery sanction that barred the defense from asking Detective Rodriguez whether, during a pretrial interview with one of the defense attorneys, Rodriguez said defendant told him about Corona‘s involvement in the solicitation of Montemayor‘s killing. We find it unnecessary to rule on the propriety of the court‘s sanction because, even presuming error, there was no prejudice.
Defendant testified that he when he spoke with Rodriguez following his solicitation by Corona, he told Rodriguez “[e]verything that happened, how I met this girl, what she said she was, and what she wanted to happen in Orange County.”
A short time after this testimony, defense counsel asked Rodriguez, “Did you tell [a member of the defense] that [defendant] . . . said that some woman was behind this also trying to get the defendant to do something?” Before Rodriguez was able to answer, the prosecution objected, and the trial court excused the jury. Asked by the court for a foundational offer of proof, defense counsel told the court that Rodriguez spoke to one of his co-counsel “at an earlier date, I think even three years ago.” In that conversation, defense counsel told the court, Rodriguez recalled defendant telling him “not only about the big homies but there was some woman involved who was trying to get him . . . to do something.” Counsel said that notes were taken of the conversation, although, as discussed below, counsel subsequently recanted that claim.
The prosecutor objected to the introduction of this evidence because the defense had not provided any discovery regarding Rodriguez‘s communications with defense counsel about his recollection of defendant‘s statements. The trial court noted that the defense had disclosed two reports concerning its communications with Rodriguez, which the court and the parties had reviewed during a conference immediately prior to
The court did not believe defense counsel‘s claim that he had made a good faith effort to comply with discovery obligations, recounting prior instances in which the defense had failed to disclose the contents of communications with Rodriguez and noting that counsel had earlier expressed a reluctance to comply with Roland v. Superior Court (2004) 124 Cal.App.4th 154 (Roland), then-new case law requiring the disclosure of oral communications by potential witnesses with the defense, including defense counsel. The court expressly found that the failure to disclose “was not a good faith error” and prohibited the defense from inquiring about Rodriguez‘s communications with the defense about defendant‘s statements as a “sanction” for failing to comply with Roland.
During the subsequent colloquy, defense counsel admitted that he was by no means certain that Rodriquez had ever made the statement attributed to him in the objectionable question. Counsel “thought” co-counsel had mentioned the comment, but he could not find any reference to it in his notes. He said that co-counsel claimed to have heard Rodriguez make the statement again during a meeting they held with Rodriguez the day before. Defense counsel himself, however, did not “remember [Rodriguez] exactly even saying that.” As the discussion continued, counsel acknowledged that he was “not sure . . . where exactly I got the information from. My recollection is, my feeling was, it might have [come] from [Rodriguez].” Eventually, counsel conceded, “[T]his might be a lot to do over nothing. He
During subsequent cross-examination by the prosecution, Rodriguez was asked directly whether defendant had told him about Corona or her relationship with Vivar as well as many other details surrounding the proposed killing known to defendant, and Rodriguez responded that defendant had not.
Defendant contends the trial court erred in excluding statements by Rodriguez regarding a conversation with defendant following defendant‘s arrest for Montemayor‘s murder. We find no error.
During redirect of Rodriguez, defense counsel asked about a conversation Rodriguez had with defendant after he was jailed for the Montemayor killing. Following a hearsay objection, the trial court excused the jury and questioned Rodriguez concerning the conversation. Rodriguez said that he went to the jail with the intent of meeting with defendant and “clos[ing] out” the file associated with defendant‘s work as an informant. During their meeting, defendant explained his presence in jail by reference to his earlier conversations with Rodriguez, saying “[Y]ou remember me telling you about this kidnap case?” Defendant then referred, in Rodriguez‘s recollection, “specifically [to] a female and . . . the big homies.” The mention of a “female” was significant because Rodriguez‘s and defendant‘s accounts of their conversations prior to the killing had differed in this respect. Defendant contended he had told Rodriguez about Corona; Rodriguez did not recall defendant mentioning a woman. Defense counsel argued that evidence of defendant‘s post-arrest statement to Rodriguez should be admitted as a prior consistent statement, but the trial court excluded it as hearsay.
We find no abuse of discretion in the court‘s ruling. Because defendant‘s statement to Rodriguez was made following his arrest, its primary relevance to the case at hand was to demonstrate that defendant told Rodriguez about Corona when he first contacted Rodriguez — that is, it was being offered
Defendant contends the statement was not hearsay because it was offered to prove that “appellant had disclosed the plot to Rodriguez.” The contention does not avoid the hearsay problem. It is true that the statement was not hearsay if the purpose of its admission was to prove that defendant informed Rodriguez of the plot at the time the statement was made, after defendant had been jailed. For that purpose, however, the statement was excludable as irrelevant; defendant does not contend that his post-arrest disclosure to Rodriguez had probative value independent of its confirmation of his pre-arrest statements. As defendant acknowledges, “what mattered was that he had told one of his law enforcement handlers about the plot in advance.” If admitted for that purpose, however, the
8. The trial court‘s other challenged evidentiary rulings were largely correct or did not prejudice defendant
a. Defendant‘s additional hearsay claims fail
Defendant contends the trial court erroneously sustained hearsay objections to three questions. We find no prejudicial error.
First, defendant contends that the trial court incorrectly sustained a hearsay objection to a question asked of Rodriguez about his encounter with defendant in jail following defendant‘s arrest for the Montemayor killing. Defense counsel asked, “Did [defendant] confirm that he was [in jail] for this robbery-murder that he was trying to tell you about in July?” Defendant argues that “[n]either the fact that [defendant] had been arrested for a robbery-murder nor the fact that the offense was the same one [defendant] had told Rodriguez about in July or August were offered to prove the truth of those facts but instead to show that [defendant] had made the statements.”
We find no abuse of discretion in the court‘s ruling. As noted above, defendant‘s post-arrest statements in jail about his earlier conversations with Rodriguez were irrelevant to the trial, except to corroborate his trial testimony about those earlier conversations. Defendant‘s “confirmation” to Rodriguez that he was in jail in connection with the same incident “that he
Second, defendant contends, and we agree, that the trial court erred in preventing him, on hearsay grounds, from asking Rodriguez about questions posed by defendant‘s wife during telephone calls with Rodriguez. Defendant believed that the nature of the questions would demonstrate that his wife was sexually jealous of defendant. We agree with defendant that it is difficult to imagine how the wife‘s questions could constitute objectionable hearsay. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 117 [“The request for the gun, by itself, was not hearsay, however, because an out-of-court statement is hearsay only when it is ‘offered to prove the truth of the matter stated.’ [Citation.] Because a request, by itself, does not assert the truth of any fact, it cannot be offered to prove the truth of the matter stated“].) The court‘s ruling was not, however, prejudicial because defendant was able to obtain equivalent information merely by asking Rodriguez directly whether defendant‘s wife appeared to be jealous. Rodriguez confirmed that she appeared to be “extremely” jealous. Defendant does not point to any additional material information he was prevented from obtaining by the court‘s ruling; the only other topic, defendant‘s relocation to Las Vegas prior to the killing, was proved by other evidence.
b. The evidence of gang activities was not excessive
Defendant contends the trial court permitted the admission of “far more gang-related evidence than was necessary for the prosecution‘s case.” We find no abuse of discretion in the trial court‘s rulings.
Defendant asserts the trial court erred in permitting the gang expert, Detective Booth, to testify regarding certain gang behavior patterns that, he maintains, were not directly raised by the present case — for example, the connection to a particular geographic territory, the ways in which members are admitted to the gang, the value afforded violent acts within the gang, and the manner in which gangs control their territory. Defendant argues that because this was “not a typical gang case,” which he characterizes as “a drive-by shooting of rival gangs, or defense of turf, or violence for the sake of intimidation,” but instead was a “murder for hire,” such evidence served no purpose other than to engender bias.
We find no abuse of discretion in the trial court‘s refusal to exclude such evidence as more prejudicial than probative under
c. The materials seized from Martinez‘s residence were relevant
Defendant next contends the trial court abused its discretion in permitting the introduction of items seized from the home of one of the killers, Martinez. These items included (1) a paper containing doodles, along with the writings “Crook” and “Pacoima Flats,” (2) photographs of Macias and Martinez, and (3) a notebook containing the telephone numbers of Macias and Lopez. Although these materials did not relate directly to defendant, they were probative of the relationships among the individuals and their connection to the Pacoima Flats gang. There was no abuse of discretion in their admission.
d. The evidence of predicate offenses was not excessive
Defendant also contends the trial court abused its discretion in permitting the prosecutor to introduce evidence of more than the minimum number of predicate offenses necessary to demonstrate a pattern of criminal activity under
Booth was permitted to testify regarding the commission of three predicate offenses by three different gang members before defendant objected under
Defendant argues the trial court abused its discretion in allowing evidence of “twice as many predicate crimes than were needed.” We find no abuse of discretion. The prosecution had the burden of proving to the satisfaction of the jury that the Pacoima Flats gang was a criminal street gang, as defined in
Defendant contends the trial court erred in declining to delay trial proceedings to give defense counsel an opportunity to interview an FBI agent who had appeared to testify. We find no error.
Defendant called FBI agent Curran Thomerson to testify about defendant‘s work as an informant. The FBI had declined to make Thomerson available to the parties prior to his appearance to testify. Reports concerning defendant‘s work with the FBI had been produced to the defense, however, and the parties were informed that Thomerson would be made available to testify concerning the matters disclosed in the reports.
On the morning of Thomerson‘s testimony, defense counsel was apparently able to speak privately with him for a few minutes prior to the commencement of trial. When the case was called, counsel asked the court for an additional fifteen minutes with Thomerson for the purpose of “see[ing] what areas we are going to concentrate on.” The court denied the request, noting that “you already know what testimony you‘re going to elicit from this witness concerning the relationship of your client to the FBI, and you‘ve been provided adequate discovery for that purpose.”
Toward the end of Thomerson‘s testimony, during a break in the proceedings, the court asked defense counsel whether there was “any area [of testimony] that you think that you haven‘t had a chance to inquire into.” Counsel renewed his request for additional time to speak privately with Thomerson, explaining that he wanted to go over the reports produced to the
Without articulating a specific legal theory or pointing to an offer of proof made in the trial court, defendant contends the trial court‘s refusal to delay the trial to give counsel additional time with Thomerson “hampered [his] ability to present his defense.” We are unaware of any principle of law that would have required the trial court to adjourn the trial to permit counsel to interview Thomerson. The trial court has broad discretion to carry out its “duty” under
Defendant also contends the trial court abused its discretion in denying his motion to admit the entirety of the FBI reports into evidence. Those reports consisted largely of the logs made by law enforcement of their contacts with defendant in the course of his work as an informant. Well in advance of Thomerson‘s testimony, the trial court told counsel that “the nature and the quality of [defendant‘s cooperation with law enforcement] is relevant and viable.” But the court noted that the logs themselves “appear[] to be unduly time consuming and
We find no abuse of discretion in the trial court‘s decision to exclude the reports of defendant‘s activities as an informant. The specific details of his work were, after all, peripheral to the trial. The critical issue was to demonstrate that defendant was, for a significant period of time, a useful and effective informant for law enforcement, and the lengthy testimony of defendant and his handlers conclusively established this. Further, as the trial court noted, the “pertinent portions” of the reports were the subject of live testimony. The additional details contained in the reports were of marginal relevance, and the trial court acted well within its discretion in concluding that this evidence was more likely to distract than inform.
Defendant suggests the trial court‘s ruling deprived him of a fair trial because it excluded evidence “critical” to his defense. (See Chambers v. Mississippi (1973) 410 U.S. 284, 302.) As the trial court noted, however, the pertinent evidence contained in the reports was presented to the jury through the testimony of defendant and his handlers. Defendant identifies no material, let alone critical, evidence contained in the reports that was not the subject of live testimony.
Finally, we reject defendant‘s claim that the challenged evidentiary rulings were cumulatively prejudicial. As discussed above, we have found no significant error in the trial court‘s rulings, and any errors that did occur had no bearing on the jury‘s judgment, whether considered alone or together.
10. Defendant‘s claims of prosecutorial misconduct lack merit
a. The prosecutor‘s leading questions were not improper
Defendant contends the prosecutor committed prejudicial misconduct when he “repeatedly prevented [defendant] from giving complete answers to his questions, engaged in . . . repeated argumentative questions and sarcastic comments, and engaged in questioning which had been precluded in a pretrial hearing.” We find no misconduct.
“‘A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.’ [Citation.] ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a
Defendant first cites a series of six leading questions asked during the prosecution‘s cross-examination of defendant. Each time, the prosecutor, after hearing defendant‘s negative response to the question, cut defendant off as he tried to explain his denial and moved to strike defendant‘s partial, attempted explanation. The trial court sustained each request to strike, noting that the defense could allow defendant to explain his answers during redirect examination.
The Attorney General argues defendant forfeited any claim of prosecutorial misconduct by failing to object and request an admonition. Defendant did, however, repeatedly object to the prosecutor‘s conduct. Because the trial court clearly condoned the prosecutor‘s approach to cross-examination, any request for an admonition would appear to have been futile. (See Flores, supra, 9 Cal.5th at p. 403 [defense need not object and request an admonition when to do so would have been futile].)
On the merits, we find no misconduct by the prosecutor, and defendant cites no legal authority suggesting an impropriety. The prosecutor‘s insistence on a yes or no answer to his leading questions is an accepted convention of cross-
b. The prosecutor‘s allegedly aggressive cross-examination did not rise to the level of misconduct
As a second example of prosecutorial misconduct, defendant cites a series of questions during the prosecutor‘s cross-examination of him that, he contends, constituted testimony or were argumentative or sarcastic or “denigrated [defendant‘s] testimony and character.” Defendant failed to preserve this claim by registering an objection on this ground and seeking an admonition. Further, the prosecutor‘s aggressive questioning did not constitute misconduct.
Defendant forfeited these claims of prosecutorial misconduct. Although defendant did object to many of the questions on evidentiary grounds, he did not do so on grounds of prosecutorial misconduct, nor did he seek an admonition from the court regarding this type of conduct.21
In a similar vein, when defendant said he did not remember what he meant when writing in a letter, “I got five signatures,” the prosecutor responded sarcastically, “Did you go to Dodger Stadium, get the autographs of five ballplayers?” When defendant answered he had no idea what the question meant, the prosecutor asked rhetorically, “If the author doesn‘t know, how are we to know?” Soon after, when defendant acknowledged that one purpose in writing the letter was to convince the recipient that he was still the llavero in his
Defendant also highlights “aggressive” cross-examination about his actions immediately following the murder. After defendant acknowledged that, upon first hearing press reports of the Montemayor‘s killing, he did not contact Starkey or Rodriguez to tell them what he knew, the prosecutor asked, “[W]hy not?” Defendant answered, “I don‘t know. I don‘t know.” The prosecutor responded, “That‘s the best you can do for us?” To bring the point home, the prosecutor followed up, “This is your whole defense, isn‘t it? . . . That you were an informant and you were trying to stop this murder, and somehow you got tossed up in this and you‘re wrongly accused. Isn‘t that your defense?” When defendant then said he did not remember whether he called Rodriguez at that time, the prosecutor responded, “Let me give you some time. Think about it. Give us a better answer than that, if you can.” The prosecutor followed up, “Isn‘t it because you were involved in the murder?”
As these examples illustrate, the prosecutor‘s questions were sometimes sarcastic and aggressive. His approach, however, was not unfair or deceptive. The questions cited by defendant generally constitute fair, if forceful, comment on inconsistencies and improbabilities in his testimony. Accordingly, they were not outside the “wide scope” permitted in the cross-examination of a criminal defendant who elects to take the stand. (Gutierrez, supra, 28 Cal.4th at p. 1147.) We find no misconduct.
During the prosecutor‘s cross-examination of defendant, the questioning turned to communications between male and female inmates during defendant‘s pre-trial detention, accomplished using piping in the jail. The prosecutor established that defendant had engaged in the practice and asked whether he still had communications with female inmates. Defendant answered that he had gotten tired of it and stopped. To the prosecutor‘s inquiry when he stopped, defendant answered, “After speaking to some girl named Summer.” The prosecutor took this as a reference to Summer Sherwood, who was eventually sentenced to prison for threatening Corona to discourage her from testifying against defendant in this matter. Upon defendant‘s answer, the prosecutor responded, “Oh, the girl who went upstate for threatening Mira Corona?” This appears to have been the first mention of Sherwood at trial.
Defendant objected and immediately moved for a mistrial, contending the question constituted “intentional prosecutorial misconduct.” In a subsequent colloquy, the prosecutor said that he had no intention of introducing evidence of Sherwood‘s conviction prior to defendant‘s mention of her name, but “[N]ow that [defendant] has volunteered his connection to Summer Star Sherwood it was something I was thinking of doing.” The court took defendant‘s motion for a mistrial “under submission” pending the prosecutor‘s decision. Defense counsel did not ask to strike the question nor seek a jury admonition, and the prosecution never presented further evidence regarding Sherwood.
Although we recognize that the prosecutor‘s question was likely improper, it did not constitute prosecutorial misconduct; the question was neither deceptive nor reprehensible, nor did it infect the trial with such unfairness as to render the subsequent conviction a denial of due process. It was a single, unanswered question and an isolated reference to a matter only tangentially related to the issues at trial. It undoubtedly had no effect on the jury‘s verdict.
d. The prosecutor‘s questions regarding the reason for the killers’ assault on defendant were proper
When defendant was incarcerated awaiting trial, two of the killers, Lopez and Macias, attacked him with homemade blades when the three were placed together in a holding cell. Defendant testified that he had been the subject of a “green
The matter came to a head during the prosecution‘s cross-examination of defendant. The prosecution had changed its theory by this time, postulating that Macias and Lopez sought revenge because they learned from discovery in their prosecutions that defendant had lied to them about the reason for the Montemayor killing. According to the prosecution‘s revised theory, defendant told them that the order for the killing came from Mexican Mafia leaders, but in fact it was committed “just to curry personal favor with . . . Corona.” The court ruled
Assuming the claim has been preserved, we find no misconduct. The prosecutor‘s questions simply presented to the jury an alternative theory to explain the assailants’ conduct, countering the theory articulated by defendant. Because the prosecutor‘s theory and questions were based on reasonable inferences from the evidence presented at trial, there is no reason to conclude they were asked in bad faith. Further, because the prosecutor avoided asking defendant about the assailants’ motives, but simply outlined factual circumstances that might have explained their conduct, the questions did not stray into impermissible speculation.
e. The cumulative impact of the prosecutor‘s conduct was not prejudicial
Defendant contends the cumulative impact of the prosecutor‘s misconduct was prejudicial. As discussed above, however, we largely reject defendant‘s claims of misconduct, either on their merits or because the claims were not preserved. To the limited extent the prosecutor‘s conduct was improper, it involved issues largely peripheral to defendant‘s guilt and had no impact on the verdict, under either test for prejudice.
We have largely rejected defendant‘s claims of judicial error. The possible errors we did find — the court‘s discovery sanction, its erroneous evidentiary rulings, and the admission of evidence in violation of Sanchez — were individually minor and had no material cumulative impact on the jury‘s decision under either test for prejudice.
B. Penalty Phase Claims
1. The evidence of defendant‘s involvement in prior criminal acts was sufficient to support their admission under section 190.3, factor (b)
“In making its penalty determination, the jury is authorized to consider three types of aggravating evidence, ‘[t]he circumstances of the crime of which the defendant was convicted in the present proceeding’ (
a. The assault at the Fadness residence
During the penalty phase, the prosecution presented testimony by Laurie Fadness and David Gallegos about a violent assault in Fadness‘s home. When Fadness came home one evening, she found that Gallegos had been badly beaten and his cousin had been shot. As she entered her home, the presumed assailants were scrambling to leave, and she heard a person she knew as “Primo” yell, “Droopy, Jesse, let‘s go.” As Fadness explained, Primo‘s tone of voice at this time was not “casual.” “[I]t was like hollering at him, like, ‘Let‘s go.‘” Fadness did not identify defendant as having been present, but she did not have a clear view of all the men as they hurriedly left her home. Gallegos testified that five men entered the house that night, and he identified all of them, without naming defendant; on the contrary, Gallegos testified affirmatively that defendant was not present. Yet when the five entered, Gallegos testified, one of them said to Gallegos‘s cousin, “Droopy wants to talk to you.” The assault began when the cousin responded that he had nothing to say to Droopy.
Defendant contends that this testimony contained insufficient evidence of his involvement in the assault to support its admission as a factor in aggravation under
The jury could have concluded beyond a reasonable doubt that defendant was a participant in the events described by Fadness and Gallego. The witnesses testified concerning two occasions on which the assailants used the name “Droopy,” defendant‘s gang moniker. Fadness heard Primo use the name “Droopy” in a manner that suggested he was addressing Droopy directly, urging him to leave. Gallegos heard one of the assailants tell his cousin, “Droopy wants to talk to you.” Although it is true, as defendant contends, that Fadness did not identify defendant as one of those present, it was evident from her testimony that she did not get a clear view of all the participants, who were leaving as she entered. It is also true that Gallegos denied defendant‘s presence, but it was for the jury to resolve this apparent contradiction. The assailants’
Defendant contends the evidence was insufficient because there was “no evidence that [defendant] was the only Droopy that might have been involved in the drug trade in the San Fernando Valley” and argues that the person who used the name could have been “using [defendant‘s] name to justify the attack.” Defendant‘s moniker, however, is sufficiently unusual that the jury could have inferred beyond a reasonable doubt that it referred to defendant. Given the distinctive nature of the moniker, it was unnecessary for the prosecution to provide proof that no other gang member in the general area used the name. Further, the suggestion that the assailants were falsely using defendant‘s name is inconsistent with the remainder of the witnesses’ testimony. Gallego‘s cousin, like defendant, was a member of the Pacoima Flats gang and presumably would have been familiar with defendant.
b. The Parent shooting
Defendant hired Paul Parent as a mechanic and forced him to live at defendant‘s home. Parent testified that defendant, often with others, beat him on at least four occasions and broke his finger with a hammer after Parent attempted to leave the
Defendant argues the evidence was insufficient because it is possible that defendant was simply warning defendant that he was about to be shot, rather than being the instigator of the shooting. We conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that defendant was involved in the shooting. Although defendant‘s proposed interpretation is plausible in the abstract, to conclude that defendant was simply warning Parent would have been inconsistent with the remainder of Parent‘s testimony. According to Parent, defendant had kept him a virtual prisoner. On two prior occasions when Parent attempted to leave, defendant enlisted others to help him beat Parent in retaliation. Defendant‘s ostensible grant to Parent of permission to leave, much less to give him a van in the bargain, was wholly at odds with this prior conduct. Rudy had no evident reason of his own to shoot Parent; the two were on good terms. Further, defendant presumably could have prevented the shooting if he knew of it but did not approve, since Rudy worked for him. When defendant called to alert Parent that he was to be shot, defendant gave no indication of alarm; on the contrary, he was exultant. As Parent said, defendant “warned” Parent in a tone
c. The letter sent to Niño
During the guilt phase, the prosecution introduced a letter written by defendant, largely in Spanish, to a person called “Niño.” During the penalty phase, the court permitted the jury to consider the letter as evidence of defendant‘s attempt to solicit an assault against two people named Chino and Sapote by means of force likely to cause great bodily injury under
We agree with defendant that the trial court erred in admitting this letter as evidence of the solicitation of violent criminal conduct. Defendant testified that Niño was one of his drug customers, and the letter was intended to shore up his business relationship with Niño at a time when defendant was in jail. It was written largely in Spanish, and the purported references to assaultive conduct were couched in Spanish language idioms that could not be understood literally — for example, “send that Chino dude to the penis” and “hit him in the mother.” The prosecution initially sought to translate the letter through defendant, and he rejected the prosecutor‘s suggestion
Any error in this respect, however, was harmless under both the state law and constitutional standards for prejudice. (People v. Casares (2016) 62 Cal.4th 808, 838; People v. Rodrigues (1994) 8 Cal.4th 1060, 1170.) As other aggravating factors, the prosecution provided evidence of a series of disturbing acts of violence committed by defendant or coordinated under his direction: the two separate assaults against Gallegos, in one of which Gallegos was shot 14 times by, among others, defendant; the shooting of Gallegos‘s cousin; five separate assaults on Parent, including defendant‘s sadistic participation in Parent‘s shooting; and the kidnapping of Spellman. These were, of course, in addition to defendant‘s participation in the murder of Montemayor. It strains credulity to argue that, in the face of this evidence, the jury would have found defendant‘s letter to Niño unduly persuasive in any way. Against a multitude of acts of extraordinary violence, the letter at most solicited a violent act. Further, as noted above, the letter was not even clear in seeking violence. Its impact on the
2. The trial court did not err in instructing the jury regarding its consideration of the facts underlying defendant‘s prior convictions
Defendant contends the trial court erred when it instructed the jury that it could consider the facts underlying his prior convictions as
Defendant forfeited this claim when he failed to object to the court‘s instruction on these grounds.
On the merits, we have consistently declined to decide “whether a reasonable-doubt instruction is required where the
In any event, the court‘s instruction was unquestionably harmless. It is settled that the jury was entitled to consider the conduct necessarily established by the convictions without proof beyond a reasonable doubt. (Bacon, supra, 50 Cal.4th at p. 1123.) The details of the conduct underlying these two convictions added little because it did not feature any conduct of a severity beyond that suggested by the elements of the crimes. Further, that conduct — defendant‘s presence at a gang shooting and his participation in a robbery at knifepoint — added little to the litany of defendant‘s violent conduct proved under
3. Defendant forfeited his claim that the trial court erred in failing to consider his ability to pay the levies it imposed
At sentencing, the trial court imposed the statutory maximum restitution fine of $10,000 and a victim restitution payment of $10,433.80. (
Defendant acknowledges that he forfeited this claim when he failed to object to imposition of the levies at sentencing. In People v. Gamache (2010) 48 Cal.4th 347, we explained that “the law at the time of . . . sentencing called for the trial court to consider [the defendant‘s] ability to pay in setting a restitution fine, and [the defendant] could have objected at the time if he believed inadequate consideration was being given to this factor.” (Id. at p. 409.) We have consistently followed this ruling, most recently in People v. Miracle (2018) 6 Cal.5th 318, 356.
Defendant contends that we should find his claims preserved because “[b]oth fines are now subject to reversal” as a result of the Supreme Court‘s ruling in Timbs v. Indiana (2019) __ U.S. __ [139 S.Ct. 682, 203 L.Ed.2d 11] (Timbs). Without ruling on the constitutionality of any particular fine, Timbs held, as a matter of law, that (1) the excessive fines clause of the Eight Amendment of the federal Constitution applies to the
Defendant raises a series of constitutional challenges to California‘s death penalty statute. He acknowledges that each of these arguments has been rejected by this court in past decisions. As he anticipates, we decline to revisit our prior holdings with respect to these issues, which are listed below. Given the longstanding nature of our rulings, we do not reiterate their rationale.
California‘s death penalty laws adequately narrow the class of murderers subject to the death penalty. (People v. Morales (2020) 10 Cal.5th 76, 112–113 (Morales).) In particular, the special circumstances of
The laws governing imposition of the death penalty are not unconstitutional because they fail to provide “safeguards”
Nor does
The failure to afford capital defendants the same procedural safeguards at the penalty phase that are afforded to noncapital defendants does not offend equal protection principles, because the two groups are not similarly situated. (People v. Molano (2019) 7 Cal.5th 620, 678; People v. Whalen (2013) 56 Cal.4th 1, 91.)
California does not regularly use the death penalty as a form of punishment, and ” ‘its imposition does not violate international norms of decency or the Eighth Amendment‘s prohibition against cruel and unusual punishment.’ ” (People v. Powell (2018) 5 Cal.5th 921, 965.)
For the foregoing reasons, the judgment is affirmed in its entirety.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
Name of Opinion People v. Navarro
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
Opinion No. S165195
Date Filed: October 28, 2021
Court: Superior
County: Orange
Judge: Francisco P. Briseño
Counsel:
Richard I. Targow, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland and James William Bilderback II, Assistant Attorneys General, A. Natasha Cortina, Christine Friedman and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
Richard I. Targow
P.O. Box 1143
Sebastopol, CA 95473
(707) 829-5190
Christine Levingston Bergman
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9159