Filed 5/5/22 P. v. Mendoza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076501
v. (Super.Ct.No. RIF1802471)
VICTOR MENDOZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed in part, reversed in part, and remanded with directions.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Arlene A. Sevidal, Acting Senior Assistant Attorney General, and Charles C.
Ragland and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and
Respondent.
1 Defendant Victor Mendoza used violence of some kind to force an aged and sickly
friend to leave his home, walk several blocks, and go into an open field; the victim’s
blood was later found strewn throughout his kitchen/living room. Once in the field, the
victim was killed with 12 to 15 blows from a machete.
Defendant denied inflicting the fatal blows. He testified that a person he knew
only as “Miklo” forced him to bring the victim to the field by threatening to kill
defendant’s family. Supposedly Miklo told defendant that he merely wanted to question
the victim about allegations that the victim was a child molester, but Miklo killed the
victim immediately upon arrival instead.
After a jury trial, defendant was found guilty of first degree murder, on a felony-
murder theory (§§ 187, subd. (a), 189, subds. (a), (e)), with a kidnapping-murder special
circumstance (§ 190.2, subd. (a)(17)(B)). He was sentenced to life in prison without the
possibility of parole, along with the usual fines, fees, and ancillary orders.
Defendant contends that the trial court erred by:
(1) Excluding evidence that defendant had been told that the victim had molested
his own grandchildren.
(2) Refusing to give CALCRIM No. 224, concerning the sufficiency of
circumstantial evidence.
(3) Failing to give a flight instruction.
(4) Imposing a $10,000 restitution fine without holding a hearing on defendant’s
ability to pay and without sufficient evidence of his ability to pay.
2 We agree that the trial court erred both by refusing to give CALCRIM No. 224
and by failing to give a flight instruction, but the errors were harmless. We find no other
error affecting the conviction. Finally — once we treat certain arguments that the People
have failed to raise as forfeited — we conclude that there was insufficient evidence of
defendant’s ability to pay the restitution fine. Accordingly, we will remand with
directions to reconsider the imposition and the amount of the restitution fine; otherwise,
we will affirm.
I
STATEMENT OF FACTS
A. Prosecution Evidence.
1. Background.
As of 2018, victim Larry Valverde was 65 years old. He was “short and
somewhat frail.” He suffered from diabetes and kidney failure; he was on dialysis. He
lived on Sunnymead Boulevard in Moreno Valley.
Defendant lived two doors away, with his mother. His children lived with his
ex-girlfriend, a couple of miles away. Defendant and Valverde had been friends and
neighbors for five or six years.
Valverde’s adult daughter Aryn lived across the street from Valverde. She would
check on him “sporadically throughout the day[.]” She was in a relationship with
defendant’s brother.
On May 16, 2018, defendant moved in with Valverde.
3 2. May 18-19: The Night of the Crime.
On May 18, around 9:00 or 10:00 p.m., Aryn was at Valverde’s house briefly to
borrow his TV remote control. Defendant and Valverde were there, along with one
Tanya Gil.1
Surveillance video showed that at 11:37 p.m., the side door of Valverde’s house
opened. At 11:38 p.m., an interior light went on. At 11:49 p.m., the side door closed. At
11:51 p.m., it opened again. At 12:02 a.m., the front door opened; two “silhouettes”
came out. At trial, Aryn identified them as defendant and her father.
One was holding something white — possibly a paper towel — up to his face.
The other was holding something under his right arm. They then “walk[ed] out of
frame.” Surveillance video from a different camera showed two people walking west on
Sunnymead Boulevard toward Graham Street.2
Sometime in the middle of the night, Aryn let her dog out into her back yard; she
noticed that Valverde’s lights were on and there was a roll of paper towels on a chair on
the front porch.
On May 19, at about 6:00 a.m., defendant showed up at the home of his friend,
Ignacio Cortez. Defendant looked tired; his clothing looked as if “he had been rolling
1 Gil died before trial in a car accident. 2 The video has not been transmitted to us. According to the trial court, however, it showed one person limping and another person pushing him.
4 around in dirt[.]” He asked for a shower and a change of clothes. Cortez did not let him
shower but did give him clothes.
Around 7:00 a.m., when Cortez had to go on an errand, defendant asked to go with
him. After the errand, Cortez dropped defendant off at a location that defendant
specified.
Also around 7:00 a.m., Aryn went to her father’s house. The front door was
closed. When she opened it, she found that “[t]he whole front entrance . . . was covered
in blood.” No one was inside. Valverde’s wallet and cellphone were on his bed. Aryn
called the police.
At about 8:00 a.m., an officer arrived at Valverde’s house. There was blood in the
entryway and “throughout” the kitchen/living room area, “on the couch, on the floor.”
There were “a few” bloody paper towels. There was also blood on the back porch, along
with more bloody paper towels. There was “[a] large amount of blood” on, inside of, and
outside of a side door. There were two bloody shoeprints.
One of Valverde’s shirts and one of defendant’s shirts were on the floor by the
side door. On a chair in the front yard, there was the roll of paper towels that Aryn had
seen, with some blood on it.
A trail of blood droplets on the sidewalk led west down Sunnymead Boulevard,
then north on Graham, then west again on Olivewood Plaza. It ended at an open field.
There was a particularly large deposit of blood outside an AutoZone.
5 3. May 20: The discovery of Valverde’s body.
On May 20, the police tracked the blood trail further, into and through the field. It
petered out near a homeless encampment. They continued to search the area. In some
brush, they found a serrated machete, with what appeared to be blood on the blade. Then,
about 30 feet away, in a ditch, they found Valverde’s dead body.
There were parallel cuts on the back of his head and neck. These had been
inflicted by some 12 to 15 separate blows from a “chop-type” weapon, such as a machete.
One “very large” cut had fractured the back of his skull and severed his spinal cord as
well as the carotid and vertebral arteries.
Valverde had also been hit in the mouth, as shown by broken teeth and cut and
bruised lips. His nose and one of his ribs were broken. There were smaller cuts and
scrapes on his face, neck, and jaw.
One way his facial injuries could have occurred was if he was hit in the back of
the head while lying face down on dirt or a similarly rough surface.
If Valverde’s nose was broken while he was at his house, if it “bled profusely,”
and if he remained there for a “significant amount of time,” that could account for the
blood found inside the house.
The cause of death was “multiple sharp and blunt impact injuries.” At one point,
however, Valverde had been strangled, as shown by petechial hemorrhages, a linear
scrape on his neck, and bruised neck muscles.
6 Cortez turned over defendant’s clothes — a hoodie jacket, a shirt, pants, and
shoes, as well as his wallet — to the police. Blood was found on the jacket and on the
pants. DNA analysis showed that it was Valverde’s blood. It was also Valverde’s blood
on the sidewalk. The pattern on the soles of defendant’s shoes matched the bloody
shoeprints found. However, there was no blood on the shoes. Not enough DNA was
found on the machete to be analyzed.
Also on May 20, defendant was arrested for an unrelated reason. He had no
significant visible injuries. He voluntarily gave a statement about the murder to the
police.
B. Defense Evidence.
Defendant testified that he had never met Tanya Gil before May 18, 2018. Around
11:00 p.m., Gil asked him to go to a party nearby; he agreed. She mentioned that she was
going to meet up with a friend.
They walked across the street to a supermarket. Gil walked up to a man who was
sitting on the curb outside the store. She introduced him as her friend Miklo3 and said he
was going to the party, too. Miklo asked for something to drink, so they went back to
Valverde’s house and gave him a glass of water.
While they were there, Gil and Miklo had a whispered conversation. Defendant
heard Gil tell Miklo that they should “kill [Valverde] inside of his house” because he had
3 Miklo’s real name was Dillon Hardy. The information charged defendant and Hardy jointly with murder. Their trials were later severed.
7 allegedly committed child molestation. On cross-examination, he testified that they said
“hurt,” not “kill.”
Defendant, Gil, and Miklo then left again, supposedly to go to the party. They
walked along the route where the blood trail was later found. Just before the field, Gil
left, supposedly to bring other friends to the party.
Defendant followed Miklo into the field. Near the homeless encampment, Miklo
stopped. He pulled a machete out of his pants. It was not serrated. He threw defendant
to the ground face down and swung the machete above defendant’s head twice.
He said “they” had defendant’s family, and if defendant did not bring Valverde
back within 60 minutes, his “family was going to die.” He explained that he wanted to
question Valverde about an allegation that Valverde had molested one of defendant’s
children. He told defendant not to call the police or anyone else, or again, his family
would die. Miklo picked a second, serrated machete up from the ground and gave it to
defendant, to use to bring Valverde back.
Defendant already suspected that Valverde was molesting defendant’s four-year-
old daughter. A month earlier, he had gotten a voicemail from her, from a number he did
not recognize. She was crying and saying, “Stop,” “No,” and “Ouch.” He tried to call
the number, but it was out of service. He called his ex-girlfriend, the child’s mother, who
said the child was at home and “it wasn’t true.” The next morning, he asked his daughter
if anybody had touched her “private area”; she said no. Nevertheless, defendant was
“[u]pset” with Valverde.
8 Defendant went back to Valverde’s house, carrying the machete concealed in
Miklo’s sweater. When he arrived, he asked Valverde “if he ever molested [defendant’s]
kids.” Valverde denied it, but defendant did not believe him because “[h]e kind of
looked away.”
Valverde got upset and punched defendant on the left cheek, “[n]ot so hard,” two
or three times. Defendant punched him back, two or three times, in the nose. Valverde
fell; his nose was bleeding. According to defendant, all of the blood later found in the
house was from Valverde’s bloody nose. Defendant denied inflicting his mouth injury or
punching him in the ribs
Defendant got paper towels to “clean up the mess.” There were two shirts on the
floor because Valverde took off his own shirt, and defendant gave him one of his shirts to
stop the bleeding.
Defendant then told Valverde what had passed between him and Miklo.
Defendant did not bring out the machete until Valverde asked him what was in the
sweater. He did threaten to use the machete on Valverde. However, he also promised to
use it to protect Valverde. They discussed calling the police, but defendant refused
because he was afraid for his family. Although Valverde was afraid, eventually he
agreed to go with defendant; he said, “For the safety of your children, let’s go see what is
going on.”
9 They went out the side door so they could leave with no one seeing; however,
Valverde could not go through or over the back fence, so they went back inside and out
the front door.
Near the AutoZone, Valverde changed his mind about going and “kind of threw
himself to the [ground].” They argued. Defendant was afraid that time was running out,
so he kicked Valverde twice in the groin. He kept begging Valverde to get up. Finally,
Valverde did, and they resumed walking.
They saw a policeman in a patrol car, “moving very slowly.” They walked up to
it, screamed, and yelled for help. The officer just rolled up his window, turned on his
spotlight, and aimed it into the field. Defendant concluded that the police “were corrupt
and probably in on it.”
Near the homeless encampment, they encountered a Black man. He yelled, “Get
out of my house” and swung a machete at them. They tried to back away but fell. As
defendant got up, he realized that Miklo was hitting Valverde with a machete. Miklo hit
Valverde a total of three or four times. He did not hit Valverde in the mouth or strangle
him. He said, “Something for Mom and Pop’s shop.” Defendant had dropped the
machete that Miklo had given him and could not find it in the dark.
Defendant conceded that the Black man went back into his tent and had nothing to
do with the attack.
Once again, Miklo threw defendant to the ground and swung the machete above
his head. He then ordered defendant to follow him.
10 Apparently the police had obtained surveillance video photos of defendant with
Miklo at several locations in Moreno Valley. Defendant testified that he spent the night
following Miklo around, as ordered, including to those locations.
First, they walked to a sewer under a bridge. There were “a couple [of] other
people” in the sewer; they appeared to know Miklo. Miklo changed into some clothes
that he had stashed there.
Miklo then sent defendant to a flower shop to get a spray can and a trash bag that
Miklo said he would find there. Miklo wanted the spray can so he could “tag . . . the
sewer,” which somehow would prevent “arous[ing] any suspicion[.]” Defendant found
the bag but no spray can.
Miklo left the machete behind in the sewer as they walked to a business complex,
where Miklo put something in a trash can. They walked up Nita Street, where Miklo met
with another person.
Then they walked down Hemlock Street to a trash can in a parking lot. There
were two men and two girls there. Miklo knew one of the men and traded hats with him.
Defendant and Miklo then walked to a Valero gas station. Photos taken at
4:37 a.m. showed defendant and Miklo together at the gas station, as well as a silver van
and a nearby police car. According to defendant, Miklo gave gloves and other stuff that
he was using at the time of the murder” to a “guy”4 who was driving a silver van. The
4 Defendant also referred to the guy as Miklo’s “roommate.”
11 guy asked “if everything was done already.” Miklo said, “Yes.” This made defendant
think Valverde was killed “over a drug debt that he owed.”
They went to a Bank of America parking lot, where they were also photographed
together.
Then they went to a Papa John’s, where they were photographed again around
4:00 a.m. A truck pulled up and honked; an occupant called to Miklo. Miklo then told
defendant “everything was going to be okay, . . . to just get away from Moreno Valley
[and] never come back.”
Defendant walked to Cortez’s house, where he got a change of clothes and where
he left his clothes, shoes, and wallet. He had Cortez drop him off at the home of his
friend Miguel Lendo. He did not ask Cortez to drop him off at his family’s home because
he “was still a little scared.” He slept the whole day and night at Lendo’s.
On May 20, defendant went first to Aryn’s house and then to his mother’s house,
but no one was home. Only then did he go to his ex-girlfriend’s home, “[t]o check if they
were alive or not.” At his direction, his ex-girlfriend called the police. When he was
arrested, he told the police what had happened.
Defendant admitted leaving shoeprints in Valverde’s house. He could not explain
why no blood was found on his shoes; he denied washing them.
12 C. Rebuttal.
1. Defendant’s prior inconsistent statements.
Defendant had told police that, when Miklo and Gil were at Valverde’s house
“Miklo pull[ed] out a machete, put it on the table[,] and sa[id], Let’s end [Valverde] right
now[.]”
Rather than swinging a machete over defendant’s head, defendant said that Miklo
pointed to an X on the ground, told him to put his face there, and threatened to “shav[e]”
him.
Defendant admitted hitting Valverde in the ribs. When Valverde would not go,
defendant kicked him, then dragged him out of the house. Outside the AutoZone,
defendant kicked Valverde in the groin not twice but four times.
Defendant said they saw a police officer, but he did not say they tried to get help
from him.
He said Valverde was attacked by six people.
He said a friend later told him that Valverde was actually killed because he owed
money for heroin.
2. Testimony of Vanessa Melendez.
Vanessa Melendez testified that on May 19, at 2:00 or 3:00 a.m., she was in an
alley smoking methamphetamine with some friends when Miklo and defendant showed
up. Miklo introduced defendant as his friend. Defendant and Miklo used some of the
methamphetamine. One of her friends traded hats with Miklo.
13 According to Melendez, Miklo liked knives and had a lot of different ones;
however, she had never seen him with a machete.
II
LIMITING EVIDENCE THAT THE VICTIM
HAD BEEN ACCUSED OF CHILD MOLESTATION
Defendant contends that the trial court erroneously excluded evidence that he had
been told that Valverde had molested his own grandchildren.
A. Additional Factual and Procedural Background.
1. The motion in limine.
The prosecution filed a motion in limine to exclude evidence of the fact that
Valverde had been accused of molesting his grandchildren, as more prejudicial than
probative. They represented that Valverde “was not convicted, charged, or arrested . . . .”
They argued that this evidence might be relevant to Miklo’s motive for the murder, but it
was irrelevant to defendant’s own claimed motive, which was duress. They also argued
that it would confuse the jury and take up undue time.
The argument on the motion was very confusing, because it involved four separate
out-of-court statements regarding two separate molestation allegations:
(1) A statement by Aryn, as much as two years before the murder, that Valverde
had molested his own grandchildren, including her son5 (Aryn’s statement).
5 Aryn’s son was defendant’s nephew.
14 (2) A statement by defendant’s daughter, in a phone call sometime before the
murder, to the effect that Valverde had molested her (the child’s statement).
(3) A statement by Miklo and Gil, at Valverde’s house, that they suspected
Valverde of molesting his own grandchildren (Miklo’s house statement).
(4) A statement by Miklo, in the field, that he suspected Valverde of molesting
defendant’s daughter (Miklo’s field statement).
Defense counsel said at first that he wanted to introduce only Aryn’s statement
because, when taken with Miklo’s house statement, it showed defendant’s motive. Then,
however, he indicated that he also wanted to introduce the child’s statement because,
when taken with Miklo’s field statement, it, too, showed defendant’s motive.
The prosecution objected to all of this evidence.
The trial court ruled that it would allow evidence of only “one incident,” evidently
meaning one incident of molestation. Defense counsel responded, “[I]t’s both the
incidents that caused the motivation.” The trial court, however, adhered to its ruling: “If
you want both of them to come in, I’m saying it’s too prejudicial.”
2. Proceedings during trial.
Defendant testified that, at Valverde’s house, Miklo and Gil told him about
“[s]ome allegations of some child molestation.” Then, in the field, Miklo told him to
bring Valverde back “so they can question him about these allegations.”
Defendant then volunteered that, while in the field, Miklo told him that Valverde
had allegedly molested both Aryn’s children and defendant’s own children. The
15 prosecutor objected based on the pretrial ruling. The trial court struck the testimony
regarding Aryn’s children and directed defense counsel to admonish defendant not to
mention the allegation regarding Aryn’s children.
Defendant then testified to the child’s statement and Miklo’s field statement (both
about molestation of his own child).
On cross-examination, the prosecutor impeached defendant’s testimony about the
child’s statement. He asked (1) what number she was calling from (unknown); (2)
whether he called the number back (it was out of service); (3) whether defendant believed
the molester placed the call while the molestation was going on (“It could have been”);
(4) whether defendant called the police (no, he called his ex-girlfriend, and she said his
daughter was home and safe); (5) whether he questioned his daughter (yes, she denied
any molestation); and (6) whether defendant kept the voicemail (no).
Defense counsel then asked again to introduce evidence of Aryn’s statement, to
“bolster[]” defendant’s credibility. The trial court adhered to its ruling.
B. Discussion.
The trial court has discretion to exclude otherwise admissible evidence if it would
be more prejudicial then probative. (Evid. Code, § 352.) Prejudice, for this purpose,
includes “‘evok[ing] an emotional bias” (People v. Johnson (2019) 8 Cal.5th 475, 521),
“undue consumption of time,” “confusing the issues,” or “misleading the jury.” (Evid.
Code, § 352.)
16 “We review a trial court’s decision to admit evidence over an Evidence Code
section 352 objection for abuse of discretion. [Citation.]” (People v. Powell (2018) 5
Cal.5th 921, 961.) “‘“[A] trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.”’ [Citation.]”
(People v. Charles (2015) 61 Cal.4th 308, 333.)
Evidence that Valverde was accused of child molestation was undoubtedly
prejudicial. Such a charge is uniquely inflammatory. Child molesters are near-
universally despised, even in prison. Jurors would be tempted to minimize or ignore the
evidence against defendant out of a sense that Valverde somehow had it coming. This
was a risk even if the evidence was not admitted for its truth and even if the jury was so
instructed.
The trial court could properly reason that two alleged instances of child
molestation were far more inflammatory than one. If the jurors learned that Valverde had
been accused of child molestation twice, two years apart, by unrelated accusers, they
were likely to conclude that he was, in fact, a child molester.
The trial court could properly have excluded evidence of both instances of
molestation. The prosecution’s original argument was correct: Child molestation may
have been Miklo’s motivation, but defendant’s motivation was duress. Thus, this
evidence was more prejudicial than probative. In fact, evidence that defendant knew that
Valverde was suspected of child molestation — especially molestation of defendant’s
own child — actually undercut his claim of duress. It suggested that no duress was
17 necessary; inferably he had reasons of his own to bring Valverde to the field to be
questioned or even killed.
Nevertheless, the trial court bent over backwards to allow defense counsel to
present his theory of the case. It let him introduce evidence of one alleged instance of
child molestation. It even let him pick which one. Reasonably, he chose the one most
likely to affect defendant — molestation of his own child.6
Unfortunately for defense counsel, defendant’s testimony about that incident was
destroyed on cross-examination.
Defendant essentially argues that the trial court had a duty to help him rehabilitate
his lost credibility; if he had been allowed to testify about the allegation involving Aryn’s
child, that might have explained why he interpreted the phone call — even though it was
very inconclusive — as meaning that Valverde was molesting his daughter.
Admittedly, at that point, the allegation involving Aryn’s child took on some
added probative value — but not much. Defendant’s account of the phone call remained
vague, inconclusive, and frankly not very believable. His ex-girlfriend assured him that
6 Defense counsel was probably relying on defendant’s statement to the police, which was significantly different from his testimony at trial. In it, he said he received three voicemails, starting at 3:00 a.m. In the first, Valverde made a characteristic grunting noise. In the second, his daughter said, “Daddy.” In the third, he heard the grunting noise and his daughter crying and saying, “Daddy.” When he confronted Valverde, Valverde denied everything, but then he got up and left and stayed away for three days. Aryn confirmed that defendant’s children had been at Valverde’s house.
18 his daughter was at home and safe; his daughter denied being touched. He did not even
bother to keep the voicemail.
At the same time, there was other evidence of why he interpreted the phone call
the way he claimed that he did — namely, in the field, Miklo told defendant that
Valverde was suspected of molesting defendant’s daughter. Based on Miklo’s field
statement, it would be reasonable that defendant might think back on the phone call and
conclude that it was evidence of molestation by Valverde. Miklo’s field statement, which
did come in, had much the same effect as Aryn’s statement would have.
Finally, it remained true that two alleged incidents of molestation were more
prejudicial than just one. Arguably, the trial court could have struck a different balance,
but we cannot say that it abused its discretion.
In sum, the trial court’s initial ruling was not erroneous. The fact that defendant’s
subsequent testimony was unconvincing and impeached did not require it to change that
ruling.
III
REFUSAL TO GIVE CALCRIM NO. 224
REGARDING THE SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE
Defendant contends that the trial court erred by refusing to give CALCRIM
No. 224, concerning the sufficiency of circumstantial evidence.
19 The People concede that “[t]here does appear to have been error,” but they
contend that “the error was harmless beyond a reasonable doubt in view of other properly
given instructions.”
A. The Instructions.
CALCRIM No. 223 explains what circumstantial evidence is; it then says:
“Both direct and circumstantial evidence are acceptable types of evidence to prove
or disprove the elements of a charge, including intent and mental state and acts necessary
to a conviction, and neither is necessarily more reliable than the other. Neither is entitled
to any greater weight than the other. You must decide whether a fact in issue has been
proved based on all the evidence.”
CALCRIM No. 224 says:
“Before you may rely on circumstantial evidence to conclude that a fact necessary
to find the defendant guilty has been proved, you must be convinced that the People have
proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the defendant
guilty, you must be convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant is guilty. If you can draw two or more
reasonable conclusions from the circumstantial evidence, and one of those reasonable
conclusions points to innocence and another to guilt, you must accept the one that points
to innocence. However, when considering circumstantial evidence, you must accept only
reasonable conclusions and reject any that are unreasonable.”
20 CALCRIM No. 704 is essentially identical to CALCRIM No. 224, except that it
applies to “a special circumstance allegation” rather than to guilt or innocence.
B. Additional Factual and Procedural Background.
Both sides requested CALCRIM No. 223 and No. 224. The trial court said it
would “give 223, not 224. And give 223 in conjunction with 704.” It did not state its
reasons on the record. However, when it asked the prosecution to comment, the
prosecutor cited People v. Hines (1997) 15 Cal.4th 997 (Hines).
C. Discussion.
“‘[A] trial court has a sua sponte duty to give [CALCRIM No. 224] in criminal
cases “where circumstantial evidence is substantially relied upon for proof of guilt . . . .”’
[Citation.]” (People v. Burch (2007) 148 Cal.App.4th 862, 870.)
Hines held that, when the trial court gave the predecessor of CALCRIM No. 224,
regarding guilt, it was not “prejudicial error” to refuse to give the predecessor of
CALCRIM No. 704, regarding a special circumstance allegation. (Hines, supra, 15
Cal.4th at pp. 1051-1052.) We accept that jurors will understand that an instruction that
applies to “guilt[]” also applies to a special circumstance. It does not follow, however,
that they will understand that an instruction that is specifically limited to a special
circumstance allegation also applies to guilt in general. Thus, the trial court erred.
The error, however, was harmless. As the People point out, the jury found the
special circumstance true; the elements of the special circumstance were equivalent to the
elements of felony murder.
21 The jury was instructed that felony murder required “that:
“One, the defendant committed kidnapping.
“Two, the defendant intended to commit kidnapping.
“Three, if the defendant did not personally . . . commit kidnapping, then a
perpetrator committed kidnapping.[7]
“Four, while committing kidnapping, the perpetrator caused the death of another
person.
“And five, the defendant was a major participant in the kidnapping.
“And six, when the defendant participated in the kidnapping, he acted with
reckless indifference to human life.” (CALCRIM No. 540B.)
It was also instructed that the special circumstance required that:
“Three, if the defendant did not personally commit kidnapping, then a perpetrator,
whom the defendant was aiding and abetting before or during the killing, personally
committed kidnapping.
7 Actually, the trial court misread this instruction, as requiring that “if the defendant did not personally intend to commit kidnapping, then a perpetrator committed kidnapping.” (Italics added.) Defendant does not contend that this was reversible error. The trial court’s slip of the tongue was manifestly harmless, because, as we will discuss, in connection with the special circumstance, the jury was required to find that “the defendant intended to commit kidnapping.”
22 “And four, the defendant or co-participant did an act that caused the death of
another person.” (CALCRIM No. 730.)
Moreover, if defendant was not the actual killer, the special circumstance also
required that:
“[Five], the defendant’s participation in the [kidnapping] began before or during
the killing.
“[Six], the defendant was a major participant in the [kidnapping].
“And [seven], when the defendant participated in the [kidnapping], he acted with
reckless indifference to human life.” (CALCRIM No. 703.)
Consistent with these instructions, it has been held that felony murder and a
felony-murder special circumstance have “the same elements of proof.” (People v.
Farfan (2021) 71 Cal.App.5th 942, 953-954.)
The erroneous failure to give an instruction is harmless when “‘the jury
necessarily resolved, although in a different setting, the same factual question that would
have been presented by the missing instruction; [citation] in a manner adverse to
defendant.” (People v. Wright (2006) 40 Cal.4th 81, 99; see generally id. at pp. 98-99.)
Defendant hypothesizes that the jury may have erroneously found him guilty of
felony murder and then “almost automatically” concluded that the special circumstance
was true, without bothering to consider CALCRIM No. 704. This argument breaks the
rule that “‘[a]bsent some showing to the contrary, we presume the jury followed the
court’s instructions.’ [Citation.]” (People v. Krebs (2019) 8 Cal.5th 265, 335.)
23 The Supreme Court rejected a similar argument in People v. Gonzalez (2018) 5
Cal.5th 186. There, the defendants were found guilty of first degree felony murder. (Id.
at p. 194.) The trial court erroneously failed to instruct on first degree murder with
malice or on the lesser included offenses of second degree murder, voluntary
manslaughter, and involuntary manslaughter. (Id. at pp. 194-195.) The Supreme Court
held that the error was harmless because the jury also found a robbery-murder special
circumstance to be true, and thus implicitly but necessarily found that the defendant was
guilty of first degree felony murder. (Id. at pp. 200-203.)
The defendants argued “that the felony-murder conviction ‘essentially
compell[ed]’ the jurors to find the robbery-murder special-circumstance allegation true.”
(People v. Gonzalez, supra, 5 Cal.5th at p. 201.) The Supreme Court said that this
argument “fail[s] to persuade.” (Ibid.) It relied, in part, on “the presumption that juries
understand and follow instructions . . . .” (Ibid.) It also noted that “[t]he trial court
specifically instructed the jury to take the questions of felony murder and the special
circumstance separately . . . .” (Ibid.) Here, similarly, the trial court instructed, “If you
find the defendant guilty of first degree murder, you must also decide whether the People
have proved that the special circumstance is true.” (CALCRIM No. 700.)
Finally, defendant argues that the duress and necessity instructions (CALCRIM
Nos. 3402, 3403) by their terms applied to a finding of guilt, and not to the special
circumstance. Thus, he argues, the jury may have found the special circumstance true
without considering these defenses.
24 As mentioned, however, the instructions on the special circumstance required the
jury to find that defendant “committed kidnapping.” The duress and necessity
instructions were not limited to murder. In fact, as the prosecution’s only theory of
murder was felony murder, the broad general statements in those instructions — that
“[t]he defendant is not guilty” if he acted under either duress or necessity — necessarily
applied to the underlying kidnapping. Thus, in finding that the special circumstance
allegation was true, the jury must have considered — and rejected — both duress and
necessity.
We therefore conclude that the trial court’s failure to give CALCRIM No. 224,
although erroneous, was harmless.
IV
FAILURE TO INSTRUCT ON FLIGHT
Defendant contends that the trial court erred by failing to give a flight instruction.
CALCRIM No. 372, with the appropriate wording choices for this case, says: “If
the defendant fled immediately after the crime was committed, that conduct may show
that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to
decide the meaning and importance of that conduct. However, evidence that the
defendant fled cannot prove guilt by itself.”
Neither side requested a flight instruction, and the trial court did not give one. A
trial court, however, has a duty to give a flight instruction sua sponte whenever “evidence
25 of flight of a defendant is relied upon as tending to show guilt . . . .” (Pen. Code,
§ 1127c; see also People v. Najera (2008) 43 Cal.4th 1132, 1139, fn. 4.)
“‘In general, a flight instruction “is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his movement
was motivated by a consciousness of guilt.” [Citations.] “‘[F]light requires neither the
physical act of running nor the reaching of a far-away haven. [Citation.] Flight
manifestly does require, however, a purpose to avoid being observed or arrested.’”
[Citation.]’ [Citation.]” (People v. Leon (2015) 61 Cal.4th 569, 607.) The instruction
must be given when there is “‘substantial evidence of flight . . . .’” (People v. Pensinger
(1991) 52 Cal.3d 1210, 1245.) “The evidentiary basis for the flight instruction requires
sufficient, not uncontradicted, evidence.” (People v. Richardson (2008) 43 Cal.4th 959,
1020.)
The People argue that there was no substantial evidence of flight. They point out
that, according to defendant’s own account, he wandered around Moreno Valley with
Miklo while Miklo encountered various acquaintances. After the stop at the sewer, they
were largely in public; they were even photographed by multiple security cameras. All
this time, Valverde’s blood was on defendant’s clothing.
This overlooks the fact that defendant did not go home. He did not go to
Valverde’s house, where he was then living. He knew that Aryn would come looking for
her father, so by not going there, he was leaving her to confront the bloody scene, alone
26 and with no explanation. He also did not go to his mother’s home or the home of his
ex-girlfriend and children.
Of course, defendant testified that he stayed with Miklo only under duress. The
jury, however, did not have to believe this, and on that view, staying with Miklo
constituted flight. In addition, even after Miklo bade him farewell, defendant still did not
go home or to his mother’s. He did not go to the home of the mother of his children —
even though Miklo had supposedly threatened to kill them — until the second day after
the murder. Instead, he went first to the home of his friend Cortez, so he could get rid of
his bloody clothes, and then to the home of his friend Lendo. It was reasonably inferable
that this showed consciousness of guilt and thus constituted flight.
The People also argue, however, that the failure to give a flight instruction was
harmless. “[T]he standard of reversible error as applied to jury instructions is whether it
is reasonably probable that a result more favorable to the defendant would have occurred
had the correct instruction been given.” (People v. Burgener (1986) 41 Cal.3d 505, 538,
disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 745, 748-754,
756; see also People v. Turner (1990) 50 Cal.3d 668, 695 [giving flight instruction was
harmless under reasonable probability standard].) Defendant cites no case holding that
the failure to give a flight instruction was prejudicial, and our research has revealed none.
Appellants object more often to the giving of a flight instruction than to the failure
to give one. This is because the instruction calls the jurors’ attention to any evidence that
arguably shows flight and suggests that consciousness of guilt is a possible inference.
27 Thus, the failure to give a flight instruction can almost never be prejudicial. (People v.
Roy (1971) 18 Cal.App.3d 537, 551 [“The instruction could have been more helpful to
the prosecution than to the defendant.”], disapproved on other grounds in People v. Ray
(1975) 14 Cal.3d 20, 29-30, 32; People v. Sheldon (1967) 254 Cal.App.2d 174, 181
[omission of instruction “‘was more favorable than harmful to’” defendant]; People v.
Williams (1960) 179 Cal.App.2d 487, 491 [same].)
This is particularly true of the first part of the instruction, “If the defendant fled
immediately after the crime was committed, that conduct may show that he was aware of
his guilt.” However, it is also true of the next part of the instruction, “If you conclude
that the defendant fled, it is up to you to decide the meaning and importance of that
conduct.” The jury here was instructed, as usual, that “You must decide what the facts
are. It is up to all of you, and you alone, to decide what happened . . . .” (CALCRIM No.
200.) This makes the same point, albeit more generally.
That leaves the part of the instruction that says, “evidence that the defendant fled
cannot prove guilt by itself.” Again, however, other instructions make the same point
more generally, including the general instruction on proof beyond a reasonable doubt
(CALCRIM No. 220), as well as other instructions requiring proof of particular matters
beyond a reasonable doubt. (CALCRIM No. 704 [special circumstance], CALCRIM
No. 1215 [absence of consent and absence of a reasonable belief in consent]; CALCRIM
No. 3402 [absence of duress].)
28 Particularly on this record, there is no reasonable probability that the jury
mistakenly believed it could infer guilt from flight alone. The evidence, the instructions,
and the arguments of counsel would have made it well aware that it had to decide
whether defendant was acting under duress or legal necessity.8
Defendant notes that the prosecutor argued that he spent hours with Miklo after
the murder and that this proved that he was neither under duress nor in fear for his family.
He argues that the absence of a flight instruction somehow led the jury to view this
conduct as evidence of consciousness of guilt when it was really evidence of duress.
Even with a flight instruction, however, the prosecutor could and would have made the
same argument. Moreover, even after Miklo split up with defendant, defendant still did
not contact his family for over 24 hours. The prosecutor quite properly argued that this
was additional evidence of absence of duress. Giving a flight instruction would not have
changed anything about the jury’s evaluation of this evidence.
We therefore conclude that the failure to give a flight instruction was harmless
error.
Defendant asks us, if we find more than one error, to consider their cumulative
prejudicial effect. In part III, ante, we held that the trial court erred by refusing to give
CALCRIM No. 224. In this part, we hold that it erred by failing to give a flight
8 Defendant testified that Valverde agreed to go to the field. However, he also testified that, at the AutoZone, Valverde changed his mind, and he (defendant) kicked him in the groin to get him moving again. As a result, neither consent nor a reasonable belief in consent was really a viable defense.
29 instructions. However, we know for a fact that the refusal to give CALCRIM No. 224
did not affect the jury’s verdict. We also know it is not reasonably probable that the
failure to give a flight instruction could have been prejudicial. Thus, there could be no
cumulative prejudice.
V
ABILITY TO PAY A $10,000 RESTITUTION FINE
Defendant contends that the trial court erred by imposing a $10,000 restitution
fine, the statutory maximum, without holding a hearing on his ability to pay and without
sufficient evidence of his ability to pay.
At the time of sentencing, defendant was 32 years old. The trial court found, “The
defendant is indigent.” It expressly declined to impose booking fees (Gov. Code,
§ 29550) or presentence investigation costs (Pen. Code, § 1203.1b). It also did not
impose a court facilities assessment (Gov. Code, § 70373) or a court operations
assessment (Pen. Code, § 1465.8, subd. (a)(1)). However, it did impose a restitution fine
of $10,000. (Pen. Code, § 1202.4.) It also awarded victim restitution of $5,020.89.
Defense counsel objected that defendant lacked the ability to pay the restitution
fine. The trial court said, “He looks healthy to me. I think he’s going to be working in
prison. Does he have any kind of illness?”
Defense counsel responded, “He doesn’t. . . . [T]he wages are really low. I think
there’s some limitation of their income within the next year. . . . He’s going to be in
30 maximum security, level four. He’s not going to have the opportunity to work for some
time because he’s not going to be in the right classification to work.”
The trial court nevertheless adhered to its ruling.
Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
which held that due process and equal protection prohibit the imposition of a criminal
restitution fine in the absence of a finding, following a hearing, that the defendant has the
ability to pay. (Id. at pp. 1160, 1164-1172.)
Preliminarily, we conclude that the People have forfeited three issues.
First, the People do not argue that we should not follow Dueñas. The validity of
Dueñas is currently pending before our Supreme Court. (People v. Kopp (2019) 38
Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) In People v. Taylor (2019) 43
Cal.App.5th 390, this court followed Dueñas, because the People had not argued that we
should not. (Taylor, supra, at pp. 397-399.) In this case, the People once again do not
argue that we should not follow Dueñas. Under Taylor, then, we treat any such argument
as forfeited.
Second, the People do not argue that defendant had the burden of proving inability
to pay. Dueñas held that the prosecution has the burden of proving ability to pay.
(Dueñas, supra, 30 Cal.App.5th at pp. 1160, 1173.) Following the approach in Taylor,
then, we treat this argument, too, as forfeited.
31 Third, the People do not argue that Dueñas does not apply to persons who, like
defendant, have been sentenced to life in prison without the possibility of parole. In
Dueñas itself, the defendant had been placed on probation. (Dueñas, supra, 30
Cal.App.5th at p. 1162.) The court was concerned, as a matter of due process, with the
“potentially devastating” civil and criminal consequences of failure to pay. (Id. at pp.
1167-1168; but see People v. Aviles (2019) 39 Cal.App.5th 1055, 1069-1072 [ability to
pay issue should be analyzed under the excessive fines clause, not the due process
clause].) In this respect, a prisoner incarcerated for life is not similarly situated to a
probationer released back into society. Nevertheless, again following Taylor’s approach,
we treat this argument as forfeited.
Defendant argues that he was denied an ability-to-pay hearing. As a result of
defense counsel’s objection, however, he did have a hearing on this issue. Defense
counsel presented argument. He did not ask to present any evidence at that hearing and
did not request a continuance in order to do so. The trial court proceeded to make a
finding of ability to pay, based on defendant’s ability to earn wages in prison. Defense
counsel did not object that this was not a sufficient hearing.
More to the point, defendant also argues that the trial court’s finding of ability to
pay was not supported by sufficient evidence.
“[Defendant]’s ability to pay includes ‘[his] ability to obtain prison wages . . . .’
[Citations.]” (People v. Cervantes (2020) 46 Cal.App.5th 213, 229.) Although “every
able-bodied prisoner” must work (Pen. Code, § 2700), “[a]n inmate’s assignment to a
32 paid position is a privilege dependent on available funding, job performance, seniority
and conduct.” (Cal. Code Regs., tit. 15, § 3040, subd. (k), italics added.)
“Prison wages range from $12 to $56 per month, depending on the job and skill
level involved. [Citation.] Up to 50 percent of [defendant]’s wages . . . will be deducted
to pay any outstanding restitution fine, plus another 5 percent for the administrative costs
of this deduction. [Citations.]” (People v. Cervantes, supra, 46 Cal.App.5th at p. 229.)
Likewise, up to 50 percent of his wages will be deducted to pay the victim restitution,
plus another 5 percent for administrative costs. (Cal. Code Regs., tit. 15, § 3097, subd.
(c).)
The People presented no evidence that defendant was sufficiently skilled to earn
more than the minimum $12 a month. They also presented no evidence that he was likely
to obtain a paid rather than an unpaid position.
Even if we assume that defendant will be paid $12 a month, he could pay only
$5.40 a month (see People v. Taylor, supra, 43 Cal.App.5th at p. 402) toward the
restitution fine and $5.40 a month toward victim restitution. At that rate, it would take
him more than 77 years just to pay the victim restitution, and at that point, he would still
owe $4,900 of the restitution fine. Thus, there was no evidence that defendant could pay
the restitution fine during his natural life.
Accordingly, we will reverse, solely with respect to the restitution fine, and
remand for a new ability-to-pay hearing.
33 VI
DISPOSITION
The order imposing a restitution fine is reversed; in all other respects, the
judgment is affirmed. On remand, the trial court must reconsider the imposition and the
amount of the restitution fine.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J.
RAPHAEL J.