People v. Nunez CA4/2

• Court: California Court of Appeal
• Decided: May 3, 2021
• Docket: E071815M
• Status: Unpublished

Opinion

Filed 5/3/21 P. v. Nunez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E071815

v. (Super.Ct.Nos. FWV17003089 & FWV17003091) RODOLFO NUNEZ et al., ORDER MODIFYING Defendants and Appellants. OPINION AND DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT

The petition for rehearing filed on April 29, 2021, is denied. The opinion filed in

this matter on April 28, 2021, is modified as follows:

On page 5, in the paragraph that begins, “We find no merit to each defendant’s

claims,” replace “Rodriguez’s claim” with “defendants’ claims.” The paragraph should

read:

1 We find no merit to each defendant’s claims of trial error and no merit to

defendants’ claims that the matter must be remanded for the court to consider whether to

impose a lesser firearm enhancement on count 1.

On page 99, in the paragraph that begins, “But in Yanez,” remove “(plur. opn. of

Ramirez, J.).” The paragraph should read:

But in Yanez, this court followed Tirado, not Morrison. (Yanez, supra,

44 Cal.App.5th at p. 459 [“[N]othing in the plain language of sections 1385 or 12022.53,

subdivision (h) suggests an intent to allow a trial court discretion to substitute one

sentencing enhancement for another.”]; see also Valles, supra, 49 Cal.App.5th at pp. 165-

167 [similarly concluding that “[t]he express language of sections 1385 and 12022.53,

subdivision (h)” does not “authoriz[e] the substitution of a lesser enhancement for a

greater enhancement, properly found true at trial, and for which there is no legal

impediment to imposition”]; but see Valles, at pp. 170-172 & fn. 1 (conc. opn. of

Menetrez, J.) [finding insufficient basis to depart from this court’s decision in Yanez, but

agreeing with Morrison, noting that Tirado and Yanez “frame[d] the issue incorrectly by

asking whether the amended statute ‘conveys the power to change, modify, or substitute a

charge or enhancement,’ ” and concluding that the correct question is whether the court,

“having exercised its power under the amended statute to strike a greater enhancement,”

“still has its previously recognized power to impose an uncharged lesser” enhancement].)

Based on this court’s decision in Yanez, remand for resentencing on each defendant’s

section 12022.53, subdivision (d) firearm enhancement is unwarranted.

2 These modifications do not change the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

RAMIREZ P. J.

McKINSTER J.

3 Filed 4/28/21 P. v. Nunez CA4/2 (unmodified opinion)

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.

v. (Super.Ct.Nos. FWV17003089 & FWV17003091) RODOLFO NUNEZ et al., OPINION Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. Affirmed in part; reversed in part with directions.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and

Appellant Rodolfo Nunez.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and

Appellant Alfredo Rodriguez.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton, Deputy Attorney

General, for Plaintiff and Respondent

1 I. INTRODUCTION

Defendants Rodolfo Nunez and Alfredo Rodriquez were tried together before

separate juries and convicted of the first degree premeditated murder of Ofakitonga Kofu

on July 10, 2017. (Pen. Code, §§ 187, 189, subd. (a),1 count 1.) Rodriguez was also

convicted of unlawfully possessing a firearm as a felon. (§ 29800, count 2.)

Rodriguez’s jury (the red jury) further found that Rodriguez personally and

intentionally discharged a firearm in the commission of the murder (§ 12022.53,

subd. (d)), and that Rodriguez committed the murder and unlawfully possessed the

firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Nunez’s jury

(the blue jury) found that a principal (Rodriguez) personally and intentionally discharged

a firearm in the commission of the murder (§ 12022.53, subd. (d)), and that the murder

was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).)

Rodriguez was sentenced to five years plus 60 years to life.2 Nunez was

sentenced to 50 years to life.3 The court ordered each defendant to pay a $300 restitution

1 Undesignated statutory references are to the Penal Code.

2 Rodriguez’s five-year determinate term includes the middle term of two years on count 2, plus three years for the gang enhancement on count 2. On count 1, Rodriguez was sentenced to 25 years to life, plus 25 years to life for the firearm enhancement, plus 10 years for the gang enhancement.

3 Nunez’s sentence is comprised of 25 years to life for the murder, plus 25 years to life for the firearm enhancement. The court imposed but stayed a 10-year term on Nunez’s gang enhancement on count 1.

2 fine (Pen. Code, § 1202.4, subd. (b)) and $70 in court assessments on each of their

convictions. (Pen. Code, § 1465.8; Gov Code, § 70373.)

Rodriguez raises 10 claims of trial, sentencing, and clerical error. He first claims

that his murder conviction must be reversed because the trial court prejudicially erred

(1) in denying his motion to suppress the statements he made during his police interview

after he unequivocally invoked his right to counsel; (2) in allowing the prosecution’s

gang expert to testify to case-specific hearsay—namely, that his gang, the El Monte-

Flores (EMF) was required to follow directions from the Mexican Mafia and targeted

African- Americans; (3) in excluding evidence of Kofu’s prior robbery conviction (Evid.

Code, § 1103); and (4) in admitting hearsay statements from a 911 caller who reported

hearing the shooting and persons making statements at the time of the shooting.

Rodriguez also claims (5) the prosecutor misstated the law of premeditation and

deliberation during closing argument; and (6) the cumulative effect of the trial errors

requires reversal of his murder conviction.

Regarding sentencing, Rodriguez claims (7) remand for resentencing is necessary

so the court may consider whether to impose a lesser firearm enhancement on count 1;

(8) his 10-year term on the gang enhancement in count 1 is unauthorized and must be

stricken in favor of making his life term on count 1 subject to a 15-year minimum parole

eligibility period (MPEP) (§ 186.22, subd. (b)(5)); and (9) the trial court violated his due

process rights in imposing the $300 restitution fine and $140 in court assessments

without determining whether he was able to pay them. Lastly, Rodriguez claims that

3 (10) clerical errors in the sentencing minute order and his abstracts of judgment must be

corrected.

Nunez raises 12 claims of trial and sentencing error. He claims his first degree

premeditated murder conviction must be reversed because (1) insufficient evidence

shows he directly aided and abetted Rodriguez in committing the murder; (2) the

instructions, including CALCRIM No. 403, erroneously allowed the jury to convict him

of first degree premeditated murder based on a natural and probable consequences theory;

and (3) effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)

eliminated liability for murder based on the natural and probable consequences doctrine,

and the legislation applies retroactively to nonfinal judgments on direct appeal.

Nunez also claims (4) the prosecution failed to prove the primary activities

element of the gang enhancement allegation in count 1; (5) the prosecution’s gang expert

was erroneously allowed to testify that, because the murder was preceded by a gang

confrontation, it was reasonably foreseeable that a murder would result; (6) the trial court

prejudicially erred in admitting Rodriguez’s hearsay statements that Nunez was the

aggressor in the confrontation with Kofu; (7) the trial court erroneously admitted the 911

caller’s hearsay statements (Rodriguez’s 4th claim of error); (8) in closing argument, the

prosecutor misstated the elements of aider and abettor liability for premeditated first

degree murder; (9) the matter must be remanded for resentencing so the trial court may

consider whether to impose a lesser firearm enhancement on count 1 (Rodriguez’s 7th

claim of error); (10) trial court violated his due process rights in imposing a $300

restitution fine and $70 in court assessments without determining whether he was able to

4 pay them (Rodriguez’s 9th claim of error); and (11) the cumulative effect of the trial

errors requires reversal. Lastly, Nunez joins Rodriguez’s eighth claim of error, that

(12) the 10-year gang enhancement on count 1 was unauthorized and must be stricken in

favor of subjecting Nunez’s life term on count 1 to a 15-year MPEP.

We find no merit to each defendant’s claims of trial error and no merit to

Rodriguez’s claim that the matter must be remanded for the court to consider whether to

impose a lesser firearm enhancement on count 1. We further conclude that any error in

imposing the $300 restitution fines and $70 per-conviction court assessments, without

determining that defendants were able to pay them, was harmless beyond a reasonable

doubt because the record shows that each defendant will be able to pay the fine and

assessment amounts over time. The People concede, and we agree, that each defendant’s

10-year gang enhancement on count 1 was unauthorized and must be stricken from each

defendant’s sentence, and that each defendant’s indeterminate 25-year-to-life term on

count 1 must instead be made subject to a 15-year MPEP. (§ 186.22, subd. (b)(5).)

We modify each defendant’s sentence accordingly, and we remand the matter to

the trial court with directions to prepare supplemental sentencing minute orders and

amended abstracts of judgment, reflecting our modifications to each defendant’s sentence

regarding the gang enhancements and the 15-year MPEPs. In all other respects, we

affirm each defendant’s judgment of conviction and sentence.

5 II. FACTUAL BACKGROUND

A. Evidence Admitted Before Both Juries

1. The July 10, 2017 Shooting Death of Kofu

Around 11:30 a.m., on July 10, 2017, Rodriguez shot and killed Kofu following an

argument between Kofu and Nunez outside of Kofu’s home in Fontana. Kofu’s brother,

Tali, testified that Kofu was upset and angry that morning because Kofu had an argument

with his mother. Kofu was affiliated with the Bloods street gang and regularly wore a red

bandana on his right side, reflecting the gang’s color and style.

A passerby, Jose V., saw Rodriguez shoot Kofu. At the time of the shooting, Jose

V. had known Nunez for a long time and had seen Rodriguez once before. Jose V. was

driving past Kofu’s house, with his windows down, when he saw Kofu standing outside

of Kofu’s house and saw Nunez’s car stopped in the intersection “across the street” from

Kofu’s house. Nunez was driving, and Rodriguez was in the front passenger seat.

As Jose V. drove between Nunez’s car and Kofu, he heard Nunez and Kofu

arguing. Jose V. slowed down and watched the altercation in his rearview mirror. Jose

V. had his windows down, and he heard Kofu yelling at Nunez that this was Kofu’s block

and to pick up trash or beer bottles that had been thrown from Nunez’s car. Nunez

refused to pick up the trash or beer bottles, got out of his car, and challenged Kofu to a

fight. Jose V. saw that Nunez and Kofu had their fists up and were walking toward each

other, but he then saw Nunez take several steps back and heard Nunez yell, “ ‘Sacala

huey,’ ” to Rodriguez, which is Spanish for “Get it out.” Rodriguez then got out of the

car with what looked like a sawed-off shotgun and shot Kofu from a distance of around

6 10 feet. Kofu fell to the ground and began crawling away from Rodriguez and Nunez.

Jose V. then drove away.

Tali was inside Kofu’s house when he heard one gunshot, followed by two more,

then heard Kofu yelling for help. Tali ran outside and saw Kofu crawling on the ground

and a car in the street. Someone was walking quickly toward the car’s passenger side as

the driver, who was in the car, was yelling: “ ‘Hurry up. Get in fool. Get in. Let’s

go.’ ” Tali ran toward the passenger but the passenger got in the car, and the car sped

away.4 Tali did not see the faces of the driver or the passenger. Tali then tried to help

Kofu.

2. The Anonymous 911 Call

An anonymous person called 911 at 11:38 a.m., on July 10, 2017, and reported the

shooting, which the caller said happened three minutes earlier, or around 11:35 a.m. The

caller said he/she would “rather stay anonymous” but indicated that he/she lived near the

shooting and heard, but did not see, the shooting.

The caller said that they first heard a gunshot, then heard someone say, “ ‘No, no,

I’m sorry, I’m sorry,’ ” then heard another person say, “ ‘I told you not to fuck with

me!’ ” The caller then heard “at least” two more gunshots. A recording of the 911 call

was played for both juries. Before trial, Jose V. told a detective that he heard Nunez say,

“I told you not to fuck with me.”

4A surveillance video showed what appeared to be Nunez’s car driving away from the area near Kofu’s home shortly after the shooting.

7 3. The Investigation

Shortly after the shooting, police found a shotgun shell and a red bandana on the

ground near Kofu’s home. An autopsy showed that Kofu died from three shotgun

wounds to his legs,5 and that Kofu had methamphetamine, amphetamine, and marijuana

in his system.

4. S.A.’s Police Interview Statements and Trial Testimony

Police interviewed Rodriguez’s cousin, S.A., in August 2017, and a recording of

the interview was played before both juries. During her interview, S.A. said that

Rodriguez was from El Monte, but he had recently been staying at S.A.’s home with S.A.

and her family in Fontana. Rodriguez and Nunez, whom S.A. knew as “Gallo,” were

friends, and Nunez picked up Rodriguez from S.A.’s home on the morning of July 10.

S.A. did not like Nunez because he used methamphetamine.

Later during the morning of July 10, 2017, Rodriguez called S.A. and told her he

had shot someone. Rodriguez told S.A. that Nunez had started arguing with an African-

American man, and that Nunez got out of his car to fight with the man. Rodriguez told

Nunez to get back in the car, but Nunez would not listen, so Rodriguez also got out of the

car, then “three Black guys” tried to “jump” Rodriguez, one of the men “socked”

5 The coroner testified that the first shot was apparently fired while Kofu was standing because one of Kofu’s three gunshot wounds had a downward trajectory. The other two gunshot wounds had upward trajectories, with one hitting the front of Kofu’s legs and the other hitting the back of his legs, suggesting that Kofu was on the ground when these two shots were fired. The coroner conceded that upward trajectories could have been caused if the shots ricocheted off the ground before hitting Kofu when he was standing; but the coroner did not find any asphalt in Kofu’s wounds, which was expected if the shots had ricocheted.

8 Rodriguez, and Rodriguez then shot the man who “socked” him. Rodriguez’s statements

to S.A. indicated that Rodriguez shot Kofu in self-defense or in defense of Nunez.

Later on July 10, 2017, Rodriguez called S.A. again and said that he and Nunez

needed money for gas, so S.A. and her mother met Rodriguez in the parking lot of the

Montclair Plaza and gave him gas money. Nunez waited in his car while S.A. spoke to

Rodriguez.6 After meeting with S.A. and her mother at the Montclair Plaza, Rodriguez

went to his mother’s home in El Monte and then returned to S.A.’s home in Fontana later

that night.

Rodriguez asked S.A. to drive past the location of the shooting, but when she went

there, she saw that the police had the area blocked. Nunez lived near the location of the

shooting, and it appeared to S.A. that Nunez had problems with the person whom

Rodriguez shot.

Rodriguez had a small shotgun that he carried with him in a guitar case. When he

returned to S.A.’s home on July 10, 2017, after going to his mother’s home in El Monte,

Rodriguez no longer had the shotgun with him. Sometime later, one of Rodriguez’s

friends from his gang brought the shotgun back to Rodriguez at S.A.’s home, and

Rodriguez sold the gun to someone who lived near S.A. S.A.’s father kept a full-size

shotgun in S.A.’s home. When police searched S.A.’s home, they found a full-size

6 Surveillance videos showed Nunez’s car at the Montclair Plaza at 11:57 a.m., on July 10, 2017; Rodriguez talking to S.A. in her mother’s car at the Montclair Plaza; and Rodriguez later making purchases from a nearby gas station.

9 shotgun and some shotgun ammunition in the master bedroom and some of Rodriguez’s

clothing under the living room table.

S.A. testified at trial under a grant of immunity. She remembered meeting

Rodriguez and Nunez at the Montclair Plaza to give Rodriguez gas money. At the time,

Rodriguez was “stranded” and was on his way back to his mother’s home in the El

Monte. S.A. also testified that Rodriguez was a member of the EMF gang and his “hood

name” was “Chano.” But S.A. claimed to not remember many of the details of her

conversations with Rodriguez and her police interview. She loved Rodriguez, would do

anything for him, and did not want to testify.

5. Expert Gang Testimony

El Monte Police Department Detective Peter Lopez testified separately before

each jury as an expert on criminal street gangs. He gave substantially the same testimony

before both juries regarding the EMF gang and the customs and habits of criminal street

gangs.

B. Evidence Admitted Only to Rodriguez’s Jury

1. Rodriguez’s Interview Statements

City of Fontana Police Department Detective Jose Ferreira interviewed Rodriguez

on August 7, 2017, and a recording of the interview was played for Rodriguez’s jury.

During the interview, Rodriguez consistently denied any involvement in the July 10

shooting. Details of Rodriguez’s police interview are discussed post, in section III.A.

10 2. Expert Gang Testimony

In testifying before Rodriguez’s jury, Detective Lopez explained that he had been

a police officer for nearly 20 years, and at the time of trial he was assigned to El Monte

Police Department’s gang unit. He had law enforcement-related training and experience

with criminal street gangs, including the EMF gang. He had personally spoken with

members of the gang and with other law enforcement agencies concerning the gang, and

he had read other law enforcement officers’ reports concerning the gang.

Respect is the “core” value or principle of any criminal street gang. Most gangs

are territorial and, when a gang member claims a particular territory or neighborhood, it

is considered a challenge to a rival gang member. In the gang culture, gang members are

prohibited from cooperating with law enforcement and from testifying in court. Nongang

members are also typically reluctant to cooperate with law enforcement or to testify in

court about a gang because they fear retaliation by the gang. Gang associates are not

gang members, but they hang out with the gang and are trusted by the gang.

Detective Lopez opined that EMF was a criminal street gang within the meaning

of section 186.22. The gang had approximately 400 active members, and its primary

activities included carjacking, robbery, unlawful firearm possession, drug distribution,

residential burglary, and auto theft. Members of the gang had several predicate offenses.

In 2015, one of its members was convicted of murder, and another was convicted of

being a felon in possession of a firearm. In 2016, a third EMF member was convicted of

auto theft and being a felon in possession of a firearm; and in 2017, a fourth EMF

member was convicted of unlawfully taking a vehicle for the benefit of the gang.

11 Rodriguez was an active EMF member at the time of the July 10, 2017 shooting.

On two prior occasions, in 2009 and 2013, Rodriguez admitted to Detective Lopez that he

was a member of EMF. Rodriguez also had several EMF tattoos, including the letters

“EMF” on his chin; a rose on his right cheek; and wildflowers on the back of his head,

signifying his EMF gang membership. Rodriguez’s cousin, S.A., had “openly stated”

that Rodriguez was an EMF gang member.7

The Bloods are a criminal street gang that is aligned with African-Americans,

Pacific Islanders, and Asians. Bloods are known to wear the color red on their right

sides. If an EMF member is challenged by a member of a rival gang, the EMF member

would be expected not to back down.

Detective Lopez opined that a hypothetical shooting committed under the

circumstances of the July 10, 2017 shooting would benefit the EMF gang by enhancing

the gang’s status because the shooting was committed against “a rival Black gang

member,” who had disrespected the EMF by telling an EMF gang member, Rodriguez,

and an EMF associate, Nunez, to do something—pick up trash. The shooting would be

“a classic gang shooting.” The point of firing two more rounds after the victim, Kofu,

apologized, was to deliver the message that the perpetrators were to be feared and

respected.

7 The parties stipulated that Rodriguez had a prior felony conviction for purposes of count 2, in which he was charged with being a felon in possession of a firearm on July 10, 2017.

12 Detective Lopez further opined that the shooting would benefit the EMF gang

because the gun used in the shooting was taken to El Monte after the shooting and ended

up in the hands of another EMF gang member. In the EMF gang, guns that belong to the

gang are known as “ ‘hood’ ” guns or “ ‘neighborhood’ ” guns. Such guns are passed

around by EMF gang members, particularly if the gun has been used in a crime, in order

to avoid the gun’s being detected by law enforcement.

C. Evidence Admitted Only to Nunez’s Jury—(Nunez’s Interview Statements)

Detective Ferreira interviewed Nunez on August 6 and 7, 2017, after Nunez was

detained during a traffic stop. An audio and video recording of the interview was played

for Nunez’s jury.

Nunez initially claimed he was at the probation department all day on

July 10, 2017. When shown a photo of Kofu, he said he recognized Kofu from the

neighborhood. When Detective Ferreira told Nunez that Kofu was dead and that Nunez’s

car was used in the shooting, Nunez then said he was only at the probation office for half

the day on July 10.

Nunez said he had recently met “this guy,” an EMF gang member who was

staying in the same neighborhood and who knew Nunez’s cousins. He did not know the

guy’s name. He had called the guy (later identified as Rodriguez) to ask him if he knew

a place Nunez could rent because Nunez and his 14-year-old son were living on the

streets. Rodriguez told Nunez to come over and pick him up where he was staying at his

aunt’s house in the neighborhood. Once there, Rodriguez was confrontational and said,

“Don’t fuck with me.” When Nunez left to get in his car, Rodriguez suddenly jumped

13 into the front passenger seat, carrying a big bag containing a shotgun. He pointed the

shotgun at Nunez and told him to drive to where Nunez’s son was staying or he would

blow Nunez’s head off.

Rodriguez told Nunez that he had to drop the gun off somewhere, and that he

would give Nunez some money or buy some food for Nunez’s son. Nunez was scared.

They picked up Nunez’s son, bought him some food, and took him back to the house

where he was staying. Then they drove off in Nunez’s car, drinking beer that Rodriguez

had brought with him. Rodriguez threw the beer bottles out of Nunez’s car window.

Then an African-American male on the street started “talking shit,” said it was his street,

and told them they had better pick up their “fucking Corona” bottles right now. The

African-American male then started to approach Nunez’s car.

Nunez got out of the car, said to the African-American male, “What’s your

problem?” and told the man that he would pick up the bottles. But the man got in

Nunez’s face, like he wanted to fight. Nunez backed up and did not say anything.

Rodriguez then got out of the car and shot the man. The man then said, “ ‘You fucking

bitches,’ ” and Rodriguez shot him again. Rodriguez then pointed the gun at Nunez and

yelled at Nunez to get back into the car and drive. Nunez got back into his car and drove,

while Rodriguez continued to point the gun at him.

Nunez drove onto the I-10 freeway and was running out of gas. Rodriguez called

his aunt for help and told Nunez to drive to the Montclair Plaza, where his aunt said she

would meet him. Nunez was waiting for a chance to run, but Rodriguez still had the

shotgun pointed at Nunez’s head. Rodriguez’s aunt and cousin were waiting at

14 Montclair Plaza. Rodriguez told them that he had just killed someone and needed some

gas.

Rodriguez then directed Nunez to drive to a gas station. Rodriguez went inside

the gas station to pay for the gas, and left his gun in the car. Nunez could not leave

because he did not have any gas, and Rodriguez had already threatened to kill Nunez and

his family if he did not cooperate. Rodriguez then told Nunez to drive to Rodriguez’s

mother’s home in El Monte, and Nunez did so. When they arrived in El Monte,

Rodriguez reminded Nunez that he would kill his family, and made Nunez erase

Rodriguez’s cell phone number from his phone. He told Nunez he “ ‘should have just

killed [him] right now too,’ ” and that if the police got Nunez first, “ ‘you better say that

you did it.’ ” Nunez did not report the shooting because of Rodriguez’s threats.

III. DISCUSSION

A. Rodriguez Did Not Unequivocally Invoke His Right to Counsel During His Custodial

Interview with Detective Ferreira

Rodriguez claims he unequivocally invoked his right to counsel during his

custodial police interview, and that the trial court prejudicially erred in denying his

pretrial motion to suppress the statements he made following his right-to counsel

invocation. Although he concedes that he waived his Miranda8 rights at the beginning of

the interview, he claims the interviewing detective should have immediately terminated

8 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

15 the interview after he said to the detective, “ ‘I gotta call my mom about a lawyer because

this is bullshit.’ ” (Italics added.)

The trial court ruled, and we agree, that Rodriguez’s statement about calling his

mother about a lawyer was not an unequivocal invocation of his right to counsel. Thus,

Rodriguez’s motion to suppress his interview statements was properly denied.

Alternatively, we conclude any error in admitting Rodriguez’s post-invocation statements

was harmless beyond a reasonable doubt.

1. Background

On August 7, 2017, Rodriguez was taken into police custody and interviewed by

Detective Ferreira. A video and audio recording of the interview was played for both

juries. The detective read Rodriguez each of his Miranda rights, including that he had

“the right to an attorney before and during questioning”; and Rodriguez acknowledged

that he understood these rights.

The detective then said, “Alright. Listen, I’m not gonna bullshit you . . . . [D]id

anyone say anything to you about why . . . they [brought] you here?” Rodriguez said,

“No, I don’t even know why I’m here.” Next, the detective asked Rodriguez whether he

was at home when he was taken into custody on August 7, 2017. Rodriguez said he was

at home, and that he had lived “out here” for 40 days. When asked whether he was

“here” (that is, in Fontana) on July 10, Rodriguez said he was at his mother’s house in El

Monte. When asked whether he was sure about that, and, “What if I was to tell you that I

know you were here [on] July 10?” Rodriguez again denied he was in Fontana on

July 10.

16 The detective next asked Rodriguez whether he “would agree” that he was “a

pretty distinctive person” because he had a tattoo on his face and was five feet four inches

tall. Rodriguez agreed with the detective’s statements. Then, after the detective told

Rodriguez that he had a video of Rodriguez at the Montclair Plaza on July 10, Rodriguez

said he did not “even know” where the Montclair Plaza was, and he reiterated that he was

in El Monte on July 10.

The detective then challenged Rodriguez’s claim that he was in El Monte on

July 10, 2017, by saying, “You weren’t in El Monte. Look, somethin’ bad happened that

day”; then the detective asked Rodriguez whether he knew Nunez. Rodriguez initially

denied that he knew Nunez. The detective challenged the denial, saying he knew that

Rodriguez knew Nunez, told Rodriguez that Nunez had been arrested for murder, that the

detective had spoken with Nunez, and that Rodriguez was “with” Nunez. Rodriguez said,

“I was with him?” The detective said, “[On] the video, you were with him. . . . Like I

said, I’m not gonna bullshit you. . . . [Nunez] gave a statement. . . . Maybe he was telling

the truth, maybe he’s not. All right?”

Rodriguez responded: “What? I don’t know . . . . I don’t even know what you

guys [are talking] about right now. I gotta call my mom about a lawyer because this is

bullshit, you know? You know, like everybody got tattoos on their face. Everybody’s

5’4”. I’m not the only one in the whole wide world . . . . [¶] Not everybody, but most of

us. We’re short. Bald.” (Italics added.) The detective then asked, “Who’s most of us?”

and the interview continued.

17 During the rest of the interview, Rodriguez consistently denied that he was

involved in any murder, including the July 10, 2017 shooting. Although he initially

denied knowing Nunez, Rodriguez later said he knew someone named, “Gallo,” who was

“fat, sloppy,” and “a retard.” He did not “hang out” with Gallo but “asked him for a ride

one time.” After the detective said that Nunez and Gallo were the same person,

Rodriguez said that Nunez had given Rodriguez a ride to go “shopping,” that Rodriguez

bought clothes for his birthday, and then Nunez took Rodriguez “home” to Rodriguez’s

aunt’s house in Fontana.

The detective told Rodriguez that he had spoken to Nunez’s 14-year-old son, and

that he knew from talking to Nunez’s son, and from several surveillance videos, that

Nunez did not take Rodriguez to his aunt’s house after the two of them went shopping.

Instead, Rodriguez and Nunez brought food to Nunez’s son at a house near the scene of

the murder, and Rodriguez’s fingerprints were on Corona beer bottles that Rodriguez had

thrown from Nunez’s car. Rodriguez denied throwing any beer bottles from Nunez’s car

and again denied he was involved in any murder.

Before trial, the prosecution moved to admit all of Rodriguez’s custodial interview

statements in its case-in-chief. Rodriguez’s counsel moved to suppress the statements

that Rodriguez made following his invocation of his right to counsel, after he initially

waived his Miranda rights. The trial court denied the suppression motion on the grounds

that Rodriguez initially and implicitly waived his Miranda rights and did not thereafter

unequivocally invoke his right to counsel.

18 2. Invoking the Right to Counsel After Waiving Miranda Rights

“A defendant who has waived his Miranda rights may reinvoke them during the

interrogation. If he clearly and unequivocally does so, police must stop questioning.”

(People v. Henderson (2020) 9 Cal.5th 1013, 1022 (Henderson), citing Edwards v.

Arizona (1981) 451 U.S. 477, 478-479, 482, 485 (Edwards).) Any statements obtained

from a defendant in violation of the defendant’s Miranda or Edwards rights are

inadmissible in the prosecution’s case-in-chief. (People v. Weaver (2001) 26 Cal.4th

876, 918.)

In order to clearly and unequivocally invoke the right to counsel, a suspect “ ‘must

articulate his desire to have counsel present sufficiently clearly that a reasonable police

officer in the circumstances would understand the statement to be a request for an

attorney.’ ” (People v. Cunningham (2015) 61 Cal.4th 609, 646 (Cunningham), quoting

Davis v. United States (1994) 512 U.S. 452, 459 (Davis).) Whether a suspect has

invoked his right to counsel “is an objective inquiry, identifying as ambiguous or

equivocal those responses that ‘a reasonable officer in light of the circumstances would

have understood [to signify] only that the suspect might be invoking the right to

counsel.’ ” (People v. Williams (2010) 49 Cal.4th 405, 428 (Williams), italics added,

quoting Davis, at p. 459.) “Faced with an ambiguous or equivocal statement, law

enforcement officers are not required under Miranda . . . either to ask clarifying questions

or to cease questioning altogether.” (People v. Stitely (2005) 35 Cal.4th 514, 535.)

In reviewing a trial court’s denial of a motion to suppress a defendant’s statements

under Miranda, we defer to the trial court’s resolution of disputed facts, including the

19 credibility of witnesses, if that resolution is supported by substantial evidence, and we

independently determine whether the challenged statements were obtained in violation of

Miranda. (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) But when, as here, the

interview is recorded, and the facts surrounding the defendant’s asserted Miranda or

Edwards violation are undisputed, we review the claim de novo. (Henderson, supra,

9 Cal.5th at p. 1023.) The question is whether, “ ‘in light of the circumstances, a

reasonable officer would have understood [the] defendant’s reference to an attorney to be

an unequivocal and unambiguous request for counsel, without regard to the defendant’s

subjective ability or capacity to articulate his or her desire for counsel, and with no

further requirement imposed upon the officers to ask clarifying questions of the

defendant.’ ” (Cunningham, supra, 61 Cal.4th at p. 646.)

3. Analysis

Rodriguez does not dispute that he initially waived his Miranda rights during his

August 7, 2017 interview with, or custodial interrogation by, Detective Ferreira. He

claims he subsequently and unequivocally invoked his right to counsel, and that the

interview should have ceased when he said, “I gotta call my mom about a lawyer because

this is bullshit.”

We conclude that Rodriguez’s statement about calling his mom about a lawyer

was not a clear and unequivocal invocation of his right to counsel. Rodriguez made the

statement in the context of arguing with Detective Ferreira about whether he, Rodriguez,

(1) was in Fontana on July 10, 2017, and (2) was the person seen on a surveillance video

with Nunez at the Montclair Plaza on July 10. A reasonable officer in Detective

20 Ferreira’s position would have understood the statement as meaning that Rodriguez

wanted to call his mother about a lawyer at some point, but not as meaning that

Rodriguez did not want to answer further questions without consulting a lawyer or

without having a lawyer present during the rest of the interrogation. (Cunningham,

supra, 61 Cal.4th at p. 646; Davis, supra, 512 U.S. at p. 459.)

When Rodriguez made the statement, he was telling the detective that he was not

in Fontana on July 10, 2017, he was not with Nunez at the Montclair Plaza on July 10,

and the detective’s information to the contrary was “bullshit.” At no point did Rodriguez

indicate to the detective that he did not want to answer any further questions without

consulting a lawyer or having a lawyer present. To a reasonable officer, it appeared that

Rodriguez wanted the assistance of a lawyer, at some point, to help him press his

argument, but not as a condition of answering further questions.

The context in which Rodriguez made the statement is “relevant” and important.

(Cf. Henderson, supra, 9 Cal.5th at pp. 1023-1024; People v. Flores (2020)

9 Cal.5th 371, 417 [“Whether or not a reasonable officer would perceive a suspect’s

statement as ambiguous may depend on context.”].) “In certain situations, words that

would be plain if taken literally actually may be equivocal under an objective standard, in

the sense that in context it would not be clear to the reasonable listener what the

defendant intends.” (Williams, supra, 49 Cal.4th at p. 429.) Thus, it is appropriate that

we interpret Rodriguez’s statement, not in isolation, but in light of the context in which

the statement was made. In that context, a reasonable officer would not have understood

Rodriguez’s statement as an unequivocal invocation of his right to counsel.

21 Rodriguez’s statement about calling his mother about a lawyer is similar to

statements that have been held not to constitute “a clear request for counsel’s assistance.”

(Henderson, supra, 9 Cal.5th at p. 1023 [“(See, e.g., Davis, supra, 512 U.S at p. 462

[‘ “Maybe I should talk to a lawyer” ’] . . .)”]; People v. Sauceda-Contreras (2012)

55 Cal.4th 203, 219 [“ ‘If you can bring me a lawyer . . . .’ ”]; People v. Bacon (2010)

50 Cal.4th 1082, 1105 [“ ‘I think it’d probably be a good idea for me to get an

attorney.’ ”].) Rodriguez’s statement is likewise distinguishable from statements that

have been held to constitute unequivocal invocations of the right to counsel. (See, e.g.,

Henderson, at pp. 1023-1024 [“ ‘ “[I] want to, speak to an attorney first.” ’ ”]; In re Art T.

(2015) 234 Cal.App.4th 335, 355-356 [“ ‘Could I have an attorney? Because that’s not

me.’ ”].)

As the trial court noted, and the People argue, Rodriguez’s statement is more

ambiguous than the statement in People v. Roquemore (2005) 131 Cal.App.4th 11, 19,

23-25. There the defendant, after waiving his Miranda rights and while speaking to an

officer, said he was confused and asked, “Can I call a lawyer or my mom to talk to you?”

(Roquemore, at pp. 19, 23-25.) The court held that the statement “did not constitute an

unequivocal request for counsel to be present.” (Id. at p. 25.) Rodriguez concedes that

the statement in Roquemore was ambiguous because the defendant was “alternatively

asking to have his mother talk to the police.” He argues, however, that his statement was

unequivocal because he made it “clear” that he wanted to call his mother “about a

lawyer.” We disagree. Rodriguez did not make it clear that he wanted to call his mother

about a lawyer before he answered any further questions. As we have stressed,

22 Rodriguez’s statement must be interpreted, not in isolation, but in the context in which it

was made, and in that context, it was not a clear invocation of the right to counsel.

Rodriguez argues that his statement “is thus more analogous to the unequivocal

request for counsel” in Mays v. Clark (9th Cir. 2015) 807 F.3d 968 (Mays), where the

defendant told the interrogating officer that he was not the person they were looking for,

and said, “My step-dad got a lawyer for me . . . can you call him and have my lawyer

come down here?” (Id. at pp. 971-972.) The Mays court concluded that there was

“nothing ambiguous or equivocal” about Mays’s statement, which was “plainly a request

for a lawyer.” (Id. at p. 978.) The court reasoned: “A reasonable officer would have

understood that Mays’s father had retained a lawyer, and [that] Mays wanted the lawyer

to be sent to the interrogation to represent him.” (Ibid.)

Rodriguez claims his statement was just as unequivocal as the right-to-counsel

invocation in Mays. He argues that, although he “asked” to call his mother rather than to

call a lawyer directly, “the reason” he wanted to call his mother was so that “she could

arrange for a lawyer for him.” Again, however, a reasonable officer would not have

understood Rodriguez’s statement as an unequivocal invocation of the right to counsel.

Rodriguez did not “ask” Detective Ferreira to let him call his mother about a lawyer.

Rather, he said he “[needed to] call my mom about a lawyer,” but he did not

unequivocally indicate that he did not want to answer further questions without

consulting a lawyer or having a lawyer present. In context, the statement was, at best,

ambiguous and reflected more on Rodriguez’s desire to combat the accusations and

defend the case rather than to have counsel present prior to any questioning.

23 4. Any Error in Admitting Rodriguez’s Interview Statements Was Harmless

The erroneous admission of a statement obtained in violation of a defendant’s

Miranda rights is reviewed for prejudice under Chapman v. Cal. (1967) 386 U.S. 18,

which requires reversal unless the prosecution can show that the error was harmless

beyond a reasonable doubt. (People v. Case (2018) 5 Cal.5th 1, 22.) “The proper test for

prejudice requires consideration of not only the evidence that would support the

judgment, but also the impact of the inadmissible evidence on the final outcome.”

(People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.) “The inquiry . . . is not whether,

in a trial that occurred without the error, a guilty verdict would surely have been

rendered, but whether the guilty verdict actually rendered in this trial was surely

unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)

Rodriguez claims that the admission of his interview statements, in which he

denied having any involvement in the shooting, prejudiced his jury’s guilty verdict on the

first degree murder charge, because his interview statements “were inconsistent with his

statements to [S.A.] about how he shot Kofu in defense of himself and/or Nunez.” More

specifically, he claims his interview statements were inconsistent with his defense

theory—argued by his counsel during closing argument—that he either shot Kofu in self-

defense or in defense of Nunez, or that he was at most guilty of voluntary manslaughter

based on imperfect self-defense or defense of others. He points out that “[t]his defense

theory was based on the circumstances of the shooting and on [S.A.’s] statements about

what [Rodriguez] told her . . . .” But, he argues that his interview statements “severely

undermined the credibility” of his defense. He argues that, had his interview statements

24 been excluded, the only statements from him that his jury would have heard would have

been his statements to S.A.

We disagree that the admission of Rodriguez’s interview statements could have

affected the guilty verdict on the first degree murder charge for Rodriguez. To be sure,

Rodriguez’s interview statements, denying he had any involvement in the shooting, were

inconsistent with statements to S.A. on the day of the shooting that he shot Kofu in self-

defense or to defend Nunez from being beaten. S.A. told investigators that Rodriguez

called her after the shooting and told her that he had “ ‘messed up’ ” and shot someone—

one of “three Black guys”—after one of the three “Black” guys argued with Nunez and

then “socked” Rodriguez. S.A. also told investigators that Rodriguez was not “the type”

who would “let some person [(Nunez)] just get beat up.”

But other, overwhelming evidence showed that Rodriguez was guilty as charged

of the first degree premeditated murder of Kofu. In addition to telling investigators that

Rodriguez indicated to her that he shot someone in self-defense, or to defend Nunez from

being beaten, S.A. told investigators that Rodriguez had a small shotgun that he carried in

a “guitar bag,” and S.A. “guess[ed]” that Rodriguez used this gun to shoot and kill Kofu.

The only eye-witness to the shooting, Jose V., testified that he heard Nunez arguing with

Kofu, and he saw Nunez get out of his car and challenge Kofu to a fist fight, but then saw

Nunez back up a few steps and heard Nunez yell at Rodriguez to get his gun “out.”

Rodriguez then got out of the car and shot Kofu with what looked like a sawed-off

shotgun. And, before trial, Jose V. told a police detective that he heard Nunez say, “ ‘I

25 told you not to fuck with me.’ ” The 911 caller reported hearing someone say exactly the

same thing after the first shot was fired, but before two more shots were fired.

Additionally, Jose V.’s and Tali’s testimony completely discredited Rodriguez’s

statements to S.A. that “three Black guys” were arguing with Nunez and that Rodriguez

shot one of the “Black” guys after he “socked” Rodriguez. Jose V. did not testify that

three “Black” guys were involved in the altercation with Nunez. According to Jose V.,

only Kofu and Nunez were arguing, and no one “socked” Rodriguez before Rodriguez

shot Kofu. Tali, who heard gunshots and ran outside of Kofu’s house to help Kofu, also

did not testify that anyone was with Kofu at the time of the shooting.

In light of the entire record, we are persuaded that the admission of Rodriguez’s

interview statements, denying any involvement in the shooting, surely did not affect the

red jury’s guilty verdict on the first degree murder charge for Rodriguez.

B. Rodriguez’s Claims Concerning the Expert Gang Testimony Lack Merit

Rodriguez claims the trial court prejudicially erred in allowing the prosecution’s

gang expert, Detective Lopez, to testify to case-specific hearsay concerning Rodriguez’s

gang, EMF—namely, that EMF gang members (1) were under the control of the Mexican

Mafia, which required them to be hostile to African-Americans; (2) carried baseball bats,

which they called “N-word Beaters”; and (3) had previously targeted, in three specific

instances, African-Americans in and outside El Monte.

Rodriguez claims (1) all of this evidence constituted inadmissible, case-specific

hearsay under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); (2) the admission of

the evidence violated his federal due process right to a fair trial; and (3) the evidence

26 should have been excluded as unduly prejudicial under Evidence Code section 352.

Alternatively, Rodriguez claims his counsel rendered ineffective assistance, if and to the

extent that his counsel failed to preserve any of these claims of error for appeal.9

The People argue that Rodriguez forfeited these claims by failing to object to the

admission of the evidence on the specific grounds he raises in this appeal. Alternatively,

the People argue that none of the evidence amounted to case-specific hearsay because

none of it concerned the “particular events and participants alleged to have been involved

in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.)

The People further argue that the evidence was more probative than prejudicial

because it showed that Rodriguez had a motive for the shooting, explained why he would

shoot Kofu over a minor dispute about trash or beer bottles being thrown from Nunez’s

car, and explained why Jose V. and S.A. were reluctant to testify against Rodriguez.

Lastly, the People claim that any error in admitting the evidence was harmless.

We first summarize Detective Lopez’s testimony at the Evidence Code

section 402 hearing, Rodriguez’s objections to the proffered testimony, the trial court’s

rulings on those objections, and the detective’s testimony before Rodriguez’s jury. We

then address the parties’ arguments in turn. Finding no Sanchez, Evidence Code

section 352, or due process error, it is unnecessary to address the parties’ prejudice

arguments.

9 Rodriguez does not claim that any of Detective Lopez’s challenged testimony is based on testimonial hearsay. (Crawford v. Washington (2004) 541 U.S. 36, 60-62 (Crawford); see Sanchez, supra, 63 Cal.4th at pp. 679-686 [discussing treatment of testimonial hearsay when offered as basis for expert opinion testimony].)

27 1. Detective Lopez’s Relevant Evidence Code Section 402 Testimony

Before trial, the prosecutor moved to allow “a qualified gang expert” to testify

concerning the culture and habits of criminal street gangs, specifically to assist the jury in

assessing the credibility of unspecified witnesses who may not want to testify or

cooperate with law enforcement. Following some discussion between the court and

counsel concerning the anticipated testimony of the prosecution’s gang expert, the trial

court said it would determine the scope of the expert’s testimony at an Evidence Code

section 402 hearing.

Detective Lopez later testified at an Evidence Code section 402 hearing. Because

the detective had testified at defendants’ preliminary hearing and had written a report

summarizing his opinions, Rodriguez’s counsel limited his questioning of the detective to

specific areas of concern.

The detective opined that Rodriguez was an EMF gang member based on personal

contacts the detective had with Rodriguez in 2009 and 2013. On those occasions, the

detective was present when Rodriguez was being booked into jail and admitted he was an

EMF gang member. Rodriguez also had EMF-gang-related tattoos, which only EMF

gang members were permitted to have.

Based on his training and experience, and on his conversations with parole agents,

the detective opined that the EMF gang, like all Southern California Hispanic gangs, was

affiliated with the Mexican Mafia, a prison gang, and that all EMF gang members,

including Rodriguez, were “obligated” to follow the Mexican Mafia’s “code of conduct.”

This meant that EMF gang members were not allowed to associate with African-

28 Americans. Based on his personal contacts with EMF gang members and African-

Americans who lived in El Monte, the detective opined that the EMF “hates” African-

American gang members and African-American people “in general.”

The detective explained that he had personally contacted EMF gang members who

carried small “Dodger bats, mini bats” on which they had “etch[ed]” a racial slur—the

“ ‘N’ ” word, followed by the word “beater.” In addition, one African- American

resident of El Monte told the detective that he was concerned for his life because, while

walking his child to a local park one day, a carload of people who identified themselves

as EMF gang members pulled up next to him, called him a derogatory racial slur, and told

him that his “type” was not wanted in the city. They also told him he was going to get a

“pass” that day because he was with his child, but if they saw him on the city streets

again, they were going to shoot him on sight regardless of who he was with.

The detective also explained that he had personally investigated racial crimes in

which EMF gang members had “attacked” African-American residents in El Monte, one

of whom was an LAPD officer who had moved into the city in 2017. The LAPD officer

was called a racial slur and told he was not to be in the city because his “type” was not

allowed there. The detective had also read reports of other officers’ investigations of

crimes in which the EMF gang had targeted African-American gang members or

individuals. Based on his training and experience, the detective opined that, as an EMF

gang member, Rodriguez was “obligated” to “handle” the confrontation with Kofu in

accordance with the rules of the Mexican Mafia and the EMF.

29 2. The Trial Court’s Rulings on Rodriguez’s Counsel’s Objections

Rodriguez’s counsel objected to the detective’s proposed testimony that EMF

gang members, including Rodriguez, were obligated to do “whatever the Mexican Mafia

wants.” Counsel argued that this proposed testimony went “beyond general” background

information about the customs and habits of the EMF gang, and there was no evidence

that Rodriguez had personally followed the rules of the Mexican Mafia. Counsel further

objected to any testimony about the Mexican Mafia on the ground it would be case-

specific hearsay under Sanchez, testimonial hearsay under Crawford, and more

prejudicial than probative under Evidence Code section 352. In response to counsel’s

objections, the prosecutor argued that the detective’s proposed testimony that EMF gang

members were required to follow the rules of the Mexican Mafia would not amount to

case-specific hearsay under Sanchez because “general information about gangs is not

case-specific.”

The trial court agreed with the prosecutor and ruled that the detective could testify

based on his training and experience, personal knowledge, and hearsay that EMF gang

members were expected to comply with the rules of the Mexican Mafia. The court also

ruled that the probative value of the Mexican Mafia-related testimony was not

substantially outweighed by its prejudicial effect because Rodriguez’s counsel could ask

the detective on cross-examination whether he personally knew that Rodriguez had ever

personally targeted African-Americans.

30 3. Detective Lopez’s Challenged Testimony Before Rodriguez’s Jury

On direct examination before Rodriguez’s jury, Detective Lopez testified that he

had personally contacted African-Americans who had been targeted by the EMF gang;

and he had read other reports of other officers’ investigations involving EMF gang

members victimizing African-Americans. Based on this information, the detective

opined that the EMF gang, more so than other gangs, had “a particular discontent toward”

African-Americans.

The detective explained that, over the previous 13 years, he had personally

contacted numerous EMF gang members who were in possession of small bats on which

they had etched the “ ‘N’ ” word, followed by the word “ ‘Beater.’ ” EMF gang members

had openly expressed their dislike of African-Americans and their desire to keep African-

Americans out of El Monte. EMF gang members operated in the same way outside of the

city, and the detective was familiar with investigations in which the EMF gang had

targeted African-Americans outside of the city.

Detective Lopez briefly discussed the EMF gang’s connection to the Mexican

Mafia. The Mexican Mafia was a prison gang, and the EMF was a criminal street gang

with its own “rules on the street,” but the EMF “fe[d] into the bigger enterprise” of the

Mexican Mafia and was part of its culture. African- Americans comprised less than one

percent of the population of El Monte. In the detective’s training and experience, gangs

that were connected to the Mexican Mafia and that operated in areas where few African-

Americans lived, like the El Monte, were expected to be hostile to African-Americans.

31 The detective had “no specific information,” however, that Rodriguez had committed any

acts of aggression against African-Americans.

The detective gave four specific examples of the EMF’s custom or “pattern” of

targeting African-Americans. In the first example, he had personally investigated a case

in which an African-American Los Angeles Police Department (LAPD) police officer

who, shortly after moving into El Monte, was approached by an EMF gang member who

told him that his “type” was not wanted in the city, made racial slurs to him, and told him

to leave the city. In the second example, the same LAPD officer was confronted a second

time by the same EMF gang member. This time, the LAPD officer was with his wife,

who was also African-American, and their child. The EMF gang member told the officer

and his family that they were not allowed in the city and, with profanity, to get out of the

city.

In the third example, an EMF gang member, within hours of being released from

jail for serving time for grand theft auto, “went to the City of Covina where he, for no

reason, solicited a young African-American male without any provocation. He attacked

him with a stabbing instrument, chased him around, stabbed him a couple of times and

then eventually the [victim] was able to flee . . . and seek help.” This EMF gang member

was convicted of assaulting the young African-American male.

In the fourth example, the detective was working on patrol in El Monte when he

spoke with a young African-American male who told him that, when he was walking

with his child to a local park, a “carload” of EMF gang members pulled up next to him,

identified themselves, called him a racial slur, and told him he was not allowed in the

32 city. They also told him that “this time” they were giving him a pass because he was

with his child, but, “If we see you here again, next time, we’ll kill you on sight. You

better get the hell out of the City.”

4. Forfeiture

The People claim that Rodriguez forfeited his three claims of error regarding

Detective Lopez’s testimony because he did not object to the testimony on the grounds he

now raises in this appeal. As noted, Rodriguez claims the detective’s testimony that EMF

gang members (1) were under the control of the Mexican Mafia, which required them to

be hostile to African-Americans; (2) carried baseball bats which they called “n-beaters”;

and (3) had previously targeted, in specific instances, African-Americans, constituted

(1) inadmissible, case-specific hearsay under Sanchez, (2) should have been excluded as

unduly prejudicial under Evidence Code section 352, and (3) violated his due process

right to a fair trial.

As the People point out, trial counsel’s failure to object to claimed evidentiary

error on the same ground asserted on appeal results in a forfeiture of the issue on appeal.

(People v. Dykes (2009) 46 Cal.4th 731, 756.) Rodriguez’s counsel only objected to

Detective Lopez’s proposed testimony that the EMF gang was required to follow the

rules of the Mexican Mafia, which meant that EMF gang members had to be hostile to

Counsel did not object, either during the Evidence Code section 402 hearing or

while Detective Lopez was testifying before Rodriguez’s jury, to the detective’s

33 testifying (1) that EMF members carried small baseball bats on which they had etched

racial slurs against African-Americans, or (2) to specific examples of EMF gang

members targeting African-Americans.10 Accordingly, Rodriguez has forfeited his

claims of evidentiary error regarding the detective’s testimony concerning the EMF

gang’s baseball bats and the specific examples in which the EMF gang had targeted

African-Americans, but he has preserved his claims regarding the detective’s Mexican

Mafia-related testimony.

5. Rodriguez Has Not Demonstrated Ineffective Assistance of Counsel

Rodriguez claims his counsel rendered ineffective assistance of counsel in failing

to preserve the forfeited claims of error for appeal. “ ‘In order to establish a claim of

ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that

counsel’s performance was deficient because it “fell below an objective standard of

reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a

defendant establishes the contrary, we shall presume that “counsel’s performance fell

within the wide range of professional competence and that counsel’s actions and

10 When Detective Lopez began testifying about the specific instances in which the EMF gang targeted African-Americans, Rodriguez’s counsel objected on what appeared to be relevancy grounds, saying, “This has nothing to do with Mr. Rodriguez.” The objection was sustained. After the prosecutor rephrased the question in terms of a pattern of EMF gang activity, counsel lodged the same relevancy objection, and the court overruled it. As the People point out, a relevancy objection does not preserve a challenge under Evidence Code section 352. (People v. Barnett (1998) 17 Cal.4th 1044, 1130.) Nor is a relevancy objection sufficient to preserve a hearsay claim or a due process claim for appeal. (See People v. Partida (2005) 37 Cal.4th 428, 434-435 [A party cannot argue on appeal that the court erroneously failed to conduct an evidentiary analysis that the court was not asked to conduct.].)

34 inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record

“sheds no light on why counsel acted or failed to act in the manner challenged,” an

appellate claim of ineffective assistance of counsel must be rejected “unless counsel was

asked for an explanation and failed to provide one, or unless there simply could be no

satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing

that counsel’s performance was deficient, he or she also must show that counsel’s

deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” ’ ”

(People v. Bell (2019) 7 Cal.5th 70, 125; see Strickland v. Washington (1984)

466 U.S. 668, 687-688.)

Rodriguez has not shown that his counsel’s performance was deficient for failing

to preserve his claims of error regarding Detective Lopez’s testimony that EMF gang

members carried so called “n-beater” baseball bats and targeted African-Americans. The

record indicates that Rodriguez’s counsel may have had tactical reasons for not objecting

to these parts of the detective’s testimony. The detective was not aware, and no other

evidence showed, that Rodriguez had ever carried a so-called “n-beater” baseball bat or

had targeted any African-Americans. Thus, and as the People point out, counsel may

have believed it would be tactically beneficial to allow Rodriguez’s jury to hear that some

EMF members openly expressed racial animus toward African-Americans, and carried so

called “n-beater” baseball bats, so counsel could highlight the lack of evidence that

Rodriguez had ever followed these practices.

35 In sum, because counsel may have had tactical reasons for not objecting to the

complained of evidence, and the record does not disclose why counsel did not object,

defendant has not demonstrated, on this record, that his counsel rendered ineffective

assistance in failing to object. In any event, and for the reasons we next explain, all of

Rodriguez’s claims about the detective’s testimony lack merit.

6. There Was No Sanchez Error

Rodriguez claims that Detective Lopez’s testimony concerning the EMF gang’s

ties to the Mexican Mafia, the EMF gang’s baseball bats, and the specific examples of the

EMF gang’s acts of targeting African-Americans was impermissibly based on case-

specific hearsay under Sanchez. Although we agree that much of the detective’s

testimony was based on hearsay, none of that hearsay was case-specific.

Sanchez drew a distinction between “an expert’s testimony regarding his general

knowledge in his field of expertise,” and “case-specific facts about which the expert has

no independent knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676; People v. Vega-

Robles (2017) 9 Cal.App.5th 382, 408 (Vega-Robles).) The former testimony is not

barred by the hearsay rule, even if it is “ ‘technically hearsay,’ ” while the latter

testimony is barred by state hearsay law, unless an exception applies. (Vega-Robles, at

p. 408, citing Sanchez, at p. 676.) “Case-specific facts are those relating to the particular

events and participants alleged to have been involved in the case being tried.” (Sanchez,

36 at p. 676.)11

Sanchez “made [it] clear that an expert may still rely on general ‘background

testimony about general gang behavior or descriptions of the . . . gang’s conduct and its

territory,’ which is relevant to the ‘gang’s history and general operations.’ ” (People v.

Meraz (2016) 6 Cal.App.5th 1162, 1175 (Meraz I), quoting Sanchez, supra, 63 Cal.4th at

p. 698; Vega-Robles, supra, 9 Cal.App.5th at p. 411.) Detective Lopez’s opinion that

EMF gang members were required to follow the rules of the Mexican Mafia, which

meant that the gang had to be hostile to African-Americans and could not associate with

African-Americans, was not based on case-specific hearsay. The detective’s testimony

about the EMF gang’s ties to the Mexican Mafia had nothing to do with the “particular

events and participants alleged to have been involved in the case” for which Rodriguez

was being tried. (Sanchez, 63 Cal.4th at p. 676.)

Detective Lopez’s testimony that numerous EMF gang members carried small

baseball bats on which they had etched the racial slur, “n-beater,” was based on the

detective’s personal knowledge—his numerous contacts with EMF gang members who

11 As noted, Rodriguez does not claim that any of Detective Lopez’s testimony was based on testimonial hearsay, as opposed to case-specific hearsay. Regarding testimonial hearsay, “the Sanchez court reaffirmed that ‘[i]f a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, . . . [a]dmission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.’ (Sanchez, supra, 63 Cal.4th at p. 680.) Synthesizing the high court’s numerous opinions following Crawford, Sanchez defined testimonial hearsay as ‘statements about a completed crime, made to an investigating officer by a nontestifying witness . . . unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial.’ (Sanchez, at p. 694.)” (Vega-Robles, supra, 9 Cal.App.4th at p. 409.)

37 were in possession of such bats. Thus, this part of the detective’s testimony was not

based on hearsay, much less case-specific hearsay.

In contrast, the detective did not specify the sources of his testimony that EMF

gang members had openly expressed their dislike of African-Americans and their desire

to keep African-Americans out of El Monte, and that the EMF gang operated in the same

way outside of El Monte. None of this testimony was case-specific, however, because

none of it related to the particular events and participants allegedly involved in the case

being tried. (Sanchez, supra, 63 Cal.4th at p. 676.)

Lastly, the examples that the detective gave of the EMF gang targeting African-

Americans—the first two involving an LAPD officer, the third involving the stabbing of

a young African-American male in Covina, and the fourth involving the African-

American El Monte resident who was walking with his child to a local park—were each

based on hearsay, including the statements of the victims. But the examples were not

based on case-specific hearsay, as none of them related to any of the events or

participants alleged to be involved in the case being tried. (Sanchez, supra, 63 Cal.4th at

p. 676.)

Rodriguez claims that the detective’s testimony “is indistinguishable from other

types of gang testimony that has been found to be case-specific, such as expert testimony

relating an out-of-court statement that the expert heard from a gang member in which the

member admitted his gang membership,” citing People v. Ochoa (2017)

7 Cal.App.5th 575, at pages 588-589 (Ochoa), and “expert testimony relating facts about

other crimes that the expert had learned about from reading the police reports,” citing

38 People v. Lara (2017) 9 Cal.App.5th 296 at page 337 (Lara). Ochoa and Lara are

inapposite.

In Ochoa, a gang expert testified based on hearsay that at least 12 individuals, who

were not involved in the crimes for which the defendant was on trial, were the

defendant’s fellow gang members. (Ochoa, supra, 7 Cal.App.5th at pp. 582-583.) It was

unclear from the record in Ochoa whether the hearsay was testimonial (id. at pp. 584-

586); but Ochoa concluded that the hearsay was case-specific because it was relevant to

whether prior offenses committed by some of the same individuals qualified as predicate

offenses, and thus whether gang enhancement allegations on two of the charges against

the defendant on trial were true. (Id. at pp. 578, 582-583, 588-589 & fn. 6.)

In Lara, a gang expert testified, based on testimonial hearsay in police reports of

investigations of completed crimes, that the three defendants on trial had been contacted

in the company of gang members. (Lara, supra, 9 Cal.App.5th at p. 337.) The

testimonial hearsay established a necessary predicate offense against one of the

defendants and was relevant to whether all three of the defendants were guilty of an

active gang participation charge and whether gang enhancement allegations on another

charge were true. (Id. at pp. 327-329, 337.)

There is currently a split of authority on whether gang expert testimony about

predicate offenses constitutes “case-specific” information under Sanchez, and Ochoa and

Lara are on one side of this split. (Compare Menifee v. Superior Court (2020) 57

Cal.App.5th 343, 365; People v. Thompkins (2020) 50 Cal.App.5th 365, 411; Lara,

supra, 9 Cal.App.5th at p. 337; and Ochoa, supra, 7 Cal.App.5th at pp. 583, 588-589

39 with People v. Bermudez (2020) 45 Cal.App.5th 358, 377 & fn. 13; People v. Blessett

(2018) 22 Cal.App.5th 903, 944-945 & fn. 21, disapproved on another ground in People

v. Perez (2020) 9 Cal.5th 1, 14; Vega-Robles, supra, 9 Cal.App.5th at p. 411, and

Meraz I, supra, 6 Cal.App.5th at p. 1175.)

In this case, it is unnecessary to weigh-in on this split of authority because

Rodriguez does not challenge the detective’s testimony about the EMF gang’s predicate

offenses on any ground, including as being impermissibly based on case-specific hearsay.

Ochoa and Lara are distinguishable because they did not involve claims like

Rodriguez’s—namely, that a gang expert’s testimony about the customs and habits of a

gang are based on case-specific hearsay.

Rodriguez further argues that Detective Lopez’s testimony “[did] not qualify as

the type of background information that an expert is still allowed to relate to the jury

under Sanchez.” Instead, he argues, the detective’s testimony “went beyond discussing

generic background information, and instead testified about specific statements from

members of [Rodriguez’s] gang about how they are hostile to African- Americans, and

specific incidents the [detective] had heard about in which African- Americans had been

targeted by members of [Rodriguez’s] gang.” He asserts that “[t]his type of testimony is

indistinguishable” from the examples of case-specific facts given in Sanchez. We

disagree.

As we have stressed, facts are only case-specific under Sanchez when, in the

words of Sanchez, “they relate ‘to the particular events and participants alleged to have

been involved in the case being tried.’ ” (People v. Meraz (2018) 30 Cal.App.5th 768,

40 781 (Meraz II); Sanchez, supra, 63 Cal.4th at p. 676.) All of the examples of the case-

specific facts given in Sanchez met this standard. (Sanchez, at p. 677 [noting, e.g., “That

an associate of the defendant had a diamond tattooed on his arm would be a case-specific

fact . . . .”].) But none of Detective Lopez’s testimony was based on case-specific

hearsay, or case-specific facts of which the detective had no personal knowledge.

Further, Sanchez clarified “that an expert may still rely on general ‘background

testimony about general gang behavior or descriptions of the . . . gang’s conduct and its

territory,’ which is relevant to the ‘gang’s history and general operations.’ ” (Meraz II,

supra, 30 Cal.App.4th at p. 781; Sanchez, supra, 63 Cal.4th at p. 698.) Sanchez also

clarified that an expert, in supporting his opinion, “is entitled to explain to the jury the

‘matter’ upon which [the expert] relied, even if that matter would ordinarily be

inadmissible.” (Sanchez, at pp. 678-679; Evid. Code, § 802.)12

All of Detective Lopez’s challenged testimony about the EMF gang, including that

its members are required to follow the Mexican Mafia’s policy of being hostile to

African-Americans, that the gang has a custom and practice of targeting African-

Americans, and the specific examples of the gang’s acts of targeting African-Americans,

both in and outside El Monte, constituted background information about the gang, its

general behavior, descriptions of its conduct, and its territory. (Sanchez, supra, 63

12 There are, however, limits to the hearsay that an expert may relay to a jury in explaining the basis of the expert’s opinion. As noted in Sanchez, Evidence Code section 352 authorizes trial courts “ ‘to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.’ ” (Sanchez, supra, 63 Cal.4th at p. 679.) We discuss this exception post, in connection with Rodriguez’s section 352 and due process claims.

41 Cal.4th at pp. 678-679, 698.) In sum, none of the detective’s challenged testimony was

based on case-specific hearsay, as Sanchez defines the term. (Id. at p. 676.)

7. There Was No Evidence Code Section 352 or Due Process Error

Rodriguez next claims that Detective Lopez’s testimony about the EMF gang’s

custom and practice of following the Mexican Mafia’s edict of being hostile to African-

Americans, and his testimony about the specific examples of EMF gang members

targeting and making racist statements to African-Americans, had no “legitimate”

probative value, was unduly prejudicial, and should have been excluded under Evidence

Code section 352. He also claims that this testimony was so inflammatory and

prejudicial that its admission violated his due process right to a fair trial. We find no

merit to these claims.

We begin with Evidence Code section 352,13 which “requires the exclusion of

evidence only when its probative value is substantially outweighed by its prejudicial

effect. ‘Evidence is substantially more prejudicial than probative [citation] [only] if,

broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the

reliability of the outcome.” ’ ” (People. v. Tran (2011) 51 Cal.4th 1040, 1047.)

As the trial court ruled, the detective’s Mexican Mafia-related testimony was

probative because it showed that Rodriguez had a motive to shoot and kill Kofu. As an

13 Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

42 EMF gang member, Rodriguez was required to follow the Mexican Mafia’s edict of

being hostile to African-Americans. The detective’s testimony about the specific

examples of the EMF gang targeting and making racist statements to African-Americans,

both inside and outside El Monte, and the detective’s additional testimony that numerous

members of the EMF gang carried baseball bats they called “n-beaters,” was also

probative. It showed that the EMF gang had a particular custom and habit of being

hostile to African-Americans and of targeting African-Americans without provocation,

both inside and outside of El Monte.

Rodriguez argues that all of this evidence had no “legitimate probative value”

because, without it, the prosecution had sufficient evidence to argue that the shooting of

Kofu was gang related for purposes of the gang enhancement. He points out that his

membership in the EMF gang and the gang’s status as a criminal street gang were

“basically undisputed,” and his jury heard testimony from Tali that Kofu was a member

of an African-American gang. He also argues that, although the prosecution’s theory that

the shooting was gang-motivated required “some expert testimony” that the EMF gang

“ha[d] a habit of being hostile toward African-American gangs,” the detective “opined

about this fact in general terms,” and that should have been sufficient. He further argues

that the evidence posed “an extreme risk” of undue prejudice because it “consisted of

exceptionally inflammatory references to the Mexican Mafia and weapons called N-word

beaters,” together with specific examines of “unprovoked” threats and attacks by EMF

gang members on “African-American men and their families,” all of which had nothing

to do with the charged shooting of Kofu.

43 We disagree with Rodriguez’s Evidence Code section 352 analysis. The probative

value of the detective’s testimony was not substantially outweighed by its prejudicial

effect. As noted, the evidence showed that Rodriguez had a motive for shooting and

killing Kofu. Without the evidence, the jury likely would have wondered why Rodriguez

would shoot Kofu three times over a minor argument between Nunez and Kofu over beer

bottles being thrown from Nunez’s car. Standing alone, the detective’s general testimony

that the EMF gang, more so than other gangs, had conflicts with African- Americans,

would not have sufficiently informed Rodriguez’s jury that Rodriguez had a particular

motive for shooting and killing Kofu—that is, adhering to the rules, customs, and habits

of the Mexican Mafia and the EMF gang.

Nor was any the detective’s testimony unduly prejudicial in the sense that it would

have evoked an emotional bias against Rodriguez as an individual or would have caused

the jury to prejudge him based on extraneous factors. (People v. Cowan (2010)

50 Cal.4th 401, 475.) “[E]vidence should be excluded as unduly prejudicial when it is of

such nature as to inflame the emotions of the jury, motivating them to use the

information, not to logically evaluate the point upon which it is relevant, but to reward or

punish one side because of the jurors’ emotional reaction. In such a circumstance, the

evidence is unduly prejudicial because of the substantial likelihood the jury will use it for

an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)

Contrary to Rodriguez’s claim, the detective’s Mexican Mafia-related testimony

was brief and not inflammatory. It was limited to explaining that the EMF gang had its

own “rules on the street” but “fe[d] into the bigger enterprise” of the Mexican Mafia, a

44 prison gang; the EMF gang was part of the Mexican Mafia’s culture; and gangs, like the

EMF gang, that were connected to the Mexican Mafia and that operated in areas where

few African-Americans lived were expected to be hostile to African-Americans. The

detective also admitted he had “no specific information” that Rodriguez had committed

any acts of aggression against African- Americans. As the trial court ruled, this

admission mitigated any prejudicial effect that the detective’s Mexican Mafia-related

testimony may have had.

Additionally, although the court was not called upon to rule on the question, the

admission likewise mitigated any prejudicial effect of the detective’s testimony about the

EMF gang targeting African-Americans, making racist statements to African-Americans,

and carrying baseball bats that the gang called “n-beaters.” The jury also heard no

evidence that Rodriguez had ever carried such a bat and was instructed not to use any of

the gang evidence to conclude that Rodriguez was a person of bad character or had a

disposition to commit crime. (CALCRIM No. 1403.)

The detective’s challenged testimony also did not violate Rodriguez’s due process

right to a fair trial. In support of this claim, Rodriguez relies on People v. Albarran

(2007) 149 Cal.App.4th 214, which involved the admission of extensive, irrelevant, and

inflammatory gang evidence that the jury could have used for an improper purpose. (Id.

at p. 229.) The Albarran jury could have used the evidence to conclude that, even if the

defendant was not involved in the charged shootings, he had committed other crimes,

would commit crimes in the future, posed a danger to society, and should be punished.

(Id. at pp. 229-230.) In contrast here, Detective Lopez’s testimony was highly probative

45 of whether Rodriguez had a motive to shoot and kill Kofu. In sum, the challenged

testimony was not extensive, irrelevant, or inflammatory, and posed no risk of undue

prejudice to Rodriguez.

C. Kofu’s Prior Robbery Conviction Was Properly Excluded (Evid. Code, § 1103)

Several times during trial, the court and counsel discussed whether either

defendant wanted the court to admit evidence that Kofu had a prior second degree

robbery conviction for the purpose of showing that Kofu had a violent character and

acted in conformity with that character at the time of the shooting. (Evid. Code, § 1103.)

Ultimately, Rodriguez’s counsel asked the court to take judicial notice of Kofu’s prior

robbery conviction, but the court excluded the evidence on relevance grounds.

In excluding the evidence, the court noted that it had no information about the

facts underlying the robbery in order to determine its relevance. The prosecutor recalled

from Kofu’s rap sheet that the robbery occurred in Los Angeles County in 2014 or 2015,

but neither the prosecutor nor either defense counsel had any information about the facts

underlying the robbery.

The court reasoned that the mere fact that Kofu had a prior robbery conviction did

not support a reasonable inference that he acted with force or had the propensity to be

violent at the time of the shooting. The court also noted that there was other evidence

that the defense could use to show that Kofu acted aggressively at the time of the

shooting: Tali testified that Kofu was angry at the time of the shooting because he had

just had a “major argument” with his mother, and that Kofu tended to act aggressively

46 when he had controlled substances in his system, which, according to his autopsy, he had

at the time of the shooting.

Rodriguez claims the court erred under state law and violated his due process right

to present a defense in excluding the evidence that Kofu had a prior conviction for second

degree robbery. He claims the bare fact of the conviction was “relevant and material to

the defense theory of self-defense/defense of others by showing that Kofu was acting in

conformity with his character for violence.” (Evid. Code, § 1103.) He claims the error

requires reversal of his murder conviction, “since there is at least a reasonable chance that

at least some jurors would have given [him] the benefit of the doubt as to whether he was

acting in perfect or imperfect self-defense/defense of others if this evidence had properly

been admitted.” We disagree.

“Evidence Code section 1103 authorizes the defense in a criminal case to offer

evidence of the victim’s character to prove his conduct at the time of the charged crime.

Consequently, in a prosecution for a homicide or an assaultive crime where self-defense

is raised, evidence of the violent character of the victim is admissible to show that the

victim was the aggressor.” (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446, fns.

omitted, italics added.) The defense may prove that the victim had an aggressive and

violent character through the victim’s specific acts on third persons. (Id. at p. 447.)

“Robbery is a crime of violence committed against a person.” (People v. Scott (2009)

45 Cal.4th 743, 749.)

We review a trial court’s exclusion of evidence on relevance grounds for an abuse

of discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 828 (Gutierrez).) “The trial

47 court must always perform its gatekeeping function pursuant to Evidence Code section

350 to exclude evidence that is irrelevant.” (Id. at p. 828.) Here, we find no abuse of

discretion in the court’s exclusion of the evidence that Kofu had a prior conviction for

second degree robbery. As the trial court ruled, the bare fact of the conviction did not

support a reasonable inference that Kofu had a character or propensity for violence and

acted in conformity with that character at the time of the shooting.

As the court indicated, it could not be inferred from the fact of the conviction that

Kofu perpetrated any acts of violence or aggression in committing the robbery. (See §§

211, 212.5.) For all the court knew, Kofu could have committed the robbery by politely

asking his victim to hand over money or property, with an implicit threat of force, but

without any acts of aggression or violence.

Rodriguez claims the court excluded the evidence of the conviction under

Evidence Code section 352, and that a court’s discretion to exclude relevant defense

evidence is limited under that statute. To be sure, “Evidence Code section 352 must bow

to the due process right of a defendant to a fair trial and to his right to present all relevant

evidence of significant probative value to his defense.” (People v. Reeder (1978) 82

Cal.App.3d 543, 552.) But it is clear that the court excluded the evidence of the

conviction solely on relevance grounds (Evid. Code, §§ 210, 350) and not because its

admission would have consumed undue time, created a substantial risk of undue

prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)

Moreover, the bare fact of the conviction did not have substantial probative value

to the defense. Rodriguez maintains that “the jurors could not fairly evaluate” his claim

48 that he shot Kofu in self-defense or in defense of Nunez without hearing that Kofu had a

prior conviction for second degree robbery. He claims that the fact of the conviction

showed that Kofu had “a violent past,” and that the conviction accordingly had

“substantial probative value” to the defense.

Again, however, the bare fact of the conviction did not support a reasonable

inference that Kofu had a character or propensity for violence and acted in conformity

with that character at the time of the shooting. (Evid. Code, § 1103.) A person may be

convicted of robbery even if they committed no acts of force or violence. For example,

“a getaway driver who has no prior knowledge of a robbery, but who forms the intent to

aid in carrying away the loot during [the asportation element of the robbery], may

properly be found liable as an aider and abettor of the robbery.” (People v. Cooper

(1991) 53Cal.3d 1158, 1161.) Because the fact of the conviction in the instant case did

not support the inference that Kofu had a character or propensity for violence, the fact of

the conviction did not have substantial probative value to the defense, and its exclusion

was neither an abuse of the court’s discretion nor a violation of Rodriguez’s due process

right to a fair trial. (People v. Mincey (1992) 2 Cal.4th 408, 442 [“A defendant’s rights to

due process and to present a defense do not include a right to present to the jury a

speculative, factually unfounded inference.”].)

Any error in excluding the fact of the prior robbery conviction was also harmless.

The erroneous failure to admit evidence that a victim was the initial aggressor (Evid.

49 Code, § 1103, subd. (a)(1)) is reviewed for prejudice under the Watson14 standard.

(Gutierrez, supra, 45 Cal.4th at pp. 827-828.) Under that standard, there is no reasonable

probability that Rodriguez would have realized a more favorable result had he been

permitted to introduce the evidence that Kofu had a prior robbery conviction.

Ample other evidence indicated to the jury that Kofu acted aggressively at the

time of the shooting. Tali testified that Kofu was “mad a lot” and did not “ ‘take any

shit.’ ” Kofu would stand in front of his house and, when he felt someone was “

‘mugging’ ” him, that is, looking angrily at him, he would respond in kind. When he did

drugs, he would “get angry easier,” and his autopsy showed that he had

methamphetamine in his system at the time of his death, shortly after the shooting. At the

time of the shooting, he was “very mad” and “upset” because he had had an argument

with his mother earlier that morning. The court did not abuse its discretion in concluding

that the fact of Kofu’s prior robbery conviction would have added nothing of probative

value to this evidence, or to Rodriguez’s claim that he shot Kofu in self-defense or in

defense of Nunez. Instead, it would have allowed the jury to speculate that Kofu acted

violently during the prior robbery—inferences that the conviction itself did not support.

D. The 911 Caller’s Hearsay Statements Were Properly Admitted Before Both Juries

Rodriguez and Nunez both claim that the trial court prejudicially erred in

admitting the hearsay statements that the anonymous 911 caller reported hearing at the

14 People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).

50 time of the shooting: “ ‘No, no, I’m sorry, I’m sorry,’ ” and “ ‘I told you not to fuck with

me.’ ” We find no merit to this claim.

Before trial, the 911 caller had not been located, so the prosecutor sought to admit

the recording of the 911 call through the 911 dispatcher, whom the prosecutor said could

lay the foundation for the admission of the hearsay statements in the 911 call as

spontaneous statements of the 911 caller. (Evid. Code, § 1240.) The court ruled that the

statements were admissible on that ground.

A recording of the 911 call was played for both juries. The 911 caller reported

that, around three minutes earlier, he/she heard a gunshot, followed by someone saying, “

‘No, no, I’m sorry, I’m sorry,’ ” followed by another person saying, “ ‘I told you not to

fuck with me,’ ” followed by at least two more gunshots.

Jose V. and Tali testified before both juries and described what they heard and saw

at the time of and after the shooting. Detective Ferreira testified before both juries that,

before trial, Jose V. told him that he, Jose V., heard Nunez say, “ ‘I told you not to fuck

with me.’ ”

The prosecution’s gang expert, Detective Lopez, was asked on direct examination

“[w]hat, if anything,” he could say about the “exchange” reported in the 911 call, “as it

relate[d] to how the reputation” of the EMF gang could benefit “from that incident

happening that way.” Nunez’s counsel objected that the question called for speculation,

but the court overruled the objection.

51 Detective Lopez then testified that, in his opinion, the fact that one shot was fired,

that the victim then apologized, but that “somebody in the group” then said, “ ‘You

should have never fucked with me,’ ” before two more shots were fired, showed “how

violent and dangerous that gang member is.” The gang member was also showing

“dominance” by shooting Kofu again after Kofu apologized.

During closing argument before Nunez’s jury, the prosecutor played the 911

recording again, and attributed the, “ ‘I’m sorry,’ ” statement to Kofu, and the, “ ‘I told

you not to fuck with me,’ ” statement to either Nunez or Rodriguez. The prosecutor then

argued that the statements showed that both defendants, Nunez and Rodriguez, intended

to commit first degree premeditated murder.

During closing argument before Rodriguez’s jury, the prosecutor argued that

“what you heard on that 911 call” corroborated the pathologist’s testimony that the

trajectory of two of Kofu’s three bullet wounds showed that two of the wounds were

inflicted when Kofu was on the ground, and that these two “extra shots were an ambush.”

The prosecutor then played the 911 recording before Rodriguez’s jury, and argued

that the 911 call put the two extra shots “into context” and corroborated Tali’s testimony

that he heard one shot, then a pause, followed by two more shots. The prosecutor then

argued that Rodriguez was the shooter, and that the comment, “ ‘I told you not to fuck

with me,’ ” showed “how gang members handle situations,” regardless of whether Nunez

or Rodriguez made the statement. The prosecutor then argued, “That’s why your verdict

[for Rodriguez] is first degree murder.”

52 2. Analysis

Evidence Code section 1240 sets forth the spontaneous statement exception to the

hearsay rule. It provides: “Evidence of a statement is not made inadmissible by the

hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act,

condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while

the declarant was under the stress of excitement caused by such perception.”

Defendants concede that the 911 call was made within minutes of the shooting,

under the stress of the excitement caused by it. They argue, however, that the court erred

in admitting the 911 caller’s hearsay statements as spontaneous statements, without

establishing the “preliminary fact” of who made each statement. (Evid. Code, § 403,

subd. (a)(4).) They argue that the relevancy of the two statements, “No, no, I’m sorry . . .

,” and “I told you not to fuck with me,” depended on who made each statement, and the

court did not make that determination.

Defendants further argue that the admission of the two statements deprived them

of their due process right to a fair trial because the prosecution used the statements to

undermine their defense that the shooting was justified because Rodriguez shot Kofu in

self-defense or in defense of Nunez. They claim that the prosecution and its gang expert,

Detective Lopez, were erroneously allowed to assume or speculate that Kofu made the

first statement, and that either Nunez or Rodriguez made the second statement, and on

that basis opine and argue, respectively, that the shooting benefited the EMF gang and

was first degree murder. They maintain that both statements were irrelevant and

inadmissible because there was no showing of who made each statement.

53 To be sure, the relevance of evidence sometimes depends on the existence of a

preliminary fact. (Evid. Code, § 403, subd. (a); People v. Lucas (1995) 12 Cal.4th 415,

466 (Lucas), citing People v. Collins (1975) 44 Cal.App.3d 617 [“identity of person who

made threatening telephone call to witness is preliminary fact [the] proponent of

proffered testimony has burden of establishing before fact of telephone call is relevant”].)

But, “[t]he court should exclude the proffered evidence only if the ‘showing of

preliminary facts is too weak to support a favorable determination by the jury,’ ” and

“[t]he decision whether the foundational evidence is sufficiently substantial” to allow the

jury to make this determination is “a matter within the court’s discretion.” (Lucas, at

p. 466.)

In ruling that the two hearsay statements that the 911 caller reported hearing at the

time of the shooting were admissible as the caller’s spontaneous statements (Evid. Code,

§ 1240), the court did not expressly determine that the prosecution made a sufficient

foundational showing of the preliminary fact of who made each statement. (Evid. Code,

§ 403, subd. (a)(4).) But the prosecution’s proffered evidence, and the evidence that the

prosecution later presented to both juries, was sufficient to allow each jury to determine

that Kofu was the person who said, “No, no, I’m sorry, I’m sorry,” and that either Nunez

or Rodriguez said, “I told you not to fuck with me.”

Jose V. testified that he was driving past Kofu’s house, and he drove between

Kofu and Nunez’s car when he heard Nunez and Kofu arguing, saw them put their fists

up, and walk toward each other before Nunez yelled to Rodriguez to “ ‘Get it out.’ ” Jose

V. then saw Rodriguez get out of Nunez’s car with a shotgun and shoot Kofu once before

54 Jose V. drove away. Detective Ferreira later testified that, before trial, Jose V. told the

detective that he, Jose V., heard Nunez say, “ ‘I told you not to fuck with me.’ ” Tali

testified that he was inside Kofu’s house and that Kofu was outside when he heard one

gunshot, followed by a pause, then two more gunshots, before Kofu began calling to Tali

to help him.

All of this evidence allowed each defendant’s jury to reasonably determine that

Kofu was the person who said, “No, no, I’m sorry . . . ,” after he was shot the first time,

and that Nunez was the person who said, “I told you not to fuck with me.” Thus, the

potential relevancy of the two statements was established. (Evid. Code, § 403,

subd. (a)(4); Lucas, supra, 12 Cal.4th at pp. 466-467 [questions of preliminary facts are

ultimately decided by the jury; the court’s function is to determine whether there is

sufficient evidence to allow the jury to decide the preliminary fact in the proponent’s

favor].) Thus, neither Detective Lopez’s opinion nor the prosecutor’s argument that the

shooting benefited the EMF gang, and was first degree murder, were based on

speculation as to who made which statement.

E. The Prosecutor Did Not Misstate the Law of Premeditation and Deliberation During

Closing Argument Before Rodriguez’s Jury

Rodriguez claims the prosecutor gave misleading examples of premeditation and

deliberation during closing argument that amounted to prosecutorial error under state and

federal law. In arguing that Rodriguez was guilty of first degree premeditated murder,

the prosecutor compared premeditation and deliberation to decisions to drive through a

yellow traffic light and to swat a mosquito. We conclude that there is no reasonable

55 likelihood that Rodriguez’s jury construed the prosecutor’s comparisons in an

objectionable fashion. Thus, there was no prosecutorial error.

In closing argument before Rodriguez’s jury, the prosecutor discussed the

requirements of premeditation and deliberation for purposes of first degree murder. He

argued that Rodriguez acted with premeditation when he shot and killed Kofu, in part

because Kofu was lying on the ground, defenseless, and with one bullet wound in his leg,

when Rodriguez shot him two more times. He noted that, “[a] decision to kill rashly,

impulsively, without careful consideration is not deliberate, premeditated. On the other

hand, a cold, calculated decision to kill [can] be reached quickly. The test is the extent of

the reflection; not the length of time.” (See CALCRIM No. 521 (first degree murder).)

The prosecutor then gave two hypothetical examples—the decision to run a yellow

traffic light and to swat a mosquito—to illustrate deliberation and premeditation: “So

here’s an example [that] we use in the courts. And it makes a lot of sense, right?

Deliberation and premeditation, concept[s] that you—words we don’t always use.

You’re supposed to be here at 9:30 this morning and maybe you had a little bit late start

to your day, whatever it is that got you a little bit off track on the time. You get on, let’s

say, the 210 Freeway. Your exit is on Haven. You’re looking at the time. It’s 9:15.

You’re thinking, ‘Jeez. Sometimes the elevators work; sometimes they don’t. I know

what parking’s like. I know what it takes to get into that courthouse. I better start going

a little faster.’ So you start getting faster. You’re getting closer to Foothill Boulevard.

56 You’re going South. You’re driving. ‘Awesome. I’m going to get right through there.

I’m going to make it.’ And the light turns yellow. What do you do?”

At this point, Rodriguez’s counsel objected to the argument as “improper,” and the

objection was overruled. The prosecutor continued: “If you’re anything like that, you

start looking around. Maybe you look in the rearview mirror to see is there a car behind

you. If you might hit the brakes really hard. Maybe you look at cross traffic to see if any

cars are coming fast [that are] going to hit you. If I go through this light when it might

turn red. Maybe you kind of glance forward at the Rancho Cucamonga Station down

there. ‘Am I going to get a ticket if I go through this light?’ . . .

“In your mind you’re thinking, ‘I don’t want to be the juror that’s late. We’re

supposed to start on time.’ All the thoughts go through your mind. You determine hit

the gas or hit the brakes. What are you doing there? You’re exercising deliberation and

premeditation. It can be that quick. It’s not a long, drawn out process. You’re reflecting

on the consequences of your actions and you’re making a choice. That’s deliberation and

premeditation. [¶] Another example—it’s not one that—probably not as good as the first

one—but you got a mosquito on your arm, and you have to determine, ‘Am I going to

show [sic] it or swat it?’ You might think, ‘You know, what am I wearing? Who’s

around? Is anyone going to see me do this?’ That might impact your decision, but

you’re going to make that decision. That thought process goes through your mind.

That’s deliberation.”

57 2. Analysis

Claims of prosecutorial error are evaluated under the following standards: “A

prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution

when it infects the trial with such unfairness as to make the conviction a denial of due

process. Conduct by a prosecutor that does not render a criminal trial fundamentally

unfair is prosecutorial misconduct under state law only if it involves the use of deceptive

or reprehensible methods to attempt to persuade either the trial court or the jury.

Furthermore, and particularly pertinent here, when the claim focuses upon comments

made by the prosecutor before the jury, the question is whether there is a reasonable

likelihood that the jury construed or applied any of the complained-of remarks in an

objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44.)

In the context of first degree murder, premeditated means considered beforehand,

and deliberate means formed or arrived at or determined upon as a result of careful

thought and weighing of considerations for and against the proposed course of action.

(People v. Lee (2011) 51 Cal.4th 620, 636 (Lee).) “Premeditation and deliberation

require ‘substantially more reflection; i.e., more understanding and comprehension of the

character of the act than the mere amount of thought necessary to form the intent to

kill.’ ” (People. v. Van Ronk (1985) 171 Cal.App.3d 818, 823.) But the process of

premeditation and deliberation does not require any extended period of time. (Lee, at

p. 636.) “ ‘ “The true test is not the duration of time as much as it is the extent of the

reflection. Thoughts may follow each other with great rapidity and cold, calculated

judgment may be arrived at quickly . . . .” ’ ” (Ibid.) A “preexisting reflection, of any

58 duration,” distinguishes first degree premeditated and deliberate murder from second

degree murder. (People v. Solomon (2010) 49 Cal.4th 792, 813; People v. Boatman

(2013) 221 Cal.App.4th 1253, 1264-1265 (Boatman).)

The question here is whether there is a reasonable likelihood that Rodriguez’s jury

construed the prosecutor’s examples of a person deciding to run a yellow traffic light, and

to swat a mosquito, in an objectionable fashion, that is, as misleading examples of acting

with premeditation and deliberation. We conclude there was no such reasonable

likelihood because the examples were not misleading, either on their face or in the

context of the entire record, including the instructions on first degree murder.

The jury was properly instructed on the meanings of premeditation and

deliberation pursuant to CALCRIM No. 521. The prosecutor’s examples of a person

deciding to run a yellow traffic light, and to swat a mosquito, illustrated that those

decisions would be made (1) with premeditation, if the person considered the decisions

before making them; and (2) with deliberation, if the person made the decisions after

thinking about and weighing the considerations for and against the decisions. In keeping

with the legal definitions of premeditation and deliberation (CALCRIM No. 521), the

prosecutor emphasized that the test of premeditation and deliberation was not determined

by the amount of time that the person took to make the decisions, but whether the person

made the decisions following any period of reflection. Thus, the argument was proper.

Rodriguez claims that this court’s decision in Boatman shows that the prosecutor’s

comparisons to the decisions to run a yellow traffic light and to swat a mosquito

misstated the meanings of premeditation and deliberation. The defendant in Boatman

59 was convicted of first degree willful, deliberate, and premeditated murder for shooting his

girlfriend in her face. (Boatman, supra, 221 Cal.App.4th at pp. 1257-1258.) Before trial,

he gave conflicting accounts of how the shooting occurred but testified at trial that the

gun accidentally went off. (Id. at pp. 1259-1260.) This court concluded that the evidence

was sufficient to support a finding of express malice, that is, that the defendant

intentionally shot and killed his girlfriend, but was insufficient to support the jury’s

finding that the defendant acted with premeditation and deliberation. (Id. at pp. 1257,

1274.)

This court explained that the Boatman defendant’s first degree murder conviction

required evidence that “the gunshot to the face was pursuant to a ‘ “preconceived design”

to take his victim’s life . . . .’ ” (Boatman, supra, 221 Cal.App.4th at p. 1268.) The

evidence that the defendant “took the time to pull back the hammer, point the pistol at

[the victim’s] face, and fire the weapon,” was insufficient to show that he acted with

premeditation and deliberation when he shot his girlfriend. (Id. at p. 1273.) We reasoned

that “cocking, aiming, and firing a revolver essentially describes the act of shooting with

a revolver. If these actions could, without more, constitute premeditation and

deliberation, we would effectively add killing perpetrated by a revolver to the list of

crimes specifically enumerated in section 189 and thereby substantially broaden the

scope of first degree murder . . . .” (Id. at p. 1274, fn. 4.)

Rodriguez compares the act of cocking, aiming, and firing a revolver, without

more, to the prosecutor’s examples of deciding to run a yellow traffic light and to swat a

mosquito. He suggests that such acts are never premeditated and deliberate but are

60 always impulsive and unconsidered. But this argument disregards critical details in the

prosecutor’s yellow traffic light and mosquito swatting examples; in both examples,

before acting, the person considered all of the consequences of running the yellow light

and of swatting the mosquito. The point of the examples was to illustrate that a

premeditated and deliberate decision can be made quickly. Again, the argument was

proper.

Rodriguez observes that in People v. Avila (2009) 46 Cal.4th 680 (Avila), our

Supreme Court “acknowledged that it would be improper to argue” that “ ‘the “cold,

calculated” judgment of murder is the equivalent of deciding whether to stop at a yellow

light or proceed through the intersection.’ ” (Id. at p. 715.) He claims that the members

of his jury “likely recognized” from their own personal experiences that “a yellow traffic

light lasts between three and six seconds,” and that “the act of swatting a mosquito is

reflexive and happens almost instinctively the instant the mosquito is noticed.”

But, as noted in Avila, the prosecutor there did not argue that the mental processes

of premeditation and deliberation were “equivalent” to deciding whether to run a yellow

traffic light. (Avila, supra, 46 Cal.4th at p. 715.) To the contrary, the prosecutor in Avila

expressly acknowledged that, “[d]eciding to and moving forward with the decision to kill

is similar, but I’m not going to say in any way it’s the same. There’s great dire

consequences that have a difference here.” (Ibid.) Similarly here, the prosecutor did not

trivialize the process of making a premeditated and deliberate decision to kill by

comparing it to the decision to run a yellow traffic light or to swat a mosquito. As noted,

the prosecutor merely used the examples to illustrate how the process of premeditation

61 and deliberation can occur quickly. His examples showed that a premeditated and

deliberate decision to kill must be made “ ‘ “as the result of preexisting thought and

reflection rather than unconsidered or rash impulse.” ’ ” (Boatman, supra,

221 Cal.App.4th at p. 1264, quoting People v. Pearson (2013) 56 Cal.4th 393, 443.)

Thus, the prosecutor’s argument was not error under state or federal law.

F. Rodriguez’s Hearsay Statements to S.A Were Properly Admitted Against Nunez As

Declarations Against Rodriguez’s Penal Interest (Evid. Code, § 1230)

During her police interview with Detective Ferreira, S.A. said that Rodriguez told

S.A. that: (1) there were three “Black guys” on the street; (2) Nunez was arguing with

one of them; (3) Nunez had prior “drama” and “a beef” with them; (4) Nunez had been

“trying to fight them”; and (5) Nunez started the altercation. S.A. also told Detective

Ferreira that Rodriguez told her that Rodriguez told Nunez to get back into the car, but

Nunez would not listen to him, so Rodriguez also got out of the car and shot one of the

three men (in self-defense) after the man “socked” Rodriguez. All of these statements

were admitted against Nunez as statements against Rodriguez’s penal interest. (Evid.

62 Code, § 1230.)15

Nunez claims the court abused its discretion and violated his due process right to a

fair trial in admitting three of Rodriguez’s hearsay statements to S.A—the ones we have

denominated ante as statements (3), (4) and (5)—that Nunez had been trying to fight with

the three “Black” guys, that Nunez had prior “ ‘drama’ ” and a prior “ ‘beef’ ” with them,

and that Nunez started the altercation with the “Black” guys, or one of them, that

culminated in Rodriguez shooting one of the “Black” guys.

Nunez argues that the statements did not qualify as statements against Rodriguez’s

penal interest because they were “highly incriminating” of Nunez and “minimizing and

exculpatory” of Rodriguez’s penal interest. He claims the statements “sought to shift

blame and finger” him “as more culpable for the crime” than Rodriguez. We find no

merit to these claims and conclude that the court did not abuse its discretion in admitting

the hearsay statements against Nunez as declarations against Rodriguez’s penal interest.

(Evid. Code, § 1230.)

15 Before trial, the prosecutor moved to admit S.A.’s interview statements in which she reported the hearsay statements made to her by Rodriguez, which incriminated both Rodriguez and Nunez. The prosecutor argued that Rodriguez’s hearsay statements to S.A. were admissible against Nunez because the statements were (1) nontestimonial, and thus did not implicate Nunez’s confrontation rights, (2) qualified under the hearsay exception for declarations against Rodriguez’s penal interest (Evid. Code, § 1230), and (3) were trustworthy and reliable. Nunez’s counsel objected to the admission of the statements on the ground they implicated Nunez as the aggressor in the confrontation with Kofu. The court ruled that the statements were nontestimonial, trustworthy, and reliable, and thus admissible against Nunez as declarations against Rodriguez’s penal interest.

63 The applicable legal principles and our standard of review are summarily stated in

People v. Grimes (2016) 1 Cal.5th 698 at pages 710 to 711 (Grimes): “Although hearsay

statements are generally inadmissible under California law (Evid. Code, § 1200,

subd. (b)), the rule has a number of exceptions. One such exception permits the

admission of any statement that ‘when made, was so far contrary to the declarant’s

pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal

liability, or so far tended to render invalid a claim by him against another, or created such

a risk of making him an object of hatred, ridicule, or social disgrace in the community,

that a reasonable man in his position would not have made the statement unless he

believed it to be true.’ (Evid. Code, § 1230.) As applied to statements against the

declarant’s penal interest, in particular, the rationale underlying the exception is that ‘a

person’s interest against being criminally implicated gives reasonable assurance of the

veracity of his statement made against that interest,’ thereby mitigating the dangers

usually associated with the admission of out-of-court statements. [Citation.]

“[¶] To demonstrate that an out-of-court declaration is admissible as a declaration

against interest, ‘[t]he proponent of such evidence must show that the declarant is

unavailable, that the declaration was against the declarant’s penal interest when made and

that the declaration was sufficiently reliable to warrant admission despite its hearsay

character.’ [Citation.] ‘In determining whether a statement is truly against interest

within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy

to be admissible, the court may take into account not just the words but the circumstances

under which they were uttered, the possible motivation of the declarant, and the

64 declarant’s relationship to the defendant.’ [Citation.] [¶] We review a trial court’s

decision whether a statement is admissible under Evidence Code section 1230 for abuse

of discretion.” (Grimes, supra, 1 Cal.5th at pp. 710-711.)

Nunez correctly points out that the declaration against interest exception (Evid.

Code § 1230) “generally does not extend to remarks that seek to shift or assign greater

blame to others, minimize, or curry favor—even when made as part of a broader

inculpatory statement.” (See, e.g., People v. Duarte (2000) 24 Cal.4th 603, 614-617 and

People v. Gallardo (2017) 18 Cal.App.5th 51, 71, 75.) He also correctly points out that

in People v. Leach (1975) 15 Cal.3d 419, our Supreme Court “construe[d] the exception .

. . to be inapplicable to evidence of any statement or portion of a statement not itself

specifically disserving to the interests of the declarant.” (Id. at p. 441.) But more

recently, in Grimes, our Supreme Court clarified that the exception extends to statements

“that, though not independently disserving of the declarant’s penal interests, also are not

merely ‘self-serving,’ but ‘inextricably tied to and part of a specific statement against

penal interest.’ ” (Grimes, supra, 1 Cal.5th at p. 715, quoting People v. Samuels (2005)

36 Cal.4th 96, 120-121.) That is the case here.

Grimes also noted that cases construing and applying an analogous exception to

the federal hearsay rule, and California cases construing and applying Evidence Code

section 1230, had taken “a contextual approach” in applying the exceptions and “the

Leach rule.” (Grimes, supra, 1 Cal.5th at pp. 713-715.) Grimes concluded that “the

nature and purpose of the against-interest exception does not require courts to sever and

excise any and all portions of an otherwise inculpatory statement that do not ‘further

65 incriminate’ the declarant. Ultimately, courts must consider each statement in context in

order to answer the ultimate question under Evidence Code section 1230: Whether the

statement, even if not independently inculpatory of the declarant, is nevertheless against

the declarant’s interest, such that ‘a reasonable man in [the declarant’s] position would

not have made the statement unless he believed it to be true.’ ” (Grimes, at p. 716.)

Here, the trial court did not abuse its discretion in concluding that Rodriguez’s

challenged hearsay statements were admissible against Nunez as declarations against

Rodriguez’s penal interest. We begin with Rodriguez’s core inculpatory statement: his

confession to S.A. that he shot someone. By all accounts, there was only one shooter in

this case. Thus, the inculpatory nature of the statement cannot be overstated. Rodriguez

directly inculpated himself in the shooting when he told S.A. that he shot a man after the

man “socked” him. Although the details of Rodriguez’s confession to S.A. indicated that

he shot the man in self-defense or in defense of Nunez, the trial court could have

reasonably concluded that the entire confession was nonetheless disserving of

Rodriguez’s penal interest because it directly implicated him as having shot someone.

(Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 758-759 [To come within

Evid. Code, § 1230, “a statement need not wholly confess guilt; it need only be ‘

“distinctly against [the declarant’s] interest.” ’ ”].)

Rodriguez’s additional hearsay statements to S.A about the shooting, including his

challenged hearsay statements implicating Nunez as the aggressor in the altercation that

preceded the shooting, were not “practically separable” from Rodriguez’s self-

inculpatory confession. (Grimes, supra, 1 Cal.5th at p. 717.) Indeed, the additional

66 statements were necessary to explain how Rodriguez came to shoot a man who “socked”

him: (1) there were three “Black guys” on the street; (2) Nunez was arguing with one of

them; (3) Nunez had had prior “drama” and “a beef” with them; (4) Nunez had been

“trying to fight them”; and (5) Nunez started the altercation. Rodriguez also told S.A.

that he told Nunez to get back in the car, but Nunez would not listen, so Rodriguez also

got out of the car and shot one of the three men after the man “socked” Rodriguez.

The court could have reasonably concluded that these additional statements, even

if not independently inculpatory of Rodriguez, were nevertheless against his penal

interest, because “ ‘a reasonable man in [Rodriguez’s] position would not have made the

statement[s] unless he believed [them] to be true.’ ” (Grimes, supra, 1 Cal.5th at p. 716.)

Further, none of the additional hearsay statements attempted to shift blame to Nunez for

the shooting, or for any other crime in connection with the shooting. (Cf., e.g., In re

Sakarias (2005) 35 Cal.4th 140, 154-155 [Portions of declarant’s confession implicating

his accomplice “could well have been held inadmissible as attempts to deflect culpability

away from the declarant.”].) In confessing to S.A., Rodriguez was effectively assuming

full criminal responsibility for the shooting. (Grimes, at p. 717.) Unquestionably,

Rodriguez appeared to be blaming Nunez for starting the altercation that preceded the

shooting and for getting Rodriguez into the situation in which he ended up shooting the

man who “socked” him. But the statements implicating Nunez for starting the altercation

were not an attempt to shift criminal liability to Nunez for the shooting. Nothing

Rodriguez said to S.A. indicated that Nunez aided and abetted Rodriguez in the shooting

or suggested that Nunez committed any other crime.

67 G. Substantial Evidence Supports Nunez’s First Degree Murder Conviction

Nunez was prosecuted for the first degree murder of Kofu based on the theory that

Nunez directly aided and abetted Rodriguez in the commission of the first degree

premeditated murder—that is, based on the theory that Nunez acted “willfully,

deliberately, and with premeditation as an aider and abettor.” (CALCRIM No. 521.)

Nunez claims that insufficient evidence supports his first degree murder conviction

because insufficient evidence shows that he “directly aided and abetted” the premeditated

murder of Kofu. We find no merit to this claim.

1. Applicable Legal Principles

“There are two distinct forms of culpability for aiders and abettors. ‘First, an aider

and abettor with the necessary mental state is guilty of the intended crime.’ ” (People v.

Chiu (2014) 59 Cal.4th 155, 158 (Chiu), superseded by statute in part as stated in People

v. Gentile (2020) 10 Cal.5th 830 (Gentile).) This first form of aider and abettor liability

is known as direct aider and abettor liability. (See Chiu, at pp. 166-167.) “ ‘Second,

under the natural and probable consequences doctrine, an aider and abettor is guilty not

only of the intended crime, but also “for any other offense that was a ‘natural and

probable consequence’ of the crime aided and abetted.” ’ ” (Id. at p. 158.)

In Chiu, our Supreme Court held that aiders and abettors can only be convicted of

first degree premeditated murder under a direct aiding and abetting theory; they cannot be

convicted of first degree premeditated murder under the natural and probable

consequences doctrine. (Chiu, supra, 59 Cal.4th at pp. 166-167.) Like second degree

murder, first degree premeditated murder is the unlawful killing of a human being with

68 malice aforethought, but unlike second degree murder, first degree premeditated murder

has the additional elements of willfulness, premeditation, and deliberation. (Id. at

p. 166.)

As stated in Chiu, in order to convict a defendant of first degree premeditated

murder as a direct aider and abettor, “the prosecution must show that the defendant aided

or encouraged the commission of the murder with knowledge of the unlawful purpose of

the perpetrator and with the intent or purpose of committing, encouraging, or facilitating

its commission.” (Chiu, supra, 59 Cal.4th at p. 167, italics added.) That is, a direct aider

and abettor to first degree premeditated murder must aid or encourage the direct

perpetrator in the commission of the murder and act with his or her own willfulness,

premeditation, and deliberation. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)

In accordance with these principles, Nunez’s jury was instructed that it could find

Nunez guilty of first degree premeditated murder “if the People have proved that he acted

willfully, deliberately, and with premeditation as an aider and abettor. The defendant

acted willfully if he also intended to kill. The defendant acted deliberately if he also

carefully weighed the considerations for and against his choice and, knowing the

consequences, intended to kill. The defendant acted with premeditation if he also

decided to kill before the acts that caused death were completed. The length of time the

person spends considering whether to kill does not determine whether the killing is

deliberate and premeditated. The amount of time required for deliberation and

premeditation may vary from person to person and according to the circumstances. A

decision to kill made rashly, impulsively, or without careful consideration is not

69 deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be

reached quickly. The test is the extent of the reflection, not the length of time . . . .”

(CALCRIM No. 521.)

The applicable standard of review is well settled. In considering a claim that

insufficient evidence supports a criminal conviction, our task as a reviewing court is to

determine whether the entire record, viewed in the light most favorable to the judgment,

contains substantial evidence—evidence that is reasonable, credible, and of solid value—

from which a rational trier of fact could have found the defendant guilty of the crime

beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).)

We presume in support of the judgment the existence of every fact the trier of fact

could have reasonably deduced from the evidence. (People v Thompson (2010)

49 Cal.4th 79, 113.) We apply the same standard of review whether direct or

circumstantial evidence is involved. (People v. Prince (2007) 40 Cal.4th 1179, 1251.)

Reversal is required only if “upon no hypothesis whatever is there sufficient substantial

evidence” to support the verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

2. Analysis

Nunez claims there was insufficient evidence that he “knowingly and intentionally

instigated or assisted Rodriguez” to “deliberately, willfully, or with premeditation” shoot

and kill Kofu. He notes there was no evidence that he and Rodriguez “purposefully set

out together to the location with the intent of finding and killing Kofu, a member of a

rival gang, or anyone.” He also argues that “ ‘sacala,’ ” which J.V. heard him say to

Rodriguez after he got out of his car and challenged Kofu to a fight, means “ ‘get it out,’

70 ” but does not mean, “ ‘Get it out and shoot.’ ” He concedes that his telling Rodriguez to

“ ‘get it out’ ” supports a reasonable inference that he wanted Rodriguez to brandish his

shotgun at Kofu, in order to instill fear in Kofu and to stop his confrontation with Kofu.

He claims, however, that his use of the word “ ‘sacala’ ” does not support a reasonable

inference that he directed Rodriguez to shoot and kill Kofu, and that he did so with

premeditation and deliberation.

Although we agree with Nunez that there was no evidence that Nunez and

Rodriguez premeditated and deliberated the shooting and killing of Kofu before Nunez

began arguing with Kofu, Nunez’s jury reasonably could have inferred that Nunez

intended for Rodriguez to shoot and kill Kofu, and that Nunez did so with premeditation

and deliberation, when Nunez told Rodriguez, “sacala,” meaning, in context, to get out

his shotgun. This inference is supported by the entire record, including the gang

evidence, Nunez’s status as an associate of the EMF gang, Nunez’s knowledge that

Rodriguez was an EMF gang member and was armed at the time of the shooting, and

Nunez’s actions and statements before and at the time of the shooting.

As the People point out, Nunez had family in El Monte and in the EMF gang. He

was an EMF gang associate. As such, he had reason to know about the EMF gang’s

values, and that respect was one of the EMF gang’s essential principles. Claiming a

neighborhood was an important way for a gang member to maintain respect. EMF gang

members carried firearms and were expected to use them to fend off rivals. EMF gang

members exhibited “particular discontent” and hatred toward African-Americans, and

EMF gang members would target and confront African-Americans. Kofu was a member

71 of an African-American-affiliated gang known as “the Bloods,” and Kofu routinely wore

a red bandana to signify his gang affiliation. Before the shooting, Nunez had “drama”

and “beef” with Kofu, and Nunez had “been trying to fight” Kofu.

In this context, Nunez’s actions and statements at the time of the shooting show

that, with premeditation and deliberation, he intended and directed Rodriguez to shoot

and kill Kofu. Nunez was driving by Kofu’s house with Rodriguez, an EMF gang

member, as his passenger, knowing Rodriguez was armed. After Kofu yelled at the two

of them to pick up beer bottles they had thrown from Nunez’s car, Nunez began arguing

with Kofu, stopped his car, got out, continued arguing with Kofu, and challenged Kofu to

a fight.16 At some point, Nunez aggressively told Kofu, “I’m not going to pick that

mother fucking shit up.” And, after Nunez got out of his car, J.V. saw that Nunez

appeared to be “challenging [Kofu] to a fight.” Then, after Nunez and Kofu had put up

their fists and Kofu began to approach Nunez, Nunez yelled to Rodriguez, “ ‘Sacala

huey,’ ” or “ ‘Get it out.’ ” Rodriguez then got out of the car and shot Kofu.

The 911 caller reported hearing one shot, then someone began yelling, “ ‘No, no,

I’m sorry, I’m sorry.’ ” Another person then said, “ ‘I told you not to fuck with me.’ ”

After that statement, the 911 caller heard two more shots. Although the People claim

16 The evidence showed that Nunez could have driven away from Kofu, but that Nunez instead chose to get out of his car and engage in an altercation with Kofu, with whom he had a prior “beef” and disliked. When asked multiple times during his police interview why he got out of his car instead of driving away, Nunez gave weak and inconsistent answers that the members of his jury reasonably could have discredited. Nunez claimed he had to stop his car because other cars were passing him in both directions, and because Kofu was threating him. He said he intended to “run” after he got out of his car, and that he did want to get out of his car.

72 it was never “conclusively established” who made the statements reported by the 911

caller, the evidence supports a reasonable inference that Kofu was the one who was

saying, “ ‘No, no, I’m sorry, I’m sorry,’ ” after he was shot the first time, and that Nunez

was the person who then said to Kofu, “ ‘I told you not to fuck with me.’ ” During his

police interview, J.V. told Detective Ferreira that J.V. heard Nunez say, “ ‘I told you not

to fuck with me.’ ” It also made sense that Kofu was the one who was apologizing and

begging for his life because he had just been shot in his leg, and Rodriguez still had the

gun.

In the context of the entire record, including the gang evidence, Nunez’s statement

to Kofu, “I told you not to fuck with me,” strongly indicated that Nunez knew and

intended that Rodriguez would shoot and kill Kofu when Nunez told Rodriguez to “get it

out” meaning get his gun out. The record also supported a reasonable inference that

Nunez carefully weighed the considerations for and against his choice of telling

Rodriguez to get his gun out and, knowing that Rodriguez would use the gun to shoot and

kill Kofu, directed Rodriguez to get his gun out. Indeed, almost immediately after Nunez

told Kofu, “ ‘I told you not to fuck with me,’ ” Rodriguez fired two more shots into

Kofu’s legs, killing him.

Nunez’s actions following the shooting were also consistent with the actions of a

person who had just willfully and with premeditation and deliberation, directed an EMF

gang member to shoot and kill a rival gang member. If Nunez had not shared

Rodriguez’s premeditated and deliberate intent to shoot and kill Kofu, Nunez might have

asked Rodriguez why he shot Kofu. Additionally, Nunez could have run away on foot or

73 sped away in his car before Rodriguez got back into his car. Instead, Nunez got in his car

and encouraged Rodriguez to “ ‘Hurry up. Get in fool. Get in. Let’s go.’ ” Rodriguez

was acting “nonchalant[ly]” and “taking a little bit of time to get into the car.” Thus,

Nunez could have separated himself from Rodriguez, but chose not to do so and

encouraged Rodriguez to get in his car. Then, after they drove away from the scene of

the shooting, Nunez drove Rodriguez to several different places, including the mall and a

gas station. Nunez also did not report the shooting to authorities, even after he was

outside of Rodriguez’s presence. Based on all of the evidence before it, Nunez’s jury

reasonably could have inferred that Nunez intended for Rodriguez to shoot and kill Kofu,

and that Nunez did so with premeditation and deliberation.

H. Neither the Instructions Nor the Prosecutor’s Arguments Allowed Nunez To Be

Convicted of First Degree Premeditated Murder Based on an Invalid Ground

Nunez’s jury was instructed on second degree murder pursuant to CALCRIM

No. 403. Nunez claims that this instruction, coupled with the prosecutor’s arguments, did

not adequately inform Nunez’s jury that it could not convict Nunez of first degree

premeditated murder based on an invalid legal theory—that is, based on a natural and

probable consequences theory, or based on Rodriguez’s willfulness, deliberation, and

74 premeditation, rather than on Nunez’s mental state.17

We find no merit to these claims. As we explain, the entire record shows there is

no reasonable likelihood that Nunez’s jury misconstrued the court’s instructions,

including CALCRIM No. 403, or the prosecutor’s arguments, as erroneously allowing it

to convict Nunez of first degree premeditated murder based on a legally invalid ground.

As noted, under our Supreme Court’s 2014 decision in Chiu, an aider and abettor

cannot be liable for first degree premeditated murder based on a natural and probable

consequences theory; instead, aider and abettor liability for premeditated murder “must

be based on direct aiding and abetting principles.” (Chiu, supra, 59 Cal.4th at pp. 158-

159.) In keeping with Chiu, Nunez’s jury was instructed on first degree premeditated

murder pursuant to CALCRIM No. 521, which stated that Nunez was guilty of first

17 The People argue that Nunez has forfeited his claims that CALCRIM No. 403 was subject to an erroneous interpretation by Nunez’s jury, and that the prosecutor’s argument compounded the error because Nunez’s counsel did not object to either the instruction or to the prosecutor’s argument in the trial court. We agree. Although claims that an instruction incorrectly states the law do not require an objection because all such claims are treated as affecting the defendant’s substantial rights, the distinct claim that an otherwise correct instruction was insufficiently clear is forfeited unless a modifying or clarifying instruction was requested. (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11; § 1259.) Nunez challenges CALCRIM No. 403, not on the ground that it incorrectly stated the law, but on the ground that it was insufficiently clear. Thus, Nunez has forfeited this claim by failing to request a modifying or clarifying instruction. Likewise, claims of prosecutorial error during closing argument are forfeited on appeal unless a timely and specific objection to the argument, together with a request that the jury be admonished to disregard it, was made below. (People v. Seumanu (2015) 61 Cal.4th 1293, 1339-1342.) Because Nunez did not object to the prosecutor’s argument of which he now complains, he has forfeited this claim. Despite the forfeitures, we find no merit to the claims.

75 degree premeditated murder if the People have proved that Nunez “acted willfully,

deliberately, and with premeditation as an aider and abettor.”

CALCRIM No. 521 further stated that “[t]he requirements for second degree

murder based on express or implied malice and/or the natural and probable consequence

theory are explained in CALCRIM No. 520. First or Second degree murder with malice

aforethought in CALCRIM No. 403. The People have the burden of proving beyond a

reasonable doubt that the killing was first degree murder rather than a lesser crime. . . .”

CALCRIM No. 520 defined the elements of murder, including express and implied

malice, and instructed that if the jury decided that Nunez committed murder, it was

second degree murder unless the People proved it was first degree murder, as defined in

CALCRIM No. 521.

CALCRIM No. 403 stated that Nunez was guilty of second degree murder if the

People proved: (1) Nunez was guilty of either one of two nontarget crimes, challenging a

person to fight in public (§ 415, subd. (a)), or aiding and abetting in brandishing a firearm

(§ 417, subd. (a)(2); (2) during the commission of either nontarget crime, a coparticipant

committed murder; and (3) under all of the circumstances, a reasonable person in

Nunez’s position would have known that murder was a natural and probable consequence

of the commission of either nontarget crime.

During his closing argument before Nunez’s jury, the prosecutor, while discussing

murder and Nunez’s “level of guilt” stated, “There’s first, which under this theory, I

would have to show you willful, deliberate, premeditated. There’s second degree murder,

which is going to be based on this theory. Remember these words. The hardest

76 instruction; the one we had to change yesterday when we were reading them, ‘natural and

probable consequences.’ I’m going to go through it. It’s going to take time.” Next, the

prosecutor briefly referred to the instructions on manslaughter and justifiable homicide

based on self-defense, and told the jury that it could consider the instructions in any order

it chose. (See CALCRIM No. 640.)

The prosecutor then offered the following “suggestion” as to how the jury might

consider the instructions in determining Nunez’s “level of guilt”: “Second degree

murder, sort of a default position for murder. Right. And then there’s ways to ratchet it

up to first degree murder, which is like willful, deliberate, premeditated. And there’s

ways to go down from a murder to a manslaughter, which is heat of passion or self-

defense. So maybe start at second degree murder in terms of looking at the instructions.

See whether or not I’ve met that. And if it isn’t second degree murder, you know that if

it’s not, you’re going downward to see which crime it is. Maybe lesser. If its’ possibly

more, you look upward. That’s just a suggestion. I always suggest that. You can

deliberate however you want. That’s your decision.”

The prosecutor next discussed the elements of murder (CALCRIM No. 520), and

argued that the evidence showed that Nunez was guilty of first degree premeditated

murder. The prosecutor later stated, “So how do we determine what the intent was in this

incident? Here, going back to first degree murder. Okay. I told you I’m going to go

through all these elements. I told you ratch[eting] it up to a second, which I told you we

proved minus self-defense, that’s coming. I ratche[t] it up to a first because of willful,

deliberate, and premeditated.”

77 2. Applicable Legal Principles and Analysis

When, as here, a defendant claims that an instruction was subject to an erroneous

interpretation by the jury, the defendant must demonstrate a reasonable likelihood that the

jury interpreted the instruction in the way the defendant claims. (People v. Cross (2008)

45 Cal.4th 58, 67-68.) In addressing a claim of jury misinstruction, we assess the

instructions as a whole, viewing the challenged instruction in context with the other

instructions, to determine if there was a reasonable likelihood that the jury construed or

applied the challenged instruction in an impermissible manner. (People v. Jennings

(2010) 50 Cal.4th 616, 677.) Likewise, when a claim of prosecutorial error is based on

the prosecutor’s argument, we determine whether there is a reasonable likelihood that the

jury construed or applied any of the prosecutor’s remarks in an objectionable fashion.

(People v. Morales, supra, 25 Cal.4th at p. 44.)

Nunez claims that CALCRIM No. 403, the instruction on second degree murder

based on natural and probable consequences doctrine, did not “make it clear” that

Nunez’s jury “could not do as the prosecutor suggested: first, find second degree murder

. . . then ‘ratchet it up’ to first degree murder if the jurors found Nunez acted

‘deliberately’ by stopping his car, getting out, challenging the victim to fight, and telling

Rodriguez to ‘Get it out.’ ” This argument is unavailing for two reasons: (1) the

instructions as a whole prohibited Nunez’s jury from convicting him of first degree

premeditated murder based on a natural and probable consequences theory, or based on

Rodriguez’s rather than on Nunez’s willfulness, deliberation, and premeditation; and (2)

Nunez misconstrues the prosecutor’s arguments.

78 We begin with the instructions. CALCRIM No. 403 concerned liability for second

degree murder, not first degree premeditated murder, and accurately stated the applicable

law for second degree murder. CALCRIM No. 403 made it clear that the natural and

probable consequences doctrine applied only to second degree murder, not to first degree

premeditated murder.

Additionally, CALCRIM No. 521, the instruction on first degree premeditated

murder, and the instructions on aiding and abetting (CALCRIM Nos. 400, 401), correctly

informed the jury that, in order to convict Nunez as an aider and abettor to the first degree

premeditated murder of Kofu, Nunez’s jury had to find that (1) Nunez, knowing that

Rodriguez intended to shoot and kill Kofu, aided, facilitated, promoted, encouraged, or

instigated Rodriguez to shoot and kill Kofu, and that (2) Nunez did so with willfulness,

premeditation, and deliberation. CALCRIM No. 521 also told the jury that the People

had the burden of proving beyond a reasonable doubt that the killing of Kofu was first

degree murder rather than a lesser crime. Likewise, CALCRIM No. 520, which defined

the elements of murder, told the jury that, if it found Nunez guilty of murder, it was

“murder of the second degree, unless the People have proved beyond a reasonable doubt

that it is murder of the first degree as defined in CALCRIM No. 521.” Thus, the

instructions as a whole prohibited Nunez’s jury from convicting Nunez of first degree

premeditated murder based on a natural and probable consequences theory, or based on

Rodriguez’s rather than on Nunez’s state of mind.

Regarding the prosecutor’s arguments, the prosecutor did not suggest that Nunez’s

jury could find Nunez guilty of second degree murder based on a natural and probable

79 consequences theory and, without more, simply “ratchet it up” to first degree

premeditated murder. Rather, the prosecutor made it clear to the jury that it could

“ratchet” it up to first degree murder only if it found that Nunez acted with willfulness,

deliberation, and premeditation when he aided and abetted Rodriguez in committing the

murder.

Nor did the prosecutor suggest that Nunez was guilty of first degree premeditated

murder if the jury found that Rodriguez, but not Nunez, acted with willfulness,

deliberation, and premeditation. Nunez claims the prosecutor misleadingly suggested

that Nunez acted with deliberation when Nunez stopped his car, got out, and told

Rodriguez to “ ‘Get it out.’ ” To be sure, the prosecutor stated, “And how do we know . .

. Mr. Nunez aided and abetted Mr. Rodriguez? Well, he’s the one [who] told Mr.

Rodriguez to get it out. There’s no gun involved in this case until Mr. Nunez tells him,

‘Get it out.’ So it’s deliberate.”

But immediately thereafter, the prosecutor read part of CALCRIM No. 521 to the

jury and discussed, in some detail, the evidence that Nunez acted with deliberation:

“Defendant acted deliberately if he carefully weighed considerations for and against his

choice and knowing the consequences, intended to kill.” The prosecutor told the jury to

“keep the facts in mind” in determining whether Nunez deliberated “what he did,” and

urged the jury to focus on what Nunez knew, and the choices that Nunez had available to

him, when he told Rodriguez to “ ‘Get it out.’ ” He noted that Nunez started the fight

with Kofu, and that Nunez could have backed down from the fight, gotten back in his car,

and driven away, but that Nunez instead told Rodriguez to “ ‘Get it out.’ ” The argument

80 properly suggested that when Nunez told Rodriguez to “ ‘Get it out,’ ” Nunez knew that

Rodriguez would “get out” his shotgun and use it to shoot and kill Kofu.

The argument was proper, and there is no reasonable likelihood that Nunez’s jury

misconstrued it as allowing the jury to convict Nunez of first degree premeditated

murder, without finding that Nunez deliberated the choices for and against telling

Rodriguez to “get it out,” or to shoot and kill Kofu, before Nunez did so.

In a similar vein, Nunez claims the prosecutor “repeatedly argued” that Nunez’s

premeditation was shown by “acts of the shooter,” that is, by acts of Rodriguez. This

claim also misconstrues the prosecutor’s argument, particularly his discussion of

premeditation. After discussing deliberation, the prosecutor turned to premeditation,

telling the jury, in reference to CALCRIM NO. 521, that “[a]ll it says is decided to kill

before completing the acts which caused death.”

Next, the prosecutor pointed out that the fatal gunshot wounds to Kofu’s legs were

the acts that caused death, and asked, “So did he [Nunez] decide to kill before the acts

that caused death?” The prosecutor then argued that, regardless of whether Nunez or

Rodriguez said, “ ‘I told you not to fuck with me,’ ” after the first shot was fired, the

statement showed that the murder was considered before the statement was made. The

prosecutor said it was up to the jury to decide who made the statement, but after the

statement was made, Nunez waited for Rodriguez to get back into his car, and helped

Rodriguez “flee to gang territory, even helping pump the gas on the way there. It’s

willful, deliberate, and premeditated.”

81 This part of the prosecutor’s argument merely urged the jury to infer that Nunez’s

statements and actions before, during, and after the shooting showed that Nunez aided

and abetted Rodriguez in committing the shooting with Nunez’s own willfulness,

deliberation, and premeditation. There is no reasonable likelihood that anything about

the prosecutor’s discussion of premeditation misled the jury to convict Nunez of first

degree premeditated murder based on a finding Rodriguez, but not Nunez, acted with

willfulness, deliberation, and premeditation.

Lastly, Nunez points out that, while discussing jury instructions with counsel, the

trial court said it intended to modify CALCRIM No. 521 to clarify, as Nunez puts it, “the

intent and deliberation required of an aider and abettor” to first degree premeditated

murder, but the clarifying language did not “make its way” into the instruction given to

Nunez’s jury. Indeed, the court said it would modify the pattern instruction, CALCRIM

No. 521, to state that defendant Nunez acted willfully if he, “along with the perpetrator,”

Rodriguez, intended to kill, and to further state defendant Nunez acted deliberately if he,

“along with the perpetrator,” Rodriguez, carefully weighed the considerations for and

against his choice, and, knowing the consequences, “intended to kill.”

These modifications were not made to the version of CALCRIM No 521 that was

given to Nunez’s jury. But the modifications were unnecessary because the instructions

on murder, and on aiding and abetting (CALCRIM Nos. 400, 401, 403, 521), prohibited

Nunez’s jury from convicting Nunez of first degree premeditated murder unless it found

that Nunez acted willfully, deliberately, and with premeditation in aiding and abetting

Rodriguez in committing the murder of Kofu.

82 Thus, we find no merit to Nunez’s contention that the instructions, coupled with

the prosecutor’s argument, permitted Nunez’s jury to convict Nunez of first degree

premeditated murder based on an invalid legal theory—that is, based on a natural and

probable consequences theory, or based on Rodriguez’s willfulness, deliberation, and

premeditation, rather than on Nunez’s mental state.

I. Nunez Is Not Entitled to Have His First Degree Premeditated Murder Conviction

Reversed Based on Senate Bill No. 1437

On September 1, 2018, the Governor signed Senate Bill No. 1437 (Senate Bill

1437) into law, effective January 1, 2019. (People v. Martinez (2019) 31 Cal.App.5th

719, 722.) The bill was enacted to “amend the felony murder rule and the natural and

probable consequences doctrine, as it relates to murder, to ensure that murder liability is

not imposed on a person who is not the actual killer, did not act with the intent to kill, or

was not a major participant in the underlying felony who acted with reckless indifference

to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)

Senate Bill 1437 amended section 188, which defines malice, amended section

189, which defines the degrees of murder, and added section 1170.95 to the Penal Code.

(Stats. 2018, ch. 1015, §§ 2, 3, 4; People v. Lombardo (2020) 54 Cal.App.5th 553, 556.)

The amendments to sections 188 and 189 eliminated liability for second degree murder

under the natural and probable consequences doctrine. (Lombardo, at p. 556.) Subject to

exceptions not applicable here, the amendments to sections 188 and 189 require that a

principal in a crime must act with malice in order to be convicted of murder. (Ibid.)

Section 1170.95 permits persons convicted of felony murder, or murder under a

83 natural and probable consequences theory, to petition the sentencing court to vacate the

murder conviction and be sentenced on any remaining counts, where: “(1) A complaint,

information, or indictment was filed against the petitioner that allowed the prosecution to

proceed under a theory of felony murder or murder under the natural and probable

consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second

degree murder following a trial or accepted a plea offer in lieu of a trial at which the

petitioner could be convicted for first degree or second degree murder. [¶] (3) The

petitioner could not be convicted of first or second degree murder because of changes to

Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3); People

v. Martinez, supra, 31 Cal.App.5th at p. 723.)

Nunez claims that, under the Estrada18 rule, Senate Bill 1437 applies retroactively

to all judgments of conviction and sentence that, like his, were not final on appeal when

the legislation became effective on January 1, 2019. He claims the bill entitles him to

reversal of his first degree premeditated murder conviction on this direct appeal from the

judgment because the record does not demonstrate beyond a reasonable doubt that his

jury relied on a legally valid theory to convict him of first degree premeditate murder,

rather than on a legally invalid natural and probable consequences theory. This claim is

unavailing for at least two reasons.

First, and for the reasons explained, the instructions to Nunez’s jury prohibited it

from convicting Nunez of the first degree premeditated murder of Kofu based on a

18 In re Estrada (1965) 63 Cal.2d 740 (Estrada).

84 natural and probable consequences theory. Instead, the instructions only allowed Nunez

to be convicted of first degree premeditated murder as a direct aider and abettor to

Rodriguez. (See CALCRIM No. 521.) Thus, the record shows beyond a reasonable

doubt that Nunez was not convicted of first degree premeditated murder based on a

natural and probable consequences theory.

Second, and even if Nunez could show entitlement to relief from his first degree

premeditated murder conviction in this direct appeal from the judgment of conviction,

since the parties filed their respective briefs in this appeal, our Supreme Court has held

that “the ameliorative provisions of Senate Bill 1437 do not apply on direct appeal to

nonfinal convictions obtained before the law became effective. Such convictions may be

challenged on Senate Bill 1437 grounds only through a petition filed in the sentencing

court under section 1170.95.” (Gentile, supra, 10 Cal.5th at pp. 851-859.) Thus,

Nunez’s sole remedy for relief under Senate Bill 1437 is to petition the sentencing court

to vacate his first degree premeditated murder conviction under section 1170.95. (Id. at

pp. 852, 859.) We express no view on the merits of such a petition.

J. Substantial Evidence Supports the Primary Activities Element of the Gang

Enhancements on Nunez’s Murder Conviction (§ 186.22, subds. (e), (f).)

Nunez claims insufficient evidence supports the gang enhancement on his murder

conviction, and the enhancement must be reversed because the prosecution failed to

adduce substantial evidence of the primary activities of the EMF gang. (§ 186.22, subds.

(e), (f).) We find no merit to this claim.

85 1. Background

When Detective Lopez testified before Nunez’s jury, the prosecutor asked him to

describe the primary activities of the EMF gang. The detective responded: “The

membership is involved in a variety of crimes, but the more common crimes that we

investigate are robberies, carjackings, assaults with deadly weapons, drug dealing, . . .

illegal weapon possession, car burglaries, [and] residential burglaries. Those are just

some of the various crimes they commit.” The detective further testified that the EMF

gang had been involved in “shootings” and “murders.”

Based on certified court documents, the detective also testified that certain EMF

gang members had committed six predicate offenses: (1) an August 2015 murder;

(2) unlawful firearm possession in October 2015; (3) vehicle theft and unlawful firearm

possession in October 2016; (4) attempted carjacking in January 2017; (5) vehicle theft in

February 2017; and (6) vehicle theft in January 2010.

2. Applicable Legal Principles

Section 186.22 provides for sentencing enhancements on felonies committed “for

the benefit of, at the direction of, or in association with any criminal street gang.”

(§ 186.22, subd. (b)(1).) A “criminal street gang” means “any ongoing organization,

association, or group of three or more persons, whether formal or informal, having as one

of its primary activities the commission of one or more of the criminal acts enumerated in

paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a

common name or common identifying symbol, and whose members individually or

86 collectively engage in, or have engaged in, a pattern of criminal gang activity.” (Id. at

subd. (f).)

Thus, the “criminal street gang” component of a gang enhancement requires proof

of three essential elements: “(1) that there be an ‘ongoing’ association involving three or

more participants, having a ‘common name or common identifying sign or symbol’;

(2) that the group has as one of its ‘primary activities’ the commission of one or more

specified crimes; and (3) the group’s members either separately or as a group ‘have

engaged in a pattern of criminal gang activity.’ ” (People v. Vy (2004) 122 Cal.App.4th

1209, 1222.)

“The phrase ‘primary activities,’ as used in the gang statute, implies that the

commission of one or more of the statutorily enumerated crimes is one of the group’s

‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude

the occasional commission of those crimes by the group’s members.” (People v.

Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) “[E]vidence of either past

or present criminal acts listed in subdivision (e) of section 186.22 is admissible to

establish the statutorily required primary activities of the alleged criminal street gang.”

(Ibid.)

Sengpadychith offered two examples of evidence that might be sufficient to prove

the primary activities element: “Sufficient proof of the gang’s primary activities might

consist of evidence that the group’s members consistently and repeatedly have committed

criminal activity listed in the gang statute.” (Sengpadychith, supra, 26 Cal.4th at p. 324.)

Sufficient proof might also consist of expert testimony that the gang was primarily

87 engaged in one or more statutorily enumerated offenses—based on the conversations the

expert had had with the gang’s members, the expert’s personal investigations of crimes

committed by the gang’s members, or information from other law enforcement personnel

and agencies. (Ibid.)

In considering a sufficiency of the evidence claim, our task is to review the record

in the light most favorable to the judgment to determine whether it contains evidence that

is reasonable, credible, and of solid value—substantial evidence—such that a rational

trier of fact could have found the defendant guilty of the crime beyond a reasonable

doubt. (Johnson, supra, 26 Cal.3d at p. 578.) This standard of review also applies to

claims that insufficient evidence supports a gang enhancement. (See People v. Duran

(2002) 97 Cal.App.4th 1448, 1464-1465.)

Nunez claims that Detective Lopez’s testimony was “too vague and conclusory” to

qualify as sufficient evidence that one or more of the EMF gang’s “primary activities”

was the commission of one or more of the criminal acts enumerated in section 186.22,

subdivision (e), paragraphs (1) to (25), or (31) to (33). We disagree.

At the outset, we consider the context of Detective Lopez’s response. The

detective’s answer came in response to a question about the EMF gang’s primary

activities. The detective noted that the gang was involved in a “variety of crimes,” but in

response to the question, only addressed the gang’s more “common crimes.” There is a

reasonable inference that, by not addressing the gang’s entire variety of crimes, the

detective was addressing the gang’s primary activities, as opposed to all of its activities.

88 More specifically, when asked to described “the primary activities” of the EMF

gang, the detective responded: “The membership is involved in a variety of crimes, but

the more common crimes that we investigate are robberies, carjackings, assaults with

deadly weapons, drug dealing, . . . illegal weapon possessions, car burglaries, [and]

residential burglaries. Those are just some of the various crimes they commit.” At least

five of the crimes that the detective mentioned—assaults with deadly weapons, robbery,

burglary, carjacking, and unlawful firearm possession—are enumerated offenses.

(§ 186.22, subd. (e)(1), (2), (11), (21), (31).)

Although the detective did not expressly state that the commission of one or more

of these five enumerated offenses was the EMF gang’s “ ‘chief’ ” or “ ‘principal’ ”

occupation (People v. Sengpadychith, supra, 26 Cal.4th at p. 323), the detective clearly

implied that the EMF gang consistently and repeatedly committed these crimes when he

said that the crimes he listed were among “the more common crimes” that the EMF

gang’s members committed, and that he and other law enforcement officers investigated.

Thus, the detective also clearly implied that he knew, from his own personal experience,

that the gang consistently and repeatedly engaged in the commission of these enumerated

offenses. His testimony thus sufficiently showed that the EMF gang’s primary activities

included the commission of one or more enumerated offenses. (§ 186.22, subds. (e), (f).)

Nunez compares Detective Lopez’s testimony to the expert gang testimony that

was held insufficient to support the primary activities element in In re Alexander L.

(2007) 149 Cal.App.4th 605 (Alexander L.). There, when asked about the gang’s primary

activities, the gang expert replied: “ ‘I know they’ve committed quite a few assaults with

89 a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know

they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic

violations.’ ” (Id. at p. 611.) Alexander L. reasoned that this expert testimony was

insufficient to support the primary activities element because it lacked an adequate

foundation. (Id. at p. 612.) The court explained that expert testimony must “be based on

matter that is reasonably relied upon by an expert in forming an opinion on the subject to

which his or her testimony relates” and “any material that forms the basis of an expert’s

opinion testimony must be reliable.” (Ibid.) The court could not determine whether the

basis of the expert’s testimony was reliable, because “information establishing reliability

was never elicited from [the expert] at trial. It is impossible to tell whether [the expert’s]

claimed knowledge of the gang’s activities might have been based on highly reliable

sources, such as court records of convictions, or entirely unreliable hearsay.” (Ibid.)

In contrast, Detective Lopez’s testimony was based on reliable sources. The

detective clearly indicated that his knowledge that the EMF gang’s primary activities,

including its members’ commission of at least five enumerated offenses, was based on his

and other officers’ investigations of EMF gang members’ commissions of the same and

similar offenses. The detective regularly spoke with and read the reports of other officers

about their gang crime investigations; he had shared “information, intelligence, and

current crime trends on various gangs” with other detectives; and he had also spoken with

victims and family members of gang members to learn information about the gang. The

“vast majority” of his gang experience was with EMF gang members. Thus, in contrast

to the expert testimony in Alexander L., the detective’s opinion that the EMF gang’s

90 primary activities consisted of the consistent and repeated commission of several

statutorily enumerated offenses did not lack a reliable basis or a sufficient foundation.

K. Detective Lopez’s Testimony Concerning What Was Reasonably Foreseeable to a

Person in Nunez’s Position Was Harmless Beyond a Reasonable Doubt

Nunez claims the trial court prejudicially erred in instructing Nunez’s jurors that it

was for the jurors to decide, based on a hypothetical scenario posed to Detective Lopez

which tracked the circumstances of the shooting, whether it was reasonably foreseeable

that a murder would result. Nunez claims the court’s instruction “improperly invoked the

natural and probable consequences theory of liability for murder, which no longer

supports first or second degree murder verdicts.” (Chiu, supra, 59 Cal.4th at pp. 166-167

[natural and probable consequences doctrine does not support first degree murder

convictions]; Senate Bill 1437 (2017-1028 Reg. Sess.) [amending §§ 188 and 189 to limit

liability for first and second degree murder to persons who act with express or implied

malice].) We find no merit to this claim.

(a) Detective Lopez’s disputed testimony before Nunez’s jury

When Detective Lopez testified before Nunez’s jury, the prosecutor posed a

hypothetical scenario that tracked the circumstances of the shooting: an EMF gang

member was armed with a shot-gun while a passenger in a car, an EMF associate was

driving the car, an African-American rival gang member told the associate to pick up

trash that had been thrown from their car, and the EMF associate argued with the rival

gang member, and challenged him to a fist fight. In this scenario, the detective agreed it

91 was “reasonably foreseeable that when this challenge to fight is taking place, [the] armed

[EMF] member . . . might use [the] shotgun in order to make sure that the associate . . .

[did not] lose [the] fight and the respect of [EMF].” The detective explained that using

the shotgun would be a way of “demonstrating” the “dominance” of the EMF gang, and

that the EMF gang member would be expected to “confront that threat [from the rival

gang member] and show dominance.”

In response to further questions, the detective agreed that, if the EMF associate

“start[ed] backing off” from the fight, and the associate then used the phrase, “ ‘Get it

out,’ ” it was reasonably foreseeable that the EMF gang member, the passenger in the

associate’s car, might use the shotgun to shoot and kill the rival gang member.

Specifically, when the prosecutor asked the detective: “Is it reasonably foreseeable to a

person who’s an associate in this gang when they get out in that challenge to fight that

this could end up in a loss of life such as a homicide?,” Nunez’s counsel objected that the

question called for “speculation.” (Italics added.) The court overruled the objection.

The detective was then asked, and also agreed, that when the gang associate challenged

the rival gang member to a fight, it could have “end[ed] up in a loss of a life such as a

homicide.” (Italics added.)

(b) The court strikes the detective’s testimony concerning what was

reasonably foreseeable

At the close of the prosecution’s case, Nunez moved to dismiss the first degree

murder charge, in part on the ground that there was no evidence that Nunez acted

willfully, or with the intent to kill, and with premeditation and deliberation, at the time of

92 the shooting, when Nunez simply told Rodriguez to “ ‘Get it out.’ ” Nunez’s counsel

emphasized that Nunez did not say, “ ‘take it out and shoot.’ ” Nunez’s counsel also

noted, that, “If the DA’s going [to rely] on the natural and probable consequence

doctrine, that can’t go to first degree; it would have to go to second degree,” citing

CALCRIM No. 403 and Chiu, supra, 59 Cal. 4th 155.

The court responded that it had modified CALCRIM No. 403 to provide that, if

Nunez’s jurors decided that Nunez did certain things that led to Kofu’s death under the

natural and probable consequence doctrine, then the jurors could only convict Nunez of

second degree murder, not first degree murder. The prosecutor then argued that ample

evidence supported a first degree murder verdict against Nunez based on a direct aiding

and abetting theory. The court denied Nunez’s motion.

Thereafter, the court told the prosecutor and Nunez’s counsel that it had made a

mistake in denying Nunez’s counsel’s objections to Detective Lopez’s expert opinion

testimony about what was reasonably foreseeable. The court noted that it had sent the

prosecutor and counsel an e-mail, expressing its concern that two of the prosecutor’s

questions to which Nunez’s counsel objected on speculation grounds, though they did not

call for speculation, called for legal conclusions that invaded the province of the jury.

The questions the court believed called for legal conclusions were: “ ‘Is it

reasonably foreseeable to a person who’s an associate in this gang when they get out in

that challenge to fight that this could end up in a loss of life such as a homicide?’ ” and

“ ‘How about in the loss of a life such as murder?’ ” The detective’s responses were “

‘very well could’ ” and “ ‘yes.’ ”

93 The prosecutor argued that the detective’s opinion testimony about what was reasonably

foreseeable in the hypothetical scenario posed was proper under People v. Vang (2011)

52 Cal.4th 1038 and Evidence Code section 805. Citing People v. Medina (2009) 46

Cal.4th 913, Nunez’s counsel argued that the challenged questions called for factual

conclusions to be resolved by the jury, and the court agreed. The court reasoned that it

was for the jury to decide “factually what’s a reasonably foreseeable situation, not for the

gang expert to testify to that.”

The court later addressed Nunez’s jurors and told them that the court was striking

Detective’s Lopez opinion testimony concerning what was reasonably foreseeable.

Specifically, the court explained that it was striking the detective’s two affirmative

responses to the prosecutor’s two questions—the detective’s testimony that it was

reasonably foreseeable, in the hypothetical scenario posed, that an EMF gang member

might use a gun, resulting in a loss of life or a murder. The court told the members of

Nunez’s jury that it was for them to decide “what [was] reasonably foreseeable based on

the facts” and the court’s instructions.

Although he did not raise the objection below, Nunez now claims that the court’s

order striking the detective’s testimony concerning what was reasonably foreseeable to a

person in Nunez’s position, a gang associate who backed off from a fight and told a

companion gang member to “get out” a gun, “did not cure the erroneous admission of the

evidence.” He notes that his jury heard the testimony on August 30, 2018, but the

testimony was not stricken until September 4, giving his jury “six days to process the

94 information before learning they should not consider it.” This, he argues, was too late to

“unring the bell.” (See People v. Hill (1998) 17 Cal.4th 800, 845 [“constant and

outrageous” prosecutorial misconduct was difficult for jury to disregard and made it

difficult for jury to remain impartial].) He argues that the court’s “admonition to the

jurors that it was up to them to decide what was reasonably foreseeable, [was]

undoubtedly misused by the jurors, given the way the prosecutor argued” that the jury

could “ ‘ratchet up’ ” second degree murder to first degree murder. He points out that an

aider and abettor can only be convicted of first degree murder as a direct aider and

abettor, and not under the natural and probable consequences doctrine. (Chiu, supra, 59

Cal.4th at pp. 166-167.) He further asserts that that Senate Bill 1437 “completely

abolished” all liability for murder under the natural and probable consequences doctrine.

All of these claims concerning Detective Lopez’s stricken testimony about what

was reasonably foreseeable to a person in Nunez’s position are unavailing, even if Nunez

had preserved the claims for appeal. As explained, the record shows beyond a reasonable

doubt that Nunez’s jury convicted him of the first degree premeditated murder of Kofu as

a direct aider and abettor to Rodriguez, and not under a natural and probable

consequences theory. (See Chiu, supra, 59 Cal.4th at pp. 166-167.) Thus, Nunez’s jury

could not have relied on the detective’s stricken testimony about what was reasonably

foreseeable in convicting Nunez of first degree premeditated murder. As also explained,

Nunez’s sole avenue for relief under Senate Bill 1437 is to petition the sentencing court

to vacate his first degree murder conviction under section 1170.95; he is not entitled to

95 any relief under Senate Bill 1437 in this direct appeal from his murder conviction.

(Gentile, supra, 10 Cal.5th at pp. 853, 859.)

L. No Cumulative Error for Either Defendant

Nunez and Rodriguez each claim that the cumulative effect of the trial court’s and

the prosecutor’s errors in their respective cases requires reversal of their respective

murder convictions, even if any of the individual errors were harmless. The cumulative

error doctrine does not apply to either defendant because there are no individual errors in

either defendant’s case. (Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 1053-1054.)

Thus, defendants’ claims of cumulative error lack merit.

IV. DISCUSSION/CLAIMS OF SENTENCING ERROR

A. Remand To Consider Imposing Lesser Firearm Enhancements Is Unwarranted

Defendants claim that their cases must be remanded for resentencing so the court

may exercise its discretion to impose lesser, uncharged firearm enhancements on their

respective murder convictions. When defendants were sentenced in December 2018, the

court imposed firearm enhancements of 25 years to life on their murder convictions,

based on the juries’ findings that a principal, namely, Rodriguez, personally and

intentionally discharged a firearm causing great bodily injury or death in the commission

of the murder. (§ 12022.53, subd. (d).)

“Section 12022.53 provides three different sentence enhancements for the personal

use of a firearm in the commission of enumerated offenses,” including murder: “a 10-

year enhancement for the personal use of a firearm (§ 12022.53, subd. (b)); a 20-year

enhancement for the personal and intentional discharge of a firearm (§ 12022.53,

96 subd. (c)); and a 25-year-to-life enhancement for the personal and intentional discharge

of a firearm causing great bodily injury or death (§ 12022.53, subd. (d).)” (People v.

Yanez (2020) 44 Cal.App.5th 452, 458 (Yanez), review granted April 22, 2020, S260819.)

Effective January 1, 2018, the Legislature enacted Senate Bill No. 620 (2017-2018

Reg. Sess.) (Senate Bill 620), which amended section 12022.53, subdivision (h) (Stats.

2017, ch. 682, § 2), to grant courts discretion to “ ‘strike or dismiss’ ” a firearm

enhancement imposed under section 12022.53 “ ‘in the interest of justice pursuant to

[s]ection 1385.’ ” (People v. Tirado (2019) 38 Cal.App.5th 637, 642 (Tirado), review

granted Nov. 13, 2019, S257658.) Former section 12022.53, subdivision (h) prohibited

courts from striking or dismissing firearm enhancements found true under section

12022.53, “[n]otwithstanding [s]ection 1385 or any other provision of law.” (Stats. 2010,

ch. 711, § 5; Tirado, at p. 642 & fn. 6.)

There is currently a split of authority on the question of whether Senate Bill 620

gives trial courts discretion to strike a greater firearm enhancement found true under

section 12022.53 and impose a lesser included, uncharged firearm enhancement under the

statute, when, as here, no lesser enhancements were pled or found true. “It is undisputed

that if all three enhancements are charged and separately found true, a trial court can

strike the greater enhancement under subdivision (d), reducing the firearm- related term

to 20 years under subdivision (c), or also strike the subdivision (c) enhancement,

reducing the term to 10 years under subdivision (b). (See People v. Wang (2020)

46 Cal.App.5th 1055, 1090-1091 . . . [citation].) But if lesser enhancements are not

charged and found true, Courts of Appeal are split as to whether a trial court may strike a

97 greater enhancement under amended section 12022.53(h) and impose one of the lesser

enhancements instead, and the issue is currently on review in [our] Supreme Court.”

(People v. Delavega (2021) 59 Cal.App.5th 1074, 1084.)

To date, this court has issued two published decisions concluding that Senate

Bill 620 did not authorize courts to strike and dismiss a greater firearm enhancement and

impose a lesser firearm enhancement that was neither pled nor found true: People v.

Valles (2020) 49 Cal.App.5th 156, 166-167 (Valles), review granted July 22, 2020,

S262757, and Yanez, supra, 44 Cal.App.5th at pages 459-460. At least two other

appellate courts have reached the same conclusion: Tirado, supra, 38 Cal.App.5th at

page 644, review granted November 13, 2019, S257658 and People v. Garcia (2020)

46 Cal.App.5th 786, 788-789 (Garcia), review granted June 10, 2020, S261772.

In People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) at pages 221-223,

the court concluded Senate Bill 620 gave courts discretion to strike a section 12022.53,

subdivision (d) enhancement and impose a lesser enhancement under section 12022.53,

subdivisions (b) or (c), even if the lesser enhancements were not pled or found true.

Morrison reasoned that case law had “recognized that the court may impose a ‘lesser

included’ enhancement that was not charged in the information when a greater

enhancement found true by the trier of fact is either legally inapplicable or unsupported

by sufficient evidence.” (Morrison, at p. 222, citing, e.g., People v. Fialho (2014)

229 Cal.App.4th 1389, 1395-1396.) The Morrison court remanded the matter for

resentencing because (1) the record did not indicate whether the court understood it had

discretion to impose a lesser firearm enhancement in lieu of a greater one, and (2) at the

98 time of sentencing, no published decision had determined that the court had this

discretion. (Morrison, at pp. 223-224.)

Relying on Morrison, defendants claim that their cases must be remanded for

resentencing so the court may consider whether to strike their section 1202253,

subdivision (d) enhancements and impose lesser enhancements under section 12022.53

subdivisions (b) or (c). They point out that, at the time they were sentenced in

December 2018, no court had held that an uncharged lesser firearm enhancement could

be imposed in lieu of a greater enhancement under section 12022.53, subdivision (d), in

connection with striking the greater enhancement. (Morrison, supra, 34 Cal.App.5th at

p. 224.)

But in Yanez, this court followed Tirado, not Morrison. (Yanez, supra, 44

Cal.App.5th at p. 459 [“[N]othing in the plain language of sections 1385 or 12022.53,

subdivision (h) suggests an intent to allow a trial court discretion to substitute one

sentencing enhancement for another.”]; see also Valles, supra, 49 Cal.App.5th at pp. 165-

167 (plur. opn. of Ramirez, J.) [similarly concluding that “[t]he express language of

sections 1385 and 12022.53, subdivision (h)” does not “authoriz[e] the substitution of a

lesser enhancement for a greater enhancement, properly found true at trial, and for which

there is no legal impediment to imposition”]; but see Valles, at pp. 170-172 & fn. 1 (conc.

opn. of Menetrez, J.) [finding insufficient basis to depart from this court’s decision in

Yanez, but agreeing with Morrison, noting that Tirado and Yanez “frame[d] the issue

incorrectly by asking whether the amended statute ‘conveys the power to change, modify,

or substitute a charge or enhancement,’ ” and concluding that the correct question is

99 whether the court, “having exercised its power under the amended statute to strike a

greater enhancement,” “still has its previously recognized power to impose an uncharged

lesser” enhancement].) Based on this court’s decision in Yanez, remand for resentencing

on each defendant’s section 12022.53, subdivision (d) firearm enhancement is

unwarranted.

B. The 10-year Term on Each Defendant’s Gang Enhancement On Count 1 Must Be

Stricken and Each Defendant’s Life Sentence Must Be Ordered Subject to a 15-year

MPEP

The court imposed 10-year determinate terms on the gang enhancements on each

defendant’s murder conviction in count 1, and stayed the 10-year term for Nunez but not

for Rodriguez. Each defendant claims that these 10-year terms were unauthorized and

must be stricken, and that this court must instead order that each defendant’s 25-year-to-

life term on count 1 be made subject to a 15-year MPEP. (§ 186.22, subds. (b)(1)(C),

(b)(5).) The People agree, and so do we.

Under section 186.22, if a defendant is convicted of a felony, the punishment for a

gang enhancement on the felony is 10 years, if the felony is a violent felony, defined in

section 667.5, subdivision (c) (§ 186.22, subd. (b)(1)(C)), but if the felony is punishable

by “imprisonment in the state prison for life,” the punishment is to impose an MPEP of

15 years on the life term. (§ 186.22, subd. (b)(5).)

In People v. Lopez (2005) 34 Cal.4th 1002, our Supreme Court held that first

degree murder, which is punishable by “ ‘imprisonment in the state prison for a term of

25 years to life’ ” (§ 190, subd. (a)) is an offense punishable by “imprisonment in the

100 state prison for life,” and is therefore an offense described in section 186.22, subdivision

(b)(5), rather than section 186.22, subdivision (b)(1)(C). (Lopez, at pp. 1006-1011.)

Thus, the 10-year determinate terms imposed on each defendant’s murder

conviction were unauthorized and must be stricken, and the 25-year-to-life terms on

count 1 must instead be ordered subject to 15-year MPEPs. (People v. Valenti (2016)

243 Cal.App.4th 1140, 1173 [unauthorized sentence may be corrected on appeal, despite

failure to object below, and a sentence is unauthorized if “ ‘it could not lawfully be

imposed under any circumstances in the particular case’ ”].)19

C. Any Due Process or Dueñas20 Error in Imposing the Restitution Fines and Fees Were

Harmless Beyond a Reasonable Doubt for Both Defendants

The court ordered each defendant to pay a $300 restitution fine (Pen. Code,

§ 1202.4, subd. (b)) and $70 in court assessments on each of their convictions. (Pen.

Code, § 1465.8 [$40 per-conviction court operations assessment]; Gov Code, § 70373

[$30 per- conviction court facilities assessment].) Thus, in addition to their $300

restitution fines, Rodriguez was ordered to pay a total of $140 in court assessments on his

19 In a separate argument, Rodriguez asks this court to correct clerical errors in his indeterminate and determinate abstracts of judgment concerning the length of his determinate and indeterminate terms. We direct the court on remand to prepare supplemental sentencing minute orders and amended abstracts of judgment for each defendant, reflecting our decision to strike the 10-year terms on the gang enhancements on count 1, and our imposition of 15-year MPEPs on each defendant’s 25- year-to-life terms on count 1. In this way, the existing errors in each defendant’s abstracts of judgment will be corrected on remand.

20 People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)

101 convictions in counts 1 and 2, and Nunez was ordered to pay $70 in court assessments on

his conviction in count 1.

Relying on Dueñas, defendants claim the court violated their due process rights in

imposing the restitution fines and court assessments without first determining that they

had a present ability to pay them. They argue that the execution of their $300 restitution

fines must be stayed, and their per-conviction court assessments vacated, unless and until

the People prove they are able to pay them.

Dueñas was issued in January 2019, after defendants were sentenced in

December 2018. Dueñas held that due process principles require courts to conduct an

ability to pay hearing and to ascertain the defendant’s present ability to pay court

operations and court facilities assessments before the court may impose them. (Dueñas,

supra, 30 Cal.App.5th at p. 1164.) And, in order to avoid an unconstitutional

interpretation of section 1202.4, Dueñas further held that courts must stay the execution

of a restitution fine “until and unless the People demonstrate that the defendant has the

ability to pay the fine.” (Dueñas, at pp. 1169-1172.)

A number of courts have held that Dueñas was wrongly decided. (E.g., People v.

Aviles (2019) 39 Cal.App.5th 1055, 1067-1068; People v. Hicks (2019) 40 Cal.App.5th

320, 322, review granted Nov. 26, 2019, S258946; People v. Kingston (2019)

41Cal.App.5th 272, 279; People v. Adams (2020) 44 Cal.App.5th 828, 831.) Our

Supreme Court is currently reviewing two questions that lie at the heart of Dueñas:

(1) whether the court is required to consider the defendant’s ability pay before it may

impose or execute fines, fees, and assessments; and (2) if, so, whether the defendant or

102 the People bears the burden of proof regarding the defendant’s inability to pay. (People

v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)

Here, it is unnecessary to weigh-in on the question of whether Dueñas was

wrongly decided because any due process or Dueñas error in imposing the restitution fine

and assessments, without determining defendants’ abilities to pay them, was harmless

beyond a reasonable doubt in each defendant’s case. (People v. Jones (2019)

36 Cal.App.5th 1028, 1035; People v. Aviles, supra, 39 Cal.App.5th at p. 1076.)

“ ‘ “Ability to pay does not necessarily require existing employment or cash on

hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a

restitution fine, the court is not limited to considering a defendant’s present ability but

may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the

defendant’s ability to obtain prison wages and to earn money after his release from

custody.’ ” (People v. Aviles, supra, 39 Cal.App.5th at p. 1076, quoting People v.

Hennessey (1995) 37 Cal.App.4th 1830, 1837.) The same reasoning applies to

determining a defendant’s ability to pay court assessments.

The record shows that Nunez will be able to pay the $370 sum, and that Rodriguez

will be able to pay the $440 sum, comprising their respective restitution fines and court

assessments, while serving their respective sentences. Defendants are young and have

job skills. Nunez was born in 1980, and Rodriguez was born in 1986. Although Nunez is

diabetic, he formerly held a manufacturing job and a forklift license. Rodriguez’s health

is good, and he was formerly employed as an electrician. Thus, the record shows that

each defendant will be able to earn prison wages while serving their sentences, and their

103 wages will be sufficient to cover their restitution fines and court assessments. (See

People v. Jones, supra, 36 Cal.App.5th at p. 1035.) Nothing indicates that either

defendant will be unable to earn sufficient wages while in prison to pay their fines and

assessments.

As defendants point out, at sentencing in December 2018, the court found that

neither defendant had a present ability to pay court-appointed counsel fees or the costs of

conducting their presentence investigations. Nunez also observes that he was homeless at

the time of the murder. None of this means, however, that either defendant will be

unable to earn sufficient wages while in prison to pay their respective restitution fines and

104 V. DISPOSITION

The 10-year term imposed for the gang enhancement on each defendant’s first

degree murder conviction in count 1 is hereby stricken, and the 25-year-to-life term

imposed on each defendant for the murder in count 1 is hereby ordered subject to a 15-

year MPEP. (§ 186.22, subd. (b)(5).)

The matter is remanded to the superior court with directions to prepare

supplemental sentencing minute orders and amended abstracts of judgment, reflecting

these modifications to each defendant’s sentence. The court is further directed to

forward certified copies of defendants’ abstracts of judgment to the Department of

Corrections and Rehabilitation. In all other respects, each defendant’s judgment of

conviction and sentence is affirmed.