People v. Cabrera CA2/6 ( 2021 )

Filed 8/31/21 P. v. Cabrera CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B289788
(Super. Ct. No. 2013036313)
Plaintiff and Respondent, (Ventura County)
v.
ALEJANDRO ANTONIO
CABRERA et al.,
Defendants and Appellants.
Christian Rodriguez and Alejandro Antonio Cabrera appeal
from judgments entered after a jury had convicted them of first
degree murder (count 1, victim Lopez) and had convicted
Rodriguez of first degree attempted murder (count 2, victim J.G.).
(Pen. Code, §§ 187, subd. (a); 189, subd. (a); 664, subd. (a).)1 The
jury found true (1) allegations that appellants had discharged
firearms (§ 12022.53, subds. (c), (d), (e)(1)); and (2) special
All statutory references are to the Penal Code unless
1
otherwise stated.
circumstances allegations that they had intentionally killed the
victim to further the activities of a criminal street gang (§ 190.2,
subd. (a)(22)). In addition, the jury found true an allegation that
Rodriguez had personally inflicted great bodily injury upon the
victim of the attempted murder (§ 12022.7, subd. (a)) and had
committed that offense for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).
Sentences
For the murder Rodriguez was sentenced to life without the
possibility of parole plus a consecutive term of 25 years to life for
the firearm enhancement pursuant to section 12022.53,
subdivision (d), plus a consecutive term of 20 years for the
firearm enhancement pursuant to section 12022.53, subdivision
(c). For the attempted murder he was sentenced to a consecutive
term of 15 years to life plus a consecutive term of 25 years to life
for the firearm enhancement pursuant to section 12022.53,
subdivision (d).
Cabrera was not charged with the attempted murder. For
the murder he was sentenced to life without the possibility of
parole plus a consecutive term of 25 years to life for the firearm
enhancement pursuant to section 12022.53, subdivisions (d) and
(e)(1), plus a consecutive term of 20 years for the firearm
enhancement pursuant to section 12022.53, subdivision (c). The
court stated, “So life without the possibility of parole plus 45
years.”
As to both murder convictions, the trial court erred in
imposing a 20-year determinate term for the firearm
enhancement pursuant to section 12022.53, subdivision (c). This
term is in addition to the 25-year-to-life term for the firearm
enhancement imposed for the same crime pursuant to section
2
12022.53, subdivisions (d) and (e)(1). The double punishment
violates section 12022.53, subdivision (f), which provides, “Only
one additional term of imprisonment under this section shall be
imposed per person for each crime.”
Contentions
Rodriguez contends that the trial court erroneously denied
his motion to exclude statements he had made to informants
while he was incarcerated in county jail. Rodriguez maintains
that law enforcement’s use of the informants violated his
constitutional right to due process. In addition, he claims that (1)
the matter should be remanded to the trial court to give it an
opportunity to exercise discretion whether to strike the firearm
enhancements pursuant to recently amended subdivision (h) of
section 12022.53, and (2) the trial court erroneously imposed
fines and assessments without finding that Rodriguez had the
ability to pay them.
Cabrera contends: (1) the trial court abused its discretion
in denying his motion to sever his trial from Rodriguez’s trial; (2)
even if the trial court did not abuse its discretion, the
consolidation of the trials denied him due process of law; and (3)
the trial court erroneously admitted against Cabrera the
incriminating statements made by Rodriguez to informants. The
statements were admitted under the declaration against penal
interest exception to the hearsay rule. (Evid. Code, § 1230.)
Decision
On our own motion, we modify the judgments to strike the
20-year determinate terms for the firearm enhancements
imposed pursuant to section 12022.53, subdivision (c). In all
other respects, we will affirm. We will direct the trial court to
amend the abstracts of judgment.
3
Facts, Excluding Appellants’ Statements,
Relating to Murder Conviction (Count 1, Victim Lopez)
One afternoon in March 2013, J.D. was driving her vehicle
in the El Rio area of Ventura County. She saw a man, later
identified as Josue Lopez, walking by himself down the street.
Two men ran toward him. Lopez “turned to run away.” The
arms of both men were “held . . . straight out” and were pointed
at Lopez. J.D. heard about six “pops” in “quick succession” and
saw “smoke coming from [the mens’] arms.” The men were about
six to ten feet away from Lopez when she saw the smoke. Lopez
fell to the street, and the men ran away. Lopez had been shot in
the back. The wound was fatal. Another bullet grazed Lopez’s
right hip.
Lopez was 16 years old. His moniker was “Lil Risky.” A
gang expert did not know whether Lopez was a gang member.
After Lopez’s death, members of the El Rio Trouble Street (El
Rio) criminal street gang held a memorial service for him.
At the scene of the shooting, sheriff’s deputies found two
.38 caliber “spent bullets” on Lopez’s body. They found a “fresh”
bullet hole in the door of a parked car. The hole had been made
by a .22 caliber bullet. Deputies recovered the bullet.
Five days before the shooting, appellant Rodriguez turned
18 years old. He was a member of the Colonia Chiques (Colonia)
criminal street gang. His gang moniker was “Pooh Bear.”
Colonia and El Rio are “[e]nemies.” A gang expert testified,
“There’s been numerous shooting incidents between both gangs.”
Ten days after the shooting, a police officer saw Rodriguez
trying to hide behind a dumpster. In the dumpster the officer
found “a Rossi .38 Special revolver . . . with five .38 Special
caliber rounds loaded inside the gun.” Rodriguez was arrested
4
for carrying a loaded firearm. DNA on the revolver matched
Rodriguez’s DNA. A forensic scientist test-fired the revolver.
She opined that the two .38 caliber spent bullets found on Lopez’s
body had been fired from the revolver.
Appellant Cabrera was also a Colonia gang member. His
gang moniker was “bleedr” or “bleeder.” Five days after the
police had arrested Rodriguez, officers made a traffic stop of a
vehicle that Cabrera was driving. Cabrera got out and ran. The
officers pursued him. Cabrera “dropp[ed] down on the ground,”
and the officers handcuffed him. On the ground a few feet away,
they found a firearm. It was a “Ruger .22-caliber revolver,”
known as a “Ruger Single-Six,” that “was loaded with six live
rounds of .22-caliber ammo.” DNA on the Ruger matched
Cabrera’s DNA. The Ruger was a “single-action revolver,” which
means that a person must “manually pull the hammer back” each
time the revolver is fired. Rodriguez’s Rossi, on the other hand,
was a double-action revolver – “one pull of the trigger will cock
the hammer back and then release the trigger.”
A forensic scientist testified that “some of the class
characteristics” of the .22 caliber bullet recovered from the door of
the parked car “were consistent with the class characteristics
from the .22-caliber Ruger firearm.” The bullet could have been
fired from the Ruger, but she was unable to determine whether it
had in fact been fired from the Ruger. She noted, “There [are] a
number of other firearms that have the same class characteristics
as the Ruger.” She was able to “rule out a number of other
firearms” that did not share the Ruger’s class characteristics.
5
Facts, Excluding Rodriguez’s Statements, Relating to
Attempted Murder Conviction (Count 2, Victim J.G.)
One night in March 2013, J.G. stopped his vehicle at a stop
sign in the “Colonia neighborhood” of Oxnard. The windows were
down and J.G. was listening to fairly loud music. Five days
earlier, Lopez (the victim in count 1) had been shot.
A man came to the vehicle’s passenger-side window and
said to J.G., “‘What’s up, fool?’” “‘Where you from?’” The man
pointed a firearm at J.G.’s head. J.G. “hit the gun down with
[his] right hand.” The man shot J.G. in the side just below his
ribcage. Doctors told J.G. that the bullet “had destroyed [his]
liver and also grazed . . . [his] intestines.”
As J.G. drove away, he heard multiple gunshots. The
windows of his vehicle were “[s]hot out.” The vehicle had three
bullet holes. J.G. believed that about five shots had been fired.
The police recovered a bullet that had penetrated the back
of the front passenger’s seat of J.G.’s vehicle. A forensic scientist
opined that the bullet had been fired from Rodriguez’s Rossi
revolver.
Rodriguez’s Statements Concerning the Murder of Lopez
Deputy Albert Ramirez was informed that Rodriguez had
been arrested for possession of a loaded .38 Rossi revolver and
that the bullets recovered from Lopez’s body “were possibly .38
rounds.” Based on this information, he arranged for a
confidential informant (CI no. 1) to be placed in the cell next to
Rodriguez’s cell. The informant was a former member of Colonia.
Deputy Ramirez recorded conversations between the informant
and Rodriguez.
Rodriguez “introduced” himself to the informant as “Pooh
Bear from Colonia.” He boasted to the informant about the
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killing of Lopez: “This dude, the one from El Rio, I let him have
them all, dude. All of them.” “I asked him, ‘what’s up, fool?
Where you from, fool?’ [He replied,] ‘El Rio.’ ‘Oh, really
fagot?’ . . . My hommie . . . Bleeder had his right here. . . . It was
a 22 [caliber firearm].” “The .38 [caliber firearm]. Pow, pow,
pow. I let all of them go. Pow, pow, pow. Here you go, faggot. . . .
You could see them [the bullets] going through.” “Fuck! Mother
fucker, that’s what you get, faggot. And I just took off.” “[The
victim] was barely 16 but he had balls for saying [he was from] El
Rio.”
Rodriguez said that his “hommie,” i.e., Bleeder, had “a six”
– a Ruger Single-Six – “[t]he ones that you pull back.” “We
started to shoot at him [Lopez].” Four days after Rodriguez was
arrested, the police “got my hommie.”
Deputy Ramirez placed another confidential informant (CI
no. 3) in the cell next to Rodriguez’s cell. The informant had been
a member of Colonia. Rodriguez “introduce[ed] himself as Pooh
Bear . . . from Colonia.” Rodriguez told the informant, “[T]hat
day [the day Lopez was shot] I had a 38, he [his accomplice] had a
22.” Rodriguez referred to his accomplice as “Bleeder, Alex.”
Cabrera’s first name is Alejandro. Rodriguez continued: When
Lopez said he was from El Rio, “[W]e just started dumping on
him, boom, boom . . . .” Alex “was it, he was the one that had the
fucking idea.” Alex “dump[ed]” on Lopez. The informant said,
“[I]t was all his [Alex’s/Bleeder’s] idea.” Rodriguez replied,
“Yeah.”
Rodriguez’s Statements Concerning Attempted Murder
Rodriguez boasted to CI no. 1 about his shooting of J.G: “I
came down on another jackass. . . . [A] car went by, dude . . . . To
. . . me it . . . was probably Lames, fool. . . . I told my brother,
7
‘hey, fool, give me a ride.’ We got in the van, fool, we chased him.
I got off, ‘where you from fool?’ And he stepped on it right away.
Pow, pow, pow. Well, I let the, all five [rounds] go. I was able to
hit him like two (2) or three (3) [times].” “[T]he jackass was able
to get to the hospital.” “Lames” means a rival gang member.
Cabrera’s Statements
Confidential informant no. 2 (CI no. 2) was housed in the
same jail section as Cabrera. CI no. 2 was a former member of
Colonia. He gave Deputy Ramirez notes written by Cabrera
concerning the shooting of Lopez. In prison slang such notes are
referred to as “kites.”2 Cabrera wrote the kites when he was in
jail for possession of the loaded Ruger revolver, not for the killing
of Lopez. Some of the kites were signed, “Bleedr.” Cabrera left
out the “e” before the “r” because “E.R.” are the initials of the
rival gang, El Rio. The trial court excluded some of the kites.
(See post, p. 19.)
Cabrera wrote: “Fuk E.R. That River Rat that got smoked
was L. Risky.” “Yeah that fool Lil Risky was a straight River Rat.
No doubt about it.” “I don’t think they [the police] know who
killed that river rat.” “Smoked” means “shot.” “River rat” is a
“derogatory term that Colonia gang members use to refer to El
Rio gang members.” In Spanish “rio” means river.
In another kite Cabrera said, “‘All I’m worried about is that
river rat shit, [be]cause I don’t want these “hurras” to know
anything that could come back to me.’” “Hurras” means the
police. Deputy Ramirez explained, “[H]ere [Cabrera is] saying
2 Deputy Ramirez testified: “[K]ites are pieces of paper
with written information that inmates often use to communicate
with each other.” “The inmate will read it and then will dispose
of it normally by flushing it down the toilet.”
8
that he’s worried . . . the investigators will link him to [the]
shooting” of Lopez. Cabrera did not say that he had participated
in the shooting.
In the kites Cabrera also said, “‘[W]e aim to kill,’” meaning
that when Colonia gang members shoot, “their intention is to kill
rival gang members.” Cabrera said he was “‘an active homie,’”
meaning that “he’s an active gang member.” Cabrera bragged, “‘I
gang bang 24-7,’” meaning “I’m an active gang member 24 hours
a day, seven days a week.”
Rodriguez’s Trial Testimony
Rodriguez testified as follows: When he saw the police, he
threw the Rossi .38 revolver into a dumpster. He received the
firearm two days earlier and did not know it had been used in a
shooting.
He was arrested for carrying a loaded firearm and was
incarcerated in the county jail. Four days after his arrest, he met
CI no. 1. Rodriguez “was scared” of him because he talked about
the “jail things that he did, the things he participated in from
prison, stabbings, beating up people, stuff like that.” Rodriguez
told CI no. 1 that he was “involved in a shooting in El Rio”
because he did not want “to look weak.” He was not involved in
that shooting. Nor was he involved in the shooting of J.G.
Rodriguez bragged about the Lopez shooting to C.I. no. 3
because he was afraid of him. He believed that C.I. no. 3 was
connected to the Mexican Mafia and had the power to put a
“green light” on someone. If you are subject to a green light,
gang members “either got to hurt you, beat you up, stab you, stuff
like that.”
CI no. 3 never said Rodriguez was required to talk to him
and “never actually forced [Rodriguez] to say anything.”
9
When Rodriguez refers to “Bleedr” and “Alex,” he is
referring to Cabrera.
Rodriguez’s Pretrial Motion to Exclude
His Statements to Informants
Rodriguez filed a motion to exclude his statements to the
informants. He claimed that the use of informants to elicit
incriminating statements violated his Sixth Amendment right to
counsel.
In their written opposition to the motion, the People argued
that when Rodriguez made the statements to the informants, he
had “not yet [been] charged with murder or attempted murder”
and “was merely serving time for weapons possession and graffiti
vandalism.” Therefore, his statements to the informants were
admissible because “his Sixth Amendment rights had not yet
attached.”
The trial court ruled, “I agree with the People, the Sixth
Amendment’s case specific and it doesn’t attach to this case until
he’s actually charged, even though he may be charged with some
other case.” Accordingly, the trial court denied the motion to
exclude Rodriguez’s statements.
The trial court’s ruling was correct. “It is settled . . . that
the Sixth Amendment right to counsel is ‘offense-specific,’ i.e., it
attaches only to those offenses for which adversary judicial
criminal proceedings have begun.” (People v. Webb (1993) 6
Cal.4th 494, 527.) “Thus, . . . [Rodriguez’s] Sixth Amendment
rights had not yet attached in this case and could not have been
violated when” he made the incriminating statements to the
informants. (Ibid.; see also Texas v. Cobb (2001) 532 U.S. 162,
169; Illinois v. Perkins (1990) 496 U.S. 292, 299 [“In the instant
10
case no charges had been filed on the subject of the interrogation,
and our Sixth Amendment precedents are not applicable”].)
On appeal Rodriguez does not contend that his Sixth
Amendment right to counsel was violated. Instead, he argues
that his due process rights were violated because the informants
“acted as surreptitious law enforcement interrogators” and used a
“technique of ‘deception and manipulation’” to elicit incriminating
statements. The theory is forfeited because Rodriguez did not
raise it in the trial court. (See People v. Partida (2005) 37 Cal.4th
428, 438 [“to the extent defendant asserts a different theory for
exclusion than he asserted at trial, that assertion is not
cognizable”].) In any event, the theory is devoid of merit. The
informants did not act as interrogators who elicited incriminating
statements through deception and manipulation. Rodriguez
eagerly boasted of his gang-related violent acts to persons whom
he believed to be fellow gang members.
Rodriguez Forfeited Claim that Trial Court Was
Denied Opportunity to Strike Firearm Enhancements
Effective January 1, 2018, Senate Bill 620 amended
subdivision (h) of section 12022.53. Before the amendment,
subdivision (h) prohibited a court from striking a section
12022.53 enhancement. As amended, the subdivision provides
that the court may strike the enhancement “in the interest of
justice pursuant to Section 1385.”
Rodriguez was sentenced on May 1, 2018, five months after
the amendment became effective. He argues, “[T]his court should
remand appellant’s case for a new sentencing hearing in which
the trial court is given the opportunity to strike the firearm
enhancements.” But at the time of sentencing, Cabrera had the
opportunity to move to strike the firearm enhancements. He
11
failed to do so and has consequently forfeited the issue. (See
People v. Carmony (2004) 33 Cal.4th 367, 375-376 [“any failure on
the part of a defendant to invite the court to dismiss [a strike]
under section 1385 following [People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, which allowed the trial court to
dismiss a strike,] waives or forfeits his or her right to raise the
issue on appeal”].)
In his reply brief appellant contends, “[I]f the issue was
indeed forfeited, it was ineffective assistance of counsel not to
object and cognizable on direct appeal because there would be no
strategic or tactical reason not to challenge a ruling within the
sentencing court’s discretion.” The contention is forfeited because
appellant failed to include it in his opening brief. “It is rarely
appropriate to resolve an ineffective assistance claim on direct
appeal [citation]; we certainly will not do so where, as here, the
claim is omitted from the opening brief and thus waived
[citations].” (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
In any event, appellant has failed to show he was
prejudiced by counsel’s failure to move to strike the firearm
enhancements. Appellant does not argue that there is a
reasonable probability the trial court would have granted the
motion if counsel had made it. (Strickland v. Washington (1984)
466 U.S. 668, 694 [“The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different”].)
Trial Court’s Alleged Failure to Determine Rodriguez’s
Ability to Pay Restitution Fine and Assessments
Based on People v. Dueñas (2019) 30 Cal.App.5th 1157,
Rodriguez claims that the trial court erroneously imposed a
section 1202.4 restitution fine of $10,000 without conducting a
12
hearing to determine his ability to pay the fine. “Dueñas held
that it violates due process under the federal and state
Constitutions to impose . . . court operations and facilities fees
without first determining the convicted defendant's ability to pay
them. [Citation.] In addition, ‘to avoid serious constitutional
questions’ raised by the statutory restitution scheme, [Dueñas
held that] the [trial] court must stay execution of the mandatory
restitution fine unless the court determines that the defendant
has the ability to pay it.” (People v. Taylor (2019) 43 Cal.App.5th
390, 397 (Taylor).)3
Irrespective of Dueñas, the trial court was authorized to
consider his ability to pay because the restitution fine exceeded
the $300 minimum (§ 1202.4, subd. (c)). (See People v. Oliver
(2020) 54 Cal.App.5th 1084, 1102 [“in Taylor[, supra, 43
Cal.App.5th at pp. 399-400], we concluded a defendant forfeited
his claim of Dueñas error about a maximum $10,000 restitution
fine by not objecting because, even before Dueñas was decided,
the trial court had the express authority to consider the
defendant's ability to pay as one factor when deciding whether to
impose a fine above the [$300] mandatory minimum”].)
3 “Since Dueñas, some courts have criticized Dueñas’s due
process analysis and have declined to follow it. . . . [¶] The
California Supreme Court will resolve the split in authority,
having granted review of the issues presented by Dueñas in
[People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844]. The [Supreme] [C]ourt will decide whether
courts must ‘consider a defendant’s ability to pay before imposing
or executing fines, fees, and assessments,’ and if so, ‘which party
bears the burden of proof regarding defendant’s inability to pay.’”
(Taylor, supra, 43 Cal.App.5th at p. 398.)
13
Rodriguez also claims that, without determining his ability
to pay, the trial court erroneously imposed a $40 court operations
assessment (§ 1465.8) and a $35.00 criminal conviction
assessment (Gov. Code, § 70373). In view of Rodriguez’s sentence
of imprisonment for life without the possibility of parole, the trial
court did not err. “‘“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 . . . , 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 . . . . [Citation.]’ [Citations.]” (People v. Aviles (2019) 39
Cal.App.5th 1055, 1076.) “Nothing in this record suggests
[Rodriguez] might be unable to work, or that [he] might be
ineligible for prison work assignments. As such, we can infer
that [he] will have the opportunity to earn prison wages and [he]
can start paying these financial obligations. [Citations.] [¶]
‘Prison wages range from $12 to $56 per month, depending on the
prisoner's skill level.’ [Citations.]” (People v. Lowery (2020) 43
Cal.App.5th 1046, 1060.)
Dueñas Does Not Apply to Direct Victim Restitution
It appears that Rodriguez claims that the trial court erred
in not determining his ability to pay direct victim restitution to
Lopez’s mother and sister as well as restitution of $4,625 to the
Victim’s Compensation Board for payment of Lopez’s funeral and
burial expenses. The claim lacks merit. Dueñas does not apply
to direct victim restitution. (People v. Evans (2019) 39
Cal.App.5th 771, 777.) Direct victim restitution includes
restitution of funeral and burial expenses paid by the Victim’s
Compensation Board. (See § 1202.4, subd. (f)(4)(A) [“If, as a
14
result of the defendant’s conduct, the Restitution Fund has
provided assistance to or on behalf of a victim or derivative victim
. . . , the amount of assistance provided shall be presumed to be a
direct result of the defendant’s criminal conduct and shall be
included in the amount of the restitution ordered”].)
No Abuse of Discretion in Denying
Cabrera’s Motion to Sever
Cabrera maintains that the trial court erroneously denied
his motion to sever his trial from Rodriguez’s trial. In the motion
Cabrera argued that severance was necessary because appellants
“have made various statements implicating each other.” He
claimed that a joint trial would violate his Sixth Amendment
right to confront witnesses and his Fifth Amendment right to due
process because he would not have an opportunity to cross-
examine Rodriguez. (Cabrera erroneously assumed that
Rodriguez would not testify.) Cabrera asserted, “A joint trial . . .
may be had only if the People abandon their specious effort to
hoist Cabrera upon the testimonial hearsay of Rodriguez . . . .”
In their written opposition to the motion, the People argued
that the trials should not be severed because appellants’
statements were admissible against each other as declarations
against penal interest and as declarations of coconspirators in
furtherance of the conspiracy. The People attached transcripts of
Rodriguez’s statements to CI nos. 1 and 3 along with copies of
Cabrera’s kites to CI no. 2. The People used brackets to mark the
portions of the transcripts they sought to admit.
At the hearing on the motion, Cabrera’s counsel stated:
“[T]he confrontation clause bars” the admission of Rodriguez’s
statements for use against Cabrera “unless I get to cross-examine
him.” “My client could be convicted upon [Rodriguez’s]
15
accusations.” Counsel also argued that trial of the attempted
murder charge against Rodriguez (count 2) should be severed
because “there’s no suggestion that” Cabrera was involved in this
crime. Counsel protested that, although the information charged
only Rodriguez with the attempted murder, “that smears my
client. It spills over onto my client.”
As to Cabrera’s motion to sever the trial of the murder
charge (count 1), the trial court ruled: “The motion . . . is denied.
However, . . . we’re gonna have to go through all the statements
that the People want to offer and make an individual
determination as to whether they qualify under the statement
against penal interest exception [to the hearsay rule], ‘cause I
don’t think there’s any other avenue of admissibility . . . .”
The trial court denied Cabrera’s motion to sever the trial of
the attempted murder charge against Rodriguez (count 2). The
court reasoned: “I don’t think it’s going to confuse the jury
because it’s obvious from the evidence that [Cabrera was not]
involved in that act [the attempted murder] at all and had
nothing to do with it. So I don’t see how that would prejudice
[him] . . . regarding the completed murder [count 1].”
Cabrera contends that the trial court prejudicially erred in
denying his motion to sever. “‘Our Legislature has . . . “expressed
a preference for joint trials.” [Citation.] But the court may, in its
discretion, order separate trials “in the face of an incriminating
confession [or incriminating admissions], prejudicial association
with codefendants, likely confusion resulting from evidence on
multiple counts, conflicting defenses, or the possibility that at a
separate trial a codefendant would give exonerating testimony.”
[Citations.] [¶] We review a trial court’s denial of a severance
motion for abuse of discretion based on the facts as they appeared
16
at the time the court ruled on the motion. [Citation.] If the
court’s joinder ruling was proper at the time it was made, a
reviewing court may reverse a judgment only on a showing that
joinder “‘resulted in “gross unfairness” amounting to a denial of
due process.’”’” (People v. Letner & Tobin (2010) 50 Cal.4th 99,
150.)
“In exercising its discretion in this regard, the [trial] court
weighs ‘the potential prejudice of joinder against the state’s
strong interest in the efficiency of a joint trial. [Citation.]’
[Citation.] To succeed on a claim that the trial court abused its
discretion in denying severance or ordering consolidation, the
defendant must make a ‘“clear showing of prejudice”’ and
establish that the ruling fell ‘“‘“‘outside the bounds of reason.’”’”’”
(People v. Merriman (2014) 60 Cal.4th 1, 37 (Merriman).) “‘[T]he
benefits of joinder are not outweighed—and severance is not
required—merely because properly joined charges might make it
more difficult for a defendant to avoid conviction compared with
his or her chances were the charges to be separately tried.’
[Citation.] ‘[D]efendants are not entitled to severance merely
because they may have a better chance of acquittal in separate
trials.’” (People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th
335, 381-382 (Bryant, Smith & Wheeler).)
In his motion Cabrera argued that severance was necessary
because the admission of Rodriguez’s statements to the
informants would violate his Sixth Amendment confrontation
rights. But the confrontation clause does not apply to
nontestimonial statements, and Rodriguez’s statements to the
informants were nontestimonial. (See People v. Arauz (2012) 210
Cal.App.4th 1394, 1402 (Arauz) [“We hold that statements
unwittingly made to an informant are not ‘testimonial’ within the
17
meaning of the confrontation clause”].) “If a statement is not
testimonial, ‘“it does not implicate the confrontation clause, and
the issue is simply whether the statement is admissible under
state law as an exception to the hearsay rule.”’” (People v.
Almeda (2018) 19 Cal.App.5th 346, 362.)
As to the denial of Cabrera’s motion to sever the trial of
count 2 (attempted murder), the trial court reasonably concluded
that the consolidation of counts 1 and 2 would not prejudice him
because the evidence clearly showed he had nothing to do with
the attempted murder. (See People v. Champion (1995) 9 Cal.4th
879, 905 [“at the time the trial court made its ruling [denying
severance], it could reasonably conclude that the evidence of
Taylor’s murder [charged only against codefendant Ross] would
not adversely affect [defendant] Champion at trial” since “no
eyewitness had identified defendant Champion as one of Taylor’s
killers”].) The murder and attempted murder here were
committed at different times and places and involved different
victims. Thus, “[t]here was no danger of confusion from multiple
counts.” (People v. Cummings (1993) 4 Cal.4th 1233, 1286
(Cummings), overruled on another ground by People v. Merritt
(2017) 2 Cal.5th 819, 831.) The joinder of count 2 was unlikely to
inflame the jury’s passions because the facts underlying the
attempted murder of J.G. were no more inflammatory than the
facts underlying the murder of Lopez.
Cabrera maintains that the trial court abused its discretion
“because the prosecution joined a strong case against Rodriguez
with a weak one against Cabrera.” (Bold omitted.) The theory is
forfeited because Cabrera failed to advance it in the trial court.
(People v. Mitcham (1992) 1 Cal.4th 1027, 1049 [in claiming that
trial court abused its discretion in denying motion to sever,
18
defendant cannot raise argument that he failed to make in trial
court].) In any event, the theory lacks merit. (See the discussion,
post, at pp. 22-24.)
Finally, Cabrera claims that the trial court abused its
discretion because it “denied severance based on ‘kites’ that were
later determined to be the involuntary product of coercion . . . .”
After the trial court had denied the severance motion, it excluded
some of the kites written by Cabrera to CI no. 2. The court
concluded that the People had failed to prove that the excluded
kites were “free and voluntary and not coerced.” Since the
subsequently excluded kites were before the trial court when it
ruled on the motion to sever, an abuse of discretion cannot be
based on its consideration of these kites. (Merriman, supra, 60
Cal.4th at pp. 37-38; People v. Greenberger (1997) 58 Cal.App.4th
298, 343 [question whether trial court abused its discretion
“focuses on what was presented to the trial court at the time it
made its decision”].)
Moreover, there is no evidence that the excluded kites were
a determining factor in the court’s decision to deny Cabrera’s
severance motion. If Cabrera believed that they were a
determining factor, he should have renewed his severance motion
after the kites had been excluded. The trial had not yet begun.
(See People v. Ervin (2000) 22 Cal.4th 48, 68 [“If further
developments occur during trial that a defendant believes justify
severance, he must renew his motion to sever. Defendant made
no renewed motion in this case. Accordingly, he may not raise
the point on appeal”].)
19
Denial of Severance Motion Did Not
Result in Denial of Due Process
“[E]ven if a trial court acted within its discretion in
denying severance, ‘“the reviewing court may nevertheless
reverse a conviction where, because of the consolidation, a gross
unfairness has occurred such as to deprive the defendant of a fair
trial or due process of law.”’” (People v. Thompson (2016) 1
Cal.5th 1043, 1079.) “In resolving a claim that joinder resulted in
gross unfairness in violation of a defendant's right to a fair trial
and due process, [the California Supreme Court has] observed
that a judgment will be reversed on this ground only if it is
‘reasonably probable that the jury was influenced [by the joinder]
in its verdict of guilt.’” (Merriman, supra, 60 Cal.4th at p. 49.)
“[W]e conclude there was no reasonable probability that the
joinder of counts tainted the jury’s verdicts in this case.” (Ibid.)
Cabrera claims that he was denied due process because
“[t]he evidence produced at trial led to [his] conviction based on
his association with Rodriguez . . . .” But “[s]ince [appellants]
were crime partners . . . in the murder, rejudicial association with
a codefendant is not a factor.” (Cummings, supra, 4 Cal.4th at p.
1286; see also Bryant, Smith & Wheeler, supra, 60 Cal.4th at p.
383 [“Individuals who choose to commit crimes together are not
generally entitled to shield the true extent of their association by
the expedient of demanding separate trials”].) Furthermore, “it
does not appear the jury would have found [Rodriguez’s]
characteristics or culpability so overwhelming compared to
[Cabrera’s] that it convicted [Cabrera] simply because of his
association, rather than because his individual guilt had been
prove[n].” (Ibid.)
20
Cabrera asserts “it is reasonably probable that [he] would
not have been convicted absent the prosecution’s joining the
strong case against Rodriguez with the weak one against
Cabrera.” “The core prejudice concern arising in connection with
this issue is that jurors may aggregate evidence and convict on
weak charges that might not merit conviction in separate trials.”
(People v. Simon (2016) 1 Cal.5th 98, 127 (Simon).) But “[t]his
was not a matter in which a weak case was joined with a strong
case, . . . thereby ‘causing a spillover effect that might have
unfairly altered the outcome of the trial.’ [Citation.]” (People v.
McKinnon (2011) 52 Cal.4th 610, 631.) In the next section of this
opinion, we show that Rodriguez’s statements to the informants
were properly admitted against Cabrera under the declaration
against penal interest exception to the hearsay rule. Thus,
Rodriguez’s statements would have been admissible in a separate
trial of Cabrera. Based on Rodriguez’s and Cabrera’s statements,
“[s]trong evidence supported both cases.” (Ibid.) In one of his
kites passed to a fellow inmate, Cabrera said he was “worried . . .
the investigators will link him to [the] shooting” of Lopez.
Cabrera had no cause for concern if he was not involved in the
shooting. Moreover, Cabrera had a motive to kill Lopez because
he believed Lopez was “a straight river rat,” i.e., a member of the
rival El Rio gang. A gang expert testified that killing a rival
gang member is “kind of like the Holy Grail [in gang culture]. . . .
That’s what [is] gonna elevate your status the most within your
neighborhood, within your gang . . . .”
In addition, about two weeks after the shooting, Cabrera
possessed a loaded .22 caliber single-action revolver that could
have fired the bullet recovered from the door of a car parked at
the scene of the shooting. Accordingly, the murder charge
21
against Cabrera was not “a weak case that needed joinder to
bolster the likelihood of conviction.” (Simon, supra, 1 Cal.5th at
p. 127.)
Rodriguez’s Statements Were Properly Admitted
Against Cabrera as Declarations Against Penal Interest
Rodriguez’s statements to the informants were admitted
against Cabrera under the declaration against penal interest
exception to the hearsay rule. The exception is set forth in
Evidence Code section 1230, which provides in relevant part:
“Evidence of a statement by a declarant . . . is not made
inadmissible by the hearsay rule if the declarant is unavailable
as a witness and the statement, when made, . . . so far subjected
him to the risk of . . . criminal liability, . . . that a reasonable man
in his position would not have made the statement unless he
believed it to be true.” Cabrera argues that the trial court erred
in admitting Rodriguez’s statements under this exception. “We
review a trial court’s decision about whether a statement is
admissible as a declaration against penal interests for abuse of
discretion. [Citations.] Thus, the trial court's decision ‘“‘will not
be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.’”’” (People v.
Vasquez (2012) 205 Cal.App.4th 609, 620.)
Cabrera contends: “The first problem with Rodriguez’[s]
statements was that he was not unavailable. He testified.” The
unavailability issue is forfeited because Cabrera failed to raise it
below. (Evid. Code, § 353, subd. (a).) Even if the issue were
preserved for appellate review, the trial court did not abuse its
discretion. Whether a court acted within its discretion is based
on the facts known to the court at the time it exercised discretion.
22
(Merriman, supra, 60 Cal.4th at pp. 37-38.) When it ruled that
Rodriguez’s statements were admissible against Cabrera, the
trial court did not know and had no reason to know that
Rodriguez would testify. Counsel for a subsequently dismissed
codefendant, Jesus Morales, said, “They [the People] have to
show the declarant is unavailable, . . . [and] we’re assuming that
the codefendants [Cabrera and Rodriguez] are going to take the
5th Amendment right against testifying.” No one disputed
counsel’s assumption.
Cabrera claims, “[T]he section 1230 exception applies to
nonparties, not defendants.” This claim is wrong on the law.
(See Arauz, supra, 210 Cal.App.4th at pp. 1397, 1400-1401
[declaration against penal interest exception applies to
codefendant’s incriminating statements].)
Next, Cabrera maintains that Rodriguez’s statements
implicating Cabrera did not qualify as declarations against penal
interest because they “tended to shift or spread blame toward
Cabrera and thus served Rodriguez’[s] interests” by “mitigat[ing]”
his “culpability.” Cabrera focuses on “Rodriguez’[s] insistence
that it ‘was Alex [Cabrera] who had the fucking idea.’”
The trial court ruled that Rodriguez “didn’t shift the blame”
when he said it was Cabrera’s idea. The court explained, “Well,
maybe [Cabrera] came up with the idea, but I don’t think
[Rodriguez] relieved himself of any responsibility by going, ‘Yeah,
let’s go do it.’ . . . He’s just as culpable.” “[If] you say, ‘Let’s go rob
a bank’ and I go, ‘That’s a great idea,’ we’re both going down.”
Rodriguez’s statements implicating Cabrera must be
considered in the context of his entire conversation with CI no. 3.
“[C]ontext matters in determining whether a statement or
portion thereof is admissible under the against-interest
23
exception.” (People v. Grimes (2016) 1 Cal.5th 698, 717 (Grimes).)
“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.’” (Id. at p. 716.)
The trial court did not abuse its discretion in admitting
Rodriguez’s statement that the attack on Lopez was Cabrera’s
idea. Considering his statement in its context, the court
reasonably concluded that Rodriguez was not trying to minimize
his role or shift the blame onto Cabrera. Rodriguez clearly took
credit for the killing. Rodriguez told CI no. 3 that, when he and
Cabrera saw Lopez, he asked Cabrera, “‘[W]hat’s up? Should we
give it gas or what?’” Cabrera responded, “‘[L]et’s go for it.’”
Thus it was Rodriguez, not Cabrera, who broached the idea of
attacking Lopez. Rodriguez continued, “I asked [Lopez], ‘what’s
up, where are you from?’” When Lopez said he was from El Rio,
“we just started dumping at him.” “I told [Lopez] ‘fuck you, fool,
this is Colonia gang, what’s up motherfucker?’ And we just
started dumping on him, boom, boom . . . .”
Even if the trial court had erred in admitting Rodriguez’s
statement that the attack on Lopez was Cabrera’s idea, the error
would have been harmless in view of Rodriguez’s numerous other
statements that he and Cabrera had acted in concert in shooting
Lopez. These other statements were properly admissible as
declarations against penal interest because they were
inextricably intertwined with Rodriguez’s account of his
involvement in the shooting. (See Grimes, supra, 1 Cal.5th at p.
24
715 [“we have permitted the admission of those portions of a
confession 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’”].)
Finally, Cabrera asserts that Rodriguez’s statements
implicating him were not “sufficiently trustworthy to justify their
admission.” (Bold omitted.) “[E]ven when a hearsay statement
runs generally against the declarant’s penal interest . . . , the
statement may, in light of circumstances, lack sufficient indicia of
trustworthiness to qualify for admission.” (People v. Duarte
(2000) 24 Cal.4th 603, 614 (Duarte).) Cabrera argues that
Rodriguez’s statements were not sufficiently trustworthy because
Rodriguez blamed Cabrera for his arrest, Rodriguez’s account of
his arrest was inaccurate, and Rodriguez’s account of Cabrera’s
involvement in the shooting was prompted by the informants’
“leading questions and narrative statements.” “Because the
defense did not object on this ground at trial, the issue is not
preserved for appellate review. (Evid.Code, § 353, subd. (a).)”
(People v. Kipp (2001) 26 Cal.4th 1100, 1124.)
If the issue had been preserved for appellate review,
Rodriguez’s statements to the informants had sufficient indicia of
trustworthiness to warrant their admission. This is not “‘a
situation where a declarant in police custody seeks to exculpate
himself by implicating another suspect.’” (Duarte, supra, 24
Cal.4th at p. 618.) Rodriguez implicated himself. He freely made
the statements in a noncoercive environment to persons whom he
believed to be fellow gang members. (See People v. Tran (2013)
215 Cal.App.4th 1207, 1217 [in determining trustworthiness of
declaration against penal interest, “‘the most reliable
25
circumstance is one in which the conversation occurs between
friends in a noncoercive setting that fosters uninhibited
disclosures’”]; People v. Masters (2016) 62 Cal.4th 1019, 1056
[“‘“Declarations against penal interest are received
notwithstanding that they were spoken in confidence in the
expectation they would not be repeated to the authorities.
[Citations.] Indeed, that makes such declarations more
trustworthy”’”].)
Amendment of Abstracts of Judgment
Although the trial court ordered Rodriguez to pay
restitution of $5,481.89 to Lopez’s sister, S. L., the abstract of
judgment omits the order. The People request that Rodriguez’s
abstract be amended to correct this omission. We grant the
request. As to both appellants, the abstracts of judgment must
be amended to reflect our striking of the 20-year determinate
terms imposed for the firearm enhancements pursuant to section
12022.53, subdivision (c).
Disposition
As to both appellants, the judgments are modified to strike
the 20-year term imposed on count 1 (first degree murder) for the
firearm enhancement pursuant to section 12022.53, subdivision
(c). In all other respects, the judgments are affirmed. The trial
court shall amend the abstracts of judgment as indicated in the
preceding section of this opinion entitled “Amendment of
Abstracts of Judgment.” The trial court shall send a certified
copy of the amended abstracts of judgment to the Department of
Corrections and Rehabilitation.
26
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
27
Charles W. Campbell, Jr., Judge
Superior Court County of Ventura
______________________________
Keiter Appellate Law and Mitchell Keiter, under
appointment by the Court of Appeal, for Defendant and Appellant
Cabrera.
Diane E. Berley, under appointment by the Court of
Appeal, for Defendant and Appellant Rodriguez.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Noah P. Hill,
Supervising Deputy Attorney General, Heidi Salerno, Deputy
Attorney General, for Plaintiff and Respondent.