People v. Sanchez-Gomez CA1/3 ( 2021 )

Filed 10/15/21 P. v. Sanchez-Gomez CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent, A156198
v. (Contra Costa County
IGNACIO SANCHEZ-GOMEZ, Super. Ct. No. 51722081)
Defendant and Appellant.
A jury convicted appellant Ignacio Sanchez-Gomez of first-degree
murder and four separate counts of attempted murder. The jury also found
true firearm and gang enhancements. The trial court sentenced appellant to
life without the possibility of parole.
On appeal, appellant contends: (1) his trial counsel was ineffective for
failing to object to evidence presented by the prosecutor which the court had
earlier ruled inadmissible; (2) the trial court erroneously instructed jurors on
how they could evaluate the credibility of one of the prosecution’s witnesses;
(3) the trial court erroneously instructed jurors that appellant’s statements
alone were sufficient to satisfy the prosecution’s burden of proof on certain
issues; (4) the four attempted murder convictions must be reversed because
the “kill zone” instruction given was legally erroneous and there was
insufficient evidence to support it; (5) the gang special circumstance must be
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reversed because the trial court incorrectly instructed the jurors it could
apply even if appellant was not the one who actually killed the victim; (6) the
restitution and assessments against him must be stricken or stayed; and (7)
the sentencing and youthful offender parole statutory provisions that make
him ineligible for youth offender parole hearings violate equal protection
principles.
We reverse the four attempted murder convictions and remand for
resentencing and possible retrial on the attempted murder counts as long as
any retrial is not based on a kill zone theory. We otherwise affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Overview
On September 10, 2017, Adrian S.1 was shot and killed while at a
barbecue with four friends in front of his friend’s apartment. The apartment
was at 1829 Powell Street, a residential street which runs north to south, in
San Pablo. The 1800 block of Powell intersects with Market Avenue to the
south and Dover Avenue to the north. East of and parallel to Powell is
Mason Street, another residential street running north to south. Much of the
police investigation into Adrian’s death and many of the witnesses centered
on the square block bound by these streets.
As night approached, a man walking alone and wearing a hooded
sweatshirt, or hoodie, walked southbound on Powell from Dover towards
Market and fired multiple shots in the direction of the barbecue. Adrian was
struck, fell to the ground, and died. His four friends—Oscar T., Edwin R.,
Rohan J., and Jose P.—were not hit. Meanwhile, the lone shooter fled north
1
For clarity, to avoid confusion, and to protect personal privacy
interests, we refer to several individuals by their first names. No disrespect
is intended.
2
on Powell towards Dover. Shortly after the gunshots, a witness on Mason
saw a person turn the corner onto Mason from Dover. At some point, the
person was joined by another individual. Witnesses on Mason observed two
people running down Mason towards Market. Moments later, one of those
witnesses saw someone from the direction the pair had headed return to
dispose something in a recycling bin. Surveillance cameras throughout the
area captured some of these movements.
From the recycling bin, police found and retrieved discarded clothes
which were tested for DNA. The DNA on the clothes matched appellant and
his friend Jose Maravilla, and gunshot residue was found on the shorts.
Appellant, who lived in an apartment on the corner of Market and Powell—
across the street from the crime scene—was later arrested along with
Maravilla. Police subsequently found gang-related clothing in searches of
their homes, identified their tattoos as gang-related, and clipped social media
posts in which they displayed gang signs.
On December 15, 2017, Maravilla and appellant were each charged
with one count of murder (Pen. Code, § 187)2 and four counts of attempted
murder (§§ 664/187, subd. (a)). Firearm and gang enhancements were also
alleged (§§ 12022.53(d), 190.2(a)(22), 186.22(b)(5)). In June 2018, Maravilla
and appellant were jointly tried. The jury was unable to reach a verdict, and
the trial court declared a mistrial.
Following the mistrial, Maravilla pled to one count of voluntary
manslaughter and one count of attempted murder. The attempted murder
conviction included a gang enhancement and a firearm-use enhancement.
Maravilla was sentenced to 25 years and 8 months in prison.
2
All statutory references are to the Penal Code unless otherwise stated.
3
Appellant faced a second jury trial, which began in September 2018.
The prosecution’s theory of the case was that appellant and Maravilla
believed the five men at the barbecue on Powell belonged to a rival gang and
conspired to kill them in a gang-motivated attack. The defense theory of the
case was that Maravilla was the shooter acting alone or with some other
unknown person who was not appellant, and it was not a gang-related
shooting.
B. The Prosecution Case
1. The Crime
Appellant lived with his mother, Maria G., in Apartment 1 at 2345
Market Avenue, an apartment building located on the corner of Market and
Powell in San Pablo. Around 5 p.m. on Sunday, September 10, 2017,
appellant and Maravilla left the apartment where they had spent the day
hanging out, walked to the liquor store across the street, and bought beer.
The two of them returned to the apartment and drank.
Meanwhile, across the street in the driveway in front of the apartments
at 1829 Powell, Edwin had friends over for a barbecue and beer; Adrian, Jose,
Rohan, and Oscar were there. Adrian wore a red Washington Nationals
baseball cap and red sneakers. The group watched football, ate, and drank
past sundown.
After it got dark, they heard what they initially thought were
fireworks. When they realized the sounds were gunshots, Rohan and Edwin
dropped to the ground. Neither Rohan nor Edwin could tell where the shots
had come from. Jose, whose back was to the street when he heard shots,
looked over his shoulder up Powell towards Dover and saw flashes and
someone in the street shooting. Because of the darkness, however, he saw
only “shadow[s] and flashes.” Oscar saw the gunman who shot at his friends.
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He believed the shooter was wearing a blue hoodie or sweatshirt and was a
little shorter than 6’2”. Oscar gave chase but the shooter was far from him,
and Oscar never caught up. Someone returned fire at the shooter as he fled
the scene. Oscar was seen tossing a gun in the bushes near the garage door
of his house and then running back to Edwin’s place.
After the shots stopped, Edwin, who had been next to Adrian and saw
him on the ground, told his friend to get up but got no response. Rohan saw
Adrian was hit, had blood on his face, and was not responding to their calls.
They attempted to get him into a car to take him to the hospital, but they
could not move him.
The first police dispatch was issued at 8:24 p.m., and police arrived
soon thereafter. Officers found Adrian on his back “most of the way up the
driveway” next to a parked Camry. An officer administered CPR with chest
compressions but Adrian was not responsive. He died from a gunshot wound
to his head.
Several people in the neighborhood testified about what they saw in the
moments before and after the gunshots. Maria B. was getting out of her car
on Powell and heading to a friend’s house when she saw a man who was
about 6 feet tall bring the hood of his sweatshirt over his head and walk
south on Powell in the direction of the barbecue. As she walked up the stairs
to her friend’s house, she heard gunshots. Beatriz T., the friend Maria B. was
visiting who lived a few doors down from the shooting, peeked out her
window after she heard the gunshots and saw “somebody running super fast
in front of the house with their hood[ie] pulled so it . . . completely covered,
their face.” The person was running towards Dover.
Deshawn B. was just about to step out of his friend’s car in front of his
house on Mason when he heard the gunshots. He rushed to get inside, but
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before entering turned around to make sure his friends safely departed. At
that point he saw someone turn onto Mason from Dover headed towards
Market. The lone person was running with his or her head down and hood
on.
Edward C. was on his balcony on Mason and heard the gunshots.
About five minutes later, he saw two guys running by towards Market. One
was taller than the other. The taller one “had to be 5’11, almost 6’,” and the
shorter one was around 5’4”. The taller one may have been wearing a hoodie
but the hood was off and he saw he had shoulder-length hair, and he was
possibly wearing shorts. He lost sight of them after they turned the corner.
Omar Z., who also lived on Mason where he had installed a surveillance
system, testified that he was cleaning his garage when he heard the
gunshots. He also saw two people running on Mason towards Market.
Edward added that, five minutes after he saw the pair run past him,
someone returned from the direction the pair had headed. The person had a
hoodie on and was carrying something covered in a shirt—“a shirt, blanket,
or some sort of cloth material just bundled up”—that he dropped in the
recycling bin placed curbside for pickup. That person “looked like a totally
different person” than the two people he had earlier seen running.
2. Police Investigation
Officers located 15 total shell casings at the crime scene clustered in
two different locations. Six silver casings were spread out on the driveway of
1829 Powell, and nine brass casings were found on the north end of Powell.
Officers also located evidence of six spent bullets. Of the four found in the
driveway area, three had been found in the parked Camry. The fourth was
located on the ground next to the Camry’s driver’s side rear tire and appeared
to be stained with blood. At the neighbor’s house, there was a bullet hole
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through the garage door and an expended bullet underneath the stairs going
into the house.
An officer pulled surveillance video from the liquor store about a block
from appellant’s apartment building. The video showed two men—appellant
and Maravilla—coming from Market enter the liquor store shortly after 5:00
p.m. There is no dispute that the two men were appellant and Maravilla.
One of them wore a white tank top. Other surveillance video also showed
appellant and Maravilla go back in the direction of appellant’s apartment
building carrying beer. Video from the shop’s exterior camera, which pointed
directly at Edwin’s apartment building, showed muzzle flashes and contained
audio of two separate volleys of gunfire at 8:24 p.m.
Surveillance video from a camera with a clear view of appellant’s
apartment building showed someone wearing a white tank top leaving the
apartment, standing outside, then walking back in at 7:40 p.m. Other video
showed two people leave the apartment and walk eastbound along Market at
8:19 p.m. One of them was wearing shorts and a white tank top. The one
wearing the shorts was much taller than his companion. The video showed
someone walking westbound on Market and enter the apartment building at
8:25 p.m. The video further showed someone leave the apartment at 8:28
p.m. and walk eastbound on Market holding a bag.
Another officer pulled surveillance video from Omar’s house on Mason.
This video showed two people walking north on Mason at 8:19 p.m. The video
also showed two people—one on the sidewalk and the other on the street—
running southbound on Mason towards Market at 8:23 p.m.
Additionally, officers collected a white tank top and gray shorts from
the recycling bin into which Edward saw someone drop items. The items
were sent to the crime lab for testing. The shorts tested positive for gunshot
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residue. This meant the shorts “were either near the discharge of a firearm
or were in contact with another item that was near the discharge of a
firearm.” In addition, DNA matching Maravilla was found on the shorts and
the tank top, and DNA matching appellant’s DNA was found on the shorts.
Based on the DNA, gunshot residue, and “multiple witnesses saying
that [appellant] was involved,” the police investigation focused on appellant
and Maravilla. Officers conducted surveillance of both suspects. While
monitoring a house in Richmond connected to Maravilla, they saw that
Maravilla had shaved his head, in contrast to the long hair he had in
previous photos taken a month earlier. Their two surveillance attempts of
appellant at his apartment were unsuccessful, and officers never saw him
there.
3. Arrests
On September 28, 2017, appellant and Maravilla were arrested and
brought to the San Pablo police station. Each of them was separately
interviewed by officers and shown clips from surveillance video officers had
collected. They were transported to jail in a van wired with listening devices
and their conversation was recorded.
4. Maria G. (Appellant’s Mother)
On the day of the arrests, officers interviewed appellant’s mother,
Maria G. According to one of the interviewing officers, Maria G. told them
appellant goes by the nickname “Triste.” She said appellant was with
Maravilla at the apartment on the evening of September 10, 2017, and the
two of them left about 8:00 p.m. He said they would be right back but he
never returned.
The prosecution also called Maria G. as a witness at trial. She testified
that on the day of the shooting appellant was at the apartment with
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Maravilla. Her older son Ricardo S. came by to visit. Later in the day,
Maravilla also came over. At some point during the day Ricardo left, but it is
not clear whether he left before or after Maravilla arrived.
Maria G. saw appellant and Maravilla drinking outside. She did not
remember the two leaving the apartment but acknowledged that she told the
police that they left together sometime around 8:00 pm. After appellant left
that evening, she did not see him for a while. In the 18 days after the
shooting, appellant never came back to the apartment. He had never been
gone for that long before.
On cross-examination, Maria G. testified that appellant and Maravilla
never told her they were leaving. However, she knew they had gone out
because she left to take out trash and they were not there. She did not see
them leave and did not know when they left. She could not remember
Ricardo being at the apartment that day. She agreed that Maravilla was
pretty good friends with Ricardo and hung out with him more than appellant.
5. Gang Evidence
Police searched both appellant and Maravilla’s residences. At
appellant’s apartment, officers found what they believed to be gang-related
baseball caps. One had “ ‘VFL Sadboy’ ” written on it, and another said “ ‘113
percenter.’ ” At Maravilla’s place, officers found gang-related writing. A door
frame leading to Maravilla’s bedroom had the phrase “Norte Killa” written on
it. Other phrases found in the house included “ ‘Fucka Busta,’ ” “ ‘187,’ ” and
“ ‘Fucka snitch.’ ”
Detective Tyler Hannis, a member of the San Pablo Police Department
gang unit, was very familiar with the Sureño criminal street gang and with
the gang’s subsets, VFL, or Varrio Frontero Loco, and RST, or Richmond Sur
Trece. He testified as an expert on these gangs. The Sureños are controlled
9
by the Mexican Mafia prison gang. For this reason, Sureños associate
themselves with the number 13, which stands for the letter “M,” the 13th
letter in the alphabet. They display variations of the number, such as X3 or
XIII or a symbol of three dots above two lines. Members say they give “113
percent” when going above and beyond to further the gang. They use the
words “Sure[ñ]o” or “Sur” or the letter “S” as symbols and wear the color blue,
which is the gang’s main color and wearing blue shows a member’s pride
within a gang. The Sureños’ longtime rivals are the Norteños. Norteños
wear red and associate themselves with the number 14. Norteños also have
local subsets, such as the North Side Locos, or NSLs, and Varrio San Pablo,
or VSPs. Sureños describe Norteños as “bustas” or “chaps” to disrespect
them, and Norteños refer to Sureños as “scraps” to demean them.
Once someone becomes a Sureño, he will go out and do acts to further
the gang. The more violent the act, the more valued the individual will be
within the gang. For instance, someone who spray paints the gang symbol on
a wall has some value to the gang, but someone who shoots a rival gang
member will be valued more highly. Within the gang, the violence and fear
gang members instill in the community is valued.
Tattoos are common among Sureños. A gang-specific tattoo
demonstrates one’s association with and lifelong commitment to the gang.
Tattoos specific to a subset show pride in that specific set. Tattoos also
provide a way for a gang member to gain respect from other gang members or
instill fear in rival gangs. When a gang member commits an act of violence,
he adds a tattoo. The more valued and more violent, the more tattoos he may
have. It is uncommon for someone not in the gang and who has not earned a
tattoo to get a gang tattoo. True gang members would find someone’s
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unearned gang tattoos disrespectful and could assault or even kill a non-gang
member who improperly tattooed himself.
The Sureño subset VFL has approximately 20-25 members and is
centered around North Richmond. It also draws members from San Pablo,
which is geographically close to North Richmond. In addition to the symbols
and signs used by Sureños generally, VFL members commonly use the letters
“VFL” as a sign. The letters are also incorporated into a hand sign that gets
exhibited in pictures to show their association. The Sureño subset RST
occupies the part of Richmond on the south side of San Pablo. RST members
use “Richmond Sur Trece” or “RST” as symbols unique to them, and they
tattoo themselves with those words and letters to identify themselves as
members. They also have a distinct hand sign.
The VFL and RST subsets currently get along. As the two subsets
occupy similar territory, the members of both subsets will at times commit
crimes together. On several occasions, Hannis observed gang members from
each set commit crimes or acts of violence together. This shows the unity
between the two gangs and increases the respect and fear of the sets. VFL’s
primary activities include vandalism, assaults, shootings, and murder. They
also engage in weapons-related crimes and drug-related crimes. RSTs
engage in the same conduct. Both VFL and RST were active gangs on the
day Adrian was killed. According to Hannis, the area where Adrian was shot
did not belong to any specific gang or subset and would be considered neutral
territory.
The prosecution presented evidence that appellant had several tattoos.
In Hannis’s view, appellant’s tattoo of three blue stars was gang-related
because of the color and the number of stars, which connected to the number
13. Similarly, appellant’s tattoo of a dollar sign was gang-related because it
11
resembled an “S” and one of the ultimate goals of the gang was to make
money to further the gang. The tattoo on appellant’s right hand with the
letter “N” crossed out and the tattoo on his left hand with the letter “K,”
taken together, signified “Norteño killing” or “Norteño killer.” Appellant’s
left hand also had a tattoo of an AK-47 assault weapon which showed the
importance of firearms within the gang culture. A tattoo of “VFL” on
appellant’s forearm stood for Varrio Frontero Loco, the Sureño subset.
The prosecution also presented evidence of photos from appellant’s
“Sadboy Sanchez” social media account, which Hannis viewed. One photo
posted in February 2017 showed appellant wearing a blue hat, blue t-shirt,
and blue rosary and holding up the VFL sign. Another photo captioned
“ ‘Gang’ ” showed appellant wearing blue jeans, a blue hat, and blue shoes,
holding up the VFL sign with his right hand, and the number three with his
left hand. Hannis described the “113 percent” hat found at appellant’s
apartment to be a gang related Sureño hat. The hat with “VFL Sadboy”
written on it referenced appellant’s street name, Triste, which means sad in
Spanish.
In Hannis’s opinion, appellant was a member of a the Sureño criminal
street gang on September 10, 2017. He further asserted that appellant was
part of the VLF subset of the Sureños. Based on Maravilla’s tattoos, his
actions with other known gang members, the items in his residence, Hannis
opined that Maravilla was also a member of the Sureño criminal street gang
on September 10, 2017. However, Hannis had no basis to opine that
Maravilla was a member of the VFL subset. Hannis also researched whether
Adrian was a member of a criminal street gang but found no such
information. He also researched whether Adrian’s friends at the barbecue
were gang members, but found no information indicating they were.
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Hannis stated that if a VFL gang member killed someone who is
merely perceived to be a rival gang member based on his clothing, that would
still further the reputation of the gang. The VFL’s reputation would be
enhanced and fear among rival gang members would increase. It would also
promote the individuals who committed the crime and elevate their status
within the gang. If two Sureños from different subsets killed together, both
of their reputations within the gang would be boosted.
On cross-examination, Hannis acknowledged that he was unaware of
any gang members claiming responsibility for Adrian’s shooting on social
media. There was no gang graffiti in the area and no indication the shooter
made any gang-related statements or announced his gang before, during, or
after the shooting.
C. The Defense Case
The defense theory of the case was that the shooter was Maravilla
acting alone or with some other unknown persons who could have been
appellant’s brother, Ricardo. The defense sought to establish the
prosecution’s theory of guilt was not consistent with appellant’s character for
non-violence.
1. Ricardo’s Testimony
The first defense witness called was appellant’s older brother Ricardo.
He admitted he was a Sureño and a member of the RST subset. His brother,
on the other hand, was not part of RST, had never been initiated into the
VFLs and was never an active gang member. Rather, appellant was a hard
worker and was always working. Moreover, appellant was not a violent
person. Ricardo had never known his brother to get into a serious fight. The
tattoos, which the state portrayed as gang-related, were done a “long-ass time
ago.” Ricardo also acknowledged that Maravilla was an RST member.
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Ricardo said that he saw Maravilla more than his brother and they
sometimes spoke on the phone. He did not think Maravilla and his brother
were close friends and had never seen them hang out. As for the day of the
shooting, he said he was at his mother’s apartment earlier in the day but left
while it was still daylight. He denied accompanying Maravilla around the
block to shoot Adrian. He did not remember where he slept that night.
On cross-examination, Ricardo acknowledged that he did not know
whether his brother was a VFL. He agreed that within the Sureños tattoos
had to be earned. He also acknowledged that if someone wore a Sureño
tattoo without being a member or earning it he could be subject to physical
violence.
2. Character Witness Testimony
Additional family and friends testified as to appellant’s nonviolent
character. None who were asked had ever seen or heard of appellant ever
getting into arguments or fights with anyone.
Several witnesses either acknowledged or heard that appellant was a
gang member and a few knew he belonged to VFL. His gang membership,
however, did not or would not change their opinion of his character. Most
were also aware of his gang-related tattoos, but these too did not change their
opinion of his nonviolent nature. Appellant’s cousin Gerardo G. noted that he
got his tattoos when they were “pretty young . . . like 17 or 18 years old.”
Gerardo also did not believe appellant was an active gang member because
he was busy working and spending time with family.
Cousin Cristian S. was at appellant’s apartment the afternoon of
September 10, 2017, playing video games with his female cousins. He left
around 6 or 6:30 p.m. He saw appellant outside that day with another person
he had seen around before. He did not see Ricardo there that day.
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3. Employer’s Testimony
Jack M., the owner of two eateries on San Francisco State University’s
campus, testified that appellant worked for him full-time for a couple of
years, providing “all-around help”—bussing, dishwashing, and stocking.
Appellant worked well with the approximately 35 other employees, and Jack
never saw any issues between him and his co-workers or customers. He was
never a problem.
4. Edith M.’s Testimony
After the court found Edith unavailable, her testimony from the first
trial was read into the record. Edith was Adrian’s best friend’s girlfriend.
According to Edith, about a week before the shooting, she went to pick up her
boyfriend from a spot near appellant’s apartment. Ricardo and another
person stared at her and her boyfriend in a threatening manner while they
were in their car on Market. A man she believed to be Ricardo got into an
SUV with a companion and followed her and her boyfriend closely for several
blocks. They gave her a threatening stare that scared her. After telling
police about the incident, she was shown a photographic line-up in which she
identified Ricardo as the person who followed her and her boyfriend shortly
before Adrian was shot. She did not recognize appellant or Maravilla at all.
5. Defense Gang Expert Testimony
Dr. Jesse De La Cruz testified as the defense’s gang expert. According
to Dr. De La Cruz, someone who lives in a dangerous area might reluctantly
join a gang and get tattoos as a means of protecting themselves. The tattoos
might be intimidating to the general public so that others will not attack
them, but in reality the person may not be violate or want to be in a gang at
all. Someone can get a gang-related tattoo at an early age but then “age out”
and distance themselves from the gang around age 24 or 25. Someone with
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gang tattoos is also able to drop out of the gang. In his view, gang tattoos did
not indicate a pledge of lifelong affiliation to the gang. Dr. De La Cruz
distinguished between active gang members who are involved in consistent
prolonged criminal gang activity with those who simply have an affiliation
with the gang but are not committing crimes. Holding the same full-time job
for months and having a reputation as nonviolent or kind would be
inconsistent with an active gang member.
He also explained that a gang member may do a criminal act but not
for the gang. When a crime is committed for the gang, he will yell out the
name of the gang, throw up his gang’s hand signs, or post on social media
about the crime to take credit. Based on his extensive experience around
gangs, he observed, “The idea that gang members go out and kill people to get
a reputation is sort of absurd a little bit. . . . Sometimes it happens, but
primarily it doesn’t.” He further added that it would be rare for gang
members of different subsets to commit serious crimes together. There would
also be no prestige in assaulting an individual who had no gang affiliation.
Based on appellant’s work history and record, Dr. De La Cruz opined
that appellant was a VFL gang member at the time of the shooting but was
not “actively involved” in the gang’s criminal activity. He noted that the
tattoos on appellant’s face did not reflect an active gang member, but rather
someone who put tattoos on early in life and regretted it.
6. Additional Defense Evidence
Omar’s testimony from the first trial was read to the jury.
Appellant did not testify.
D. Stipulated Evidence
The parties stipulated that, “if called to testify, Oscar [T.] would testify
that: [¶] One, he saw a person who fired into the group standing near him;
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[¶] Two, the shooting was unprovoked; [¶] Three, he believes the shooter
wore a blue hoody, a blue sweatshirt that might have been Warrior blue; [¶]
Four, the suspect was a little shorter than Oscar . . . , who is about 6 feet, 2
inches tall, and skinny. [¶] Five, the suspect was pretty far from him when
he chased after him.”
E. Verdict and Sentencing
On October 23, 2018, after two days of deliberations, the jury reached
its verdict. The jury found appellant guilty on all counts and the
enhancements true. For the murder conviction, the trial court sentenced
appellant to life without the possibility of parole (LWOP). For the four
attempted murder convictions, the court imposed four LWOP sentences to be
served concurrently. He was also ordered to pay restitution and assessments.
Exercising its discretion under Senate Bill No. 620 (Stats. 2017, ch. 882, §§ 1-
2), the court struck the section 12022.53, subdivision (b), (c), and (e)(1)
firearm enhancements. This appeal followed.
DISCUSSION
A. Ineffective Assistance of Counsel
Appellant argues that his trial counsel’s failure to object when the
prosecutor introduced identification evidence which the court had already
ruled inadmissible constituted ineffective assistance of counsel.
1. Additional Facts
One of the surveillance videos police obtained from the night of the
crime showed two people walking north on Mason toward Dover at 8:19 p.m.
before the shooting occurred. The video also showed two people running
south on Mason towards Market at 8:23 p.m. following the shooting.
Defense counsel filed a motion in limine to bar any witness from
opining on the identity of anyone in the video. Specifically, appellant
17
requested that “the court bar any witness from opining that the shorter
runner in the videos is Ignacio Sanchez-Gomez—at least without some
foundation that such opinion would be helpful to the jury. The jury is at least
as capable of a lay witness to determine the identity of a person in a
surveillance video.” Defense counsel explained the videos were taken at
night, had blurred images, and showed “very fast-moving shadows.” He
further noted there were no facial images in any of the videos, “just figures
moving rapidly in the dark.”
The trial court granted the defense request and explained: “I would
agree with [defense counsel], that [the identification] is something that the
jury can do as well as a witness can do. So unless it was somebody who knew
the defendant personally like his family member who has known him all of
his life [and] might be in a better position to identify him. But if it’s a police
officer or someone who does not have that personal connection with the
defendant, then their opinion as to who is in the video is no more valuable
than the jurors’.” The court said the identity of that person will “be up to jury
to decide.”
At trial, several surveillance videos were admitted into evidence and
shown to the jury, including the video showing two people moving
northbound on Mason at 8:19 p.m. and southbound on Mason at 8:23 p.m.
As discussed, Omar, who lived on Mason and whose surveillance video
the police had obtained as evidence, was called as a witness for the
prosecution. On the evening of the shooting, he was working in his garage.
After he heard the gunshots, he saw people run by towards Market. Prior to
testifying, Omar watched on a computer surveillance videos that had been
taken from his home surveillance system. He agreed that the videos depicted
the same two people he saw run by his house towards Market:
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“Q. When you watched them on the computer, did you recognize an
individual in the court that you saw – that you recognized to be in the video?”
“A. Yes.”
“Q. Who did you recognize in court as being one of the individuals in
the video?”
“A. One that has a tattoo here (indicating).”
The prosecutor asked the record to reflect that appellant was the only
one in the room with a tattoo where Omar indicated, and thus identified
appellant. In response to the court’s inquiry, defense counsel indicated he
had no objection to the reference to the tattoo. The court then confirmed that
Omar identified appellant. Omar continued that he remembered the height
and the clothing of the runners. They had “loose clothing like gang members,
like cholos.” They were of different heights—appellant, who Omar estimated
to be 5’5” or 5’6,” was the shorter of the two. The taller one was around 5’7.”
Asked if he could tell the types of clothing the pair were wearing, Omar said
no.
On cross-examination, Omar acknowledged that he testified about the
shooting in an earlier proceeding. He explained that, at the prior proceeding,
one video had been projected on the wall and was not clear. When he
watched the videos on the monitor, however, he could see that appellant was
the shorter man on the video. Also, at the prior proceeding, no one asked him
to identify either of the defendants. When asked later if he was asked if he
could identify either of the defendants, he did not remember.
Omar also discussed his witness interviews with police after the
shooting. The initial interview occurred between a few days and a week after
the shooting and did not last long. He told police he saw two people running
past his house. The officer, however, did not ask many questions about how
19
they looked or whether he could describe what they looked like. Days later,
an officer or detective returned and asked Omar for a description of the two
men who ran by his house. He told them one was tall, the other was short,
and both were plump. He told police the shorter one ran by first, followed by
the taller one. In addition, the taller one had long shoulder-length hair.
When asked about their clothing, he said they wore blue jeans, one had a
“brownish shirt, the other one a whitish,” and that they both wore hoodies.
He was unable to tell officers about any other details of their clothing. Omar
was asked by police if he could recognize their facial features, but he never
mentioned anything about a tattoo because “[t]hey didn’t ask me many
things. Only where I was, what I was doing, and how they looked like.”
Later, he said he told police about a tattoo, as well as defense counsel.
On redirect examination, Omar explained that shortly after the
shooting defense counsel had visited him and asked if he could identify the
perpetrator in a book containing dozens of photographs. He did not recognize
anyone. At that point, Omar told defense counsel that he saw a facial tattoo
on the person running. He also stated that he had never been asked whether
he recognized the defendants in the first proceeding. As to that proceeding,
he explained the surveillance video he looked at was projected on a wall.
According to Omar, “it was clear” watching the videos on the computer
monitor, and “[he] saw [appellant] closer and clearer.” Asked if there were
any features he recognized, Omar responded, “No, the whole package.”
On recross-examination, Omar agreed it was after he was shown the
surveillance videos by the prosecutor (before his testimony) that he concluded
appellant was one of the people in the video. He could not see the tattoo on
the video. He also added, “I saw him when he went in front of my house, live.
20
[¶] I saw the tattoo the first time the person went in front of my house and
then I recognized him when I saw him here, after watching the videos.”
The parties agreed that Omar’s testimony from the first trial could be
read into the record. At the first trial, Omar testified that after the gunshots,
he “saw two people that went by running” towards Market. He could not see
them well because he was working on his car under a tent and “didn’t really
pay close attention.” He also stated that he was able to see the runner in the
back better than in the front. Both were wearing loose “cholo clothing.” The
second runner was the taller one, and he had blue pants and a “shirt that
was sort of brown.” He was “full” and chubby, had long shoulder-length hair,
and coughing and holding his pants up as he ran.
2. Applicable Law
A criminal defendant is guaranteed the right to the assistance of
counsel by the Sixth Amendment to the United States Constitution and
article I, section 15 of the California Constitution. “The standard for showing
ineffective assistance of counsel is well settled. ‘In assessing claims of
ineffective assistance of trial counsel, we consider whether counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome. [Citations.] A reviewing court will indulge in a
presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy. Defendant thus bears the
burden of establishing constitutionally inadequate assistance of counsel.’ ”
(People v. Gray (2005) 37 Cal.4th 168, 207.) If the second prong of prejudice
21
is not established, the court may reject the claim without analyzing the first
prong. (People v. Kipp (1998) 18 Cal.4th 349, 366–367.)
Ineffective assistance claims may be raised and decided on direct
appeal, and they can be found meritorious when the record reveals that
counsel did not or could not have a reasonable strategic reason for the
challenged action or inaction. (See, e.g., People v. Fosselman (1983) 33 Cal.3d
572, 581.) “Reasonableness must be assessed through the likely perspective
of counsel at the time.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.)
If the record on appeal 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 there simply could be no satisfactory explanation.
(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello).)
“Otherwise, the claim is more appropriately raised in a petition for writ of
habeas corpus.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
3. Analysis
Here, appellant has not demonstrated that his counsel’s performance
was objectively unreasonable. Where an ineffective assistance of counsel
claim is based on trial counsel’s failure to make a motion or render an
objection, a defendant must prove not only the absence of a reasonable
tactical explanation for the omission but also that the motion or objection
would have been meritorious. (People v. Mattson (1990) 50 Cal.3d 826, 876;
People v. MacKenzie (1995) 34 Cal.App.4th 1256, 1272.) “An attorney may
choose not to object for many reasons, . . . the failure to object rarely
establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495,
540.)
22
Notwithstanding the trial court’s in limine ruling, appellant has not
shown that trial counsel acted unreasonably in failing to object to Omar’s
identification testimony. A lay witness may offer opinion testimony if it is
rationally based on the witness’s perception and helpful to a clear
understanding of the witness’s testimony. (Evid. Code, § 800; see also People
v. Mixon (1982) 129 Cal.App.3d 118, 128.) “ ‘[T]he identity of a person is a
proper subject of nonexpert opinion.’ ” (People v. Leon (2015) 61 Cal.4th 569,
601 (Leon).) Leon acknowledges the line of appellate “decisions [that] have
long upheld admission of testimony identifying defendants in surveillance
footage or photographs.” (Id. at pp. 600–601.) Under this authority, Omar’s
identification was proper.
Appellant contends Omar’s identification was improper because it was
based on video, not on personal knowledge he had from associating with
appellant prior to the night of the crime. We disagree. The defendant in
Leon, supra, 61 Cal.4th 569, similarly argued that an officer’s testimony
identifying him on surveillance video was not admissible because the officer
had no contact with him before the crimes. (Id. at p. 600.) The Supreme
Court rejected the argument explaining the timing of an officer's interaction
with a defendant raised “a distinction without a difference” when it came to
being able to identify the defendant in a video. (Ibid.) The court focused on
the fact that the officer “was familiar with [the] defendant’s appearance
around the time of the crimes,” having contacted the defendant the day after
the crime. (Ibid.) Here, Omar’s interaction with appellant was no less
significant than the witness in Leon. He did not merely identify appellant
from the surveillance video, but was also an eyewitness in the neighborhood
on the night of Adrian’s murder. From his garage, he saw the two runners
pass his house shortly after the gunshots. He testified, “I have seen him
23
before when he ran in front of the house.” He noted he saw appellant’s facial
tattoo “the first time the person went in front of my house.” That provided
him adequate knowledge of appellant’s appearance at the time the video was
taken. Further, any questions about the extent of Omar’s familiarity with
appellant’s appearance “went to the weight, not the admissibility, of his
testimony.” (See ibid.)
Appellant also argues that “there is little doubt that the trial court
would have sustained a timely objection from defense counsel on [Omar’s]
identification testimony,” focusing on its pre-trial ruling barring any witness
from opining on the identity of the shorter runner in the surveillance video.
We disagree. Appellant’s in limine motion granted by the trial court
specifically referred to witnesses testifying “without some foundation.” As
just explained, Omar had a foundation for identifying appellant. Since
appellant has not shown his trial counsel’s failure to object to Omar’s
identification testimony was objectively unreasonable, we need not consider
whether he suffered prejudice.
B. Instructional Errors
1. Standard of Review
“We review instructional error claims de novo.” (In re Loza (2018) 27
Cal.App.5th 797, 800.)
“In considering a claim of instructional error we must first ascertain
what the relevant law provides, and then determine what meaning the
instruction given conveys. The test is whether there is a reasonable
likelihood that the jury understood the instruction in a manner that violated
the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.)
We evaluate whether an instruction is misleading by reviewing the jury
charge as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237
24
(Campos).) “ ‘ “[T]he correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.” ’ ” (People v. Musselwhite (1998)
17 Cal.4th 1216, 1248.) We also assume jurors are intelligent people capable
of understanding and correlating all the court’s jury instructions. (People v.
Campbell (2020) 51 Cal.App.5th 463, 493.)
If we determine there was an instructional error, we then assess
whether a reversal is warranted because the erroneous instruction was
prejudicial. (People v. Baratang (2020) 56 Cal.App.5th 252, 259.) For state
law instructional error, harmlessness is reviewed under the standard set
forth in People v. Watson (1956) 46 Cal.2d 818, 836–837. (People v. Flood
(1998) 18 Cal.4th 470, 483 & fn. 9.) Reversal is warranted if “there is a
‘reasonable probability’ there would have been a result more favorable to the
defendant absent the error.” (Ibid.) When a defendant claims instructional
error based on a legally inadequate theory of guilt or the failure to give a
necessary instruction, we apply the harmless beyond a reasonable doubt
standard in Chapman v. California (1967) 386 U.S. 18, 24. (People v.
Aledamat (2019) 8 Cal.5th 1, 7–9 (Aledamat); People v. Fraser (2006) 138
Cal.App.4th 1430, 1456.) Under that standard, we “must reverse the
conviction unless, after examining the entire cause, including the evidence,
and considering all relevant circumstances, it determines the error was
harmless beyond a reasonable doubt.” (Aledamat, supra, at p. 13.)
2. Instructions Related to Jury Evaluation of Omar’s
Credibility
Appellant contends the trial court gave two erroneous instructions that
precluded jurors from properly assessing Omar’s credibility. We consider
each one separately.
25
a. CALCRIM No. 315
First, appellant argues the court erred by instructing jurors under
CALCRIM No. 315 (Eyewitness Identification) (CALCRIM 315) to consider
Omar’s confidence when assessing the reliability of his identification
testimony. Describing the “overwhelming force” of social science research
and decisions from several courts in other states that have found no
correlation between confidence and accuracy, appellant contends the
eyewitness certainty instruction was improper and violated due process.
Omar’s testimony is described at length, ante. The trial court
instructed the jury on evaluating the credibility of eyewitness identifications
pursuant to CALCRIM 315. Among 15 considerations, the court instructed
jurors that in evaluating [Omar’s] identification testimony, jurors were to
consider “[h]ow certain was the witness when he or she made an
identification?”
In People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez), our Supreme
Court held there was no error in the portion of the eyewitness identification
instruction advising the jury it may consider an eyewitness’s level of
certainty. (Id. at pp. 461–463.) The court acknowledged the scientific studies
that conclude “there is, at best, a weak correlation between witness certainty
and accuracy” and that “some courts have disapproved instructing on the
certainty factor in light of the scientific studies.” (Id. at p. 462.) The court
nevertheless declined to reexamine its previous holdings approving an
instruction with the certainty factor, explaining there were a number of
identifications in the case, both certain and uncertain, and it was not clear
that courts in other states “would prohibit telling the jury it may consider
this factor” as the defendant “would surely want the jury to consider how
uncertain some of the identifications were.” (Ibid.) The court also
26
determined the instructional claim was forfeited for lack of objection, and the
inclusion of the certainty factor resulted in no harm to the defendant. (Id. at
pp. 461–463.) In a concurring opinion, Justice Liu agreed the claim was
forfeited and any error was harmless but urged the high court to reexamine
the propriety of the instruction. (Id. at pp. 495, 498 (conc. opn. of Liu, J.).)
On May 17, 2021, after this case was fully briefed, the Supreme Court
decided People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), in which it
reexamined the eyewitness certainty instruction in CALCRIM 315 and
considered whether it violated a defendant’s due process. (Id. at pp. 646–
647.) In Lemcke, the defendant was convicted of assault and robbery, and the
prosecution’s primary evidence at trial was the testimony of the victim who
identified the defendant as her assailant. (Id. at p. 646.) The defendant
argued that the court’s CALCRIM 315 instruction, which told jurors to
consider the witness’s certainty when evaluating the identification evidence,
violated his due process because research has shown that a witness’s
confidence in an identification is not a reliable indicator of accuracy. (Ibid.)
The Supreme Court rejected the defendant’s due process argument
“ ‘ “in the context of the instructions as a whole and the trial record.” ’ ”
(Lemcke, supra, 11 Cal.5th. at pp. 657–661.) The court made clear that the
challenged portion of CALCRIM 315 did not lower the prosecution’s burden of
proof, explaining, “the instruction does not direct the jury that ‘certainty
equals accuracy.’ [Citation.] Nor does the instruction state that the jury
must presume an identification is accurate if the eyewitness has expressed
certainty. [Citation.] Instead, the instruction merely lists the witness’s level
of certainty at the time of identification as one of 15 different factors that the
jury should consider when evaluating the credibility and accuracy of
eyewitness testimony. The instruction leaves the jury to decide whether the
27
witness expressed a credible claim of certainty and what weight, if any,
should be placed on that certainty in relation to the numerous other factors
listed in CALCRIM No. 315.” (Id. at p. 657.) In addition, the defendant was
permitted to present expert testimony to combat any inference that certainty
correlates with accuracy, and jurors received a separate instruction requiring
they consider the expert opinion. (Id. at pp. 657–658.) Jurors were also
instructed that the defendant was presumed innocent and the prosecution
had the burden of proving all elements of the crime beyond a reasonable
doubt. (Id. at p. 658.) The court also refuted the argument that the certainty
instruction deprived the defendant of a meaningful opportunity to present a
complete defense as to why the identification testimony was flawed. (Id. at
pp. 658–660.) The defendant was allowed to put on a vigorous defense on the
issue of identity. Again, the court cited the eyewitness identification expert
whose testimony defense counsel emphasized at closing argument. (Id. at p.
660.) There was also sufficient opportunity to cross-examine the witness and
the investigating officers regarding the identification. (Ibid.) In this context,
listing witness certainty as one of 15 factors jurors should consider when
evaluation an eyewitness’s identification testimony did not amount to a due
process violation. (Id. at p. 661.)
While affirming the defendant’s convictions (Lemcke, supra, 11 Cal.5th
at p. 670), the Supreme Court nevertheless acknowledged that CALCRIM
315 “has the potential to mislead jurors” given “the empirical research that ‘
“under most circumstances, witness confidence or certainty is not a good
indicator of identification accuracy.” ’ ” (Id. at p. 665.) The court recognized
“a risk that the current version of the instruction will prompt jurors to infer
that an eyewitness’s certainty in an identification is generally a reliable
indicator of accuracy.” (Id. at p. 669.) Given the complexities regarding how
28
jurors should be instructed on eyewitness testimony, the court referred the
matter to the Judicial Council and the Council’s Advisory Committee on
Criminal Jury Instructions “to evaluate whether or how the instruction might
be modified to avoid juror confusion regarding the correlation between
certainty and accuracy.” (Id. at p. 647.) In addition, the court exercised its
supervisory powers and directed “trial courts to omit the certainty factor from
CALCRIM No. 315 until the Judicial Council has the opportunity to consider
how the language might be better worded to minimize juror confusion on this
point.” (Id. at p. 669.)
As an initial matter, appellant forfeited his claim by not objecting to or
requesting modification of CALCRIM 315 in the trial court. In Sánchez, the
defendant similarly argued the trial court erred in instructing jurors with
CALJIC 2.92 (the predecessor to CALCRIM 315) because there was a weak
correlation between certainty and accuracy. (Sánchez, supra, 63 Cal.4th at p.
461.) The Attorney General argued the claim was forfeited because the
defendant had not requested a modification in the trial court. The Supreme
Court agreed and explained, “If defendant had wanted the court to modify the
instruction, he should have requested it. The trial court has no sua sponte
duty to do so.” (Ibid.) Here, there is no dispute that appellant did not object
to CALCRIM 315, and there is no indication in the record he requested a
modification of the instruction either. Since we are bound by the court’s
forfeiture holding in Sánchez (see Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455 (Auto Equity)), we conclude appellant’s challenge to
CALCRIM 315 has also been forfeited.
Appellant argues that since the witness certainty instruction violated
due process, reduced the state’s burden of proof, and undercut his defense,
the instructions affected his substantial rights and should be considered
29
under section 1259.3 Referencing Lemcke’s new directive to trial courts to
omit the certainty instruction until revised, appellant asserts Lemcke should
be applied to this case retroactively since it was not yet final on appeal. He
contends Lemcke requires reversal.
Even if we assume no forfeiture and apply the general rule of
retroactivity, “ ‘ “in the context of the instructions as a whole and the trial
record” ’ ” (see Lemcke, supra, 11 Cal.5th at p. 661) we would not reach a
different result. Like the defendant in Lemcke—whose due process
arguments were rejected and convictions affirmed notwithstanding the
Supreme Court’s new directive for trial courts to omit the certainty
instruction—appellant has also failed to establish that including the
certainty factor violated his due process rights under the circumstances
presented.
Here, as in Lemcke, nothing in the CALCRIM 315 instruction jurors
received operated to lower the prosecution’s burden of proof or deprived
appellant of his ability to present a meaningful defense. The instruction was
presented neutrally. It did not equate certainty with accuracy. Nor did it
direct jurors to presume an identification is accurate if the eyewitness has
expressed certainty. Like the instruction in Lemcke, it simply listed the
witness’s certainty as one of 15 different factors to be considered when
evaluate credibility of eyewitness testimony and left the jury to decide issues
of credibility and what weight to be placed on that certainty in relation to the
other factors. Likewise, the court instructed with CALCRIM No. 220
(Reasonable Doubt) (CALCRIM 220), which told jurors that appellant “is
3
Section 1259 provides: “Upon an appeal taken by the defendant . . .
[t]he appellate court may also review any instruction given, refused or
modified, even though no objection was made thereto in the lower court, if the
substantial rights of the defendant were affected thereby.” (§ 1259.)
30
presumed innocent” which means the People had the burden of proving him
“guilty beyond a reasonable doubt. [¶] . . . [¶] Unless the evidence proves the
defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and
you must find him not guilty.” The complete CALCRIM 315 instruction given
jurors further underscored this burden, echoing that “[t]he People have the
burden of proving beyond a reasonable doubt that it was the defendant who
committed the crime.”
In addition, appellant was able to put on a vigorous defense on the
issue of identity and was able to fully challenge Omar’s identification
testimony throughout the trial. During multiple, extensive cross-
examinations, counsel questioned the reliability of the identification. He
pressed Omar on why he did not identify anybody when testifying in the first
trial if he had recognized them from the evening of the shooting. He
interrogated Omar on the scope of his responses to the questions the officer
posed to him in his initial police interview. Appellant also cross-examined
the officer who initially questioned Omar and established that Omar had not
told the officer anything about seeing a tattoo on one of the runners or any
other distinguishing clothes besides his impression they were “cholo-type
baggy.” Omar’s testimony from appellant’s first trial was read into the record
for jurors to hear for themselves how Omar testified. Thus, the jury heard
Omar’s statements in the first trial that he “couldn’t see [the individuals
running] very well because . . . [he] was just working on . . . what [he] was
doing on [his] car and [he] just saw them go by. [He] didn’t really pay close
attention.” In closing arguments, defense counsel emphasized all the
inconsistencies in Omar’s trial testimony compared to early statements he
made, including the fact that in the first trial Omar never identified a tattoo
31
on either of the runners he saw. The jurors were able to consider all of this
when weighing Omar’s identification testimony and the rest of the evidence.
There also is also no indication in the record that appellant sought to
introduce a defense expert on eyewitness testimony but was denied the
opportunity to do so.
Appellant argues that the circumstances here differ from Lemcke,
focusing on the fact that his trial did not include testimony from an expert
who informed jurors that eyewitness testimony did not correlate to accuracy.
He contends, “A fair reading of Lemcke shows that the expert testimony was
central to the Supreme Court’s analysis,” and cites the three portions of the
Court’s analysis referring to the expert testimony. He adds, “[I]n contrast to
Lemcke, the trial here featured no evidence at all to dispel the long-held and
patently incorrect notion that an eyewitness’ confidence in [his] or her
identification is linked to the accuracy of that identification.”
Appellant is correct that the expert testimony factored into Lemcke’s
due process analysis, but we disagree that it was dispositive to the analysis
or necessary for due process. The Supreme Court repeatedly advised in
Lemcke that the due process analysis must occur “ ‘ “in the context of the
instructions as a whole and the trial record.” ’ ” (Lemcke, supra, 11 Cal.5th at
pp. 647, 655, 658, 661.) The expert testimony was one of several factors that
could be considered along with the other jury instructions, the ability to
cross-examine the witness and investigating officers, and arguments by
counsel. Under the circumstances of this case—where the jury instructions
reinforced the prosecution’s burden of proof, appellant was able to vigorously
cross-examine Omar and other witness, and trial counsel could argue all the
faults he saw with the Omar’s testimony to the jury—appellant has not
32
established that the court’s decision to include the certainty factor in
CALCRIM 315 violated his due process rights.
Since the certainty instruction did not render appellant’s trial
fundamentally unfair or amount to a due process violation, we see no grounds
to reverse so that Lemcke can be retroactively applied. Moreover, because we
conclude the court did not err in instructing the jury with CALCRIM 315, we
do not reach the issue of prejudice.
b. CALCRIM No. 337
The second instruction appellant claims prevented jurors from
assessing Omar’s credibility was CALCRIM No. 337 (Witness in Custody or
Physically Restrained) (CALCRIM 337). In giving this instruction, he
contends the court erred and violated his Fifth and Sixth Amendment rights
by directing jurors “that they must ignore [Omar’s] in-custody status when
assessing his credibility.” He argues the jury should not have been foreclosed
from considering Omar’s custody status, which was relevant to his credibility,
and suggests Omar “was shading his testimony to favor the prosecution” in
order to receive favorable treatment from the prosecution on a domestic
violence charge he was facing.
At the time of his testimony, Omar appeared in a yellow jumpsuit and
acknowledged that he was in custody on his own misdemeanor case. Outside
the presence of the jury, the court granted the prosecution’s request that
Omar be granted immunity in order to compel his testimony, which meant
his testimony could not be used against him in another criminal prosecution.
After the grant of immunity, with all the jurors present, Omar explained that
he had been in custody for approximately 10 months due to domestic violence
charges. The court instructed jurors pursuant to CALCRIM 337, as follows:
“When [Omar] testified, he was in custody. The fact that a witness is in
33
custody does not by itself make a witness more or less believable. Evaluate
the witness’s testimony according to the instructions I have given you.”
As an initial matter, appellant has forfeited this claim. Generally, the
failure to object to an instruction in the trial court forfeits any claim of error.
(People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 (Andersen); People v.
Valdez (2004) 32 Cal.4th 73, 113 (Valdez) [defendant’s failure to either object
to proposed instruction or request additional language be given forfeits claim
on appeal].) There is no dispute that appellant’s trial counsel made no
objection to this instruction, nor have we found any request for modification
in the record.
Even if we assume no forfeiture, appellant’s challenge fails. The
instruction directed jurors that a witness’s custodial status “does not by itself
make a witness more or less believable.” (CALCRIM No. 337, italics added.)
In other words, the instruction merely said that Omar’s custody status alone
did not make him less credible and added that the jury’s credibility
determination should be made in accordance with other instructions. The
instruction did not foreclose jurors from considering Omar’s custody status or
the circumstances of his detainment in assessing his credibility. Moreover,
jurors were instructed with CALCRIM No. 226 (Witnesses), which included
the direction that “[i]n evaluating a witness’s testimony, you may consider
anything that reasonably tends to prove or disprove the truth or accuracy of
that testimony,” including “Was the witness’s testimony influenced by a
factor such as bias or prejudice?” and “What was the witness’s attitude about
the case or about testifying?” Accordingly, the jury was free to assess Omar’s
credibility in light of his custodial status.
Appellant also cites People v. Cox (1991) 53 Cal.3d 618 (Cox) and People
v. Rodriguez (1986) 42 Cal.3d 730 (Rodriguez) to argue that his custodial
34
status was relevant to his credibility. Cox states, “Only when a witness has
been granted immunity from prosecution or otherwise received favorable
treatment in return for testifying should the jury consider any incentive in
assessing his or her credibility.” (Cox, supra, at p. 668, fn. 14.) Rodriguez
makes the same point. (Rodriguez, supra, at p. 751.) The point is
unremarkable. As noted, CALCRIM 337 did not foreclose jurors from
considering Omar’s custodial status or the circumstances of his incarceration
in assessing his credibility.
Because we conclude the court did not err in instructing the jury with
CALCRIM 337, we do not reach the issue of prejudice.
2. CALCRIM No. 359
Appellant argues the trial court erred when it instructed the jurors
pursuant to CALCRIM No. 359 (Corpus Delecti: Independent Evidence of a
Charged Crime) (CALCRIM 359) that they could find the identity of the
person who committed the crime and the degree of the crime from appellant’s
statements alone. He says his statements alone were not enough to prove
identity or degree of the crime, so “[b]y instructing jurors they could find the
identity of the person who committed the crime and the degree of the crime
from defendant’s statements alone, the trial court undercut the state’s
burden of proving both identity and degree beyond a reasonable doubt.”
As discussed above, when appellant and Maravilla were moved from
the police station to jail in the wired transport van, they both made multiple
statements about their individual interviews with police and events around
their arrests which were recorded. In addition, according to the officer who
interviewed appellant’s mother, appellant told her that he was leaving the
apartment shortly before the shooting and that he would return but never
did.
35
The court instructed jurors with CALCRIM 359, as follows: “The
defendant may not be convicted of any crime based on his out-of-court
statements alone. You may rely on the defendant’s out-of-court statements to
convict him only if you first conclude that other evidence shows that the
charged crime or a lesser included offense was committed. [¶] . . . [¶] This
requirement of other evidence does not apply to proving the identity of the
person who committed the crime and the degree of the crime. If other
evidence shows that the charged crime or a lesser included offense was
committed, the identity of the person who committed it and the degree of the
crime may be provided by the defendant’s statements alone. [¶] You may not
convict the defendant unless the People have proved his guilt beyond a
reasonable doubt.”
The instruction expresses the corpus delecti rule. (People v. Reyes
(2007) 151 Cal.App.4th 1491, 1498.) Under this rule, every conviction “must
prove the corpus delecti, or the body of the crime itself-i.e., the fact of injury,
loss, or harm, and the existence of a criminal agency as its cause.” (People v.
Alvarez (2002) 27 Cal.4th 1161, 1168 (Alvarez). The prosecution cannot
satisfy this burden by relying exclusively upon the extrajudicial statements,
confessions, or admissions of the defendant, and the jury must be so
instructed. (Id. at pp. 1165, 1169.) “Th[e] rule is intended to ensure that one
will not be falsely convicted, by his or her untested words alone, of a crime
that never happened.” (Alvarez, supra, 27 Cal.4th 1161, 1169.)
Appellant has forfeited this claim, as well. (Andersen, supra, 26
Cal.App.4th at p. 1249; Valdez, supra, 32 Cal.4th at p. 113.) There is no
dispute that appellant’s trial counsel made no objection to this instruction,
nor have we found any request for modification in the record. Even if there
were no forfeiture and the court’s CALCRIM 359 instruction were somehow
36
erroneous, we would not reach a different result because any such error
would have been harmless. (See People v. Watson (1956) 46 Cal.2d 818,
836; People v. Anderson (2007) 152 Cal.App.4th 919, 927 [in determining
whether instructional error affected defendant’s “substantial rights” under §
1259, “[t]he question is whether the error resulted in a miscarriage of justice
under [Watson]”].)
In “consider[ing] the jury charge as a whole” (Campos, supra, 156
Cal.App.4th at p. 1237), there is no reasonable probability that the jury
would have believed it could convict appellant under a reduced standard of
proof, or that the outcome would have been more favorable to appellant
absent the error. The jury was told multiple times that it could find
appellant guilty of the charged crimes only if convinced beyond a reasonable
doubt he committed them. The last paragraph of CALCRIM 359 expressly
cautioned the jury that it could convict unless the prosecution proved the
defendant’s guilt beyond a reasonable doubt. The court also instructed jurors
with CALCRIM 220, which defines reasonable doubt, stresses that proof
beyond a reasonable doubt is required for everything the People must prove,
and states that in deciding whether the People have proven their case beyond
a reasonable doubt the jury “must impartially compare and consider all the
evidence that was received throughout the entire trial. Unless the evidence
proves the defendant guilty beyond a reasonable doubt, he is entitled to
acquittal and you must find him not guilty.” Accordingly, we reject
appellant’s assertion that CALCRIM 359 undercut the state’s burden of proof
and permitted the jury to convict him on evidence amounting to less than
proof beyond a reasonable doubt.
3. CALCRIM No. 372
37
Appellant argues the trial court failed to give balanced instructions to
the jurors on flight. Specifically, he contends the court erred by instructing
jurors pursuant to CALCRIM No. 372 (Defendant’s Flight) (CALCRIM 372)
that they could rely on evidence of his alleged flight to convict him but not
instructing jurors that they could rely on the absence of flight to acquit him.
As discussed, the prosecution presented evidence that appellant lived
with his mother in the apartment around the block from the crime scene.
One of the investigating officers testified that minutes before the shooting,
appellant had told his mother he would be right back, but he left and never
returned. Appellant’s mother testified that in the 18 days following Adrian’s
murder, appellant did not return home and that he had never been gone for
such a long period.
Appellant disputed the notion that he fled. The investigating officer
had also told been that appellant usually stayed with his mother throughout
the week but would spend the weekend with his girlfriend in Concord.
Appellant’s girlfriend’s sister confirmed that he sometimes stayed overnight
at her sister’s place and would go directly to work from there. In addition, his
former employer confirmed that appellant continued working full-time
through September 25th.
The trial court instructed jurors with CALCRIM 372, as follows: “If the
defendant fled immediately after the crime was committed, that conduct may
show that he was aware of his guilt. If you conclude that the defendant fled,
it is up to you to decide the meaning and importance of that conduct.
However, evidence that the defendant fled cannot prove guilt by itself.”
Section 1127c requires the court to instruct the jury “where evidence of
flight of a defendant is relied upon as tending to show guilt” as follows: “The
flight of a person immediately after the commission of a crime, or after he is
38
accused of a crime that has been committed, is not sufficient in itself to
establish his guilt, but is a fact which, if proved, the jury may consider in
deciding his guilt or innocence. The weight to which such circumstance is
entitled is a matter for the jury to determine. No further instruction on the
subject of flight need be given.” (§ 1127c.)
Appellant has forfeited this claim, too. (See Andersen, supra, 26
Cal.App.4th at p. 1249; Valdez, supra, 32 Cal.4th at p. 113.) There is no
dispute that appellant’s trial counsel made no objection to this instruction,
nor have we found any request for modification in the record. Even assuming
no forfeiture, the claim fails because he had no right to an absence of flight
instruction. There is no requirement similar to section 1127c—which
expressly states that “[n]o further instruction” on flight is necessary—that
obligates a court to instruct on the absence of flight. Most critically, the
Supreme Court has rejected arguments calling for an absence of flight
instruction.
In People v. Green (1980) 27 Cal.3d 1 (Green), overruled on another
ground in People v. Martinez (1999) 20 Cal.4th 225, 235, the defendant
argued on appeal that the “trial court erred in refusing to give his proffered
instruction that the absence of flight by a suspect may be considered by the
jury as circumstantial evidence that he had an innocent frame of mind.”
(Green, supra, at p. 36.) According to the Court, “the absence of flight is so
ambiguous, so laden with conflicting interpretations, that its probative value
on the issue of innocence is slight.” (Id. at p. 39.) The Supreme Court
concluded the trial court did not err in refusing to give the proffered
instruction. (Ibid.)
In People v. Williams (1997) 55 Cal.App.4th 648 (Williams), the court
noted that “Green did not address the constitutional claim now raised which
39
focuses on the lack of parity with the requirement of a flight instruction when
supported by the evidence.” (Id. at p. 652.) Addressing the argument, the
court explained that “the inference of consciousness of guilt from flight is one
of the simplest, most compelling and universal in human experience.
[Citation.] The absence of flight, on the other hand, is far less relevant, more
inherently ambiguous and ‘often feigned and artificial.’ ” (Ibid.) The court
rejected the argument that due process required an instruction on the
absence of flight. (Ibid. [“[W]e decline the invitation to hold as a matter of
law that due process . . . requires such an instruction . . .”].)
In People v. Staten (2000) 24 Cal.4th 434 (Staten), the Supreme Court
again rejected the argument that the trial court erred in failing to instruct
that a jury might consider the absence of flight as a factor tending to show
innocence. (Id. at p. 459.) It expressly held that the lack of parity in the
flight instruction did not violate due process. (Ibid.) The court made clear
that its conclusion in Green “also forecloses any federal or state constitutional
challenge based on due process.” (Ibid.)
We are bound by our Supreme Court’s holdings in Green and Staten
that refusal to give an absence of flight instruction is proper and not unfair.
(See Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
Without addressing Green, Williams, or Staten, appellant contends that
this matter is controlled by Cool v. United States (1972) 409 U.S. 100 (Cool).
There, the defendant was charged with possessing counterfeit bills. (Id at p.
100.) At trial, the defendant relied on accomplice testimony that was
“completely exculpatory.” (Id. at p. 101.) On the accomplice testimony, the
trial court instructed the jury that as a predicate to consider the evidence, the
jury must find it “true beyond a reasonable doubt.” (Id. at p. 102, italics
omitted.) The “clear implication” of the instruction was that jurors should
40
disregard the accomplice testimony unless they found it true beyond a
reasonable doubt. (Ibid.) The Supreme Court concluded the instruction
infringed on the defendant’s Sixth Amendment right to present a defense and
effectively reversed the burden of proof to require the defendant to establish
her innocence beyond a reasonable doubt. (Id. at 104.)
Cool has nothing to do with the CALCRIM 372 flight instruction and
does not control here. Also, the flight instruction here, which merely
informed jurors that flight may show consciousness of guilt but cannot by
itself prove guilt, does not suffer from the same flaw as the accomplice
instruction in Cool, which interfered with the defendant’s right to defend
with evidence that merely raised a reasonable doubt and lowered the
prosecution’s burden of proof.
Because we conclude the court did not err in instructing the jury with
CALCRIM 372 without including an absence of flight instruction, we do not
reach the issue of prejudice.
C. Attempted Murder Convictions
As discussed, appellant was charged with the attempted willful,
deliberate, and premeditated murders (§§ 664/187(a)) of the four friends with
Adrian at the barbecue the evening Adrian was killed: Oscar (count 2),
Rohan (count 3), Edwin (count 4), and Jose (count 5). The jury convicted
appellant on all four charges. The convictions required “the specific intent to
kill and the commission of a direct but ineffectual act toward accomplishing
the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee).)
Appellant asserts two grounds for reversing these convictions. We consider
each argument separately.
1. Kill Zone Instruction
41
Appellant first argues his attempted murder convictions must be
reversed because the trial court improperly instructed the jurors they could
rely on a kill zone theory to convict him.
The jury was instructed on attempted murder pursuant to CALCRIM
No. 600 (Attempted Murder) (CALCRIM 600), which stated that it was the
People’s burden to prove that “1. The defendant took at least one direct but
ineffective step toward killing another person; [¶] AND [¶] 2. The defendant
intended to kill a person.” In addition, the court provided this “kill zone”
instruction: “A person may intend to kill a specific victim or victims and at
the same time intend to kill everyone in a particular zone of harm or ‘kill
zone.’ In order to convict the defendant of the attempted murder[s] of [Oscar,
Rohan, Edwin, or Jose], the People must prove that the defendant not only
intended to kill [Adrian], but also either intended to kill each charged victim
named in the respective counts, or intended to kill everyone within the kill
zone.” The court further instructed the jurors that if they had reasonable
doubt that defendant intended to kill any of these men, or intended to kill
Adrian by killing everyone in the kill zone, they must find the defendant not
guilty of the attempted murder charges.
The kill zone theory, first expressly embraced by our Supreme Court in
People v. Bland (2002) 28 Cal.4th 313, 329–330 (Bland), provides a defendant
can be found guilty of the attempted murder of victims who were not the
defendant’s “primary target.” “[A]lthough the intent to kill a primary target
does not transfer to a survivor, the fact the person desires to kill a particular
target does not preclude finding that the person also, concurrently, intended
to kill others within what it termed the ‘kill zone’ ” for attempted murder.
(Id. at p. 329.) “[C]onsider a defendant who intends to kill A and, in order to
ensure A’s death, drives by a group consisting of A, B, and C, and attacks the
42
group with automatic weapon fire or an explosive device devastating enough
to kill everyone in the group. The defendant has intentionally created a ‘kill
zone’ to ensure the death of his primary victim, and the trier of fact may
reasonably infer from the method employed an intent to kill others
concurrent with the intent to kill the primary victim. When the defendant
escalated his mode of attack from a single bullet aimed at A’s head to a hail of
bullets or an explosive device, the factfinder can infer that, whether or not
the defendant succeeded in killing A, the defendant concurrently intended to
kill everyone in A’s immediate vicinity to ensure A’s death.” (Id. at p. 330.)
After appellant’s conviction, the California Supreme Court decided
People v. Canizales (2019) 7 Cal.5th 591 (Canizales), in which it re-examined
the kill zone theory with the goal of “more clearly defining” the theory. (Id. at
p. 606.) In Canizales, the two defendants fired handguns at two rival gang
members attending an outdoor block party. (Id. at p. 598.) The shots were
fired from a distance of 100 to 160 feet on a wide city street with escape
routes. (Id. at p. 600.) The primary targets fled down the street in the
opposite direction after the first shot and were not hit by gunfire, but a
bystander was struck and died. (Ibid.) The defendants were charged with
the bystander’s murder and the attempted murders of the two rival gang
members. (Ibid.) For the attempted murder charges, the trial court
instructed on a kill zone theory and the jury convicted. (Id. at p. 601.)
In its effort to clarify the kill zone theory, the Supreme Court held “that
a jury may convict a defendant under the kill zone theory only when the jury
finds that: (1) the circumstances of the defendant’s attack on a primary
target, including the type and extent of force the defendant used, are such
that the only reasonable inference is that the defendant intended to create a
zone of fatal harm — that is, an area in which the defendant intended to kill
43
everyone present to ensure the primary target’s death — around the primary
target and (2) the alleged attempted murder victim who was not the primary
target was located within that zone of harm.” (Canizales, supra, 7 Cal.5th at
pp. 596–597, 607.) It further explained, “In determining the defendant’s
intent to create a zone of fatal harm and the scope of any such zone, the jury
should consider the circumstances of the offense, such as the type of weapon
used, the number of shots fired (where a firearm is used), the distance
between the defendant and the alleged victims, and the proximity of the
alleged victims to the primary target. Evidence that a defendant who intends
to kill a primary target acted with only conscious disregard of the risk of
serious injury or death for those around a primary target does not satisfy the
kill zone theory.” (Id. at p. 607.)
The Court cautioned trial courts to “exercise caution when determining
whether to permit the jury to rely upon the kill zone theory” and to “tread
carefully when the prosecution proposes to rely on such a theory.” (Canizales,
supra, 7 Cal.5th at p. 608.) The Court noted that “[t]rial courts should . . .
provide an instruction to the jury only in those cases where the court
concludes there is sufficient evidence to support a jury determination that the
only reasonable inference from the circumstances of the offense is that a
defendant intended to kill everyone in the zone of fatal harm. The use or
attempted use of force that merely endangered everyone in the area is
insufficient to support a kill zone instruction.” (Ibid.) Under this guidance,
the Court anticipated “there will be relatively few cases in which the theory
will be applicable and an instruction appropriate.” (Ibid.)
On the facts of the case before it, the Court found the evidence
insufficient to warrant the kill zone instruction as the circumstances of the
attack were not sufficient to support a reasonable inference that the
44
defendant intended to create a zone of fatal harm around a primary target.
(Canizales, supra, 7 Cal.5th at pp. 609–611.) “The evidence presented here
showed that from a substantial distance [the defendant] shot five bullets in
the direction of a target who immediately ran down a city street after the
first shot was fired. This evidence was insufficient to support instruction on
the kill zone theory.” (Id. at p. 611.)
a. Forfeiture
As a threshold matter, the People contend that appellant forfeited this
claim by failing to object to the instruction.
While the discussion about jury instructions was not reported, the court
invited the parties to state any objections for the record and both declined.
Nonetheless, we conclude the issue is not forfeited because the asserted
instructional error affects his substantial rights. (§ 1259; People v. Ramos
(2008) 163 Cal.App.4th 1082, 1087.) We therefore review appellant’s claim on
the merits.
b. Intent to Kill
In the case before us there was insufficient evidence to support giving
the CALCRIM 600 kill zone instruction as it is only appropriate where the
defendant had a primary target, sought to annihilate everyone within the kill
zone in order to ensure killing the primary target, and the attempted murder
victims were inside the kill zone. (See Canizales, supra, 7 Cal.5th at pp. 597,
607.)
The parties do not dispute that there was substantial evidence from
which the jury could infer that Adrian was the primary target. Both
appellant and Maravilla were Sureños, and Adrian was at least perceived to
be part of the rival Norteños based on his clothing. He wore red shoes and a
red Washington Nationals baseball cap, items associated with Norteños. Of
45
the six spent bullets found, at least four of them were close to Adrian’s
location by the Camry. Hence, there was substantial evidence in the record
from which the jury could infer Adrian was the primary target in the
shooting.
The kill zone instruction, however, also required sufficient evidence “to
support a jury determination that the only reasonable inference from the
circumstances of the offense is that a defendant intended to kill everyone in
the zone of fatal harm” as a means of killing Adrian. (Canizales, supra, 7
Cal.5th at p. 608.) That is not the case here. Based on the scope and nature
of the attack, the “only reasonable inference” is not that appellant and
Maravilla intended to create a zone of fatal harm, or kill zone, around
Adrian. Considering the circumstances of the offense Canizales instructs us
to consider—the type of weapon used, the number of shots fired, the distance
between the defendant and the alleged victims, and the proximity of the
alleged victims to the primary target—other reasonable inferences can also
be reached.
First, the weapon used to kill Adrian was a single nine-millimeter
handgun based on the brass shell casings found in the street. While deadly,
as in Canizales, the use of this kind of weapon generally does not evince an
intent to kill everyone in a particular zone. (See Canizales, supra, 7 Cal.5th
at pp. 611–612 [kill zone instruction not warranted where defendant used a
9mm handgun].) It stands in sharp contrast to the type of “high-powered
wall-piercing” assault rifle that has factored into a defendant’s intent to
create a kill zone. (See People v. Vang (2001) 87 Cal.App.4th 554, 564 [use of
high-powered wall-piercing weapons in part created a reasonable inference
that the defendants intended to kill every living being inside the residences
at which they shot]; People v. Cerda (2020) 45 Cal.App.5th 1, 16–17 [use of
46
AK-47 assault rifle whose high caliber ammunition traveled four times the
velocity of handgun ammunition and had the potential for penetrating
substantial barriers favored kill zone instruction].)
With respect to the shots fired, nine brass casings were recovered on
the north end of Powell, so at least that many shots were fired by the
gunman. The People contend that 11 shots were fired based on counsel’s
count on Shotspotter. Whether 9 or 11, there were undoubtedly more shots
fired than needed to kill one person. But as Canizales instructs, “the number
of shots fired, although relevant to the inquiry, is not dispositive.”
(Canizales, supra, 7 Cal.5th at p. 610.)
Based on where the brass shell casings ejected and were found, Adrian
was likely not shot from the close proximity generally associated with the
intent to create a kill zone. In Canizales, the Supreme Court described
multishot cases which supported the kill zone instruction where “defendants
opened fire while in close proximity to . . . their intended target.” (Canizales,
supra, 7 Cal.5th at pp. 610–611.) The Supreme Court observed that in
Bland, supra, 28 Cal.4th 313, the defendant approached the driver’s side of
the victim’s car and started shooting, and in State v. Wilson (1988) 546 A.2d
1041, the defendant opened fire after engaging in a heated verbal argument
and threatening to pistol whip the target. (Ibid.) By contrast, here, the
closest brass casing was found 61 feet from where Adrian fell and the
furthest casing was found approximately 132 feet away. This is similar to
Canizales where five bullets shot from a distance of either 100 or 160 feet
were insufficient to support the kill zone instruction. (Id. at p. 611; see also
People v. Cardenas (2020) 53 Cal.App.5th 102, 110 [15 shots are filed from 40
feet away or closer not sufficient dispositive evidence for kill zone
instruction].)
47
Rohan and Jose’s proximity to Adrian clearly weighs against finding an
intent to create a kill zone. Rohan testified that he was facing the apartment
and was “[m]aybe 10 feet” away from Adrian, who was on his right, when he
heard the shots. Jose also testified that he was facing the apartment with his
back to the street and that he was 10 feet away from Adrian when the
shooting occurred. (See Cardenas, supra, 53 Cal.App.5th at p. 115 [kill zone
instruction not warranted where attempted murder victims appeared to be at
least 5 five feet away from victim and seeking cover].) Oscar’s stipulated
statement stated only that the shooter “fired into the group standing near
him” but did not otherwise detail where he was relative to Adrian. This
evidence is not sufficient to merit the instruction. Edwin testified he was
“[l]ike, about two inches away from [Adrian]. We were shoulder to shoulder,
like, right next to each other.” While such close proximity generally favors
the instruction, we are not able to determine from the record whether Edwin
stood between Adrian and the shooter, where killing him could have been a
means of killing Adrian, or on Adrian’s opposite side, where killing him
would not have been necessary to kill Adrian.4 For Edwin, this factor is
4
Appellant acknowledges Edwin’s testimony that he was shoulder-to-
shoulder with Adrian but asserts that the prosecution introduced no
testimony as to where Edwin stood in relation to the shooter. He argues that
if Edwin had been closer to the apartment building, the shooter’s view of him
may have been obstructed by the garage of the neighbor’s house immediately
to the north. In response, the People contend only that appellant’s argument
“is based on speculation and farfetched scenarios that suggest that appellant
would argue against the kill zone regardless of the evidence” but do not
otherwise address appellant’s argument. Absent more precise evidence on
Edwin’s location, it is reasonably possible to infer the shooter’s view of Edwin
could have been obstructed by the neighbor’s protruding garage. On this
record, we are not inclined to conclude that evidence sufficiently
demonstrated that “the only reasonable inference” is that the shooter
intended to kill Edwin in order to ensure Adrian’s death.
48
inconclusive based on the record before us. While we recognize that the
sufficiency of the analysis “does not turn on the effectiveness or
ineffectiveness of the defendant’s chosen method of attack” (Canizales, supra,
7 Cal.5th at p. 611), our conclusion here is also informed by the fact that none
of the attempted murder victims—including Edwin—were hit by any of the
shots fired.
Finally, we factor into our analysis the location of the shooting. (See
Canizales, supra, 7 Cal.5th at p. 611 [no inference of intent to kill where
attacked occurred at a block party on a wide city street, not in any alleyway,
cul de sac, or some other area or structure from which victims would have
limited means of escape].) The attack against Adrian and his friends
occurred during an outside barbecue on a long driveway where multiple cars
were parked and which led out onto a public street. At this location, one
could drop to the ground, as Rohan and Jose did; run out into the street, as
Omar did when he gave chase; or even take cover behind a parked car.
On this record, we cannot conclude the only reasonable inference
arising from the scope and nature of the attack is that appellant and
Maravilla intended to create a zone of fatal harm around Adrian and his
friends. While there is no doubt that the attack subjected everyone near
Adrian to great risk, that is not enough to warrant the kill zone instruction.
(Canizales, supra, 7 Cal.5th at p. 608 [“[M]erely endanger[ing] everyone in
the area is insufficient to support a kill zone instruction.”].) In light of our
conclusion, we do not consider whether the attempted murder victims were
located within that zone of harm.
The People contend all the factors listed in Canizales supported the
inference that appellant and Maravilla intended to kill everyone in the kill
zone—the semiautomatic weapon, the 11 shots fired most of which occurred
49
after Adrian had been hit, the 60 feet between the shooter and Adrian, and
the proximity of the attempted murder victims to Adrian. We are not
persuaded and note that some of their assertions are not supported by the
record. For instance, the People claim that because “the evidence suggested
that [Adrian] was shot by the first or second bullet[] fired[,]” the shooter must
have intended to kill the others because he continued to fire all eleven bullets
he had. The People cite Rohan and Edwin’s testimony to support these
contentions, but their testimony said nothing about which bullet hit Adrian.
Rohan stated that upon hearing shots, “[w]e all ducked down, tried to go for
cover, and then that’s when I saw Adrian was hit.” Edwin said that he
“couldn’t really see anything” because of the darkness, and threw himself on
the ground when somebody said gunshots. After the gunshots stopped, he
tried to help Adrian up. Neither identified which bullet shot their friend.
For the reasons explained, we cannot conclude the only reasonable
inference from the evidence in this case is that appellant or Maravilla
specifically intended to kill everyone around Adrian as a means of killing
Adrian.
c. People v. Mumin
While this appeal was pending, the Fourth District Court of Appeal
decided People v. Mumin (2021) 68 Cal.App.5th 36 (Mumin), which offered a
different view of the direction in Canizales that a kill zone instruction should
be given “only in those cases where the court concludes there is sufficient
evidence to support a jury determination that the only reasonable inference
from the circumstances of the offense is that a defendant intended to kill
everyone in the zone of fatal harm.” (Canizales, supra, 68 Cal.App.5th at p.
608.)
50
The Mumin court agreed with the argument the People advanced in
that case that Canizales’s articulation of the “only reasonable inference”
standard did not mean the reviewing court must itself be convinced that the
sole reasonable inference from the evidence is that the defendant had the
requisite intent to kill. (Mumin, at p. 844.) Mumin concluded: “Canizales
does not depart from, and instead reaffirms, established principles governing
a trial court’s decision to instruct on a theory of liability and an appellate
court’s review of such a decision. The trial court must determine whether the
evidence would support a jury determination that the only reasonable
inference was that the defendant held the requisite intent. If a trial court’s
decision to instruct is challenged on appeal, we must make the same
determination on de novo review. But, in so doing, the issue is not whether
we believe the only reasonable inference from the evidence is that the
defendant had the requisite intent—just as, in other substantial evidence
contexts, the issue is not whether we believe the defendant to be guilty
beyond a reasonable doubt. The issue is whether the evidence would support
such a determination by the jury. Under these circumstances, it is well
established that the evidence supports a jury determination that an inference
is the only reasonable inference if we conclude it is at least a reasonable
inference.” (Mumin, at p. 844 [disagreeing with In re Rayford (2020) 50
Cal.App.5th 754 to the extent it holds otherwise].)
Had the People advocated the analysis adopted in Mumin, we could
have considered the propriety of a retrial on the kill zone theory of attempted
murder for the count involving Edwin in light of the evidence of Edwin’s close
proximity to Adrian, the weapon used, the multiple spent bullets found in the
area where Adrian was shot and killed, and other evidence.
51
For now, we submit it is unclear whether Mumin correctly applies
Canizales’s “only reasonable inference” standard. On the one hand, Mumin’s
analysis of the standard aligns with settled principles controlling appellate
review of a trial court’s decision to instruct on a theory of liability. It is easily
applied and contemplates that the jury, not the appellate court, is the proper
body for determining whether the only reasonable inference arising from the
circumstances of an offense is that the defendant intended to kill everyone in
the zone of fatal harm. On the other hand, if, as Mumin suggests, a
reviewing court must construe the facts in the light most favorable to the
judgment when determining whether the “only reasonable inference”
standard is met, then application of the kill zone theory appears significantly
broadened in contravention of the Supreme Court’s explicit efforts in
Canizales to limit the theory’s application.
A petition for review is pending in Mumin. It would be helpful if the
Supreme Court were to provide additional guidance regarding the application
of the Canizales standard.
d. Prejudice
We next consider whether the erroneous kill zone instruction was
prejudicial based upon whether the error was harmless beyond a reasonable
doubt under Chapman, supra, 386 U.S. at 24. (Canizales, supra, 7 Cal.5th at
p. 615; Aledamat, supra, 8 Cal.5th at p. 13.) Under that test, we ask “
‘whether it is clear beyond a reasonable doubt that a rational jury would have
rendered the same verdict absent the error.’ ” (Canizales, at p. 615.) Here,
reversal is required as there is a reasonable possibility that the error may
have contributed to the verdict. (Cardenas, supra, 53 Cal.App.5th at p. 102.)
The trial court instructed the jury with two theories of liability for the
attempted murder charges. It instructed with the traditional theory of
52
attempted murder that required jurors to find that appellant took at least
one direct but ineffective step toward killing another person and that
appellant intended to kill that person. As discussed extensively, ante, it also
instructed jurors with the kill zone theory.
As explained ante, the kill zone instruction given to jurors was factually
inadequate because it described a theory of liability that could not be
supported by the evidence. Further, the instruction jurors received was the
same kill zone instruction which Canizales found legally inadequate. (See
Canizales, supra, 7 Cal.5th. at pp. 613–614.) As Canizales explained,
“Beyond its reference to a ‘particular zone of harm,’ the instruction provided
no further definition of the term ‘kill zone.’ Nor did the instruction direct the
jury to consider evidence regarding the circumstances of [appellant’s] attack
when determining whether [he] ‘intended to kill [Adrian] by killing everyone
in the kill zone.’ ” (Canizales, at p. 613.) The instruction therefore created
the potential for confusion by allowing the jury to apply the kill zone theory
without consideration of the particular circumstances of the attack. (See also
In re Rayford (2020) 50 Cal.App.5th 754, 782 (Rayford) [“By defining the kill
zone as a ‘zone of risk,’ the instruction erroneously allowed the jury to convict
[the defendants] if the evidence showed they intended to subject individuals
in the ‘zone of risk’ to a risk of harm, regardless of whether they intended to
kill the individuals in order to kill the primary target.”].)
In determining prejudice under these circumstances, People v.
Thompkins (2020) 50 Cal.App.5th 365, is instructive. There, the jury had
been instructed with both the traditional theory of attempted murder and the
kill zone theory. (Id. at p. 397.) The court also dealt with a legally and
factually inadequate kill zone instruction. (Id. at p. 399.) The Attorney
General argued that since there was sufficient evidence to support the
53
attempted murder convictions under the traditional theory of attempted
murder without the kill zone instruction, the kill zone instruction was
harmless. (Id. at p. 397.) In assessing prejudice from such an error,
Thompkins explained, “[T]he question is not whether we think it clear beyond
a reasonable doubt that the defendants were actually guilty of . . . attempted
murders based on the valid theory.” (Id. at p. 399.) Instead, the
reviewing court must determine “whether we can say, beyond a reasonable
doubt, the jury’s actual verdicts were not tainted by the inaccurate jury
instruction. We focus on the likelihood that the jury relied on
the kill zone instruction in reaching its verdicts, not simply the likelihood of
defendants’ guilt under a legally correct theory.” (Ibid.)
Under this standard, we cannot conclude beyond a reasonable doubt
that the jury’s actual verdicts were not tainted by the inaccurate jury
instructions. Of significance, the prosecutor relied almost exclusively on the
kill zone theory in urging jurors to convict on the attempted murder charges.
When first addressing the attempted murder charges, he set forth the
elements of the traditional theory but did not discuss those any further.
Instead, he directed the jurors’ attention to the kill zone theory, stating, “I’m
going to talk about this kill zone theory when it comes to the attempted
murder victims.” He then discussed the details of the attack and the location
of the victims. Afterwards, he stated, “During my closing, that’s all I’m going
to say about the attempted murders and the kill zone.” He did not return to
discuss the attempted murder charges again. Clearly, the prosecution
emphasized the kill zone in arguing to the jury that appellant was guilty of
attempted murder and, in doing so, he invited the jury to use a legally
erroneous instruction. Accordingly, we must reverse the attempted murder
convictions as we cannot determine beyond a reasonable doubt that at least
54
one juror did not convict appellant under a kill zone theory. (See Thompkins,
supra, 50 Cal.App.5th at pp. 400–401; Rayford, supra, 50 Cal.App.5th at pp.
781–784.)
2. Sufficiency of the Evidence
Appellant next argues his attempted murder convictions require
reversal because there was insufficient evidence he intended to kill the
alleged attempted murder victims. Even though we have reversed the
attempted murder convictions based on instructional error, we must decide
this issue because the People are permitted to retry appellant for the
attempted murder charges only if sufficient evidence was presented in the
trial court to support them.
To prove the crime of attempted murder, the prosecution must
establish “the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.” (Lee, supra, 31
Cal.4th at p. 623.) Direct evidence of intent to kill is rarely available, but
intent to kill may be inferred from the circumstances of the crime and a
defendant’s actions. (Sánchez, supra, 63 Cal.4th at p. 457.) “ ‘The act of
firing toward a victim at a close, but not point blank, range “in a manner that
could have inflicted a mortal wound had the bullet been on target is sufficient
to support an inference of intent to kill.” ’ [Citations.] ‘Even if the “shooter
merely perceive[es] the victim as ‘a momentary obstacle or annoyance,’ the
shooter’s purposeful ‘use of a lethal weapon with lethal force’ against the
victim, if otherwise legally unexcused, will itself give rise to an inference of
an intent to kill.” ’ ” (Cardenas, supra, 53 Cal.App.5th at p. 119.)
“An attempted murder is premeditated and deliberate if it occurs ‘ “ ‘as
the result of preexisting thought and reflection rather than unconsidered or
rash impulse.’ ” ’ [Citations.] ‘ “In this context, ‘premeditated’ means
55
‘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.’ ” ’ [Citations.]
‘The process of premeditation and deliberation does not require any extended
period of time.’ ” (Cardenas, supra, 53 Cal.App.5th at p. 121.)
“ ‘[T]o be guilty of attempted murder as an aider and abettor, a person
must give aid or encouragement with knowledge of the direct perpetrator’s
intent to kill and with the purpose of facilitating the direct perpetrator’s
accomplishment of the intended killing—which means that the person guilty
of attempted murder as an aider and abettor must intend to kill.’ ” (People v.
Pettie (2017) 16 Cal.App.5th 23, 52.)
“In reviewing a sufficiency of the evidence claim, our role is limited.
We review the entire record to determine whether it discloses reasonable and
credible evidence to allow a rational trier of fact to determine guilt beyond a
reasonable doubt. [Citations.] We draw all reasonable inferences in favor of
the judgment.” (Cardenas, supra, 53 Cal.App.5th at p. 119, fn. 11.)
Here, even if we assume Maravilla was the shooter and appellant was
his aider and abettor, we conclude there was sufficient evidence from which
jurors could reasonably infer appellant had the specific intent to kill Oscar,
Rohan, Edwin and Jose with premeditation and deliberation. Maravilla’s act
of shooting in the direction of Adrian’s friends in the driveway readily
supports an inference of an intent to kill. (See Cardenas, supra, 53
Cal.App.5th at p. 120; People v. Lashley (1991) 1 Cal.App.4th 938, 944–945
[concluding there was sufficient evidence of intent to kill to support
attempted murder conviction where defendant shot at a group of people on
the bank of a creek from the second story of an adjacent apartment building];
People v. Millbrook (2014) 222 Cal.App.4th 1122, 1149 [concluding that
56
conviction for attempted murder was supported by sufficient evidence where
defendant intentionally shot at victim’s chest was sufficient to permit the
jury to conclude he had the requisite intent].)
Appellant’s actions also support an inference that he, too, shared this
intent and did so with premeditation and deliberation. Appellant was with
Maravilla in the hours leading up to the shooting, as the two spent most of
the day together in an apartment located across the street from Edwin’s
driveway where the barbecue was held. From appellant’s apartment, they
could see the activity at the barbecue and the men there. Based on the
surveillance video, jurors could have reasonably inferred that appellant and
Maravilla left the apartment together with a firearm and proceeded to the
barbecue in a roundabout manner so that the shooter could approach
discretely or unseen. While there is no indication that they both proceeded
down Powell to fire shots at the barbecue, jurors could reasonably infer that
appellant was nearby when the shooting occurred and that moments after the
shooting, he reunited with Maravilla to flee the scene together. After their
arrests, appellant made statements in the wired van from which a juror could
also infer appellant knew of Maravilla’s plan and assisted him to accomplish
it. In the van, appellant said, “Yeah I heard the (unintelligible) I heard the
gunshots,” from which a juror could infer he was at the shooting,
notwithstanding his efforts to walk back the statement immediately after
saying it. In addition, after Maravilla commented that it had been “damn
near a whole month since it happened,” appellant responded, “Hell yeah. We
found them.” In light of the circumstances, jurors could have reasonably
understood Maravilla to be discussing the shooting and appellant’s comments
to be an acknowledgement of his involvement in seeking out the victims.
57
Based on this evidence, jurors could reasonably infer appellant and
Maravilla planned, committed, and fled from the crime together. This was
sufficient evidence to support an inference that appellant shared the intent to
kill necessary for attempted murder and a finding that he did so with
premeditation and deliberation. Accordingly, on remand, the People may
retry counts 2 through 5 on a non-kill zone theory if they so elect.
D. Gang Special Circumstance
1. Section 190.22
Appellant argues the trial court incorrectly instructed jurors they could
find the gang special circumstance under section 190.2, subdivision (a)(22)
(section 190.2(a)(22)) true even if he was not the one who actually killed
Adrian. In appellant’s view, the special circumstance was restricted to
Adrian’s actual killer and everyone agreed appellant was not the one who
actually shot him.
As discussed, the prosecution charged appellant with the special
circumstance of committing murder while a participant in a criminal street
gang in violation of section 190.2(a)(22). That section provides: “The penalty
for a defendant who is found guilty of murder in the first degree is death or
imprisonment in the state prison for life without the possibility of parole if . .
. [t]he defendant intentionally killed the victim while the defendant was an
active participant in a criminal street gang . . . and the murder was carried
out to further the activities of the criminal street gang.” (§ 190.2, subd.
(a)(22).)
The trial court instructed the jurors with CALCRIM No. 736, which set
forth the requirements of the gang special circumstance. The instruction
stated, in part, that to prove the special circumstance true, the People must
prove: “1. The defendant intentionally killed [Adrian]; [¶] 2. At the time of
58
the killing, the defendant was an active participant in a criminal street gang;
[¶] 3. The defendant knew that members of the gang engage in or have
engaged in a pattern of criminal gang activity; [¶] AND [¶] 4. The murder
was carried out to further the activities of the criminal street gang.” The jury
found the special circumstance true.
Appellant has also forfeited this claim. Generally, the failure to object
to an instruction in the trial court forfeits any claim of error. (Andersen,
supra, 26 Cal.App.4th at p. 1249; Valdez, supra, 32 Cal.4th at p. 113.)
Appellant did not object to this instruction, so this challenge too has been
forfeited.
Even if we assume no forfeiture, there was no error in the court’s gang
special circumstance instructions as it would apply to appellant as either a
shooter or as an aider and abettor. Appellant relies on the language
“intentionally killed the victim” in section 190.2(a)(22) for his argument that
the special circumstance is restricted to the actual killer. We disagree.
Section 190.2, subdivision (c) (section 190.2(c)), makes clear the gang special
circumstance is not restricted to direct perpetrators. That section states:
“Every person, not the actual killer, who, with the intent to kill, aids, abets,
counsels, commands, induces, solicits, requests, or assists any actor in the
commission of murder in the first degree shall be punished by death or
imprisonment in the state prison for life without the possibility of parole if
one or more of the special circumstances enumerated in subdivision (a) has
been found to be true under Section 190.4.” (§ 190.2, subd. (c), emphasis
added.) Under the statute’s plain language, the gang special circumstance is
not limited to the “actual killer” but includes one who “aids” and “abets.”
(Ibid.)
59
In People v. Ybarra (2008) 166 Cal.App.4th 1069 (Ybarra), disapproved
on another ground in People v. Gutierrez (2014) 58 Cal.4th 1354, 1387, the
court rejected an argument similar to the one made by appellant. There, the
jury found the defendant and his co-defendant guilty of first-degree murder
and the gang special circumstance true as to both. (Ybarra, supra, at p.
1085.) However, the jury made dissimilar findings on the allegation that
they had personally and intentionally discharged the firearm, finding it not
true as to the defendant but true as to his co-defendant. (Id. at p. 1086.) On
this basis, the defendant inferred that he was not considered the actual killer
and argued that the court’s instruction which allowed the jury to find the
special circumstance true as to him was erroneous since he was not the one
who actually killed the victim. (Id. at pp. 1085–1086.) Relying on section
190.2, subdivision (c), discussed supra, the court rejected the argument and
explained, “[T]he authorizing statute authorizes [the gang special
circumstance] allegation even if the defendant is ‘not the actual killer.’ ” (Id.
at p. 1086.) We agree with Ybarra and likewise conclude there was nothing
erroneous about the court’s instruction that jurors could find the special
circumstance true as to appellant, even if they found he was not the actual
killer.
Appellant argues, “By its own terms, [section 190.2(c)] cannot apply to
subdivision (a)(22). Importantly, subdivision (c) has a condition precedent. It
only applies to aiders and abettors ‘if one or more of the special circumstances
enumerated in subdivision (a) has been found to be true . . .’ ” Appellant
asserts that the condition precedent cannot be met “because the plain
language of [section 190.2(a)(22)] shows that it only applies to actual killers.”
This is a strained, circular reading of the statute. “[I]n reviewing the text of
a statute, we must follow the fundamental rule of statutory construction that
60
requires every part of a statute be presumed to have some effect and not be
treated as meaningless unless absolutely necessary.” (People v. Arias (2008)
45 Cal.4th 169, 180.) Appellant’s condition precedent reading of section
190.2(c) would render the statute meaningless because an aider and abettor
could never be subject to the gang special circumstance, contrary to the
statute’s plain language establishing that the special circumstances listed in
section 190.2(a) apply to “every person” who acts with the intent to kill.
2. Insufficient Evidence
In an ancillary argument, appellant contends the gang special
circumstance must be stricken since there was insufficient evidence to show
he was the one who actual killed Adrian. Since appellant did not need to be
the actual shooter to sustain this special circumstance, we reject this
argument. Again, the special circumstance applied to him as an aider and
abettor who acted with the intent to kill. (See Ybarra, supra, 166
Cal.App.4th at p. 1086.)
E. Imposition of Restitution and Assessments
Appellant contends the restitution and assessments imposed on him
must be stricken or at least stayed because the trial court disregarded
evidence of his inability to pay.
Adrian’s family received $7,500 from the Victim Compensation Board
for his funeral and burial expenses. The prosecutor requested that $7,500 in
restitution be awarded to the Victim Compensation Board. Appellant’s
sentencing brief noted that appellant was “indigent and will be facing many,
many years in prison” and asked the court to “minimize any statutory fines-
and not impose any fines that the law does not require.” At the sentencing
hearing, appellant objected to the $7,500 restitution request based on his
inability to pay. The trial court ordered appellant to pay $7,500 in victim
61
restitution pursuant to section 1202.4, subdivision (f).5 In addition, the court
ordered appellant to pay a restitution fine of $1,500 pursuant to section
1202.4, subdivision (b)6; a court operations assessment of $200 pursuant to
section 1465.87; and a conviction assessment of $150 pursuant to Government
Code section 70373.8
Appellant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas) for his argument that these restitution payments and assessments
should be stricken or stayed. In Dueñas, the defendant—an indigent and
homeless mother of young children who suffered from cerebral palsy, dropped
out of high school due to her illness, was not working, received public
assistance, and had been unable to pay prior citations and fees—was
convicted of driving with a suspended license. (Id. at pp. 1160–1163.) At
sentencing, she argued she did not have the ability to pay fees and fines,
produced evidence of her inability to pay, and requested a hearing on the
issue. (Id. at pp. 1162–1163.) The appellate court concluded “due process of
5
Section 1202.4, subdivision (f) states in part that subject to certain
exceptions, “in every case in which a victim has suffered economic loss as a
result of the defendant’s conduct, the court shall require that the defendant
make restitution to the victim or victims in an amount established by court
order, based on the amount of loss claimed by the victim or victims or any
other showing to the court.” (§ 1202.4, subd. (f).)
6 Section 1202.4, subdivision (b) states in part that “[i]n every case where
a person is convicted of a crime, the court shall impose a separate and
additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record.” (§ 1202.4,
subd. (b).)
7 Section 1465.8 states in part: “To assist in funding court operations, an
assessment of forty dollars ($40) shall be imposed on every conviction for a
criminal offense.” (§ 1465.8, subd. (a)(1).)
8
Government Code section 70373 states in part: “To ensure and
maintain adequate funding for court facilities, an assessment shall be
imposed on every conviction for a criminal offense.” (Gov. Code, § 70373,
subd. (a)(1).)
62
law requires the trial court to conduct an ability to pay hearing and ascertain
a defendant’s present ability to pay before it imposes court facilities and court
operations assessments under Penal Code section 1465.8 and Government
Code section 70373” and that while “Penal Code section 1202.4 bars
consideration of a defendant’s ability to pay unless the judge is considering
increasing the fee over the statutory minimum, the execution of any
restitution fine imposed under this statute must be stayed unless and until
the trial court holds an ability to pay hearing and concludes that the
defendant has the present ability to pay the restitution fine.” (Id. at p. 1164.)
The trial court struck the court operations assessment under section 1465.8
and Government Code section 70373 and stayed the section 1202.4
restitution fine until the defendant’s ability to pay was proven. (Id. at pp.
1172–1173.)
Dueñas does not compel us to strike or stay the restitution or
assessments ordered by the court. The $7,500 in victim restitution ordered
under section 1202.4, subdivision (f) is not subject to the due process concerns
addressed in Dueñas. Dueñas explained, “California law provides for two
types of restitution: direct restitution to the victim (§ 1202.4, subd. (f)), which
is based on a direct victim’s loss, and a restitution fine (§ 1202.4, subd. (b)),
which is not. Payment of direct victim restitution goes directly to victims and
compensates them for economic losses they have suffered because of the
defendant’s crime.” (Dueñas, supra, 30 Cal.App.5th at p. 1169.)
Appellant acknowledges that direct victim restitution was not ordered
or at issue in Dueñas, and he cites no case that extends Dueñas to victim
restitution funds under section 1202.4, subdivision (f).
In People v. Evans (2019) 39 Cal.App.5th 771 (Evans), the court
declined to extend Dueñas to victim restitution and concluded that a
63
defendant’s ability to pay victim restitution is not a proper factor in setting a
restitution award under section 1202.4, subdivision (f). (Id. at p. 777.) Evans
observed that assessments for court facilities and operations and a restitution
fine paid into a statewide victim compensation fund are quite different than
actual restitution to the victim based on the economic losses suffered as a
result of defendant’s conduct. (Ibid.) The court noted, “In a civil action for
compensatory damages, a defendant’s wealth is irrelevant to liability” and
“conclude[d] similarly that a defendant’s ability to pay victim restitution is
not a proper factor to consider in setting a restitution award.” (Ibid.) Several
courts have adopted the reasoning of Evans and its conclusion that Dueñas
does not extend to section 1202.4, subdivision (f) victim restitution. (See
People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 859; People v.
Abrahamian (2020) 45 Cal.App.5th 314, 338; People v. Allen (2019) 41
Cal.App.5th 312, 326.) We likewise conclude that Dueñas does not extend to
victim restitution under section 1202.4, subdivision (f).
Appellant contends the “constitutional concerns discussed in Dueñas
regarding ability to pay are directly relevant to victim restitution.” He
further states that Evans “did not directly grapple with constitutional due
process, equal protection, or excessive fine concerns raised in Dueñas.” We
disagree. Evans explained the same constitutional concerns raised in Dueñas
regarding a defendant’s ability to pay are inapplicable when it comes to
reimbursing his or her victim for economic losses caused by criminal conduct.
(Evans, supra, 39 Cal.App.4th at p. 771.) Indeed, our state Constitution
provides that crime victims “shall be entitled . . . [t]o restitution” and that “all
persons who suffer losses as a result of criminal activity shall have the right
to seek and secure restitution from the persons convicted of the crimes
causing the losses they suffer.” (Cal. Const., art. I, § 28, subd. (b)(13)(A).)
64
As to the $1,500 restitution fine ordered pursuant to section 1202.4,
subdivision (b), the $200 court operations assessment pursuant to section
1465.8, and the $150 conviction assessment pursuant to Government Code
section 70303, we will not disturb them either. Even assuming error under
Dueñas, we would nonetheless conclude such error was harmless beyond a
reasonable doubt. (People v. Johnson (2019) 35 Cal.App.5th 134, 139–140.)
Nothing in the record indicates that appellant, like the defendant in Dueñas,
has a history of being unable to pay court assessments, has limited assets or
income that he needs to devote to vital child-care needs, or has a disability
that casts doubt on his ability to obtain the funds for payment in the future.
In fact, the record indicates that prior to his arrest, appellant had worked
full-time for two years at two university eateries providing “all-around
help”—bussing, dishwashing, and stocking.
Moreover, a defendant’s ability to pay is not limited to his or her
present financial situation but can also be based on his or her future ability
to earn prison wages. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837;
People v. Staley (1992) 10 Cal.App.4th 782, 785.) At the time of sentencing,
appellant was 26 years old, and he will be serving a life term in prison.
Nothing in the record indicates that he will be unable to work or ineligible for
work assignments in prison. He will have the capacity to earn during this
time.
F. Section 3051
Finally, appellant raises a constitutional challenge to section 3051,
which allows LWOP offenders who committed their crimes as juveniles to be
considered for youth offender parole hearings but not LWOP offenders who
committed their crimes when they were between 18 to 25 year old (referred to
as young-adult offenders or young-adult LWOP offenders). Appellant was 24
65
years old when Adrian was shot and killed. Following his convictions, the
trial court sentenced him to LWOP. He contends section 3051’s exclusion of
young-adult offenders like him from such hearings violates the equal
protection clause of the Fourteenth Amendment to the U.S. Constitution.
“The Fourteenth Amendment to the United States Constitution and
article I, section 7 of the California Constitution guarantee all persons the
equal protection of the laws.” (People v. Edwards (2019) 34 Cal.App.5th 183,
195 (Edwards).) “The right to equal protection of the law is violated when
‘the government ... treat[s] a [similarly situated] group of people unequally
without some justification.’ ” (People v. Love (2020) 55 Cal.App.5th 273, 287.)
“To succeed on an equal protection claim, [petitioner] must first show
that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.” (Edwards, supra, 34 Cal.App.5th at
p. 195.) “[E]qual protection analysis does not require that two groups of
defendants be the same, or even that they be ‘ “ ‘similarly situated for all
purposes.’ ” ’ [Citation.] It is enough that ‘ “ ‘ “they are similarly situated for
purposes of the law challenged.” ’ ” ’ ” (Id. at p. 198.)
If a class of criminal defendants is similarly situated for purposes of the
law challenged to another class of defendants who are treated differently,
“courts look to determine whether there is a rational basis for the difference.”
(Edwards, supra, 34 Cal.App.5th at p. 195.) “[E]qual protection of the law is
denied only where there is no ‘rational relationship between the disparity of
treatment and some legitimate governmental purpose.’ ” (People v. Turnage
(2012) 55 Cal.4th 62, 74.) “This standard of rationality does not depend upon
whether lawmakers ever actually articulated the purpose they sought to
achieve. Nor must the underlying rationale be empirically substantiated.
[Citation.] While the realities of the subject matter cannot be completely
66
ignored [citation], a court may engage in ‘ “rational speculation” ’ as to the
justifications for the legislative choice [citation]. It is immaterial for rational
basis review ‘whether or not’ any such speculation has ‘a foundation in the
record.’ ” (Id. at pp. 74–75.)
To successfully challenge a law on equal protection grounds, the
defendant must negate “ ‘ “every conceivable basis” ’ ” on which “the disputed
statutory disparity” might be supported. (Edwards, supra, 34 Cal.App.5th at
p. 195.) “If a plausible basis exists for the disparity, ‘[e]qual protection
analysis does not entitle the judiciary to second-guess the wisdom, fairness,
or logic of the law.’ ” (Id. at pp. 195–196.) We independently review
defendant’s equal protection challenge to section 3051. (People v. Jackson
(2021) 61 Cal.App.5th 189, 195 (Jackson).)
Section 3051 “ ‘establish[es] a parole eligibility mechanism that
provides a person serving a sentence for crimes that he or she committed as a
juvenile the opportunity to obtain release when he or she has shown that he
or she has been rehabilitated and gained maturity.’ ” (In re Trejo (2017) 10
Cal.App.5th 972, 980 (Trejo); §§ 3051 et seq.) The statute was a response to
decisions from the United States and California Supreme Courts concerning
Eighth Amendment limitations on juvenile sentencing that rested on
developments in science and social science showing fundamental differences
between juvenile and adult minds and parts of the brain involved in behavior
control. (People v. Acosta (2021) 60 Cal.App.5th 769, 775–776 (Acosta), rev.
den. June 9, 2021, S267783.) The Legislature sought to address “lengthy life
sentences did not adequately account for, first, the diminished culpability of
youth, and second, youthful offenders’ greater potential for rehabilitation and
maturation.” (In re Williams (2020) 57 Cal.App.5th 427, 434 (Williams).)
67
As originally enacted in 2013, section 3051 applied where the
controlling offense9 was committed before the offender was 18 years old
(Trejo, supra, 10 Cal.App.5th at p. 981 & fn. 6.) but excluded juvenile LWOP
offenders. (Acosta, supra, 60 Cal.App.5th at p. 776.) Additional amendments
based on scientific evidence showing that areas of the brain that affect
judgment and decision-making do not develop until early-to-mid 20s followed.
(People v. Morales (2021) 67 Cal.App.5th 326, 346 (Morales).) In 2016, the
Legislature amended the statute to extend the availability of youth offender
parole hearings to offenders who were under 23 years old when they
committed their controlling offenses. (Stats. 2015, ch. 471 (Sen. Bill No. 261),
§ 1, eff. Jan. 1, 2016; see Trejo, at p. 981 & fn. 6.) In 2018, the hearings were
extended to offenders who were 25 years old or younger when they committed
their controlling offenses. (Stats. 2017, ch. 684 (Sen. Bill No. 394), § 3051, eff.
Jan. 1, 2018.) The Legislature also amended section 3051 to allow parole
hearings for juveniles sentenced to LWOP. (Stats. 2017, ch. 684; Morales,
supra, at p. 346.)
In the statute’s current form, an offender who committed a controlling
offense under the age of 25 is entitled to a youth offender parole hearing
during his or her 15th year of incarceration if he or she received a
determinate sentence; during his or her 20th year of incarceration if he or she
received a life term of less than 25 years to life; and during his or her 25th
year of incarceration if he or she received a term of 25 years to life. (§ 3051,
subd. (b)(1)-(3).) An offender convicted of a controlling offense committed
before the age of 18 for which he or she was sentenced to LWOP is entitled to
a youth offender parole hearing during his or her 25th year of incarceration.
9
“ ‘Controlling offense’ means the offense or enhancement for which any
sentencing court imposed the longest term of imprisonment.” (§ 3051, subd.
(a)(2)(B).)
68
(§ 3051, subd. (b)(4).) An offender convicted of a controlling offense
committed after the age of 18 for which he or she was sentenced to LWOP, is
not entitled to a youth offender parole hearing at any point. (§ 3051, subd.
(h), emphasis added.)
Several courts have recently contended with equal protection
challenges similar to those raised by appellant. After appellant filed his
opening brief, the Fourth District Court of Appeal issued People v. Acosta,
supra, 60 Cal.App.5th 769, which rejected an equal protection challenge to
section 3051. (Id. at p. 772.) There, the defendant argued that section 3051
violated equal protection by granting future parole consideration to juveniles
sentenced to LWOP but not to young adults sentenced to LWOP. (Id. at pp.
777–778.) After concluding that young-adult LWOP offenders were similarly
situated to juvenile LWOP offenders (id. at p. 778), Acosta determined the
Legislature had a rational basis for excluding them from parole eligibility
while extending the benefit to juvenile LWOP offenders. (Id. at p. 779.) The
court observed that extending section 3051 to include juvenile LWOP
offenders was the result of the United States Supreme Court’s decision in
Montgomery v. Louisiana (2016) 577 U.S. 190 (Montgomery),10 which would
allow for compliance “without resorting to costly resentencing hearings.”
(Acosta, supra, at p. 779.) Because Montgomery did not compel the same
treatment of young adult offenders, age provided “a constitutionally sufficient
basis for distinguishing juvenile LWOP offenders from young adult LWOP
offenders.” (Id. at p. 780.)
10
In Montgomery, supra, 577 U.S. 190, the Supreme Court held that the
prohibition on mandatory LWOP sentence for juveniles established in Miller
v. Alabama (2012) 567 U.S. 460, was retroactive. (Id. at pp. 206–212.)
Montgomery provided that “[a] State may remedy a Miller violation by
permitting juvenile homicide offenders to be considered for parole, rather
than by resentencing them.” (Id. at p. 212.)
69
Other courts have similarly rejected equal protection challenges to
section 3051 and have identified rational grounds for the different treatment
of young-adult LWOP offenders. In Williams, supra, 57 Cal.App.5th 427, the
court explained that the Legislature reasonably could have decided that
young-adult offenders who commit the crimes which have been deemed the
most morally depraved to justify lifetime incarceration are still sufficiently
culpable and sufficiently dangerous. (Id. at pp. 435–436.) In Jackson, supra,
61 Cal.App.5th 189, the court noted that the United States and California
Supreme Courts “have repeatedly found the bright line drawn between
juveniles and nonjuveniles to be a rational one when it comes to criminal
sentencing.” (Id. at pp. 196–197.) The Jackson court further noted that
“public safety, and the desire to punish those persons who commit first
degree special circumstance murder more harshly than persons who commit
first degree murder without aggravating circumstances, provide a plausible
basis for our Legislature to treat these two classifications differently for
purposes of section 3051.” (Id. at 200.) In the most recent case, Morales,
supra, 67 Cal.App.5th 326, Division Four of this court echoed similar grounds
in its rational review analysis in denying the defendant’s equal protection
challenge. (Id. at pp. 348–349 .)
Here, even assuming that young adult LWOP offenders and juvenile
LWOP offenders are similarly situated for the purpose of section 3051,
appellant’s equal protection challenge fails. We cannot say that the
Legislature’s decision to exclude young adult LWOP offenders from the
benefits of section 3051 was made without any rational basis. As discussed
above, the courts in Acosta, Jackson, and Morales identified a number of
plausible reasons why the Legislature preserved the line between juveniles
and nonjuveniles with respect to eligibility for youth parole hearings. These
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reasons apply equally to our analysis, and we likewise conclude that
appellant’s equal protection claim fails.
In reaching this conclusion, we acknowledge that many courts which
have rejected equal protection challenges to section 3051 have expressed
reservation in doing so. As the majority in Morales explains, “[T]he United
States and California Supreme Courts have recognized that certain traits
lessen a juvenile offender’s culpability, and that such traits and a juvenile’s
capacity for reform are not ‘crime-specific.’ [Citations.] It is, after all,
possible that a [young-adult] offender sentenced to LWOP would mature and
prove suitable for release at some point during his or her incarceration, just
as would a juvenile sentenced to LWOP.” (Morales, supra, at p. 349; see also
Acosta, supra, 60 Cal.App.5th at p. 780.) Further, in the Supreme Court’s
denial of a petition to review in Jackson, Justice Liu added a concurring
statement asserting his view that section 3051’s parole eligibility scheme is
in tension with equal protection of the laws. (Jackson, supra, 61 Cal.App.5th
at p. 202 (conc. stmt. of Liu, J.).)
Several of our colleagues have encouraged the Legislature to consider
repealing the exclusion for young-adult LWOP offenders in section 3501,
subdivision (h). (See Acosta, supra, 60 Cal.App.5th at p. 781; Jackson, supra,
61 Cal.App.5th at pp. 201–202 (conc. opn. Dato, J.); Morales, supra, 67
Cal.App.5th at p. 349.) In his concurring statement in Jackson, Justice Liu
noted that at least 11 Court of Appeal justices have called for legislative
reconsideration of section 3051 and again urged the Legislature to reconsider
whether “our evolving knowledge of brain development” suggests that
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“unalterable judgments” (punishments) about individuals based on what they
did as young adults may be unjustifiable. (Ibid.)11
However, as Acosta appropriately notes, “ ‘[e]qual protection analysis
does not entitle [us] to second-guess the wisdom, fairness, or logic of the
law.’ ” (Acosta, supra, 60 Cal.App.5th at p. 781.) Even though we reject
appellant’s equal protection challenge based on the several rational grounds
for treating young-adult LWOP offenders differently from juvenile LWOP
offenders, for the reasons discussed above, we join other courts in inviting the
Legislature to reconsider section 3051’s exclusion of young-adult LWOP
offenders from eligibility to a youth parole hearing after 25 years of
incarceration.
DISPOSITION
The judgment of conviction for attempted murder is reversed as to
counts 2 through 5 and the case is remanded for resentencing. The reversal
does not prohibit a retrial on the attempted murder counts so long as any
retrial is not based on the kill zone theory. In all other respects, the
judgment is otherwise affirmed.
The trial court shall prepare an amended abstract of judgment to
reflect the sentence imposed on remand or after any additional trial
proceedings. The trial court is directed to forward copies of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.
11
More recently, in Morales, Justice Pollak filed a concurring and
dissenting opinion setting forth the view that excluding young-adult LWOP
offenders from eligibility for youth parole hearings “is fundamentally
irrational and denies youthful offenders sentenced to LWOP equal protection
of the law.” (Morales, supra, at pp. 350–355 (concurring and dissenting,
Pollak, J.).)
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Chou, J.*
People v. Sanchez-Gomez/A156198
*
Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
73