People v. Garcia CA2/4 ( 2022 )

Filed 5/10/22 P. v. Garcia CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304415
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA142806)
v.
ANTONIO GARCIA et al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Patrick Connolly, Judge. Remanded in part
with instructions; affirmed in part.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant Antonio Garcia.
Jenny M. Brandt, under appointment by the Court of
Appeal, for Defendant and Appellant Antonio Salgado.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill, Marc A. Kohm and Julie Harris,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1996, appellant Antonio Salgado shot a man at a
Compton gas station at the behest of his coworker, appellant
Antonio Garcia. The man survived the attempt on his life, and
Garcia and Salgado avoided liability for the crime after another
person was misidentified as, and convicted of being the shooter.
As part of a renewed investigation 20 years later, the
wrongfully convicted man’s brother, Miguel Contreras,
surreptitiously recorded conversations with Garcia, Salgado, and
a third coconspirator. Those primarily Spanish recordings and
their English translations formed part of the evidence admitted
at Garcia and Salgado’s 2019 joint jury trial for attempted willful,
deliberate, and premeditated murder, conspiracy to commit
murder, and, as to Salgado only, felon in possession and firearm
enhancements. The jury found appellants guilty as charged. The
court sentenced Garcia to a total term of 25 years to life and
Salgado to a total term of 60 years to life.
Appellants now raise numerous challenges to their
convictions and sentences. Both appellants contend the trial
court erroneously instructed the jury on the presumption of
innocence during voir dire; improperly admitted the wiretap
evidence, which they assert was not translated in accordance
with constitutional and Evidence Code requirements and was
hearsay to boot; and failed to stay their sentences for attempted
murder under Penal Code section 654.1 They further contend the
evidence was insufficient to support their convictions absent the
wiretap evidence, the prosecutor committed numerous instances
1All further statutory references are to the Penal Code
unless otherwise indicated.
2
of misconduct during closing arguments, and their respective
counsel were ineffective in failing to object to most of the errors
they claim on appeal. Both appellants argue these errors, plus
those they assert individually, collectively amount to prejudicial
cumulative error. In supplemental briefing, appellants contend
recent changes made to section 654 via Assembly Bill No. 518
(Stats. 2021, ch. 441, § 1) require remand for resentencing.
Garcia alone challenges two jury instructions pertaining to
his defense that he withdrew from the conspiracy: CALCRIM
Nos. 401 (Aiding and Abetting: Intended Crimes) and 420
(Withdrawal from Conspiracy). Salgado alone contends the trial
court erred by admitting into evidence a recording of Garcia’s
interrogation and denying his motion to strike the firearm
enhancement and his prior strike conviction. Salgado further
argues that his sentence is cruel and unusual punishment and
violates the equal protection clause because he was excluded from
youth offender parole due to his prior strike conviction. Salgado
also filed a petition for writ of habeas corpus (Case No. B315109)
in which he contends his trial counsel was ineffective for failing
to raise objections at various junctures throughout the trial. We
issued an order deferring consideration of the writ petition until
such time as the related appeal was considered.
We agree with appellants and respondent Attorney General
that the trial court erred in applying section 654, and the recent
changes to section 654 are applicable to appellants. We
accordingly vacate appellants’ sentences and remand for
resentencing in accordance with section 654. The judgments are
affirmed in all other respects. Salgado’s petition for writ of
habeas corpus is denied by separate order.
3
PROCEDURAL HISTORY
An information filed January 18, 2018 charged Garcia and
Salgado in count one with attempted willful, deliberate, and
premeditated murder (§§ 187, subd. (a), 664, subd. (a)), and in
count two with conspiracy to commit murder (§§ 182, subd. (a)(1),
187). The information alleged a single overt act in furtherance of
the conspiracy: “On or about September 10, 1996, Miguel
Contreras and Antonio Salgado drove around Compton looking
for Jose Garcia to kill him.” The information further alleged that
Salgado personally used a firearm in connection with counts one
and two (§ 12022.5, subd. (a)(1)). It also charged Salgado in count
three with illegal possession of a firearm by a felon (§ 12021,
subd. (a)(1), and alleged that Salgado suffered a prior strike
conviction (§§ 667, subds. (b)-(j), 1170.12) and a prior violent
felony conviction (§ 667.5, subd. (a)).
Garcia and Salgado proceeded to a joint jury trial. The jury
found both appellants guilty on counts one and two and found the
firearm enhancement allegations against Salgado true. The jury
also found Salgado guilty on count three. Salgado waived his
right to a jury trial on the prior conviction allegations and
admitted suffering the alleged conviction.
After finding that section 654 did not apply, the trial court
sentenced Garcia to the mandatory sentence of 25 years to life on
count two, the conspiracy count. It imposed a life term on count
one, the attempted murder count, to be served concurrently with
the sentence on count two. The trial court sentenced Salgado to
the mandatory term of 25 years to life on the conspiracy count,
but doubled the 25 years to 50 years due to Salgado’s prior strike.
It also imposed a consecutive term of 10 years due to the firearm
4
allegation, for a total sentence of 60 years to life on count two.
On count one, the court imposed a life term, plus 10 years for the
firearm enhancement, but stayed the 10 years and ran the life
term concurrent with the sentence on count two. The court
struck Salgado’s strike for purposes of count two as well as count
three, on which it imposed the high term of three years, also
concurrent to the sentence on count two. The court imposed
various fines, fees, and assessments on both appellants without
objection.
Both appellants timely appealed. Salgado also filed a
petition for writ of habeas corpus on September 20, 2021. We
deferred consideration of the habeas petition to such time as we
considered the related appeal.
FACTUAL BACKGROUND
Prosecution Case
I. The Shooting and Immediate Aftermath
A. Miguel’s2 Testimony
Miguel testified that in 1996, he was 22 or 23 years old and
worked with Garcia and Salgado in Compton. Miguel was “good
friends” with Salgado, who was 21 at the time.
Sometime prior to the September 10, 1996 shooting,
Salgado told Miguel that “Garcia was paying him money to
whack this guy; in other words, shoot him or whatever, kill him.”
Salgado also told Miguel not to discuss the matter with Garcia.
Miguel did not know the intended victim but as a “favor” drove
Salgado around a couple of times so Salgado could look for him.
2 We refer to Miguel Contreras and his brother Marco
Contreras by their first names to avoid confusion. No disrespect
is intended.
5
Miguel testified that September 10, 1996 was a “slow day”
at work. Salgado told Miguel he was going to “stak[e] out” the
victim; Miguel agreed to drive Salgado in Miguel’s Bronco. They
left work and drove to a location near the victim’s house. Miguel
knew where to go because Garcia “showed us the victim’s house
previous weeks before, or days before.” Miguel knew that
Salgado had a gun, which he had seen on multiple occasions.
While Miguel and Salgado were watching the house, the
victim, Jose Manuel Garcia, got into a large commercial “box
truck” and drove to a nearby gas station. Miguel drove to an
alley near the gas station, dropped off Salgado, and waited in the
Bronco. Miguel heard “maybe like five gunshots” before Salgado
“ran back into the truck.” Miguel then “took off” and drove to
Salgado’s sister’s house to drop off the gun. Miguel later drove
Salgado home, then dropped off the Bronco at his own home
before going to his friend Ricardo Valencia’s house. Miguel
stayed at Valencia’s house until his wife called to tell him the
police were at their house picking up the Bronco.
Miguel returned home before going to the police station for
questioning. He fabricated a story about visiting a friend who
lived near the gas station at the time of the shooting. The
subterfuge was unsuccessful; Miguel was arrested and charged in
connection with the shooting.
Miguel’s younger brother Marco attended Miguel’s
preliminary hearing on October 3, 1996. The parties stipulated
that an eyewitness to the shooting identified Marco as the
shooter at that hearing.
Miguel subsequently pled to accessory after the fact and
was sentenced to 16 months in state prison. While he was
incarcerated, he learned that Marco “was getting convicted for
6
this shooting.” Miguel did not tell any prison guards Marco was
innocent. But when Miguel was released from custody after
serving approximately 11 months, he spoke to Compton Police
Detective Reynolds, who had questioned him initially, and later
spoke to someone at the Mexican consulate. “[N]othing really
happened,” and Marco remained incarcerated.
Miguel returned to work at the same company. Salgado
still worked there. About three or four months later, Miguel’s
father and other brother came to the workplace and spoke to
Salgado. Salgado immediately left work and never returned.
B. Valencia’s Testimony
Ricardo Valencia testified3 that in 1996, he worked for the
same company as Miguel, Garcia, and Salgado, but at a different
location. Valencia knew Salgado by the nickname “Dufus” and
Garcia by the nickname “Chino.”
At some point prior to September 10, 1996, Valencia
became aware that his coworkers had a plan to murder someone.
On one occasion Valencia accompanied Salgado and another
individual known as “Munchy” as they drove around looking for
the intended victim. While they were in the car, Salgado showed
Valencia photographs of the victim’s house and truck, which
Salgado said Garcia had given him.
On September 10, 1996, Valencia went to work as usual.
When he arrived home, Miguel’s brother Marco was there. Marco
3 Valencia initially was charged as a coconspirator
alongside Garcia and Salgado, but took a plea deal pursuant to
which he pled guilty to accessory after the fact and agreed to
testify truthfully at the preliminary hearing and at trial. In
exchange, he was released from custody. Defense counsel asked
Valencia about the plea deal on cross-examination.
7
told Valencia “some stuff” that made him concerned. About a
week later, Valencia spoke to Salgado about the shooting.
Salgado told Valencia some details about the shooting. Valencia
did not see Salgado again after that. Valencia also had
conversations with other individuals about Garcia’s involvement
in the shooting.
C. Victim’s Testimony
Victim Jose Manuel Garcia4 testified that on the morning of
September 10, 1996, he drove his commercial truck to a gas
station in Compton. While Victim was pumping gas, a “young
man showed up.” Victim testified the man was Hispanic and
estimated his age to be “about 20.”
The man asked Victim his name. Victim gave a false name
because the situation felt “strange.” The man then asked if
Victim “had a job for him.” Victim said he did if the man had a
commercial driver’s license and turned to put the gas cap back on
his truck. He then saw the man draw a gun. Victim heard a
gunshot and was struck by a bullet in the chest, near his heart.
Victim heard “many” more gunshots as he ran away; one of them
struck him in the back, just above his left buttock. Victim was
unable to continue running and hid beneath a parked vehicle “to
avoid the shots.”
While Victim was beneath the vehicle, he saw the shooter
run down the street. Victim got out and returned to the gas
station; the attendant already had called 911. Paramedics
arrived and transported Victim to the hospital, where he
4 We refer to Jose Manuel Garcia as “Victim” to avoid
confusion with appellant Garcia, with whom there is no relation.
No disrespect is intended.
8
underwent three surgeries and remained an inpatient for over a
month.
II. Wiretaps
In 2015, Miguel contacted lawyers at Loyola Law School for
assistance with Marco’s case. He subsequently met with
Detective Davey Jones from the Los Angeles County District
Attorney’s office, and Detective Ignacio Lugo from the Los
Angeles County Sheriff’s Department. Although the original case
file and ballistics evidence had been destroyed, the case was
reopened. Miguel agreed to surreptitiously record conversations
with Garcia, Valencia, and Salgado.
A. Miguel & Garcia
Miguel met Garcia at a Compton donut shop on January
12, 2017. Miguel wore a recording device and recorded their
conversation. A portion of the conversation, which was largely in
Spanish, was played for the jury and admitted into evidence; the
jurors were given English transcripts, which also were admitted
into evidence.
Miguel falsely told Garcia that Victim recently filed a
lawsuit against the Contreras family and Miguel needed money
to help with the lawsuit. Miguel referred to Salgado as “this guy,
the one—the one who was paid to—to fuck him up”; Garcia said
“aha,” and, later asked, “How’s the guy doing – oh the fool who
got shot?” Garcia told Miguel, “let me talk to those fools to see
what—what’s up,” and said he would “get back to” Miguel. After
the men exchanged phone numbers, Garcia said, “I’ll see what’s
up. I’m gonna talk to those fuckers.”
B. Miguel & Valencia
Miguel visited Valencia at Valencia’s home on January 31,
2017 and surreptitiously recorded their conversation. A portion
9
of the conversation, which was largely in Spanish, was played for
the jury and admitted into evidence while Valencia was on the
stand; the jurors were given English transcripts, which also were
admitted into evidence.
Miguel told Valencia he was lucky not to have been
involved in “that shit.” Valencia agreed, and said Munchy had
been lucky too; he had driven around with Munchy to look for
Victim. Valencia said, “Dufus had a photo of the house and the
guy’s truck, dude.” Valencia continued, “And Chino took it, dude.
. . . Chino says that supposedly the guy went to his house and
Chino took a photo of the guy” as well as his truck. Valencia
said, “I saw the pictures, fool.” Valencia also said they located
Victim’s truck during the drive with Munchy, and reiterated,
“Chino gave him everything, dude.”
Valencia later said, “I remember when he shot him, he told
me, dude. He says that the guy went under the truck and he still
went like this, dude. . . .” Miguel replied, “Fucking Salgado,
Dufus,” and Valencia responded, “Yeah he says . . . when he first
hit him, . . . he hit him in the . . . chest.” Valencia continued, “He
says that the guy fell and that he was yelling, ‘No, please, son,’
that he was telling him, man. . . . And Dufus would cry, dude.
He says that he told him, ‘He told me, “No, son, don’t kill me,
son.”’ . . . And he said he went under a truck or a van.” Valencia
added that Dufus said “he shot him to kill him so he wouldn’t
suffer anymore,” but “regretted it” and “would cry at night, dude.”
Valencia further said that Dufus had asked the man if he had
work before shooting him. He asked Miguel, “Did you hear the
shots?” Miguel responded that he heard several shots after he
dropped off Salgado in the alley.
10
Miguel later stated that Marco “was still there,” and “that’s
something . . . fuckin’ Salgado fucked up on. You know what I
mean?” Valencia remarked that Marco was “going on twenty
(20) years” and asked Miguel if he thought Marco would be
released. Miguel mentioned parole, and Valencia said, “Yeah, I
remember that it was in ninety-six (96), dude. I had just gotten
in there, remember?” Valencia said he also had heard “that your
dad and your brother fucked it up,” but he thought they “shoulda
just called the cops and tell ‘em, ‘Hey, this fools [sic] right here.’”
After further discussion, Valencia asked, “Oh, you were out—you
were outside when Dufus got away?” Miguel confirmed that he
was out of custody at that point and continued talking about the
conversation between his father and Dufus. Valencia said, “I
don’t blame Dufus for takin’ off, man.”
C. Miguel & Salgado
In February 2017, Miguel traveled to Missouri to speak to
Salgado, who had relocated there after the confrontation with
Miguel’s father and brother. Miguel spoke with Salgado on
February 21 and 22, 2017 and surreptitiously recorded the
conversations. Portions of the lengthy conversations, which were
largely in Spanish, were played for the jury and admitted into
evidence; the jurors were given English transcripts, which also
were admitted into evidence.
Miguel told Salgado the same story he had told Garcia: that
Victim was suing his parents and Miguel wanted to see if Salgado
could contribute financially. Miguel told Salgado, “[t]he old guy
you shot” was “demanding” money for unpaid medical bills.
Salgado did not deny shooting anyone. Instead, he asked Miguel
what he thought “[o]f what we did.” Miguel said, “we were kids
and they’re errors that one makes as a kid,” then asked Salgado
11
how he felt about “all this.” Salgado said, “I feel bad, man. . . . I
never thought that your brother was going to get involved. I
never thought you were going to get involved. I never thought I
was going to go so far. For many years, I stayed outside. I stayed
outside of California, not for fear of them knowing who I was, but
out of respect for Marco[ ] and you. You and I were good friends.
And, uh, we were idiots at the same time because we didn’t know
what we were doing. And we made that error, but again, I never
thought that your brother would be involved or that I would go to
such extremes.” He added, “If I could take it back, I would. I
really would. Don’t think I’ve forgotten about your family. . . .”
Salgado later asked Miguel “what[’]d you do to that Bronco?”
Miguel said he gave it away when he got out of prison.
Salgado offered to help with “whatever I can.” Miguel
responded that he had run into “Garcia” and tried to get help
from him, too. Salgado responded, “Antonio?” Miguel confirmed
it was Antonio Garcia, and said he had “told him . . . what I’m
telling you,” but had not heard anything back. Salgado said,
“You know he’s not going to help,” and asked what Garcia had
said. Miguel said that Garcia said he was “‘going to tell those
guys,’” and Salgado responded, “But I didn’t meet any of them.”
Miguel said, “No?” and Salgado confirmed, “No, dude.” Salgado
later reiterated, “You’re not going to get anything from him. I get
to thinking, what he wants is for everything to be gone,” or “to be
left alone or whatever.”
Miguel said he had told Garcia he would see if Salgado
knew any of the “guys” Garcia mentioned. Salgado reiterated, “I
just met him. . . . I never had anything to do with the rest of the
people. Just him, and that was it. Never spoke to anybody else.”
Miguel responded, “Yeah, so I thought maybe they fronted you
12
some money or whatever . . . .” Salgado said, “the only thing they
gave us was what we used to buy the. . . .,” before trailing off.
Miguel testified that Salgado had shaped his hand into a gun at
that point, “meaning guns.” Salgado then said, “I thought that he
had given you something. He never gave you anything?” Miguel
responded no, “because you had told me one time that you were
going to tell me about what you were doing, but that Antonio
Garcia didn’t want me to know anything. And that’s why I never
said anything.” Salgado responded, “I didn’t ask for anything up
front, but you can tell him if you see him again to give me some
money.” The following day, Miguel again raised the issue of
whether others had been “involved with putting a hit on this
guy.” Salgado said he did not know: “even with Garcia man, . . . .
[N]one of us know how deep he’s in with whatever he’s in or what
he’s doing or whatever.”
At a different point in the conversation, Miguel told
Salgado, “I wouldn’t come all the way down here if you had
nothing to do with it. It would’ve been none of your business.”
Salgado responded, “Yeah, no. I understand.” Salgado also said
he used to cry about “the things that I’ve done, your brother,” and
that it was “just tragic how the whole fucking thing happened. I
always tell myself I wish I could take back what I’ve done.” He
said he felt “relieved” that he and Miguel had talked, “like I can
move on.” Separately, Salgado told Miguel he “wasn’t hiding
from you guys or from you, but honestly I was embarrassed,” and
felt it would “be disrespectful for me to go back” to California.
III. Garcia’s Interrogation
Detective Lugo testified that he interrogated Garcia on
March 23, 2017. The 90- to 120-minute interrogation was
conducted in Spanish and video recorded. Short portions of the
13
recording were played for the jury while Lugo was on the stand
and later admitted into evidence. Partially redacted English
transcripts were also admitted into evidence.
Lugo asked Garcia to “briefly tell me how things went down
in ’96.” Lugo continued, “You [two redacted lines of text] and
with Miguel Contreras . . . you were all working together . . . .”
After a redacted exchange, Lugo said, “Him too, right? Okay.”
Lugo then confirmed that Garcia had said his cousin Javier
Hernandez “was the one who talked to you about looking for
someone to kill Jose—Manuel,” because Victim was having
relations with Hernandez’s wife. Garcia further agreed that
Hernandez offered to pay someone to kill Victim. Lugo asked if
Garcia knew the amount offered, and Garcia replied, “Around
10,000 and something.”
Lugo followed up with, “Around 10,000 and change?
Around there? 10,000 dollars. And you said, and you can correct
me if I’m wrong, but you were at [work] one day when you heard
[redacted] chatting about whether he knew of a way to make
some quick cash.” Garcia said, “Yeah.” Lugo continued, “And
you told them, you mentioned to them that you knew someone
who wanted to pay roughly 10,000 dollars to have [Victim]
killed.” Garcia again responded, “Yes.” That portion of
transcript concludes with Lugo stating, “And they offered to
make the deal,” followed by nearly a full page of redacted text.
The video showed and Lugo testified that Garcia nodded in
response to Lugo’s query about making the deal.
A separate transcript from the end of the interrogation
contained only the following exchange:
“Lugo: And you said, you told me, you told us that you
went once—you got into the car with [redacted], and you went
14
and showed him the bar, the house, and the car belonging to
[Victim].
“Garcia: Well, no, the vehicle was always driving around
there.
“Lugo: Yes, but one thing—you told me that you once
showed them where he lived on Coco and the bar where [Victim]
liked to go.
“Garcia: Yes.”
On cross-examination, Garcia’s counsel asked Lugo if
Garcia also told him “some information as it relates to telling the
people not to get involved.” Lugo said yes. Counsel continued,
“And so he said - - he told them don’t get involved; is that
correct?” Lugo responded, “Not to do it.” Counsel said, “Right,”
and Lugo said, “Yes.” On redirect, the prosecutor asked Lugo,
“what he actually told you was, however, the day of the shooting,
on September 10th, 1996, that morning, he mentioned to the
guys, hey, don’t do it?” Lugo said that was correct. After
refreshing his recollection with a transcript that was not
introduced or admitted into evidence, Lugo testified that Garcia
said he told “these individuals” “not to do it” once on the morning
of the shooting, while they were at work.
IV. Stipulations
The parties stipulated that Salgado had been convicted of a
felony prior to the shooting. They also stipulated that an
eyewitness to the shooting identified Marco as the shooter in
court in 1996. That witness was shown three photo arrays in
2014; one contained a photo of Salgado, one contained a photo of
Marco, and the third contained only decoy photos. The witness
selected a photo from the array containing only decoy photos as
the person who looked “closest” to the shooter.
15
Defense Case
Garcia called two of his adult daughters as witnesses.
Silvia Lozano testified that Garcia was a “great” father and
grandfather. He worked all the time when she was a child to
provide for the family, which included Lozano, her three sisters,
and a brother who was now deceased. She was not aware of any
bad acts committed by Garcia. Lozano testified on cross-
examination that she knew where Garcia worked in 1996 but did
not know he had “asked two individuals whether or not they were
willing to commit a murder” and “actually went with these
individuals and showed them where this potential victim lived
and where he hung out.” Annette Garcia also testified that
Garcia was a “great father” to her.
Salgado did not present any evidence.
DISCUSSION
Arguments Raised by Both Appellants
I. Presumption of Innocence
Appellants contend the trial court misinstructed the jury on
the presumption of innocence during voir dire and failed to
correct the error or otherwise ameliorate the harm via other
instructions. They assert the error is structural and therefore
prejudicial per se. Alternatively, they argue the error is
prejudicial under Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). Respondent asserts that any argument is forfeited,
since neither appellant’s trial counsel objected at any time.
Anticipating the forfeiture argument, Garcia contends his trial
counsel was ineffective for failing to object to the court’s
16
statements; Salgado raises the same ineffective assistance
argument in his habeas petition.
We agree with respondent that the issue is forfeited. Even
if it were not, appellants have failed to demonstrate reversible
error. Garcia likewise has failed to demonstrate his counsel
provided ineffective assistance.
A. Background
During voir dire, the court made the following statements
about the presumption of innocence and burden of proof to the
prospective jurors. We have italicized the primary portion to
which appellants now object.
“All right. Now, as Mr. Salgado and Mr. Garcia sit here,
they are presumed to be innocent. And the only time that
presumption changes is if you’re chosen as one of the 12 people in
this case, you’ve listened to all of the evidence in this case, you’ve
listened to the attorneys argue the case, and I’ve given you the law
on this case. But throughout the entire trial, as I’ve stated, they
are presumed innocent. What they’ve asked is for 12 people to
come in, be fair and objective, listen to all of the evidence in this
case, and make a determination as to whether or not they are
guilty or not guilty.
“Now, if you were to be asked to vote right now if they are
guilty or not guilty, first of all, everyone here agrees you have
heard no evidence, whatsoever, that they’ve done anything
wrong; you don’t even know why they’re here. Does everyone
agree with that?
“(The prospective jurors responded.)
“All right. And if you were to be asked to vote right now,
the only vote you could give is that they are not guilty. Everyone
agree with that?
17
“(The prospective jurors responded.)
“And throughout this entire trial, if at any point in time
you were asked to vote, the only vote you could give is that they
are not guilty. Does everyone understand that?
“(The prospective jurors responded.)
“The only time – and I truly do mean this – the only time
you’re going to even be considering whether or not they’re guilty
or not guilty, is if you’re in the back room, in deliberations, after
doing everything I’ve already told you, listening to the evidence,
the arguments and the law. Does everyone understand that?
“(The prospective jurors responded.)
....
“Now, also with that, the defense in this case has no burden
to prove anything to you. And that’s the way it is in every
criminal case. The defense has no burden at all. The burden is
on the People to prove this case beyond a reasonable doubt.
....
“So it really comes down to once you’ve heard the People’s
case, you still haven’t made a decision. We’re going to wait to see
if the defense puts on any case. But it’s only after all of the
evidence is presented that you’re going to make that decision.
“All right. Now, when I say that the People have the
burden of proof, the burden of proof here is beyond a reasonable
doubt. . . .”
Neither Garcia’s nor Salgado’s counsel objected to any of
these remarks, immediately after which the trial court read
CALCRIM No. 103 (Reasonable Doubt). That instruction states,
in relevant part, “A defendant in a criminal case is presumed to
be innocent. This presumption requires that the People prove a
defendant guilty beyond a reasonable doubt. Whenever I tell you
18
the People must prove something, I mean they must prove it
beyond a reasonable doubt, unless I specifically tell you
otherwise. [¶] Proof beyond a reasonable doubt leaves you with
an abiding conviction that the charge is true. The evidence need
not eliminate all possible doubt, because everything in life is open
to some possible or imaginary doubt. [¶] In deciding whether the
People have proven their case beyond a reasonable doubt, you
must impartially compare and consider all of the evidence that
was received throughout the entire trial. Unless the evidence
proves the defendants guilty beyond a reasonable doubt, they are
entitled to an acquittal and you must find them not guilty.”
(CALCRIM No. 103.)
After the presentation of evidence, the court instructed the
jury with CALCRIM No. 220 (Reasonable Doubt), which is
identical to CALCRIM No. 103 (Reasonable Doubt). During a
break in the prosecutor’s closing argument, the court sua sponte
told the jury that it “must utilize the standard of reasonable
doubt—not that you should, but you must”; the court said this
was to clarify the prosecutor’s assertion that the jury “should”
apply that standard. The court asked the jurors if they
understood; the record suggests they responded favorably.
B. Analysis
Appellants argue the trial court incorrectly stated that the
presumption of innocence “changes” after the court delivers the
final jury instructions and thus before deliberations begin. As
appellants correctly point out, the presumption of innocence
continues throughout deliberations, until the jury reaches a
verdict. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159
(Cowan); People v. Arlington (1900) 131 Cal. 231, 235.)
19
However, appellants forfeited the issue by failing to object
below. (See People v. Monterroso (2004) 34 Cal.4th 743, 759
[challenge to court’s comments during voir dire forfeited by
failure to object].) Appellants cite section 12595 for the
proposition that no objection is necessary to preserve a claim of
erroneous jury instructions for review, but the court’s comments
during voir dire were not jury instructions. A challenge to such
comments constitutes a claim of judicial error subject to
forfeiture. (See ibid.; People v. Seumanu (2015) 61 Cal.4th 1293,
1357 (Seumanu) [challenge to court’s explanation of CALJIC No.
8.88 during voir dire was claim of judicial error requiring timely
objection].)
Even if appellants had preserved their challenge to the
court’s comments, appellants would fail to establish reversible
error. A trial judge’s erroneous comments during voir dire
require reversal only if it is “reasonably possible” that the error
affected the verdict. (Seumanu, supra, 61 Cal.4th at p. 1358.)
“‘[A]s a general matter, it is unlikely that errors or misconduct
occurring during voir dire questioning will unduly influence the
jury’s verdict in the case. Any such errors or misconduct “prior to
the presentation of argument or evidence, obviously reach the
jury panel at a much less critical phase of the proceedings. . . .”’”
(Ibid., quoting People v. Medina (1995) 11 Cal.4th 694, 741.)
We perceive no reasonable likelihood that the court’s
comment misled jurors to think that the presumption of
innocence expired at the outset of deliberations. Though the
5Section 1259 provides, in relevant part, “The 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.”
20
court’s statement that the presumption of innocence “changes”
after the court instructs the jury was technically incorrect, the
court made clear that the prosecution had the burden to prove
appellants’ guilt beyond a reasonable doubt, and the defense was
not required to present evidence. Appellants omit from their
briefing the court’s back-and-forth with the prospective jurors,
during which the court expressly clarified that the “only time” the
jury was “going to even be considering whether or not they’re
guilty or not guilty,” was during deliberations. The court
formally instructed the jury on the presumption of innocence and
the prosecution’s burden of proof twice: during voir dire, with
CALCRIM No. 103, and at the close of evidence, with CALCRIM
No. 220. It also interjected during the prosecutor’s argument to
remind the jury that the reasonable doubt standard was
mandatory. There is thus no reasonable possibility that the
court’s isolated and arguably ambiguous comment during voir
dire affected the verdict. (See Seumanu, supra, 61 Cal.4th at p.
1358 [where trial court informed potential jurors they would
receive formal jury instructions if chosen to serve and later
properly instructed the jury, any error in court's comments
during voir dire was harmless].)
We would arrive at the same result even if we agreed with
appellants’ characterization of the comment as a jury instruction.
Whether jury instructions correctly state the law is a question of
law subject to de novo review. (People v. Posey (2004) 32 Cal.4th
193, 218.) “‘When an appellate court addresses a claim of jury
misinstruction, it must assess the instructions as a whole,
viewing the challenged instruction in context with other
instructions, in order to determine if there was a reasonable
likelihood the jury applied the challenged instruction in an
21
impermissible manner. [Citations.]’” (People v. Jennings (2010)
50 Cal.4th 616, 677; see also People v. Paysinger (2009) 174
Cal.App.4th 26, 30.) A single instruction may not be viewed in
“‘artificial isolation,’” but in the context of the entire record.
(People v. Mills (2012) 55 Cal.4th 663, 677.)
As discussed above, it is not reasonably likely that the
court’s comment misled jurors to think that the presumption of
innocence expired at the outset of deliberations. Viewed in light
of the other, indisputably accurate instructions, and the
remainder of the record, the court’s comment was not reasonably
likely to lead the jury to jettison the presumption of innocence
before deliberations.
Appellants’ reliance on Cowan, supra, 8 Cal.App.5th 1152does not convince us otherwise. In Cowan, the prosecutor
misstated the presumption of innocence during closing argument,
telling the jury that the presumption was in place “only when the
charges are read” and was “gone” thereafter. (Cowan, supra, 8
Cal.App.5th at p. 1159.) The court of appeal held that the
remarks, which it called “completely wrong,” constituted
prejudicial misconduct that required reversal, as they directly
contradicted the trial court’s instructions and were “the last
explanation about reasonable doubt the jury heard.” (Id. at pp.
1161, 1164.) In contrast, in this case the trial court’s single
remark was far from the final word on the subject—the court
engaged the prospective jurors in a colloquy about the
presumption of innocence and instructed them using the pattern
instructions multiple times. The instant case is not “more
extreme than . . . Cowan.” Nor is it analogous to the appellate
case appellants assert is “controlling,” People v. T. Wah Hing
(1911) 15 Cal.App. 195, 198. There the court erroneously told the
22
jury that those “entertaining” the opinion during deliberations
that the defendant was guilty “should adhere to your opinion
until you are convinced beyond a reasonable doubt that you are
wrong.” The isolated, ambiguous remark here was far less
egregious. Appellants also argue that the prosecutor’s closing
argument, during which he told the jury there was no evidence
that “points to innocence” and urged it to “reject the
unreasonable and accept the reasonable,” compounded the harm
of the court’s remark. We address appellants’ extensive claims of
(unobjected to) prosecutorial misconduct more fully below; for
now, it is sufficient to say that these remarks were not
misconduct and therefore did not prejudice appellants. Moreover,
as Salgado points out in his reply brief when distinguishing
another case, “[t]he court explicitly instructed jurors to follow the
court’s statements of law, not the attorneys.”
C. Ineffective Assistance of Counsel6
To succeed on a claim of ineffective assistance of counsel,
an appellant must make two showings: (1) counsel’s performance
was deficient because it fell below an objective standard of
reasonable competence; and (2) prejudice resulted. (Strickland v.
Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); In re
Welch (2015) 61 Cal.4th 489, 514 (Welch).) “‘Surmounting
Strickland’s high bar is never an easy task.’ [Citation.]”
(Harrington v. Richter (2011) 562 U.S. 86, 105.)
To establish deficient performance, an appellant must
demonstrate that his or her counsel’s performance fell below an
6 Appellants raise ineffective assistance of counsel claims in
connection with many of their substantive arguments. We set
forth the legal standards in full here and apply them throughout
the remainder of this opinion.
23
objective level of reasonableness. (Welch, supra, 61 Cal.4th at p.
289.) “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. Carter
(2005) 36 Cal.4th 1114, 1189.) We presume counsel’s
performance fell within the wide range of professional
competence and any actions and inactions can be explained as a
matter of sound trial strategy. (Ibid.)
To establish prejudice, an appellant must demonstrate “‘a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ [Citation.]” (In re Gay (2020) 8
Cal.5th 1059, 1086.) “If a claim of ineffective assistance of
counsel can be determined on the ground of lack of prejudice, a
court need not decide whether counsel's performance was
deficient.” (In re Crew (2011) 52 Cal.4th 126, 150.)
Here, we found that any error in the court’s remarks was
harmless. Thus, Garcia is not able to establish a reasonable
probability that the result of the proceeding would have been
different absent the error. Even if a reasonably competent
attorney would have objected, the lack of prejudice forecloses the
ineffective assistance claim.
II. Admission of Translated Transcripts
Appellants contend the trial court violated their
constitutional and statutory rights by admitting into evidence
English transcripts of Garcia’s interrogation and Miguel’s
conversations with appellants and Valencia. They argue the
24
translations were inadmissible because they were not prepared
by a sworn translator, and appellants were denied the
opportunity to cross-examine the person(s) who prepared the
transcripts. Salgado properly preserved these arguments, but
Garcia has forfeited them by failing to object below. We conclude
that the court erred, but the error was harmless. We accordingly
reject Garcia’s claim of ineffective assistance.
A. Background
At the outset of trial, Salgado’s counsel objected to the
introduction of “any transcript that’s from Spanish to English
[that] is not certified or was not transcribed by a certified
Spanish translator.” He stated it was his “understanding that
any translation in court has to be done through a certified
Spanish speaker. And, more importantly, any . . . audio
recording has to be transcribed by a certified Spanish speaker.
And to the extent that that work is farmed out to someone who is
not certified, there would be an objection to that.” He did not cite
any authority for the objection aside from asserting that
interpreters who interpret spoken language for defendants
during court proceedings must have an oath on file; he said his
objection was “under the same logic.” Garcia’s counsel did not
join the objection. Neither defense counsel previously had
objected to the prosecutor’s representation at a pretrial hearing
that he had provided defense counsel with translated transcripts,
from “a Spanish language interpreter certified by the court.”7
7Appellants assert the trial court denied their motions for
independent translators. No such motions are in the appellate
record. However, the court stated on the record that defense
counsel had in fact requested transcriptions of the recordings, not
25
The court overruled the objection. It stated that, to its
knowledge, “as far as any transcript goes, a transcript does not
need to be certified. Anyone can do their own transcript. I believe
that’s also the case with an interpretation or translation.” The
court added, “the defense always has the ability to take a look at
any transcript, whether or not it’s . . . translated . . . to say
whether or not they agree with it or disagree with it. And so, as
such, the defense has the opportunity to take a look and voice any
objections to that transcript. If there is anything that they think
is incorrect or erroneous, they can do that.” The court offered to
“take some time to do that.” Both defense counsel said they had
nothing further.
The court provided copies of the English transcripts to the
jury and to Garcia’s in-court interpreter while the Spanish
recordings were played, and admitted the transcripts into
evidence. At the close of evidence, it instructed the jury with
CALCRIM No. 121 (Duty to Abide by Translation Provided in
Court), which directed the jury to “rely on the transcript, even if
you understand the language in the recording. Do not
retranslate the recording for other jurors. If you believe the
transcript is incorrect, let me know immediately by writing a note
and giving it to the clerk. If the recording is partially in English,
the English parts of the recording are the evidence.”
Neither the parties nor any of the jurors apprised the court
at any time that any portion of the translated transcripts was
independent translators, and “the court . . . held off on signing
those orders, because the People had said they would be
providing that.” The court later added that both defense counsel
had agreed they received the transcriptions. Neither counsel
disputed the court’s recollection.
26
inaccurate. However, the prosecutor pointed out inaccuracies in
un-translated portions of the transcripts, reflecting parts of the
recordings that were spoken in English. Salgado’s counsel
emphasized this concession during closing arguments, asserting,
“The DA admits that there are errors in the transcript. . . . I don’t
know if there are errors in the translation, I don’t speak Spanish
fluently enough to do that . . . . But if some of the transcripts are
in error, and then he says but use them anyway for a conviction,
there’s a question there.” The prosecutor responded to this
argument in rebuttal, asserting that defense counsel would have
presented any errors had there been any.
B. Analysis
Several sections of the Evidence Code govern interpreters
and translators. Evidence Code section 750 states that “A person
who serves as an interpreter or translator in any action is subject
to all the rules relating to witnesses.” Evidence Code section 751,
subdivision (c) requires a translator to “take an oath that he or
she will make a true translation in the English language of any
writing he or she is to decipher or translate.”8 Evidence Code
section 751, subdivision (b) states that translators or interpreters
“regularly employed by the court, may file an oath as prescribed
by this section with the clerk of the court. The filed oath shall
serve for all subsequent court proceedings until the appointment
8 “Audio recordings are writings as defined by the Evidence
Code.” (People v. Dawkins (2014) 230 Cal.App.4th 991, 1002.)
Evidence Code section 250 defines the term “writing” broadly, to
include all “means of recording upon any tangible thing, any form
of communication or representation, including letters, words,
pictures, sounds, or symbols, or combinations thereof, and any
record thereby created, regardless of the manner in which the
record has been stored.”
27
is revoked by the court.” Evidence Code section 753 similarly
provides that a translator must be sworn to translate a writing
incapable of being understood directly, and “[t]he record shall
identify the translator.” (Evid. Code, § 753, subds. (a), (b).)9
In People v. Torres (1985) 164 Cal.App.3d 266 (Torres), the
primary case upon which appellants rely, the trial court admitted
over defense objection a translated transcript of a telephone call
in which the defendant allegedly arranged a drug sale with an
informant. (Torres, supra, 164 Cal.App.3d at p. 268.) There was
no evidence the transcript was prepared by a certified court
interpreter. (Ibid.) The defendant was found guilty of selling
heroin. (Ibid.) On appeal, he argued that “absent the interpreter
testifying under oath, as required by Evidence Code section 751,
there lacked a meaningful opportunity to determine the
qualifications of the interpreter, the accuracy of the transcript
and an opportunity for cross-examination.” (Ibid.) The appellate
court agreed. It held that “Evidence Code sections 750 and 751
require the administration of a precisely formulated oath to any
person who is to act as an interpreter, and the statutory
requirements are mandatory in a criminal prosecution.” (Id. at p.
269.) It further held that “[t]he failure to call the original
translator to the witness stand denied the defendant a
meaningful opportunity to cross-examine the individual who
translated the material as to his qualifications and the accuracy
of the translation. [Citation.] Therefore, the trial court erred in
9 Though it is not cited by either party, California Rules of
Court, Rule 3.1110(g) also provides that “Exhibits written in a
foreign language must be accompanied by an English translation,
certified under oath by a qualified interpreter.” (Cal. Rules of
Court, Rule 3.1110(g).)
28
admitting the transcript and denying defendant’s objection.”
(Ibid.)
Appellants contend this case is on all fours with Torres.
Respondent dismisses Torres as “vague” and analogizes the
instant case to People v. Roberts (1984) 162 Cal.App.3d 350(Roberts). In Roberts, an interpreter translated for the
prosecution’s two main witnesses at the preliminary hearing. By
trial, one of those witnesses had left the country; the prosecution
sought to have his preliminary hearing testimony read into
evidence. (Roberts, supra, 162 Cal.App.3d at p. 353.) The
defendant objected on the ground that he was denied the
opportunity to effectively cross-examine the witness at the
preliminary hearing. The defendant argued that that the
interpreter was unqualified because his name was not on a list of
recommended interpreters the court was required to use unless
good cause dictated otherwise; he asserted no finding of good
cause had been made. (Ibid.) The trial court overruled the
objection and admitted the preliminary hearing testimony into
evidence. (Ibid.) The appellate court affirmed. It held that the
trial court’s ruling “cannot be considered error because no
evidence was introduced to support the allegation that [the
interpreter] was unqualified to translate.” (Ibid.) The court
further noted an absence of evidence that the witness’s testimony
had been misinterpreted, the interpreter did not know what the
witness was saying, or the witness’s answers did not correspond
to the questions being asked. (Ibid.)
Roberts is inapposite. The issue here—as in Torres—was
whether the translator(s) had been certified and sworn as
required by the Evidence Code and Rules of Court. Aside from
the prosecutor’s unchallenged oral representation that the
29
translations were prepared by certified interpreters, nothing in
the record identifies the translators or shows the required oath
was administered or was on file. This is error under the Evidence
Code and Rules of Court. (See Torres, supra, 164 Cal.App.3d at
p. 269.)
However, as respondent points out, appellants largely
ignore the portion of Torres in which the error was found to be
harmless beyond a reasonable doubt. In Torres, the court
concluded the error was reversible only if prejudice was shown.
(Torres, supra, 164 Cal.App.3d at p. 269.) It further determined
“no prejudice or miscarriage of justice appears to have occurred,”
because the transcripts were authenticated by a witness who
spoke fluent Spanish and was present during the conversations,
and “[d]efense counsel had the opportunity to challenge the
accuracy of the translations through [that witness] or obtain his
own expert to translate the recording into the English language.”
(Id. at p. 270.)
Appellants contend they were prejudiced: “No one verified
the accuracy of the entire translations of any one statement. The
witnesses answered questions about the statements, implying the
snippet played was accurate. Absent someone swearing that the
translation was in fact accurate, though, there was nothing to
stop the witnesses from lying or being mistaken about what the
prosecutor purported the transcript said.” Salgado further
asserts that the transcripts of his statements were exceedingly
prejudicial because they “were tantamount to a confession,” and
the prosecutor “attempted to shore up” weaknesses in the case by
arguing that the transcripts supported Miguel’s and Valencia’s
in-court testimony.
30
We are not persuaded. At the pretrial hearing, appellants
did not dispute the prosecutor’s assertion that the transcripts
were prepared by certified translators. More importantly,
appellants had and took advantage of the opportunity to cross-
examine Miguel, Valencia, and Detective Lugo, all of whom spoke
Spanish and were participants in the recorded conversations.
They also had the opportunity to challenge the accuracy of the
translations through these witnesses, or to call additional
witnesses, but failed to do so. “Transcripts of admissible tape
recordings are only prejudicial if it is shown they are so
inaccurate that the jury might be misled into convicting an
innocent [person].” (People v. Brown (1990) 225 Cal.App.3d 585,
599.) No such showing has been made here. Any error was
harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S.
at p. 24.) Garcia’s claim of ineffective assistance accordingly is
denied.
III. Admission of Wiretap Recordings
Appellants generally contend the court erred by admitting
hearsay in the form of the wiretap recordings. Their arguments
diverge somewhat, however. Garcia concedes the statements he
made during his conversation with Miguel “were admissible as
party admissions under Evidence Code section 1220.” He
contends Miguel’s conversations with Valencia and Salgado were
inadmissible against him because he did not participate in the
conversations and the statements were not otherwise admissible
under the coconspirator exception to the hearsay rule. Garcia
also asserts that his counsel was ineffective to the extent any
evidentiary objections have been forfeited. Salgado makes no
ineffective assistance claim, either in his appellate briefing or his
habeas petition. Though his argument heading refers to “wiretap
31
recordings” generally, Salgado argues only that Miguel’s
conversations with Valencia and Garcia were hearsay not subject
to the coconspirator, party opponent, or statement against penal
interest exceptions; he does not challenge the admission of his
conversation with Miguel.
Respondent contends appellants forfeited their objections to
the admission of the recordings. Respondent also argues the
recordings were properly admitted, and, if they were not, any
error was harmless.
We agree with respondent that appellants have forfeited
their objections to the admission of the Miguel-Garcia and
Miguel-Salgado recordings. To the extent their arguments
regarding the Miguel-Valencia recordings were preserved, we
find any error to be harmless. Garcia’s claim of ineffective
assistance accordingly is denied for failure to establish prejudice.
A. Background
At the outset of trial, Salgado’s counsel objected that the
wiretap recordings “contain multiple levels of hearsay” and were
inadmissible “to the extent that they’re not adoptive admissions.”
The court did not rule on this generalized objection at the time;
instead, it ordered the prosecutor to apprise defense counsel of
the excerpts he intended to use, and advised defense counsel that
it would consider more specific objections to those excerpts.
Garcia’s counsel did not join the objection.
While Valencia was on the stand, and the prosecutor was
preparing to introduce the recording of his conversation with
Miguel, Salgado’s counsel made a “continuing objection based on
hearsay and foundation to the contents of the conversation.”
Garcia’s counsel joined the objection. The court acknowledged
their objections to the entirety of the recording and transcript,
32
but stated that it “does not rely on continuing objections,” which
it overruled without further explanation. The court also told
defense counsel, “if there’s anything that comes up other than
that, just make sure you object so it’s clear on the record.”
During further sidebar discussion of the Miguel-Valencia
recordings, the prosecutor asserted that he was seeking to admit
Valencia’s statements about things Garcia said not for their truth
but to contextualize Valencia’s conversation with Miguel. The
prosecutor pointed out that Garcia personally made similar
statements during his interrogation that would be admissible.
After further discussion, the prosecutor said he did not need to
play the portions of the recording discussing Garcia’s statements
and could instead question Valencia about the shooting. At the
request of Garcia’s counsel, the prosecutor then proffered, “I want
to ask [Valencia], was he aware that there was a contract for
murder for hire for which anybody he knows was involved in, that
he knows, because he was charged with a conspiracy. . . . And
with that knowledge, did he ever go out with anybody, and who
was that? And then lastly, play the second part of Mr. Salgado[,
which is] an absolute admission by Mr. Salgado to this witness.”10
After even more discussion, the court asked the prosecutor if he
was “good with directly asking him, did you know this?” The
prosecutor said he was. The court said, “Okay. So I think we’re
going to cut that out.” It added that it would allow the prosecutor
to use leading questions with Valencia through “this area,” and
reminded defense counsel that they could object to specific
questions.
10It appears the prosecutor was referring to the portions of
the recording in which Valencia discussed conversations he had
with Salgado, and statements Salgado made therein.
33
The prosecutor then asked the court to rule on whether
Valencia could testify that Salgado told Valencia that Garcia was
going to pay Salgado $10,000. Garcia’s counsel objected on the
grounds of foundation, double hearsay, and “lacks form.” The
court overruled the objection and said, “The statements of the co-
conspirator are going to be allowed in. I am going to allow it in as
to that limited area.” Following discussion about Valencia’s role
in the conspiracy, the court stated, “as to the other statements,
the court is going to allow that to come in.” No one asked for
clarification of this or any other aspect of the court’s ruling.
Valencia subsequently provided the testimony summarized
above: he became aware of a murder plot at work in 1996; he
accompanied Salgado and “Munchy” while they drove around and
searched for Victim using photographs provided by Garcia; about
a week after the incident, Salgado told him details about the
shooting; later, he talked with others about Garcia’s involvement.
No hearsay objections were raised to this testimony. The
prosecutor then played the recordings for the jury, and the
recordings and translated transcripts were admitted into
evidence. No further hearsay objections were raised when the
recording was played.
Though he does not challenge the admission of his own
conversation with Miguel, Salgado points to several objections his
trial counsel made to Miguel’s testimony before the recordings
were introduced or played. He does not identify any hearsay
objections his trial counsel made to the recording of Miguel and
Garcia, and Garcia does not identify any hearsay objections his
trial counsel made to the recording of Miguel and Salgado. “‘It is
the duty of counsel to refer us to the portion of the record
supporting [defendant’s] contentions on appeal. [Citations.] . . .
34
“It is neither practical nor appropriate for us to comb the record
on [defendant’s] behalf.”’ [Citation.]” (People v. Smith (2015) 61
Cal.4th 18, 48.) We did not do so here.
At the close of evidence, the court instructed the jury with
CALCRIM No. 305 (Multiple Defendants: Limited Admissibility
of Defendant’s Statement). That instruction directed the jury to
consider Salgado’s out-of-court statements against Salgado only,
and to consider Garcia’s out-of-court statements against Garcia
only.
B. Analysis
Hearsay is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid. Code,
§ 1200, subd. (a).) As a general rule, hearsay is inadmissible.
(Evid. Code, § 1200, subd. (b).) However, there are many
exceptions to the general rule, including Evidence Code section
1220, which provides that hearsay statements are not
inadmissible “when offered against the declarant in an action to
which he is a party.” Evid. Code, § 1220.) Another exception
applies to statements made by a participant in a conspiracy to
further that conspiracy, if the statement was made prior to or
during the declarant’s participation in the conspiracy and is
offered either after admission of evidence sufficient to sustain
those facts, or subject to the admission of such evidence. (Evid.
Code, § 1223.)
We review a trial court’s ruling on the admissibility of
evidence, including one that turns on the hearsay nature of the
evidence, under the abuse of discretion standard. (People v.
Waidla (2000) 22 Cal.4th 690, 725.) Even if the trial court
abused its discretion and admitted evidence erroneously, we do
35
not set aside the judgment unless “(a) There appears of record an
objection to or a motion to exclude or strike the evidence that was
timely made and so stated as to make clear the specific ground of
the objection or motion; and (b) [we are] of the opinion that the
admitted evidence should have been excluded on the ground
stated and that the error or errors complained of resulted in a
miscarriage of justice.” (Evid. Code, § 353.)
Here, appellants failed to make any sort of clear hearsay
objection to the Miguel-Garcia and Miguel-Salgado recordings.
Even their continuing objection, upon which the trial court said it
“does not rely,” explicitly referred only to “the contents of the
conversation” being discussed at the time: the one between
Miguel and Valencia. “[T]rial counsel’s failure to object to
claimed evidentiary error on the same ground asserted on appeal
results in a forfeiture of the issue on appeal.” (People v. Dykes
(2009) 46 Cal.4th 731, 756.) Appellants’ arguments concerning
the admission of the Miguel-Garcia and Miguel-Salgado
recordings accordingly are forfeited.
Appellants did object on hearsay grounds to the Miguel-
Valencia statement. In response, the court and parties agreed
that the prosecutor would question Valencia about a portion of
the recording. Valencia then testified to the salient details of the
conversation, including statements made by Salgado, a party
opponent. Those statements were admissible against Salgado
under Evidence Code section 1220. The court instructed the jury
to consider these statements against Salgado only, and we
presume the jury followed that instruction. (See People v.
Lindberg (2008) 45 Cal.4th 1, 26.)
This admissible testimony covers the same ground as the
recording. Although it is less detailed, the salient facts are all
36
present: Valencia was aware of a murder plot; Valencia looked
for Victim with Salgado, using photos provided by Garcia; and
Salgado told Valencia details about the shooting sometime after
it occurred. Given the admission of this testimony, any error in
admitting the recording (and related transcript) was harmless.
Garcia’s ineffective assistance claim is denied as to this
recording. We also conclude he has not demonstrated prejudice
due to his counsel’s failure to object to the Miguel-Salgado
conversation; the jury was instructed to consider Salgado’s
statements only as to Salgado, and the other recordings involving
Garcia strongly implicated him
IV. Sufficiency of the Evidence
In his brief joining most of Salgado’s arguments, Garcia
contends for the first time that “the legally competent evidence
admitted to prove Garcia’s guilt was insufficient as a matter of
law [to] prove the elements of the crimes beyond a reasonable
doubt. The judgment must be reversed and retrial barred by the
double jeopardy clause.” He argues that the English transcripts
of the Spanish recordings were “not legally competent evidence”
because the court at one point stated that the recordings, not the
transcripts, were the evidence. Therefore, the only “legally
competent evidence of Garcia’s guilt consisted of the testimony of
Ricardo Valencia and Miguel Contreras, both of whom were
accomplices for which there was insufficient corroboration.”
Salgado joins this argument, which he asserts applies equally to
him, in a separately filed brief. 11 Respondent asserts that the
11Both appellants acknowledge the untimely nature of the
contention, but assert “the issue logically flows from the issues
raised by Salgado’s Opening Brief.” They further express a
37
contention should be rejected on the merits and that appellants’
interpretation of the double jeopardy rule is incorrect. We agree
the argument lacks merit. We need not address the double
jeopardy issue. To the extent Garcia’s blanket assertion of
ineffective assistance of counsel applies to this claim, it is denied.
A. Background
Valencia was the first witness through whom the
prosecutor sought to introduce the wiretap recordings. After the
prosecutor marked the Miguel-Valencia recording and
transcripts, the court told the jury that the prosecutor would be
handing out copies of the transcripts. It continued, “The
transcripts themselves are not evidence in this case, all right.
What is actually on the recording, that is the evidence in this
case.” Salgado’s counsel immediately lodged the previously
discussed continuing objection to “the contents of the
conversation”; neither he nor anyone else said anything about the
court’s comment. The court then paused distribution of the
transcripts, excused the jury, and held the previously
summarized sidebar discussion about the objections to the
conversation and whether the prosecutor could get the
information in through Valencia’s testimony.
When the jury returned, the prosecutor resumed
distribution of the transcripts. The court simultaneously told the
jury: “And while those are being passed out, I misspoke just a
little bit. Normally we have transcripts that are in English, so
willingness to file motions to file additional supplemental briefing
“to the extent there is any issue about whether it can be argued
in this joinder.” Respondent does not address the potential
forfeiture. We exercise our discretion to resolve the issue on the
merits, primarily in the interest of judicial economy.
38
the transcripts themselves are not the evidence. So in this case
you’re going to have both the Spanish and then the English
translation, so you’ll be following. Some of this is in English;
most of it looks like it is in Spanish. So you’re gonna have that,
though, to follow through.” No one sought clarification of these
remarks, which are not mentioned or cited in the appellate
briefing.
At the close of evidence, the court instructed the jury with
CALCRIM No. 121 (Duty to Abide by Translation Provided in
Court). As relevant here, that instruction stated: “You heard a
recording that is partially in a foreign language. You received a
transcript with an English language translation of that
recording. You must rely on the transcript, even if you
understand the language in the recording. Do not retranslate the
recording for other jurors. If you believe the transcript is
incorrect, let me know immediately by writing a note and giving
it to the clerk. If the recording is partially in English, the English
parts of the recording are the evidence.” The prosecutor
subsequently reminded the jury during closing that “whatever
the Spanish translation is, you have to accept that. However, for
the English, the evidence is the actual recording.”
The court also instructed the jury with CALCRIM No. 335
(Accomplice Testimony: No Dispute Whether Witness is
Accomplice), which provides that accomplice testimony alone is
insufficient to convict a defendant and must be supported by
other credible evidence. (See § 1111.)
B. Analysis
In reviewing a challenge to the sufficiency of the evidence,
we ask “‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
39
found the essential elements of the crime beyond a reasonable
doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055
(Nguyen), quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-
319.) “The record must disclose substantial evidence to support
the verdict—i.e., evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.) “In applying this test, we review the
evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence.”
(Ibid.) “A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support”’ the jury's verdict.”
(Ibid.)
In light of the court’s initial comment that the recordings
were the evidence, appellants contend the transcripts of the
recordings were not evidence, let alone substantial evidence.
Appellants correctly point out that the court initially misspoke
and stated that the Spanish recordings, not the translated
English transcripts, were the evidence. However, before the jury
heard the recordings or saw the transcripts, the court explicitly
said it previously misspoke. We reiterate that none of the parties
acknowledge this correction, which only could have been intended
to rectify the earlier misstatement. To the extent the correction
may have been unclear, the court resolved any ambiguity by
instructing the jury with CALCRIM No. 121 that the translations
were the evidence, and the prosecutor reiterated that point
during his closing argument. We presume the jury followed the
40
court’s instruction, which it had available in writing during
deliberations. (People v. Lindberg, supra, 45 Cal.4th at p. 26.)
Salgado acknowledges the formal jury instruction, but
asserts that, “in the context of the previous instruction”—i.e., the
original misstatement, not the unacknowledged correction—
CALCRIM No. 121 “informed jurors that they were not to
personally translate the audio. If anything, then, it essentially
barred jurors from considering the evidence provided to them: the
recording.” This argument, which is unsupported by citation to
authority, lacks merit.
Appellants do not dispute that the recorded conversations
corroborate the testimony of accomplices Miguel and Valencia, or
contend that the recorded conversations are improper
corroboration under section 1111. Garcia acknowledges that
“[t]he crucial evidence connecting Garcia to the attempted
murder were the discussions in the audio files played for the
jury.” Salgado likewise states, “The only evidence potentially
corroborating the accomplice testimony connecting appellant to
the crime was appellant’s adoptive admissions in wiretap
conversations.” Because the contents of those conversations were
admitted into evidence as translated transcripts, the jury had
sufficient evidence to corroborate the testimony of accomplices
Miguel and Valencia. It therefore had sufficient evidence to
support Garcia’s convictions.
V. Prosecutorial Misconduct
Although neither appellant raised any claim of
prosecutorial misconduct below, they now contend the prosecutor
“committed pervasive misconduct” that “violated a litany” of their
constitutional rights. They argue reversal is necessary because
the misconduct prejudiced them; additionally, they contend
41
reversal is appropriate to address “institutional concerns” about
prosecutorial misconduct, namely repeated instances of
misconduct by this prosecutor.12 (See People v. Hill (1998) 17
Cal.4th 800, 847-848 (Hill).) They further contend their trial
counsel rendered ineffective assistance by sitting “idly by”
throughout the prosecutor’s closing and rebuttal arguments.
We agree with respondent that appellants have forfeited
the issue due to their lack of objection below. “A defendant may
not complain on appeal of prosecutorial misconduct unless in a
timely fashion, and on the same ground, the defendant objected
to the action and also requested that the jury be admonished to
disregard the perceived impropriety.” (People v. Thornton (2007)
41 Cal.4th 391, 454.) Nevertheless, we address the merits in
light of appellants’ alternative contention that their counsel were
ineffective. (See People v. Azcona (2020) 58 Cal.App.5th 504, 515;
see also People v. Sanchez (2014) 228 Cal.App.4th 1517, 1525
[reviewing court may exercise discretion to review forfeited claim
if it affects appellant’s substantial rights].) Given the breadth of
appellants’ claims, we structure this section differently than the
others. First, we set forth the overarching legal principles. Then
we provide background and analysis on a claim-by-claim basis.
We conclude that some errors occurred, but were neither
individually nor collectively prejudicial. We likewise decline to
find prejudice on an “institutional” basis. We accordingly
conclude trial counsel was not ineffective.
12 We granted Salgado’s request for judicial notice of 10
unpublished opinions in which the same prosecutor was found to
have committed misconduct, and one partial reporter’s transcript
of a trial involving the prosecutor. In only one of those cases was
the error found to be prejudicial.
42
A. General Principles
“Advocates are given significant leeway in discussing the
legal and factual merits of a case during argument. [Citation.]
However, ‘it is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the
prosecution from its . . . obligation to overcome reasonable doubt
on all elements [citation].’ [Citations.] To establish such error,
bad faith on the prosecutor’s part is not required. [Citation.]
‘[T]he term prosecutorial “misconduct” is somewhat of a
misnomer to the extent that it suggests a prosecutor must act
with a culpable state of mind. A more apt description of the
transgression is prosecutorial error.’ [Citation.]” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).)
“When attacking the prosecutor’s remarks to the jury,” as
appellants almost exclusively do here, “a defendant must show
that, ‘[i]n the context of the whole argument and the instructions’
[citation], there was ‘a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or
erroneous manner. [Citations.] In conducting this inquiry, we
“do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s
statements. [Citation.]’ [Citations.]” (Centeno, supra, 60 Cal.4th
at p. 667.) In other words, the defendant must show prejudice
resulting from any error.
If a prosecutor’s intemperate conduct is so egregious as to
infect the trial with such a degree of unfairness that the
resultant conviction is a denial of due process, the defendant’s
federal constitutional rights are violated. (People v. Panah (2005)
43
35 Cal.4th 395, 462.) Misconduct that falls short of rendering the
trial fundamentally unfair may nevertheless constitute
misconduct under state law if it involves the use of reprehensible
or deceptive methods to persuade the trial court or jury. (Ibid.)
B. Facts Not in Evidence
1. Background
During closing argument, the prosecutor discussed the
Contreras family’s efforts to exonerate Marco. He stated,
“Finally, in about 2014, I believe, is when they talk to people that
seen [sic] the case. And that was some attorneys, people from the
Loyola Law School, and then finally the District Attorney’s Office
Investigation Unit, they’re like, well, let’s investigate this; it’s
been some time, we’ve got to make sure. Because justice has to
prevail. It does.”
Later, the prosecutor attacked defense counsel’s anticipated
argument that Miguel was not credible because he lied to
appellants and Valencia while recording conversations with
them. He stated: “Can you imagine if Miguel Contreras walked
in, Kansas City, Missouri, defendant Salgado opens his door and
says, hey, what’s going on? What are you doing here? Well, I’m
here. The cops are outside, and I’m wearing a wire, a recording.
Man, you know, what’s up? . . . You did a shooting and my
brother’s in jail because of you. Right? [¶] Is that what - - what
kind of investigation that would that be? Marco would still be in
jail.”
During Salgado’s closing, defense counsel identified
witnesses that the prosecution failed to call. In rebuttal, the
prosecutor characterized this argument as “saying why didn’t you
make this trial three months instead of five or six days? Because
that’s what it would be. Can you imagine calling all those
44
witnesses to come up here? Because there is nobody arguing that
the shooting didn’t occur. That’s what witnesses are going to say,
a shooting occurred. The paramedics are going to say I showed
up, and somebody was shot. Officers are going to say I showed up,
somebody was shot. [¶] So if they want to call them, by all
means, and they didn’t, because the other witnesses were not
relevant to this proceeding. They weren’t there during these
conversations between the actual culprits.” The prosecutor also
stated, “Did I need to re-interview [Valencia], after he made this
whole statement? No. Absolutely not. That’s a waste of time.”
And, “What’s Marco going to say? He wasn’t even there. Yeah, I
was at home and the next thing you know I got arrested, and 20
years later I’m here now.”
2. Analysis
It is prosecutorial misconduct to misstate the evidence or go
beyond the record. (People v. Fayed (2020) 9 Cal.5th 147, 204
(Fayed).) Likewise, it is misconduct for a prosecutor to suggest he
or she has witnesses who would have testified to certain facts
without calling those witnesses. (People v. Boyette (2002) 29
Cal.4th 381, 452 (Boyette).) However, prosecutors have wide
latitude in commenting on the evidence, including the reasonable
inferences and deductions that may be drawn. The
reasonableness of the inferences the prosecutor draws is for the
jury to decide. (People v. Thornton, supra, 41 Cal.4th at p. 454.)
The prosecutor’s statements about the investigation were
reasonable inferences from the evidence. Of the statements
claimed by appellants to refer to facts not in evidence, we find
problematic only those regarding what uncalled witnesses would
say, and that it would have been a “waste of time” for the
prosecutor to call those witnesses. These statements are similar
45
to those found improper in Boyette, supra, 29 Cal.4th at p. 452.
There, the prosecutor “suggest[ed] in closing argument that she
had evidence in her possession that supported her line of
questioning, but simply chose not to present it in the interest of
saving the jury time. Thus, she stated: ‘I don’t need [to] bring in
those witnesses in order to ask a hypothetical [question] to that
witness. And you notice I did not bring in those witnesses. Those
pale in comparison to what you already have in front of you. You
are not going to find the death penalty because of some assaults
and batteries. So I did not waste your time with that type of
information.’ (Italics added.) Suggesting that she had witnesses
who would have testified to certain facts when she did not call
such witnesses is misconduct.” (Boyette, supra, 29 Cal.4th at p.
452.)
However, as in Boyette, “the potential for prejudice exists,”
but “we find the potential was not realized.” (Boyette, supra, 29
Cal.4th at p. 452.) The trial court instructed the jury to decide
the facts “based only on the evidence that has been presented to
you in this trial,” and that nothing the attorneys said was
evidence. Moreover, the evidence against appellants, including
self-incriminating statements, was very strong. For these
reasons, the error was harmless. (See People v. Rivera (2019) 7
Cal.5th 306, 335.)
C. Misstating Presumption of Innocence and
Burden of Proof
1. Background
While referring to CALCRIM No. 224 (Circumstantial
Evidence: Sufficiency of Evidence), the prosecutor stated: “the
law says if you have two stories, okay - - and talking about
circumstantial evidence - - if you have two stories and they are
46
both reasonable, you have to accept the story that points to
innocence, you have to. However, if you have two stories and one
is unreasonable, you have to reject it. That’s what I mean when I
say accept the reasonable and reject the unreasonable. That’s
what I’m talking about in that instruction, as it pertains to
circumstantial evidence.” As an example, he asked the jury,
“does it sound reasonable that, hey, they were going to do that
killing, but I told them to stop, but they went anyway? How does
that make any sense? [¶] . . . [¶] It’s unreasonable to believe that
you do all these things, and the morning that these individuals
are going to go do it, you say don’t do it, and they go anyways?
Well, why would they go, if they didn’t think they were going to
get paid? It doesn’t make sense. Reject it.”
In rebuttal, after reviewing the Miguel-Salgado
conversation, the prosecutor told the jury, “The point of all this is
that what evidence points to innocence? There is no evidence in
any of the transcript [sic], in anything he says in the transcript
that points to him not being the shooter, because if there was, it
would have been pointed out. There is no evidence of it.
Everything he’s talking about, he’s the shooter. There’s nothing
that points to anybody else doing this, except for him. Use your
common sense, folks.”
2. Analysis
“It is improper for the prosecutor to misstate the law
generally, and in particular, to attempt to lower the burden of
proof.” (People v. Williams (2009) 170 Cal.App.4th 587, 635.)
Appellants argue the prosecutor did that here, by implying the
jury was required to convict appellants if it believed the only
inferences pointing to innocence were unreasonable. They assert
the prosecutor’s argument was “exactly” like that found to be
47
misconduct in People v. Ellison (2011) 196 Cal.App.4th 1342(Ellison). We disagree.
In Ellison, the prosecutor urged the jury to “look at
whether or not it’s reasonable or unreasonable for the defendant
to be innocent,” defined “beyond a reasonable doubt” as “[i]s it
reasonable that the defendant’s innocent,” and told the jury to
“look at what’s reasonable and unreasonable, when you look at all
the evidence.” (Ellison, supra, 196 Cal.App.4th at pp. 1351-
1352.) The appellate court held that the prosecutor “improperly
attempted to lessen the People’s burden of proof by arguing to the
jury that the beyond-reasonable-doubt standard required the jury
to determine whether defendant’s innocence was reasonable.”
(Id. at p. 1352.) The cited remarks here do no such thing. The
prosecutor explicitly referred to the instruction on inferences to
be drawn from circumstantial evidence, and argued the jury
should rely on that instruction to reject as unreasonable Garcia’s
claim of withdrawal from the conspiracy. The prosecutor told the
jury to reject an unreasonable inference, not that the ultimate
question was whether it was reasonable to believe that
appellants were innocent. His assertion that no evidence in the
wiretap transcripts “point[ed] to innocence” was a comment on
the evidence he introduced, not a suggestion that appellants bore
any burden to point to their own innocence. “It is permissible to
argue that the jury may reject impossible or unreasonable
interpretations of the evidence and to so characterize a defense
theory.” (Centeno, supra, 60 Cal.4th at p. 672.)
Appellants also analogize the case to Centeno, supra, 60
Cal.4th 659. There, the court found the prosecutor’s argument
improper because it “strongly implied that the People’s burden
was met if its theory was ‘reasonable’ in light of the facts
48
supporting it.” (Centeno, supra, 60 Cal.4th at p. 671) The
prosecutor told the jury it had to reject impossible and
unreasonable inferences, and make a decision that ‘has to be in
the middle. It has to be based on reason.’” (Ibid.) The court
concluded this and other similar remarks “left the jury with the
impression that so long as her interpretation of the evidence was
reasonable, the People had met their burden.” (Id. at p. 672.)
Here, the prosecutor’s arguments are not reasonably susceptible
to this interpretation.
any event, as discussed above, the court instructed the jury
on the presumption of innocence and reasonable doubt standard
multiple times. There is no reasonable likelihood the statements
challenged here led the jury to apply an incorrect standard.
D. Appeals to Passion and Prejudice
Appellants identify numerous alleged appeals to passion
and prejudice made in both closing and rebuttal. We group and
discuss them thematically.
1. Background
a. Self-Referencing
“Yeah, that’s an adoptive admission. You’ll get that in
here. Because there are some things that you could admit
without saying a word, right? . . . Just like when I was little. I
used to jump the fence all the time in the backyard. There was
an apartment building behind us, and they had this really good
orange tree. And I would jump it, and I would eat the oranges.
And we weren’t supposed to . . . and the[n] my mom got on us.
And then when she asked me, hey, did you take those oranges, I
didn’t say a word. But I didn’t have to, because my brother was
there and he’s a little tattletail [sic] . . . . And I didn’t deny it.
The last thing I’m going to do is I’m already getting in trouble,
49
now I’m going to lie to my mom? My mom was crazy. She’s old
school. It wasn’t time out. It was straight up whatever is around.
Sometimes it was go out and get me my shoe, you know, the one
with the high heal [sic].”
During rebuttal, which occurred on Valentine’s Day, the
prosecutor stated, “I was a little bit we[a]ry this morning. I
specifically wore the red, thinking you all were going to be
wearing red, but it looks like just a couple. Just don’t focus on
this bad tie.”
b. Personally Addressing Jurors
“I’m not even going to waste your time, because you guys
are ready to go. Some of you are mad dogging me, so I’m going to
keep moving right now. [¶] . . . [¶] You guys are all smart. I
don’t know if you noticed, but I picked all of you - - or excuse me -
- the People considered all of you because of your ability to use
your common sense. When we’re asking you questions, all of you
were on top of it. [¶] . . . I think I kicked like one guy [during voir
dire], and he was - - I think he fell asleep, so I had to kick him.
But you can all use your common sense.”
“And you might say to yourself, well, what’s this about?
Juror No. 6 may be, like, this guy is talking too much. Juror No.
12 might say he’s not talking enough. I don’t know.”
c. References to Justice/Injustice
“[Y]ou heard that a mistake was made back in 1996, and
that that person was released already. . . . [J]ust keep it inside
and don’t use that to decide the facts in this case. Just use what
you’ve heard here. [¶] Okay, unfortunately, because of what
happened, . . . everybody thought the case was over. . . . [¶] If it
wasn’t for Marco Contreras’s family continuing to try to be heard
by somebody, then we’re not here. But they did, and eventually
50
somebody heard, and eventually somebody did something about
it. And now it’s your opportunity to have final justice in this
matter.”
As previously summarized, the prosecutor asked the jury
“what kind of investigation would that be,” if Miguel had been
truthful with Salgado. “Marco would still be in jail.”
“I’m going to ask that after you hear all of the arguments,
you go and you deliberate, but you find these two responsible for
all the trouble they caused; all of it, since 1996.”
“The last thing I’ll say is . . . there’s not a lot of people in
this world who ever get into a position where they can really
instill justice. There isn’t, there really isn’t. But you all were
chosen, the 12 of you and the alternates, to sit and listen to the
facts of this case, and you do have a chance to instill justice in
this world, in this case, and to find the right person responsible
for what happened in 1996, for that cowardly act, knowing that
somebody is in jail for something he did. . . . [¶] . . . [¶] He knows
that there was an injustice, that’s why he stayed away, not
because Compton is a terrible place. [¶] So this is your
opportunity, and I’m asking you to hold him responsible and to
find justice.”
d. Inflammatory Remarks
Salgado “tells Miguel Contreras in the recording, he says,
well, it was either Kansas or Georgia, but I didn’t go to Georgia,
because there are too many blacks there, so I’m going to stay
here.” The prosecutor repeated this statement while
summarizing the recording in rebuttal.
“Is Miguel Contreras a liar? Yeah, he lied. He absolutely
lied. [¶] Can you imagine being - - well, I’m not going to ask you
to imagine. But you have a 22 year old, I’m assuming he’s
51
Latino, in Compton, in 1996. They tow his truck. They tell him
to come to the station. Yeah, he’s going to be scared. And he was
scared. Not only that, but he knew what he did.”
“As a side note, he [Salgado] was talking about it in front of
the kids.”
2. Analysis
“‘A prosecutor is allowed to make vigorous arguments and
may even use such epithets as are warranted by the evidence, as
long as these arguments are not inflammatory and principally
aimed at arousing the passion or prejudice of the jury.’
[Citation.] ‘[I]t is improper for a prosecutor to appeal to the
passion or prejudice of the jury.’” (People v. Rivera, supra, 7
Cal.5th at p. 337.) It is also improper for a prosecutor to present
irrelevant information or employ inflammatory rhetoric, as doing
so diverts the jury’s attention from its task and invites it to act
irrationally or subjectively. (People v. Redd (2010) 48 Cal.4th
691, 742.) We review the comments not in the isolated fashion in
which they are presented here, but in the context of the argument
as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.)
In the context of the entire argument, the self-referencing
statements were trivial and in no way prejudicial. A passing
reference to one’s own tie is not inflammatory. Nor are we
persuaded by appellants’ assertion that the prosecutor’s example
illustrating the adoptive admissions rule “could only elicit
sympathy” because it invoked his “abusive childhood.” The
illustrative example’s offhand mention of corporal punishment is
in no way analogous to People v. Zurinaga (2007) 148
Cal.App.4th 1248, 1255-1259, in which the prosecutor structured
a significant portion of closing argument around an analogy to
the 9/11 terrorist attacks. The prosecutor’s reference to an
52
excused voir dire member was not, as appellants assert, an
improper quotation of juror statements. In both cases they cite,
People v. Riggs (2008) 44 Cal.4th 248, 324-326 and People v.
Freeman (1994) 8 Cal.4th 450, 517, the prosecutor quoted during
closing argument actual statements made by sitting jurors during
voir dire. Here, the prosecutor simply stated that an excused
prospective juror had fallen asleep; as endorsed in People v.
Freeman, supra, 8 Cal.4th at p. 517, he addressed the argument
to the jury as a body. We are also not persuaded that the
references to “Juror No. 6” and “Juror No. 12” were improper
appeals to those jurors. In the context of even just the
surrounding sentences, these references simply suggest that
different jurors may have different interpretations of the
argument. The prosecutor did not address any jurors by name, a
practice “condemned” by the only case appellants cite on this
point, People v. Wein (1958) 50 Cal.2d 383, 395, overruled on
other grounds by People v. Daniels (1969) 71 Cal.2d 1119, 1140.
Even Wein recognized that “it does not follow that such conduct is
necessarily prejudicial in any given case.” (People v. Wein, supra,
50 Cal.2d at p. 395.) Here, two mentions of juror numbers were
of minimal consequence in the broader argument that was
predominantly focused on the evidence and the law.
Appellants argue it was improper for the prosecutor to tell
the jury to render a verdict to do justice. It is not misconduct to
remind the jury to do precisely what it is supposed to. Contrary to
appellants’ suggestion that the prosecutor used the wrongful
conviction to “pull[ ] at the jurors’ heartstrings,” the prosecutor
expressly told the jurors to keep any feelings about Marco’s
wrongful convictions “inside,” and instead “[j]ust use what you’ve
heard here” to decide the case. Even in the context of a death
53
penalty case, “‘[i]solated, brief references to retribution or
community vengeance . . . , although potentially inflammatory, do
not constitute misconduct so long as such arguments do not form
the principal basis for advocating the imposition of the death
penalty.’” (People v. Wash (1993) 6 Cal.4th 215, 262.) Here, the
“principal basis” of the argument was that the evidence
supported convicting appellants beyond a reasonable doubt.
We agree with appellants that the prosecutor’s references
to Salgado’s racially motivated reason for moving to Missouri
rather than Georgia were inflammatory and improper.
Respondent contends the “point was not that [Salgado] was
racist, but that the sum of the statement showed . . .
consciousness of guilt, and that the frankness of appellant
Salgado’s statements showed his confession was credible and not
the unreliable product of trickery.” There were many other frank
statements in the transcripts to which the prosecutor could have
referred; selecting this one, twice, was improper. The
prosecutor’s speculation about Miguel’s race or ethnicity and the
role it may have played in his 1996 interaction with law
enforcement was similarly improper. The same point, that
Miguel lied to police out of fear, could have been made without
reference to his apparent race or ethnicity. We are less convinced
that the accurate remark that the Miguel-Salgado conversation
took place in front of Salgado’s children was inflammatory. The
transcript of the conversation was in evidence, and the presence
of the children explained why some parts of the conversation
were in Spanish while others were in English.
However, to the extent the inflammatory remarks—or any
of the others—appealed to the jury’s passions or prejudices, the
errors were not prejudicial. The evidence in the case was very
54
strong. The remarks were scattered throughout lengthy closing
and rebuttal arguments. Both the prosecutor and the court
instructed the jury to resolve the case based on the evidence, not
based on any sympathies, biases, or prejudice.
E. Vouching
1. Background
Appellants identify multiple statements they contend
constitute improper vouching by the prosecutor. Near the
beginning of closing argument, the prosecutor remarked, “I say
the police blew it back in 1996.” Once during closing and three
times during rebuttal, the prosecutor said he was not making up
the facts or the law. While telling the jury there was an actual
instruction directing them to use their common sense, he said,
“I’m not kidding.” While discussing a portion of the instruction
on adoptive admissions, he gave an example and said, “It’s a rule.
I’m not making this up.” Similarly, while walking through the
elements of attempted murder, he stated, “[a]nd I’m not making
it up.” Finally, while discussing the portion of the Miguel-
Salgado conversation that made it clear the men were speaking
in front of Salgado’s children who did not speak Spanish, the
prosecutor said, “I’m not making this up. It’s all in the
transcript. That’s why they were speaking Spanish.”
In addition, while addressing the accuracy of the translated
transcripts in rebuttal, the prosecutor said that Salgado’s counsel
“got up here and argued that it’s unbelievable that an attorney
wouldn’t go over the file with the client, right, is what he said
with Miguel Contreras. Well, [counsel] is a skilled attorney. So if
there are errors in the transcript, they would have been
presented. [¶] And I do speak - - Spanish is my first language,
and my English is rocky, but if there were errors, it would have
55
been presented.” The prosecutor further characterized the
evidence the jury had as “amazing. What you had is what, you
know, most times evidence isn’t available or where actual
participants are in here telling you what happened.”
2. Analysis
“‘While a “prosecuting attorney has a wide range in which
to state his views as to what the evidence shows and the
conclusions to be drawn therefrom” [citation], and in his
argument to the jury the prosecutor may comment upon the
credibility of witnesses “in the light of all the evidence in the
case” [citations], “[i]t is misconduct for a prosecuting attorney to
express his personal belief as to the reliability of a witness.”’
[Citation.]” (Rivera, supra, 7 Cal.5th at p. 336.) Impermissible
vouching may occur if the prosecutor personally assures a
witness’s veracity or suggests that information not in evidence
supports his or her testimony. (Ibid.) A prosecutor’s expression
of his or her personal opinion about the evidence is misconduct
whether the prosecutor aims to bolster his or her own case or to
undermine that of the defendant. (Ibid.) Additionally, “a
prosecutor’s reference to his or her own experience, comparing a
defendant’s case negatively to others the prosecutor knows about
or has tried, or is improper.” (People v. Huggins (2006) 38
Cal.4th 175, 207.) So too is offering a personal opinion based
solely on their experience or other extra-record facts. (Ibid.)
Appellants contend the prosecutor improperly vouched for
the quality of the evidence, the credibility of a witness, and the
accuracy of a transcript. We agree in part. The prosecutor’s
remark that the police “blew it” was not vouching. The jury
heard evidence that Marco was wrongfully convicted of the
shooting, and that it took Miguel and his family years to get the
56
case reopened. That police ineptitude may have played a role
was a reasonable inference the jury could draw from this
evidence. The prosecutor’s repeated assurances that he was “not
making this up” also were not vouching. The jury had before it
the evidence and instructions to which the prosecutor was
referring. The prosecutor was merely highlighting portions of the
evidence and instructions he thought would be important for
their deliberation; he did not misstate the law or suggest defense
counsel had been making things up.
On the other hand, the prosecutor improperly vouched for
the accuracy of the transcript, based on his own personal
experience as a Spanish speaker. “[P]rosecutors should not
purport to rely on their outside experience or personal beliefs
based on facts not in evidence when they argue to the jury.”
(Medina, supra, 11 Cal.4th at p. 758.) The prosecutor erred in
doing so here. He also erred in characterizing the evidence in the
case as “amazing,” to the extent his comment rested on a
comparison with other cases he was familiar with but the jury
was not. (People v. Huggins, supra, 38 Cal.4th at p. 207.)
However, we are not persuaded that these isolated remarks
were prejudicial. No evidence was presented that the
translations were inaccurate, and the jury was instructed that
the evidence was the text as it appeared in the transcripts. The
evidence against appellants, including the transcripts, also was
strong; even appellants acknowledge “it is not unreasonable for
jurors to have found the wiretap recordings in this case
compelling.” There is no reasonable probability the prosecutor’s
limited vouching affected the outcome.
57
F. Shifting the Burden of Proof and Commenting
on Silence
1. Background
During rebuttal, the prosecutor argued that the defense
also had the power to call witnesses:
“In the law there’s something called failure to call logical
witnesses. What that means is that the People have the power of
subpoena, we can subpoena people to come to court. But the
People aren’t the only people that have that power. The defense
can also subpoena people, they can also subpoena documents, if
they think that those will be beneficial to be presented. So they
can call all the witnesses they want. If they wanted to call - - let
me see, I wrote this down. If they wanted to call Marco
Contreras, the mother of Marco Contreras, the witnesses at the
crime scene in 1996, Detective Reynolds, the officers, the four
officers, Credencio, Delwyn, the paramedics, the Mexican
consulate, the public defender, the judge - - I was waiting for
Stormy Daniels to be in there in some kind of way He wants me
to call the witness who got it wrong in 1996? That’s what he
wants? Because he can do that himself. They can call all the
witnesses. If they want to call Marco Contreras, they can call
him. [¶] . . . Yeah, they can call all the witnesses they want.
But what are the People going to call them for?”
In refuting the defense argument that Salgado moved to
Missouri simply to get out of Compton, the prosecutor discussed
the portion of the Miguel-Salgado conversation in which Salgado
said his then-wife had returned to California. “Well, what would
make you stay somewhere you don’t know anybody? There is no
evidence that he had a job, anything. You’re just there. He’s
hiding out. He was a bit of a coward. He knew everything that
58
happened. He was a bit of a coward.” At the conclusion of
rebuttal, while urging the jury to “instill justice” as summarized
above, he stated, “you do have a chance to instill justice in this
world, in this case, and to find the right person responsible for
what happened in 1996, for that cowardly act, knowing that
somebody is in jail for something he did. He admits that
throughout the whole recording.”
2. Analysis
Misconduct occurs where a prosecutor’s argument
reasonably can be interpreted as suggesting that he or she does
not have the burden of proving every element of the charged
offenses beyond a reasonable doubt. (Hill, supra, 17 Cal.4th at p.
831.) However, “it is neither unusual nor improper to comment
on the failure to call logical witnesses.” ( People v. Gonzales
(2012) 54 Cal.4th 1234, 1275.) The prosecutor’s argument that
the defense could subpoena witnesses falls into the latter
category. Salgado’s counsel argued during closing that Salgado
“deserves” for the prosecution to call more witnesses. As the
prosecutor stated in the rebuttal comments above, Salgado’s
counsel suggested several such potential witnesses: Marco,
Marco’s mother, Detective Reynolds, and forensic specialists or
eyewitnesses. The prosecutor’s responsive rebuttal that the
defense could call those witnesses did not shift the burden of
proof to the defense. Indeed, appellants acknowledge that the
prosecutor “correctly told jurors about the legal principle of the
defense failing to call logical witnesses.” They contend he “went
beyond that,” but the remarks identified here do not imply that
appellants had the burden to produce evidence or prove their
innocence. (People v. Woods (2006) 146 Cal.App.4th 106, 112.)
59
Appellants contend the prosecutor improperly commented
on Salgado’s exercise of his Fifth Amendment right to remain
silent by referring to him as a “coward.” A prosecutor is not
permitted to remark upon a defendant’s silence. (Griffin v.
California (1965) 380 U.S. 609, 615.) In the context of this case
there is no reasonable likelihood the jury understood the
prosecutor’s comments in this fashion. Salgado stated during his
conversations with Miguel that he remained in Missouri for so
many years because he was “embarrassed,” while Miguel stated
he thought Salgado left because he was “spooked.” The
suggestion that Salgado was “a bit of coward” is a reasonable
inference from this evidence.
To the extent the comment about a “cowardly act, knowing
that somebody is in jail for something he did,” toes more closely
to the line, the prosecutor tied it directly to the evidence by
accurately stating that Salgado “admits that throughout the
whole recording.” Appellants analogize this to People v. Sanchez
(2014) 228 Cal.App.4th 1517, 1521, 1527, in which the court
found misconduct where the prosecutor stated several times that
the defendant, who had been apprehended while hiding in a
wheel well, was “‘still in that wheel well in a very real sense, and
this time he’s hiding from all of you.’” The court found the “most
reasonable interpretation of the comment is that defendant was
‘hiding’ from the jury in a figurative sense by not testifying.” (Id.
at p. 1527.) Here, the most reasonable interpretation was that
the evidence showed that Salgado fled after Marco’s conviction, a
fact that Salgado personally acknowledged multiple times on the
recording. This is a fair comment on the state of the evidence,
not misconduct.
60
G. Misleading the Jury
1. Background
Appellants contend the prosecutor committed misconduct
by arguing that defense counsel would have pointed out any
errors in the transcript if they existed, despite knowing that
counsel’s efforts to do so had been hampered. Specifically, they
again challenge the argument that defense counsel “is a skilled
attorney. So if there are errors in the transcript, they would have
been presented.” They also challenge a similar statement made
around the same time: “Look, you have two very skilled attorneys
over there, that if they felt that, hey, there were errors in the
transcript, they would have presented that. They would have
done more than just let, you know, an error go by.”
2. Analysis
Appellants assert the prosecutor erred by telling the
jury to trust the accuracy of the transcripts despite knowing that
“the defense asked for funding to do just that and the court did
not approve it,” and “asked for a continuance so that they could
have the transcript reviewed and that was denied.” This is not
an accurate characterization of the record. As we observed in
footnote 8 above, appellants assert the trial court denied their
motions for independent translators to transcribe the wiretap
recordings. The court stated on the record, however, that defense
counsel had in fact requested transcriptions of the recordings, not
independent translators, and “the court . . . held off on signing
those orders, because the People had said they would be
providing that.” The court later added that both defense counsel
had agreed they received the transcriptions. Neither counsel
disputed the court’s recollection. Likewise, neither appellant
provides citations to the actual motions in the appellate record.
61
Courts have characterized as “obvious misconduct”
prosecutorial arguments pointing out deficiencies in the defense
case that are attributable to trial court rulings elicited by the
prosecution. (See People v. Castain (1981) 122 Cal.App.3d 138,
146.) That did not happen here. The prosecutor did nothing to
prevent the defense from hiring independent translators, and the
record indicates defense counsel made no such request. The
prosecutor did not commit misconduct by arguing that defense
counsel could have identified errors in the transcripts.
H. Eroding the Integrity of the Trial
1. Background
During his opening statement, the prosecutor presented a
slideshow. On one slide, which depicted a photograph of a pickup
truck at a gas station, the prosecutor superimposed a photograph
of Salgado’s face on the truck, along with a clip-art gun and, in
Salgado’s words, “a comic-like ‘pow’ clip-art . . . where gunshots
purportedly landed.” In another slide, a photo of Garcia’s head
was superimposed onto a photo of a man standing outside a
donut shop.
During his closing, the prosecutor predicted various
arguments the defense might make during their closings. For
example, he predicted they would argue that Miguel was not
credible. During rebuttal, he stated: “Remember yesterday when
I said these are some of the things that they may talk about?
Remember that? Okay. I think I did pretty good. So one is
reasonable doubt, right, that was talked about, right? That was
talked about at length. And then the one that I thought was
dicey was officers are lying. Like, oh, I thought I was going to be
wrong on that one, but he had to get a little dig in on the
detective, just a little one, but he went at it about what he did
62
and what he didn’t do. Remember? And then, of course,
witnesses are lying or mistaken, or there was a
misunderstanding. That’s pretty good. I hit all four, right?”
Three times during rebuttal, the prosecutor made what
appellants characterize as jokes. One such statement was the
previously discussed remark about his “bad tie.” Another time,
when discussing the justice system, he stated, “There are very
few things that are perfect. I think my mom is perfect. Other
people might be, like, she screams a lot and she drives real slow.
But I think she’s perfect.” The third time he made a traditional
joke: “What is the difference between a lawyer and an
accountant? Accountants know they’re boring – that’s the
difference – and lawyers don’t. We all think we’re very
interesting. So because of that we’re going to keep moving. And
I need you all to stay with me.”
While discussing the Miguel-Salgado conversation, the
prosecutor used variations on the word “fuck” twice. He said, “He
fucking admitted what happened. We’ve been through this. [¶]
His brother went to jail, they’re talking about [sic]. We both did
it. [¶] I fucking messed up. I – oh, sorry, I added the f-word. I
was in the groove.” and “fuckin.’”
2. Analysis
Appellants contend the prosecutor “demeaned the
integrity” of the criminal justice system by making the remarks
and displaying the slides described immediately above. Though
they focus on a subset of statements and two visual aids, they
assert the “entire closing distracted the jury from the real issue
in this case: whether the government proved appellant[s’] guilt
beyond a reasonable doubt.” We disagree.
63
“Competent attorneys, including competent criminal
defense attorneys, have varied styles in front of juries. Some are
hard-charging, others soft-spoken; some try to gain the jurors’
confidence by humor or other means . . . .” (People v. Riel (2000)
22 Cal.4th 1153, 1177.) The prosecutor in this case appears to
belong in the last category. Appellants contend the prosecutor’s
behavior crossed the line into the juvenile and improper, a line
they assert is strict for prosecutors because of their “unique
function . . . in representing the interests, and in exercising the
sovereign power, of the State.” (People v. Espinoza (1992) 3
Cal.4th 806, 820 (Espinoza).) They cite Hill, supra, 17 Cal.4th at
p. 834, in which the Supreme Court concluded that “juvenile
courtroom behavior by a public prosecutor demeans the office,
distracts the jury, prejudices the defense, and demands censure.”
The prosecutor’s conduct in this case is a far cry from that
of the prosecutor in Hill, who audibly laughed during defense
counsel’s examination of the victim and another witness, made
faces at him, and made a scene during his cross-examination of
an expert. (See Hill, supra, 17 Cal.4th at p. 834.) The
prosecutor’s analogy between his mother and the judicial system
may have been unusual and inartful, but there is nothing
inherently outrageous or integrity-eroding about it. The same is
true of the single self-deprecating joke near the end of a long
argument and the prosecutor’s comment about his own tie, which
he made after Salgado’s counsel remarked in closing that “he
dresses sharp.”
The same is true even when the cited incidents are
considered collectively. The slides used at opening statement,
which this court has examined, are not “inflammatory” or
“inappropriately juvenile.” While not exemplars of high-level
64
graphic design, they effectively conveyed in wordless images
what the prosecutor stated the evidence would show. The
shooting occurred at a gas station, and the Miguel-Garcia
conversation was recorded at a donut shop. The prosecutor was
permitted to present the information “in a story-like manner that
holds the attention of lay jurors and ties the facts and governing
law together in an understandable way.” (People v. Millwee
(1998) 18 Cal.4th 96, 137.) Appellants also claim the clip-art
bubbles could not accurately depict where the bullets landed,
because there was no forensic evidence. However, Victim
testified about where he was standing when he was initially shot,
where the bullets struck his body, and where he ran.
We do not endorse the use of profanity in the courtroom.
The prosecutor’s apparently inadvertent use of profane language
during rebuttal was an occasional lapse from a generally
decorous demeanor. (See Espinoza, supra, at p. 820.) We
disagree with appellants’ assertion that it “is in the same
category of misconduct as laughing inappropriately during trial,
rolling one’s eyes or otherwise displaying an unprofessional
demeanor”; the prosecutor did not curse at or in response to
anyone. He also immediately apologized for the error.
Appellants do not cite any authority in support of their
assertion that the prosecutor’s “editorializing of defense counsel’s
arguments and self-congratulatory statements about his ability
to accurately predict them were also inappropriate.” In People v.
Redd, supra, 48 Cal.4th at p. 736, the prosecutor characterized
defense counsel’s questioning of a witness as “patronizing.” The
Supreme Court found this comment was “well within the latitude
allowed for comment upon deficiencies in opposing counsel’s
tactics.” The court added that, “in context, the prosecutor’s
65
comments were intended to persuade the jury to reject any
implication that [the witness’s] testimony should be discounted . .
. and there is no reasonable likelihood that the jurors would view
the remark as a personal attack on counsel.” (Ibid.) The same is
true here: the implication of the prosecutor’s predictions was that
he had contemplated the weaknesses in his case and surmounted
them, and his remarks about the accuracy of his predictions were
proper comments on deficiencies in defense counsel’s theories and
tactics.
I. Prejudice and Ineffective Assistance
We concluded above that none of the isolated instances of
prosecutorial misconduct was prejudicial. That conclusion does
not change when we consider the errors collectively. The
scattered instances of intemperate conduct were not so egregious
as to infect the trial with such a degree of unfairness that the
resultant convictions violated appellants’ due process rights.
(People v. Panah, supra, 35 Cal.4th at p. 462.) “Misconduct that
does not constitute a federal constitutional violation warrants
reversal only if it is reasonably probable the trial outcome was
affected.” (People v. Shazier (2014) 60 Cal.4th 109, 127.)
Appellants argue that standard was met, because
misconduct “eroded every possible chance [they] had at defending
against this case by unlawfully shoring up problems with the
prosecution’s case.” As they acknowledge, however, the wiretap
evidence in this case was “compelling.” Moreover, we presume
the jurors followed the court’s instructions to render a verdict
based on the evidence, not the prosecutor’s statements or their
own personal feelings. On the record before this court, there is no
reasonable probability that misconduct affected the outcome of
the trial.
66
Appellants further assert that the prosecutor’s “persistent
erosion of our holy constitutional principles cannot continue to
pass without rebuke,” and refer us to several other cases in which
this prosecutor was found to have committed misconduct.
Pointing to Hill, supra, 17 Cal.4th at pp. 847-848, they suggest
we should reverse the convictions in this case to deter the
prosecutor from committing further misconduct. We decline to do
so. In Hill, the court reversed the convictions based on
“profoundly troubling” trial errors, including a significant amount
of egregious prosecutorial misconduct. (Hill, supra, 17 Cal.4th at
p. 847.) It then stated in dicta that the reversal “address[es] an
institutional concern as well,” namely repeated instances of
prejudicial misconduct by the prosecutor. (Id. at p. 848.) Hill
does not support the proposition that “reversal is appropriate if,
for no other reason, to address the ‘institutional concern’” of
repeated misconduct by a single prosecutor.
Because we conclude that the limited instances of
misconduct were not prejudicial, we reject appellants’ contentions
that their trial counsel provided ineffective assistance by failing
to object.
VI. Cumulative Error
Appellants contend that cumulative error and cumulative
prejudice require reversal. We reject this contention.
“[A] series of trial errors, though independently harmless,
may in some circumstances rise by accretion to the level of
reversible and prejudicial error.” (Hill, supra, 17 Cal.4th at p.
844.) “Under the cumulative error doctrine, the reviewing court
must ‘review each allegation and assess the cumulative effect of
any errors to see if it is reasonably probable the jury would have
reached a result more favorable to defendant in their absence.’
67
[Citation.] When the cumulative effect of errors deprives the
defendant of a fair trial and due process, reversal is required.”
(People v. Williams, supra, 170 Cal.App.4th at p. 646.)
As discussed above, in connection with issues raised by both
appellants, and below, in connection with issues appellants raise
individually, “[w]e have either found no error or, in those
instances where error has been . . . [found or] assumed, no
prejudice.” (People v. Williams (2015) 61 Cal.4th 1244, 1291.)
The few errors that occurred during appellants’ trial were
harmless, whether considered individually or collectively.
Appellants were entitled to a fair trial, not a perfect one. (People
v. Cunningham (2001) 25 Cal.4th 926, 1009.)
VII. Section 654
In their opening briefs, appellants contend the trial court
violated section 654’s prohibition on multiple punishment by
imposing concurrent sentences on all counts rather than
sentencing them on the conspiracy count and imposing and
staying sentences on the remaining counts (attempted murder for
Garcia, and attempted murder and felon in possession for
Salgado). Respondent agrees in its response brief that the
sentences for attempted murder should have been stayed, but
does not address Salgado’s argument about his sentence for
illegal possession of a firearm.
While the appeal was pending, the Legislature amended
section 654 to give the court discretion to impose sentence on any
count, not merely the one with the longest sentence, and stay any
remaining sentences to which the section applied. (See Assembly
Bill No. 518 (Stats. 2021, ch. 441, § 1; compare § 654, subd. (a)
with former § 654, subd. (a).) Appellants filed supplemental
briefs arguing that the amendments to section 654 apply to them,
68
and asserting that remand is necessary so the trial court may
sentence them in accordance with its new discretion. Respondent
concedes that the amendment applies to appellants, but argues
that remand is appropriate only as to Garcia. As to Salgado,
respondent asserts, the trial court “clearly indicated that it would
not have exercised its discretion to stay appellant’s sentence in
count 2.” Respondent also argues for the first time in this
supplemental brief that Salgado’s conviction for illegal firearm
possession is not subject to section 654.
We consider these arguments on the merits,
notwithstanding appellants’ failure to assert them below. (See
People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) We affirm the
trial court’s finding that Salgado’s conviction for firearm
possession is not subject to section 654. However, we reverse
both appellants’ sentences and remand for resentencing under
section 654 as amended.
A. Background
The trial court sentenced Garcia to 25 years to life on the
conspiracy count, the count which carried the longest term. It
imposed a concurrent life term on the attempted premeditated
murder count.
The trial court also sentenced Salgado to 25 years to life on
the conspiracy count, but doubled the 25 years to 50 years due to
Salgado’s prior strike. It additionally imposed a consecutive term
of 10 years due to the firearm allegation, for a total sentence of 60
years to life on count two. The court imposed a concurrent life
term on the attempted murder count and stayed a 10 year term
for the firearm enhancement. The court struck Salgado’s strike
for purposes of the attempted murder count and the firearm
69
possession count, on which the court imposed the high term of
three years, to run concurrent to the sentence for conspiracy.
The court found that section 654 did not apply to the
conspiracy and attempted murder counts because “both could be
completed without completing the other one.” It also found that
section 654 did not apply to Salgado’s firearm possession
conviction count, though it gave no explanation. While
sentencing Salgado, the court commented that it thought Salgado
was “a changed man now, and in some ways this pains me to
sentence him.”
B. Analysis
Section 654 “expressly prohibits separate punishment for
two crimes based on the same act, but has been interpreted to
also preclude multiple punishment for two or more crimes
occurring within the same course of conduct pursuant to a single
intent.” (People v. Vargas (2014) 59 Cal.4th 635, 642.) Whether
an offense is an indivisible course of conduct is a question of fact.
We uphold the trial court’s resolution of that question when it is
supported by substantial evidence. (People v. Brents (2012) 53
Cal.4th 599, 618.)
At the time appellants were sentenced, and the opening
briefs in this matter were filed, section 654 provided, in relevant
part: “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision
that provides for the longest potential term of imprisonment, but
in no case shall the act or omission be punished under more than
one provision.” (Former § 654, subd. (a).) Thus, the court
correctly sentenced appellants first on the conspiracy count,
which carried a mandatory term of 25 years to life (§§ 182, subd.
(a), 190, subd. (a)), rather than on the attempted premeditated
70
murder count, which carried a sentence of life (§ 664, subd. (a)).
However, we agree with the parties that the court erred in
imposing a concurrent sentence on the attempted murder count.
“It is of course true that Penal Code section 654 prohibits the
imposition of sentences, whether concurrent or consecutive, for
both a murder and a conspiracy to commit the murder.” (People
v. Moringlane (1982) 127 Cal.App.3d 811, 819.) Substantial
evidence does not support the court’s finding that the conspiracy
to commit murder and the attempted murder of Victim were not
subject to section 654. The parties all agree that Victim’s murder
was the object of the conspiracy. The court accordingly could not
impose double punishment for those crimes.
Salgado contends that his possession of the firearm was
also part of the same criminal objective. In particular, he points
to his remarks to Miguel stating that he was given money and
used it to buy guns. He argues that this demonstrates that his
intent in possessing the weapon “was part and parcel with the
objective of the two other crimes.” He cites People v. Kane (1985)
165 Cal.App.3d 480, 488, in which the defendant was punished
for both possessing a firearm and using the firearm in an assault.
The People conceded, and the appellate court agreed, that the
defendant “possessed the firearm, fired it at [the victim] and hit
the [victim’s car] in an indivisible course of conduct.” (People v.
Kane, supra, 165 Cal.App.3d at p. 488.)
Here, the court concluded otherwise, and that conclusion is
supported by substantial evidence. Miguel testified that he saw
Salgado with a gun prior to the day of the shooting, “and that day
when he took it out.” As Salgado points out, the evidence also
showed that he used money to purchase guns, plural—but Miguel
testified about seeing a single gun on the day of the crime. The
71
trial court reasonably could infer that Salgado possessed the
other gun or guns for other purposes. Moreover, Miguel testified
that he and Salgado dropped off the gun after Salgado shot
Victim; by that point, the conspiracy and the attempted murder
were completed, yet Salgado continued to possess the weapon.
(See People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413 [section
654 does not prohibit separate punishment for felon in possession
where defendant was arrested with a gun 30 minutes after
committing an armed robbery]; cf. People v. Jones (2002) 103
Cal.App.4th 1139, 1145 [“section 654 is inapplicable when the
evidence shows that the defendant arrived at the scene of his or
her primary crime already in possession of the firearm”].) The
trial court did not err in declining to apply section 654 to the
firearm possession count.
Had section 654 not been amended, we would simply
modify appellants’ sentences to reflect that the terms for
attempted murder were stayed. However, Assembly Bill No. 518
amended section 654, subdivision (a), to provide: “An act or
omission that is punishable in different ways by different
provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished
under more than one provision.” (§ 654, subd. (a).) The statute
“now provides the trial court with discretion to impose and
execute the sentence of either term, which could result in the
trial court imposing and executing the shorter sentence rather
than the longer sentence.” (People v. Mani (2022) 74 Cal.App.5th
343, 379.) Because Assembly Bill No. 518 may result in a shorter
term of imprisonment, it applies retroactively to appellants’
nonfinal convictions. (See ibid.) We therefore remand for the
court to resentence appellants under amended section 654. On
72
remand, the court may exercise its discretion to use the shorter
term for attempted murder as the base term, if it so chooses.
We reject respondent’s contention that remand is
unnecessary as to Salgado. When the scope of a court’s
sentencing discretion is expanded, “the appropriate remedy is to
remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even
if it had been aware that it had such discretion.’ [Citations.]”
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Respondent
asserts that the record clearly indicates that the court would
sentence Salgado the same way because it declined to strike his
prior strike conviction for purposes of the conspiracy count.
Respondent ignores that the court struck the strike for purposes
of both the attempted murder and firearm possession counts. It
further ignores the court’s remarks that it viewed Salgado as a
“changed man” and was “in some ways . . . pain[ed]” to sentence
him. Such remarks indicate that the court may well choose to
sentence Salgado differently in light of its new discretion. The
court also may decline to sentence Salgado differently, but we
cannot say with confidence that it would choose to impose the
same sentence. (See People v. Gutierrez, supra, 58 Cal.4th at p.
1391.)
Both appellants’ sentences are vacated. On remand, both
appellants are entitled to full resentencing. (People v. Walker
(2021) 67 Cal.App.5th 198, 204.)
Argument Raised by Garcia Only
I. Instructions on Withdrawal
Part of Garcia’s defense was that he withdrew from the
conspiracy prior to the performance of any overt acts. The court
accordingly instructed the jury with CALCRIM No. 420
73
(Withdrawal From Conspiracy). Garcia now contends this
instruction was erroneous in three respects: it “(1) required
appellant to take affirmative steps to withdraw from the
conspiracy prior to an overt act being performed in furtherance of
the conspiracy; (2) imposed a subjective standard for withdrawal;
and (3) required appellant to communicate his withdrawal to all
known conspirators rather than simply renounce conspiracy [sic]
in a substantial way.” The court also instructed the jury with
CALCRIM No. 401 (Aiding and Abetting: Intended Crimes).
Garcia contends this instruction also erroneously stated
withdrawal could be effectuated only if he notified everyone he
knew was involved in the crime that he was no longer
participating. We find no error in either instruction.
A. Background
Detective Lugo testified that Garcia stated during his
interrogation that Garcia told unnamed individuals at his
workplace “not to do it” on the morning of the shooting. Garcia’s
trial counsel reminded the jury of this testimony during closing.
The court instructed the jury with CALCRIM No. 420,
which as given provided:
“The defendant is not guilty of conspiracy to commit
murder if he withdrew from the alleged conspiracy before any
overt act was committed. To withdraw from a conspiracy, the
defendant must truly and affirmatively reject the conspiracy and
communicate that rejection, by word or deed, to the other
members of the conspiracy known to the defendant.
“A failure to act is not sufficient alone to withdraw from a
conspiracy.
“The People have the burden of proving beyond a
reasonable doubt that the defendant did not withdraw from the
74
conspiracy before an overt act was committed. If the People have
not met this burden, you must find the defendant not guilty of
conspiracy. If the People have not met this burden, you must
also find the defendant not guilty of the additional acts
committed after he withdrew.”
The sole overt act alleged in the information and on which
the jury was instructed was, “On or about September 10, 1996,
Miguel Contreras and Antonio Salgado drove around Compton
looking for [Victim] to kill him.”
The court also instructed the jury on aiding and abetting
liability using CALCRIM No. 400 (Aiding and Abetting: General
Principles) and CALCRIM No. 401 (Aiding and Abetting:
Intended Crimes). The latter instruction provided, in relevant
part:
“A person who aids and abets a crime is not guilty of that
crime if he withdraws before the crime is committed. To
withdraw, a person must do two things:
“1. He must notify everyone else he knows is
involved in the commission of the crime that he is no longer
participating. The notification must be made early enough to
prevent the commission of the crime.
“AND
“2. He must do everything reasonably in his power
to prevent the crime from being committed. He does not have to
actually prevent the crime.
“The People have the burden of proving beyond a
reasonable doubt that the defendant did not withdraw. If the
People have not met this burden, you may not find the defendant
guilty under an aiding and abetting theory.”
75
B. Analysis
Garcia’s trial counsel did not object to these instructions
below. Accordingly, any claims of state law error are forfeited.
(People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell).)
However, failure to object to instructional error does not effect a
forfeiture if a defendant’s substantial rights are affected. (Ibid.,
citing § 1259.) Garcia asserts that the flawed instructions
deprived him of due process and his right to a jury determination
of all the facts pertaining to his guilt or innocence. If true,
Garcia’s substantial rights would be affected. We accordingly
consider the merits of his claims.
We review claims of instructional error de novo. (People v.
Mitchell, supra, 7 Cal.5th at p. 579.) In doing so, we review the
wording of the instruction at issue and determine whether it
accurately states the law. (Ibid.) We also “must consider
whether there is a reasonable likelihood that the trial court’s
instructions caused the jury to misapply the law in violation of
the Constitution.” (Ibid.) We make this assessment in light of
the entirety of the trial record and the jury instructions as a
whole. (Ibid.)
1. CALCRIM No. 420: “Truly”
Garcia’s primary point of contention with CALCRIM No.
420 is its requirement that a defendant “truly and affirmatively
reject the conspiracy.” He argues that the jury most likely
understood the word “truly” in a subjective sense, and that is
improper because the authorities cited in the bench notes for
CALCRIM No. 420 do not support application of a subjective
standard for withdrawal from a conspiracy.
76
The primary authority for the instruction is People v.
Crosby (1962) 58 Cal.2d 713 (Crosby).13 In Crosby, numerous
defendants were charged by indictment with “criminal conspiracy
to commit crimes, to cheat and defraud by criminal means, and to
obtain money by false promises with fraudulent intent not to
perform such promises.” Crosby, supra, 58 Cal.2d at p. 717.) A
subset moved to dismiss the indictment under section 995, and
the trial court granted some of the motions as to the conspiracy
count. The People appealed. (Id. at p. 718.) As relevant here,
four defendants contended the conspiracy count was properly
dismissed because they withdrew from the conspiracy at an early
stage. (Id. at p. 730.) The Supreme Court rejected this argument
because “[i]t is not part of the People’s prima facie case to negate
the possibility of such withdrawal,” and “[o]nce the defendant’s
participation in the conspiracy is shown, it will be presumed to
continue until he is able to prove as a matter of defense that he
effectively withdrew from the conspiracy before the relevant
limitations period began to run.” (Id. at pp. 730-731.) The Court
additionally explained that such withdrawal required more than
“mere failure to continue previously active participation in a
conspiracy.” (Id. at p. 730.) “[T]here must be an affirmative and
bona fide rejection or repudiation of the conspiracy,
communicated to the co-conspirators.” (Ibid., emphasis added.)
13 As Garcia acknowledges, the other two cases cited in the
bench notes rely on Crosby for the proposition that withdrawal
from a conspiracy requires “an affirmative and bona fide rejection
or repudiation of the conspiracy, communicated to the co-
conspirators.” (People v. Sconce (1991) 228 Cal.App.3d 693, 701;
People v. Beaumaster (1971) 17 Cal.App.3d 996, 1003.) Because
this is the language with which Garcia takes issue, we examine
only Crosby in detail.
77
Garcia asserts that the phrase “affirmative and bona fide”
is “ambiguous,” and suggests it does not map to or support the
use of the phrase “truly and affirmatively” in CALCRIM No. 420.
We disagree. Obviously, affirmative and affirmatively are
variants of the same word; Garcia makes no argument regarding
“affirmatively.” “Bona fide,” the Latin for “in good faith,” is
defined as “1. Made in good faith; without fraud or deceit. 2.
Sincere; genuine.” (Black’s Law Dictionary (11th ed. 2019) p.
___.) The dictionary definition of “truly” Garcia provides includes
both “in all sincerity: SINCERELY” and “without feigning,
falsity, or inaccuracy in truth of fact.” (Merriam-Webster
Dictionary < https://www.merriam-webster.com/dictionary/truly>
[as of May 9, 2022]archived at .) Garcia asserts
the jury “most likely” understood the term “truly” in the latter
sense. Even if this speculative assertion is accurate, such
understanding tracks the first definition of “bona fide.” Crosby
accordingly supports the more modern turn of phrase used in
CALCRIM No. 420.
Garcia contends “truly” has subjective connotations,
however, while “the standard for withdrawal from a conspiracy
should be objective.” He argues that liability for conspiracy is
based on objective conduct, and therefore the elimination of
liability via withdrawal should rest upon the same standard.
Garcia is mistaken on both counts. As the court instructed the
jury using CALCRIM No. 252 (Union of Act and Intent: General
and Specific Intent Together), conspiracy is a specific intent
crime. (People v. Swain (1996) 12 Cal.4th 593, 600.) “‘To sustain
a conviction for conspiracy to commit a particular offense, the
prosecution must show not only that the conspirators intended to
agree but also that they intended to commit the elements of that
78
offense.’ [Citation.]” (Ibid., emphasis omitted.) That is, as stated
in CALCRIM No. 252, the defendant “must not only intentionally
commit the prohibited act, but must do with a specific intent
and/or mental state.” The same is true for withdrawal: a
defendant must not only reject the conspiracy and communicate
that rejection to known coconspirators, he or she must do so with
the requisite intent, as indicated with “truly.” CALCRIM No. 420
accurately conveys this legal concept to the jury. There is no
reasonable likelihood the instruction caused the jury to misapply
the law, particularly in light of unchallenged instruction
CALCRIM No. 252.
2. CALCRIM No. 420: Notice Requirement
Garcia also takes issue with CALCRIM No. 420’s
requirement that a defendant communicate his or her rejection of
the conspiracy, by word or deed, “to the other members of the
conspiracy known to the defendant.” He contends “withdrawal
from a conspiracy should not require the defendant to notify all
known conspirators of his withdrawal, but only communicate the
withdrawal to enough conspirators to constitute a substantial
disavowal of the conspiracy.”
Crosby, supra, 58 Cal.2d at p. 730 specifically states that a
defendant’s withdrawal “must be . . . communicated to the
coconspirators.” Garcia contends this language was not
supported by the authority the Crosby court cited, and therefore
should not be a requirement. Regardless of Crosby’s provenance,
decisions of the Supreme Court “are binding upon and must be
followed by all the state courts of California.” (Auto Equity Sales,
Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d
450, 455.) A discrepancy in citations is not a basis for this court
to adopt Garcia’s proposed “substantial disavowal” standard.
79
Garcia further asserts that Crosby “did not expressly
require the withdrawing conspirator to communicate the
withdrawal to all known conspirators.” Indeed, it arguably
required communication to all coconspirators (whether known or
not), due to its lack of any modifier or qualifier on “the
coconspirators.” However, CALCRIM No. 420 expressly limits
the scope of a defendant’s obligation to notify to those individuals
he or she knows. We see no error in this limitation. Moreover, it
is potentially advantageous to the defendant, as a conspiracy may
involve members unknown to him or her. (See People v. Ray
(1967) 251 Cal.App.2d 459, 463.) Garcia suggests this language
may have worked against him in this case, as the jury may have
rejected his defense because it heard evidence that his cousin,
Javier Hernandez, was the person who wanted Victim killed, but
did not hear any evidence that Garcia communicated to him a
desire to withdraw from the conspiracy. This is speculative; the
prosecutor did not mention Hernandez in closing. He argued only
that it would be “unreasonable” for the jury to conclude that
Garcia withdrew from the conspiracy immediately before Miguel
and Salgado left work to do the shooting. There is no reasonable
likelihood the notice requirement in CALCRIM No. 420 caused
the jury to misapply the law.
3. CALCRIM No. 401: Notice Requirement
Garcia raises a similar challenge to CALCRIM No. 401’s
requirement that an aider and abettor “notify everyone else he
knows is involved in the commission of the crime that he is no
longer participating.” He contends the two appellate court cases
listed in the bench notes, and the citations they contain, do not
support the proposition that notice to all known participants is
required. In his view, the “better standard is [the] substantial
80
withdrawal standard” he also argued should apply to conspiracy.
Respondent asserts this argument is foreclosed by Fayed, supra,
9 Cal.5th at pp. 178-179. We agree the argument is foreclosed;
the Supreme Court held in People v. Richardson (2008) 43
Cal.4th 959 (Richardson) and reiterated in Fayed that
substantially similar instruction CALJIC No. 3.03 is a correct
statement of the law.
CALJIC No. 3.03 (Termination of Liability of Aider and
Abettor) is a still-extant predecessor instruction to CALCRIM No.
401. Substantially similar to the portion of CALCRIM No. 401
regarding withdrawal, it provides:
“Before the commission of the crime[s] charged in Count[s]
_______, an aider and abettor may withdraw from participation in
[that] [those] crime[s], and thus avoid responsibility for [that]
[those] crime[s] by doing two things: First, [he] [she] must notify
the other principals known to [him] [her] of [his] [her] intention
to withdraw from the commission of [that] [those] crime[s]
second, [he] [she] must do everything in [his] [her] power to
prevent its commission
“The People have the burden of proving that the defendant
was a principal in and had not effectively withdrawn from
participation in [that] [those] crime[s]. If you have a reasonable
doubt that [he] [she] was a principal in and participated as an
aider and abettor in a crime charged, you must find [him] [her]
not guilty of that crime[.] [, and any crime committed by a co-
principal that was a natural and probable consequence of the
same crime.]” (CALJIC No. 3.03.)
In Richardson, supra, 43 Cal.4th at p. 1022, the Supreme
Court considered and rejected the argument that CALJIC No.
3.03 “‘imposes an unreasonable burden on the person desiring to
81
withdraw from the criminal activity.’” The court held, simply,
“The instruction is a correct statement of the law.” (Ibid.)
Notably, it cited People v. Norton (1958) 161 Cal.App.2d 399, 403,
the very case identified in the bench notes to CALCRIM No. 401
that Garcia contends is unsupported by authority. The Supreme
Court reiterated this holding recently in Fayed, supra, 9 Cal.5th
at p. 178: “Even assuming that defendant did not forfeit the
claim that CALJIC No. 3.03 misstates the law, his claim lacks
merit. In 2008, three years after the Judicial Council’s adoption
and endorsement of CALCRIM, this court explained that CALJIC
No. 3.03 ‘is a correct statement of the law.’”
As stated previously, this court is bound by the rulings of
our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court of
Santa Clara County, supra, 57 Cal.2d at p. 455.) We accordingly
reject Garcia’s contention that CALCRIM No. 401 misstates the
law on withdrawal by aiders and abettors.
Arguments Raised by Salgado Only
I. Admission of Garcia’s Interrogation
Salgado contends the trial court erred in admitting the
redacted recording and transcript of Garcia’s interrogation. He
argues the statement impermissibly implicated him despite the
redactions, thereby violating his constitutional right of
confrontation. Salgado further contends, both in his appellate
brief and in his habeas petition, that his trial counsel was
ineffective in failing to renew a preliminary objection to the
admission of the interrogation on these grounds. We agree with
respondent that the issue is forfeited. Even if it were not, we find
no error on the merits. We accordingly reject Salgado’s appellate
claim that he received ineffective assistance of counsel.
82
A. Background
Prior to opening statements, the prosecutor told the court
he did not plan to introduce the statements Garcia made during
his interrogation. The court asked the prosecutor to apprise the
court if he changed his mind, then asked Salgado’s counsel for his
thoughts. Salgado’s counsel said he wanted to “put on the record
that to the extent if it is somehow introduced, to the extent that it
implicates my client, in violation of Aranda/Bruton, I’d be asking
for the prosecutor to sanitize that statement and then have a 402
just to make sure there is no implication toward my client.” The
prosecutor responded that he “already gave them a transcript,
completely sanitized, avoiding any Aranda/Bruton.” Salgado’s
counsel confirmed, “I did receive that.” The court suggested
counsel review the transcript, and reminded him that “if the
People are going to put it in, it’s not coming in against your
client.” The parties never revisited the issue.
The prosecutor played excerpts of Garcia’s interrogation
while Detective Lugo was on the stand. He provided the jury
with translated transcripts, which included black-box redactions
of varying lengths. The court previously had instructed the jury
to “disregard” and “not consider for any purpose” redactions in
the translated transcripts of the Miguel-Garcia conversations.
While Detective Lugo was testifying about the
interrogation, Salgado’s counsel objected once on hearsay grounds
after Lugo already had answered the question at issue. He also
objected that certain questions were leading, and “leading and
compound [ ] and hearsay.” The court overruled the objections.
Counsel did not object to the recording or the transcript
specifically. When the prosecution moved to admit all the
evidence at the close of its case in chief, Salgado’s counsel made a
83
“general objection” on the grounds of foundation and relevance.
The court admitted all the evidence.
After the defense rested, the court instructed the jury to
consider Salgado’s out-of-court statements against Salgado only,
and to consider Garcia’s out-of-court statements against Garcia
only. (CALCRIM No. 305.)
B. Analysis
“Under the so-called Aranda/Bruton doctrine, a trial court
may generally not allow a jury in a joint criminal trial of a
defendant and codefendant to hear the unredacted confession of
the codefendant that also directly implicates the defendant—even
if the jury is instructed not to consider the confession as evidence
against the defendant.” (People v. Washington (2017) 15
Cal.App.5th 19, 22 (Washington), citing People v. Aranda (1965)
63 Cal.2d 518, 529-531 (Aranda), abrogated in part by Cal.
Const., art. I, § 28, subd. (d); Bruton v. United States (1968) 391
U.S. 123, 128-136 (Bruton).) Because confessions are viewed as
particularly incriminating, they are treated as an exception to
the general rule that the jury follows all instructions; the jury is
not expected to heed the court’s instruction to ignore the
confession as to the other defendant. “Thus, unless the
codefendant testifies and is subject to cross-examination, the
admission of the codefendant’s unredacted confession at the joint
trial violates the defendant’s Sixth Amendment right to confront
and cross-examine witnesses.” (Washington, supra, 15
Cal.App.5th at p. 19.)
Aranda/Bruton problems can be avoided “by redacting the
codefendant’s confession in such a way that both omits the
defendant but does not prejudice the codefendant.” (Washington,
supra, 15 Cal.App.5th at p. 27.) “Redactions that simply replace
84
a name with an obvious blank space or a word such as ‘deleted’ or
a symbol or other similarly obvious indications of alteration” are
inadequate. (Gray v. Maryland (1998) 523 U.S. 185, 192 (Gray);
see also People v. Fletcher (1996) 13 Cal.4th 451, 456 (Fletcher)
[“The editing will be deemed insufficient to avoid a confrontation
violation if, despite the editing, reasonable jurors could not avoid
drawing the inference that the defendant was the coparticipant
designated in the confession by symbol or neutral pronoun.”].)
This is true even where the confession is facially neutral but
other evidence at trial is such that a reasonable juror could not
help but infer that the nonconfessing defendant was the missing
person mentioned in the confession. (Fletcher, supra, 13 Cal.4th
at p. 457.) The sufficiency of the editing “must be determined on
a case-by-case basis in light of the statement as a whole and the
other evidence presented at trial.” (Id. at p. 468.)
Salgado argues that the redactions of Garcia’s interrogation
“did nothing to hide his identity,” “especially considering the
prosecutor’s opening and closing remarks explicitly filled in the
dots for jurors.” This argument is forfeited due to trial counsel’s
failure to object below. (People v. Mitcham (1992) 1 Cal.4th 1027,
1044.) Even if it were not, however, it lacks merit.
The redactions in the interrogation transcript would not
lead a reasonable juror to the sole inference that Salgado was
their subject, particularly the excerpts Salgado highlights. Two-
thirds of the first page of the longer transcript is redacted. A few
lines in, after Garcia said where he worked in 1996, Lugo asked,
“You [two redacted lines of text] and with Miguel Contreras.”
Salgado asserts “it was not a mystery that appellant’s name was
the one redacted.” However, the jury heard evidence that
Garcia’s coworkers included several people in addition to
85
Salgado, including Valencia and “Munchy,” and the redaction is
far too lengthy to be concealing a single name. The same is true
of the five redacted lines further down the page, after which Lugo
said, “Him too, right?” Salgado complains that the prosecutor
filled in the gaps for the jury, but the prosecutor’s statements
were not evidence.
Salgado has not demonstrated that his counsel’s failure to
object to these redactions fell below an objective level of
reasonableness. (Welch, supra, 61 Cal.4th at p. 289.)
Accordingly, his claim of ineffective assistance is denied.
II. Failure to Dismiss Strike and Firearm Enhancement
Salgado contends the court erred in denying his Romero14
motion to strike his prior strike conviction and the firearm
enhancement imposed under section 12022.5. He argues that the
court’s decision “does not conform with the spirit of either of these
laws.” We find no abuse of discretion and affirm.
A. Background
Salgado admitted the prior strike conviction alleged in the
information: a June 14, 1996 robbery conviction (§ 211). After
trial, he filed a Romero motion to strike the strike. He argued
that the court should exercise its discretion to strike the strike for
purposes of sentencing because he suffered the conviction more
than 20 years ago and had not suffered any convictions since
then. He further asserted that he had become a devoted family
man, excelled in his occupation, and participated in many
programs while in custody for this case. Salgado attached as
exhibits letters from two of his children, his stepdaughter, and a
family friend; a letter from someone whose internship he
supervised; a letter confirming his pre-incarceration enrollment
14 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
86
and progress in an adult education program; a transcript from an
educational program he was pursuing in jail; an acceptance letter
from the Delancey Street Foundation; and copies of his resume.
At the hearing on the motion, Salgado’s trial counsel
pointed the court to the exhibits and emphasized that Salgado
had been a productive member of society and supported his
family for many years. He characterized Salgado as “the poster
child for the whole reasoning behind a Romero motion.” Counsel
also emphasized that the strike conviction occurred more than 20
years ago, in 1996, when Salgado was only 21 years old. He
acknowledged that “the counter argument would be that in 1996,
when [the instant] crime was committed, he had previously
committed a robbery . . . that same year,” but argued “Romero
isn’t just looking at that short period of time.” Counsel further
asserted that Salgado left Compton for Missouri “to get a better
life,” and not to “escape prosecution,” because he used his own
name and undertook no efforts to conceal his whereabouts.
The court responded, “I may disagree with much of what
you said. But it seems to me that your client had a very large
hand. If your client had not embarked on the incident for which
we are here today, an innocent man would not have spent almost
20 years in prison.” Salgado’s counsel urged the court to “look[ ]
at it from a perspective of my client committed a crime and then
left; that was it. And then he changed his whole life around, to
be a productive member of society.”
The court told counsel it found his argument about
Salgado’s motivation for leaving the state “disingenuous,”
because the evidence at trial showed Salgado left after being
confronted by Miguel’s family. The court agreed with counsel,
however, that Salgado “has proven to be a good father.” The
87
court also noted that Salgado had been respectful in court, and
remarked that “if he had been confronted with this option later in
life, [he] would not have chosen that path.” The court continued:
“But the simple fact of the matter is that he did choose the path
back in 1996 for which he is here. An innocent individual served
a lot of time over this. [¶] And that strike, even though it’s 23
years old from now, 23 and a half years, was three months old at
the time this occurred. [¶] As such, the court is not going to be
granting the Romero motion, and that is denied.”
At sentencing, Salgado’s counsel requested leniency.
Specifically, he asked the court to stay the sentence for the
attempted murder, “stay sentencing or dismiss, if possible, the
667(a) prior,” and “dismiss the gun enhancement or stay the gun
enhancement.”
The court stated it was “taking into account that he has
changed.” It further stated, however, that the crime “was a
callous attempt at taking another man’s life, not for an
aggravated reason” or due to provocation. “This was well thought
out. And Mr. Salgado was a hired hitman. He may have failed,
thankfully, in that. But he caused a great deal of damage not
only to the victim and the victim’s family, but to himself.” The
court also mentioned Marco’s wrongful conviction, but stated,
“the court does not even need to consider that as an aggravating
factor.”
The court applied the strike to Salgado’s sentence on the
conspiracy count, doubling it from 25 to 50 years to life, but it
struck the strike as it applied to the attempted murder and
firearm possession counts. The court also stayed the firearm
enhancement on the attempted murder count, and chose to run
Salgado’s sentences concurrently.
88
B. Analysis
The trial court must decide whether to strike a prior strike
conviction by considering only factors intrinsic to the Three
Strikes sentencing scheme. (People v. Williams (1998) 17 Cal.4th
148, 161 (Williams).) It “must consider whether, in light of the
nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.” (Ibid.) The spirit
and purpose of the Three Strikes law is to punish recidivists more
harshly. (People v. Avila (2020) 57 Cal.App.5th 1134, 1140
(Avila).) The law “establishes a sentencing norm” and “carefully
circumscribes the trial court’s power to depart” from that norm.
(Ibid., quoting People v. Carmony (2004) 33 Cal.4th 367, 378
(Carmony).)
We review a trial court’s denial of a Romero motion for
abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 374.) A
trial court abuses its discretion where it considers impermissible
factors, fails to consider proper ones, or makes a decision so
irrational or arbitrary no reasonable person could agree with it.
(Id. at pp. 377-378.) We review the court’s refusal to strike a
firearm enhancement under the same deferential standard. (See
People v. Pearson (2019) 38 Cal.App.5th 112, 116.)
The trial court, which in fact struck the strike as to two of
Salgado’s offenses and stayed the firearm enhancement as to one
of them, acted well within its discretion here. It considered the
callous nature and circumstances of Salgado’s present felonies,
the violent and temporally proximate nature of his prior
89
conviction, and the particulars of his background, character, and
prospects. Salgado asserts the court focused too extensively on
the nature and circumstances of the current offenses, “to the
exclusion of other important, relevant factors,” but the record
does not support that characterization.
Salgado contends his case is analogous to Avila, supra, 57
Cal.App.5th 1134. In Avila, the defendant’s present felonies
involved confronting fruit salespeople on the street, demanding
money, and squashing their wares when he was not paid. (See
Avila, supra, 57 Cal.App.5th at p. 1139.) Avila was convicted of
one count of attempted robbery and one count of attempted
extortion. (Ibid.) The trial court denied a Romero motion to
strike the previous strikes Avila accrued nearly 30 years earlier,
when he was 18 and 20, and sentenced him to 25 years to life
plus 14 years. (Ibid.; see also id. at p. 1141.) The court of appeal
found this was an abuse of discretion, because the trial court
considered impermissible factors and failed to consider relevant
ones. (Id. at p. 1141.) The court of appeal highlighted the age of
the strike offenses, Avila’s age when they were committed, and
the trial court’s mischaracterization of the current offenses as
violent. (Id. at pp. 1141-1143.) It also noted that Avila had
committed only non-violent and relatively minor offenses since
that time, and struggled with longstanding drug addiction. (Id. at
p. 1144.) It concluded that, “[f]or those reasons, no reasonable
person could agree that the sentence imposed on Avila was just.”
(Id. at p. 1145.)
Avila is distinguishable. Salgado’s present crimes involved
far more serious and violent conduct than squashing fruit, a fact
the trial court properly considered, and his past crime, robbery,
was a violent felony. (See § 667.5, subd. (c)(9).) The court also
90
considered the remoteness of Salgado’s prior conviction, and the
role his youthful impulsivity likely played in both his past and
current crimes. While asserting that the court failed to “focus on
the entire picture,” Salgado simultaneously points to positive
remarks the court made about Salgado’s respectful behavior,
devoted parenthood, and steady employment. We are not
persuaded that the court’s careful balancing of all these factors,
which resulted in striking the strike as two of the convictions,
staying the firearm enhancement as to one of them, and imposing
concurrent sentences, was unjust or an abuse of the court’s
discretion.
Salgado asserts that the court’s remark that Salgado
“would not have chosen that path today” “is, in essence, a factual
finding that appellant would not recidivate. To then deem him
within the spirit of a law that exists solely to punish persons who
likely will recidivate, was therefore error.” He also points out
that he will not be eligible for parole until the age of 60, even if
the strike is fully stricken, and that the firearm enhancement
would do little more than increase his already de facto life
sentence. These contentions are not persuasive. Even if the
court’s remarks were considered a factual finding regarding
future recidivism, the fact remains that Salgado did nearly
immediately recidivate when he committed the instant crimes.
His incarceration through his elder years is in large part due to
the significant delay in his apprehension for the crimes; it does
not evince an abuse of the trial court’s discretion regarding either
the strike or the firearm enhancement.
91
III. Constitutionality of Sentence and Eligibility for
Franklin Hearing
The court sentenced Salgado, now in his 40s, to a total term
of 60 years to life for crimes he committed when he was 21.
Salgado asserts that this sentence amounts to a de facto life
term, and, as a youth offender, he should be eligible for an early
parole hearing under section 3051. He further asserts that the
trial court erred in denying his request for a Franklin15 hearing
to present youth-related mitigating information to the trial court.
Salgado contends that the denial of a youth offender parole
hearing and Franklin hearing violates the equal protection
clauses of the federal and state constitutions, and renders his
sentence cruel and unusual. We disagree.
A. Background
Prior to the sentencing hearing, Salgado’s counsel moved to
continue sentencing in part due to “the Franklin issues.” At
sentencing, the court noted that counsel was looking for Salgado’s
high school records but denied the continuance in part because
“[t]he Franklin hearing we can put on at any point in time.” As
discussed previously, the court denied Salgado’s motion to strike
his strike and sentenced him under the Three Strikes law.
Salgado subsequently filed a brief arguing that section
3051, subdivision (h) violates the equal protection clause by
excluding youth offenders sentenced pursuant to the Three
Strikes law from receiving a youth offender parole hearing. He
relied on People v. Edwards (2019) 34 Cal.App.5th 183, 197
(Edwards), which held that section 3051, subdivision (h) violates
the equal protection clause to the extent it bars sex-offending
youths sentenced pursuant to the One Strike law from receiving
15 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
92
youth offender parole hearings.16 Salgado did not make any
argument regarding cruel and unusual punishment in that brief.
After a hearing, the court concluded Salgado was ineligible
for a youth offender parole hearing because section 3051,
subdivision (h) bars such hearings for youth sentenced under the
Three Strikes law. The court further found that Salgado
accordingly was not entitled to a Franklin hearing.
B. Analysis
1. Equal Protection
We review equal protection claims de novo. (People v.
Laird (2018) 27 Cal.App.5th 458, 469.) “The California equal
protection clause offers substantially similar protection to the
federal equal protection clause.” (Ibid.) To assert a successful
claim under either, Salgado must show that the state classifies
unequally two groups that are similarly situated for purposes of
the challenged law. (Ibid.) “If the groups are similarly situated
but treated differently, the state must provide a rational
justification for the disparity.” (People v. Lynch (2012) 209
Cal.App.4th 353, 358.) If the law interferes with a fundamental
constitutional right or involves a suspect classification, such as
race or national origin, the state must provide a compelling
rationale for the law. (Ibid.)
16 The Supreme Court has granted review of the following
issue: “Does Penal Code section 3051, subdivision (h), violate the
equal protection clause of the Fourteenth Amendment by
excluding young adults convicted and sentenced for serious sex
crimes under the One Strike law (Pen. Code, § 667.61) from youth
offender parole consideration, while young adults convicted of
first degree murder are entitled to such consideration?” (People
v. Williams, No. S262229.)
93
Salgado was 21 years old when he committed the instant
offenses. Pursuant to section 3051, subdivisions (a) and (b),
offenders 25 years of age and younger at the time of their offense
are eligible for a youth offender parole hearing after 15, 20, or 25
years in prison, depending on the sentence they received.
However, section 3051, subdivision (h) states, “[t]his section shall
not apply to cases in which sentencing occurs pursuant to Section
1170.12, subdivisions (b) to (i), inclusive, of Section 667, or
Section 667.61, or to cases in which an individual is sentenced to
life in prison without the possibility of parole for a controlling
offense that was committed after the person had attained 18
years of age.” Salgado argues he is similarly situated to youth
offenders who were not sentenced pursuant to the Three Strikes
Law, and further argues there is no rational basis for the
differential treatment.
Our colleagues in the First District rejected an identical
argument in People v. Wilkes (2020) 46 Cal.App.5th 1159(Wilkes). We find the reasoning of Wilkes persuasive and adopt it
here. “The purpose of section 3051 is ‘to give youthful offenders
“a meaningful opportunity to obtain release” after they have
served at least 15, 20, or 25 years in prison (§ 3051, subd. (e)) and
made “a showing of rehabilitation and maturity”’ and ‘to account
for neuroscience research that the human brain—especially those
portions responsible for judgment and decisionmaking—
continues to develop into a person’s mid-20s.’ [Citation.]
Assuming a Three Strikes youth offender is similarly situated to
other youth offenders for purposes of section 3051, the
Legislature could rationally determine that the former—‘a
recidivist who has engaged in significant antisocial behavior and
who has not benefited from the intervention of the criminal
94
justice system’ [citation]—presents too great a risk of recidivism
to allow the possibility of early parole.” (Wilkes, supra, 46
Cal.App.5th at p. 1166.)
Salgado again relies on Edwards, supra, 34 Cal.App.5th
183. Wilkes concluded Edwards was distinguishable. (Wilkes,
supra, 46 Cal.App.5th at p. 1166.) We agree. “‘The “One Strike”
law is an alternative, harsher sentencing scheme that applies to
specified felony sex offenses,’ such that ‘“a first-time offense can
result in one of two heightened sentences.”’ [Citation.] The
distinguishing characteristic of Three Strikes offenders, of course,
is that they are not being sentenced for a first-time offense.
Thus, the ample authority rejecting equal protection challenges
from Three Strikes offenders did not apply in Edwards. Indeed,
Edwards itself took pains to ‘note that criminal history plays no
role in defining a One Strike crime,’ and that ‘[t]he problem in
this case is’ the categorical exclusion of ‘an entire class of
youthful offenders convicted of a crime short of homicide. . .,
regardless of criminal history. . . .’ (Edwards, at p. 199 [ ], italics
added.)” (Wilkes, supra, 46 Cal.App.5th at pp. 1166-1167.)
Salgado also points to a concurring statement Justice Liu
made in connection with the denial of a petition for review.
(People v. Montelongo, Liu, J., concurring in denial of petition for
review, Jan. 27, 2021, S265597.) In that statement, Justice Liu
opined that section 3051’s exclusion of youth offenders sentenced
to life without parole “stands in ‘tension’ with Miller v. Alabama
(2012) 567 U.S. 460” because Miller emphasized that none of the
factors that make youth less culpable than adults are crime-
specific. Justice Liu also stated “there is a colorable claim that
section 3051’s exclusion of certain juvenile offenders based on
their controlling offenses ‘violates principles of equal protection
95
and the Eighth Amendment.’” To the extent this statement
constitutes persuasive authority, it does not address youth
offenders subject to the Three Strikes law, who are excluded not
based on their controlling offenses but rather their recidivism.
2. Cruel and Unusual Punishment
Relying solely on Justice Liu’s statement, Salgado also
asserts for the first time on appeal that “[a]ppellant’s exclusion
from youth offender parole renders his sentence cruel and
unusual” in violation of the state and federal constitutions.
Respondent contends this argument is forfeited because it was
not raised below. (See People v. Burgener (2003) 29 Cal.4th 833,
886.) In reply, Salgado asserts that the issue is reviewable
“because it is a facial challenge to the law, not one specific to
appellant.” We disagree. Salgado specifically challenges
“[a]ppellant’s exclusion” and claims section 3051, subdivision (h)
“renders his sentence cruel and unusual.” This is an as-applied
challenge, not a facial one. It is forfeited, and we decline to
address it.
DISPOSITION
Appellants’ sentences are vacated and the matter is
remanded for resentencing under amended Penal Code section
654. The judgments of conviction are otherwise affirmed in all
respects. Appellant Salgado’s habeas petition is denied by
separate order.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J. CURREY, J.
96