2015-10

People v. Gonzalez CA2/4 ( 2015 )

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Filed 10/26/15 P. v. Gonzalez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B249598
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA070627)
v.
HORACIO GONZALEZ et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County, Dalila C.
Lyons, Judge. Affirmed as modified.
Linn Davis, under appointment by the Court of Appeal, for Defendant and
Appellant Horacio Gonzalez.
Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and
Appellant Cristian A. Adame.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant Samantha Rodriguez.
John Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant Myra Rangel.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Susan Sullivan Pithey, Zee Rodriguez, Louis W. Karlin, and Mary Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendants Horacio Gonzalez, Cristian A. Adame, Samantha
Rodriguez, and Myra Rangel guilty of conspiracy to commit murder, attempted
premeditated murder, and shooting at an occupied vehicle in connection with an incident
that occurred on March 15 and 16, 2010. It further found defendants Gonzalez and
Adame guilty of one count of murder, five additional counts of attempted premeditated
murder, five counts of assault with an automatic firearm, and one count of street terrorism
arising from a separate incident that occurred on March 23, 2010. The jury also found
Gonzalez guilty of one additional count of attempted premeditated murder in connection
with a third shooting incident that occurred on March 24, 2010. The jury found true all
of the special allegations against all four defendants, including the allegation that the
charged crimes were committed for the benefit of a criminal street gang. All four
defendants received lengthy sentences, ranging from Rangel’s and Rodriguez’s 75-years
to-life to Adame’s 480-years to-life. All four of them have timely appealed on a host of
different grounds. We direct the trial court to correct the abstracts of judgment for
Adame and Rodriguez and to stay the enhancements imposed on counts 2 and 3. We
affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
I. Procedural History
The Los Angeles County District Attorney (“the People”) filed a 17-count
amended information against defendants Gonzalez, Adame, Rodriguez, and Rangel.
Counts 1-4 named all four defendants and concerned an alleged shooting incident that
took place on or between March 15 and 16, 2010. In count 1, the People alleged that all
four defendants conspired to commit murder (Pen. Code, §§ 182, subd. (a)(1) & 187,
subd. (a)).1 In counts 2 and 4, the People charged all four defendants with attempted
premeditated murder (§§ 187, subd. (a) & 664). In count 3, the People charged all four
defendants with shooting at an occupied vehicle (§ 246). The People further alleged,
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
with respect to all four defendants on all four of these counts, that a principal personally
used a firearm (§ 12022.53, subds. (b) & (e)(1)), personally and intentionally discharged
a firearm (§ 12022.53, subds. (c) & (e)(1)), and personally and intentionally discharged a
firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). Gonzalez and
Adame were the alleged principals; the information alleged they each personally used a
firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§
12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great
bodily injury (§ 12022.53, subd. (d)). The information further alleged the personal use
and discharge of a firearm allegations against Gonzalez and Adame “also caus[ed] the
above offense[s, counts 1-4,] to become a serious felony pursuant to Penal Code section
1192.7(c)(8) and a violent felony within the meaning of Penal Code section 667.5(c)(8).”
Counts 5-15 pertained to a separate incident that occurred on or about March 23,
2010 and named only Gonzalez and Adame. In count 5, the People charged Gonzalez
and Adame with murder (§ 187, subd. (a)) and alleged that the offense was a violent and
serious crime (§§ 667.5, subd. (c), 1192.7, subd. (c)) to which section 186.22, subdivision
(b)(5) applied. In counts 6-10, the People charged Gonzalez and Adame with attempted
premeditated murder (§§ 187, subd. (a) & 664). The People further alleged that Gonzalez
and Adame each personally used a firearm (§ 12022.53, subd. (b)), personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and
intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd.
(d)) in connection with counts 5-10, rendering those counts serious felonies within the
meaning of section 1192.7, subdivision (c)(8) and violent felonies within the meaning of
section 667.5, subdivision (c)(8). In counts 11-15, the People charged Gonzalez and
Adame with assault with a semiautomatic firearm (§ 245, subd. (b)), a serious offense
within the meaning of section 1192.7, subdivision (c), alleged that Gonzalez and Adame
each personally used a firearm (§ 12022.5) and further alleged as to counts 11, 12, 14,
3
and 152 that Gonzalez and Adame personally inflicted great bodily injury on the victims
(§ 12022.7, subd. (a)), causing the offenses to become serious felonies within the
meaning of section 1192.7, subdivision (c)(8). In count 17, the People charged Gonzalez
and Adame with street terrorism (§ 186.22, subd. (a)) in connection with their charged
March 2010 activities.
Count 16 named only Gonzalez. In that count, the People charged Gonzalez with
attempted premeditated murder (§§ 187, subd. (a) & 664) in connection with a shooting
incident that occurred on or about March 24, 2010. The People further alleged in
connection with count 16 that Gonzalez or a principal personally used a firearm (§
12022.53, subds. (b) & (e)(1)), personally and intentionally discharged a firearm (§
12022.53, subds. (c) & (e)(1)), and personally and intentionally discharged a firearm
causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)).
The People alleged that counts 1-16 were committed for the benefit of or in
association with a criminal street gang (§ 186.22, subds. (b)(1)(C) & (b)(4)). They also
alleged that Adame had suffered one prior serious or violent felony conviction (§§ 667,
subds. (b)-(i) & 1170.12, subds. (a)-(d)).
All four defendants were jointly tried by a single jury. The jury found all four
defendants guilty as charged and found true all of the special allegations included on the
verdict forms. After a subsequent bench trial, the court found true the prior strike
allegation against Adame.
Gonzalez was sentenced to a total term of 380 years to life on the indeterminate
counts, with an additional 100 years on the determinate counts imposed and stayed
pursuant to section 654. Adame, whose prior strike rendered him subject to a doubling of
parole-eligibility periods, was sentenced to a total of 480 years to life in prison for counts
1, 4, 5, 6, 7, 8, 9, and 10. Additional terms were imposed and stayed for the remaining
counts and sentence enhancement findings. Rodriguez and Rangel each were sentenced
2
The victim named in count 15 was not injured, and the verdict forms did not
include this allegation for count 15.
4
to a total of 75 years to life on counts 1 and 4, with additional terms imposed and stayed
for counts 2 and 3.
All four defendants timely appealed.
II. The People’s Evidence
A. Background
Defendant Gonzalez, known as “Casper,” belonged to the Pacoima Flats gang. He
was a friend of defendant Adame, nicknamed “Fresh” and “Smooth,” who belonged to
another gang, the Pacoima Project Boys. Both the Flats and the Project Boys were rivals
of a third Pacoima-based gang, the Pacoima Knock Knock Boys. The Knock Knock
Boys expressed their contempt for Project Boys and Flats members by calling them
“rejects,” a derogatory term aimed at the origins of these gangs in the San Fernando
Gardens housing projects.
Defendants Rangel, known as “Trippy,” and Rodriguez, known as “Danny Girl” or
“D Girl”, associated or “kicked it” with members of the Project Boys and Flats.
Members of the Project Boys and Flats occasionally “hung out” at Rangel’s apartment.
Rangel’s roommate, Danny Perez,3 was a methamphetamine addict who knew
members of various gangs and liked to “party,” i.e., get high, with them indiscriminately.
Perez was friendly with Sergio Abrego, a member of the Knock Knock Boys. Abrego’s
phone number was programmed into Perez’s cell phone under Abrego’s gang moniker,
“Scrappy.” Abrego did not like Rangel due to her association with the Project Boys and
Flats and accordingly referred to her using the derogatory slang “reject bitch.”
Perez telephonically introduced Abrego to fellow methamphetamine user Alexis
Garcia, a long-time friend of Perez and Rangel, a week or two before March 15, 2010.
3
Perez identified as male and went by the name “Danny” in 2010. At the time of
trial nearly three years later, Perez identified as female, preferred to be known as
“Jazleen,” and asked the court to refer to her as “Ms. Perez.” For the sake of clarity and
consistency, and not out of disrespect, we refer to Perez using the male pronouns he and
others used at the time of the incidents.
5
Garcia, who went by the moniker “Whisper,” had spoken to Abrego on the phone once as
a result of Perez’s introduction, but had not met him in person.
B. The March 15-16 Incident (Counts 1-4)
Garcia stayed at Rangel’s and Perez’s apartment for a few days in March 2010.
She left sometime on March 15, 2010 to go “party” with another friend of hers. Rangel
and Perez remained at the apartment.
Perez was coming off a methamphetamine binge that had kept him awake for three
days. He fell asleep in his bedroom sometime after nightfall. Perez’s cell phone was
plugged into an outlet in his bedroom. Perez’s bedroom door did not lock, and he and
Rangel had permission to enter one another’s rooms. Perez also allowed Rangel to
borrow his cell phone when Rangel needed to use it.
Sometime after Perez fell asleep, Abrego called Perez’s cell phone. Instead of
speaking with the sleeping Perez, Abrego spoke with a female who identified herself as
“Whisper.” Abrego and the speaker posing as “Whisper” arranged to meet and “party.”
Abrego agreed to pick up “Whisper” near the intersection of Canterbury Avenue and
Woodman Street in Pacoima. “Whisper” was supposed to be on foot. Abrego and his
friend, Miguel Castro, drove to the designated meeting spot in Castro’s Astrovan.
Meanwhile, Garcia returned to Rangel’s apartment complex sometime between
11:00 p.m. and 12:00 a.m. Garcia testified under a grant of immunity that she
encountered Rangel, Gonzalez, Adame, and Rodriguez exiting the complex’s gate as she
was walking back to Rangel’s apartment. Garcia did not know Rodriguez, whom the
others were calling “Danny Girl,” but recognized Casper (Gonzalez) and Fresh (Adame).
Garcia saw and heard Rodriguez using a cell phone and saying things like, “Are you
coming?” Garcia testified that her perceptions of the night’s events were not clouded by
her recent “partying” because she could “control” the effects methamphetamine had on
her.
Rangel told Garcia that Perez was asleep in the apartment and the door was
locked, so Garcia should leave with them. Garcia joined the group and got into the
backseat of a dark-colored, four-door car with Rangel. Rodriguez got into the front
6
passenger seat. Another member of the Pacoima Flats gang, Ernesto Aguayo, known as
“Sparky,” was in the driver’s seat. Garcia saw Gonzalez and Adame get into a white car
with a sunroof. She recognized the car as Adame’s. Adame drove and Gonzalez sat in
the front passenger seat.
Aguayo drove the dark-colored car to the area of Canterbury Avenue and Filmore
Street.4 During the short drive, Garcia saw Rangel give a cell phone to Rodriguez.
Rangel directed Rodriguez to make phone calls. Garcia heard Rodriguez saying things
like, “if they are coming” and “they were on their way.” There was only one cell phone
in the car, and cell phone records introduced at trial documented numerous phone calls
between Perez’s and Abrego’s phones on March 15 and 16. Abrego also testified that he
and “Whisper” were “calling each other back and forth.”
Rangel told Garcia and Rodriguez to get out of the car near the intersection of
Canterbury and Judd Street, which Garcia testified was about 37 feet away from
Canterbury and Filmore. Aguayo and Rangel drove away once Garcia and Rodriguez
exited the car. Rodriguez still had the cell phone; Garcia heard her asking, “Are you here
yet?” Rodriguez also made a call and asked if “they were there.” Garcia saw a van with
two people in it drive by on Canterbury and heard Rodriguez say, “That’s them.”
About ten minutes after Abrego and Castro set out in Castro’s van to meet
“Whisper,” they arrived in the vicinity of Canterbury and Woodman. They did not see
any girls waiting. Abrego and “Whisper” spoke on the phone and “Whisper” proposed
several changes to their rendezvous point. Abrego became concerned that he was being
set up and told Castro to leave the area. When the van was near the intersection of
Canterbury and Filmore, Abrego and Garcia saw a white car – Adame’s car – drive past
on Filmore. As the white car drove by the van, Garcia heard shots and saw “the flashing
of the gun going off” from the driver’s window and sunroof of the white car.
4
Filmore Street turns into Lassen Street near Canterbury Avenue. Some of the
testimony at trial referred to the intersection as “Canterbury and Lassen.” We refer to the
intersection as “Canterbury and Filmore.”
7
Abrego, who did not have a gun with him, ducked down when the shooting
started. He heard about nine or ten shots. Castro steered the van down Filmore and the
white car drove away.
Shortly after the shooting ended, the dark-colored car driven by Aguayo returned
to the corner of Canterbury and Judd to pick up Garcia and Rodriguez. When Garcia and
Rodriguez got into the car, Rangel laughed and “kept asking if they got him.” Rangel
also informed Garcia that Rodriguez had been talking to Scrappy from the Knock Knock
Boys on the cell phone.
Aguayo drove to a nearby Jack in the Box restaurant. Garcia saw Adame’s car
there as well, and surveillance footage showed both cars at the restaurant. After the cars
left the restaurant but before they arrived at the house that was their next destination,
someone in Aguayo’s car made another phone call to Abrego.
When the two cars arrived at the house, Garcia saw Adame and Gonzalez emerge,
respectively, from the driver’s and front passenger seats of the white car. The occupants
of both cars went inside the house, and Gonzalez and Adame told someone there about
the shooting. Gonzalez talked about how he had shot from the sunroof, and Adame
talked about the shooting generally. They mentioned that they had shot out the
windshield and windows of the van but did not know if they “got” Abrego.
Abrego, whom the court found to be a “hostile” and “deliberately evasive”
witness, testified that he realized after the shooting ended that he had been hit in both of
his legs. Castro, who had not been hit, attempted to drive Abrego to a hospital but could
not do so because his van had sustained 15 bullet impacts, a shattered windshield,
numerous shot-out windows, and a flat tire in the shooting; Abrego testified it “wouldn’t
drive no more.” Castro called his friend Humberto Rodarte for a ride. Rodarte picked up
Castro and Abrego and drove to Holy Cross Hospital, where he dropped off Abrego.
Los Angeles police officer Stephen Koyle was dispatched to the hospital to speak
with Abrego. Abrego was reluctant to talk about the incident but told Koyle he had been
shot near Canterbury and Filmore. Officers who subsequently responded to that
intersection discovered skid marks, broken glass, 18 shell casings, and one “slug,” or
8
projectile bullet. Fifteen of the casings were from a .45 caliber gun, and three were from
a .40 caliber gun. A firearms analyst testified that the casings had to have come from two
different guns.
After speaking to Castro and Rodarte on the morning of March 16, 2010, police
detectives located an Astrovan parked in the driveway of a home on Kewen Street, where
Rodarte’s aunt lived. The van, which was registered to Castro, had a blown-out tire,
shattered windows, and bullet impact marks all along the driver’s side. A criminalist who
specialized in firearms analysis examined the van and concluded that all but one of the
bullet impacts on the vehicle came from the outside. She could not tell where that one
bullet originated because the window it traveled through was completely blown out.
Police detective Eric Reade interviewed Abrego after Abrego was released from
the hospital. Reade testified that Abrego initially was evasive and uncooperative during
that interview. Eventually Abrego told Reade that he had spoken to “Whisper” and her
friend “Clumsy”5 on the phone, that he had told them he belonged to the Knock Knock
Boys, and that he planned to meet them in the area of Woodman and Lassen. Abrego
told Reade that Hispanic males in a white car opened fire on the van he and his friend
Castro were in, and that they had to call Rodarte to pick them up. Abrego further told
Reade that Rodarte dropped him at Holy Cross Hospital, where he received additional
phone calls from “Whisper.” During one of those phone calls, about 15 or 16 minutes
after the shooting, “Whisper” told Abrego something to the effect of, “That’s why we
shot you, you punk motherfucker.” Abrego told Reade – and, like Perez, also directly
testified – that he called Perez a few days after the shooting to find out what had
happened and to see if Perez had set him up. According to Reade, Perez told Abrego that
“Whisper and Clumsy had used his cell phone to call Mr. Abrego that evening.”
(Defendants’ hearsay objections to this testimony were overruled.)
5
Detective Reade was the only witness who used the name “Clumsy.” There is a
general consensus among the parties’ briefs that “Clumsy” is the same person as
“Trippy,” i.e., Myra Rangel.
9
Perez told detectives that he learned from Whisper (Garcia) that Rangel and
another girl were “kicking it” in the apartment with some guys from Pacoima while he
slept on March 15-16. Perez also heard from Whisper that guys named Fresh and Sparks
or Sparky were involved. Whisper further told Perez that his phone had been used to set
up Abrego; this upset Perez because he had known Abrego for a long time and cared for
him. Perez also told detectives that Rangel laughed and said something to the effect of,
“that fool’s stupid” when he confronted her about setting up Abrego. Rangel’s reaction
made Perez “mad.” Rangel also made Garcia mad when she laughingly told Garcia that
Garcia had done them a “favor” because they used her name, “Whisper,” to lure Scrappy
(Abrego) to Canterbury and Filmore.
Rangel’s cousin Erick Davalos, whom she referred to as her little brother, testified
at trial that he “kicked it” with the Project Boys and was present at Rangel’s apartment on
March 15-16. Davalos testified under a grant of immunity that he recalled being at the
apartment with Rangel, Adame, Gonzalez, and Rodriguez and seeing Gonzalez use
Perez’s cell phone. Garcia was not there. Rangel, Adame, Gonzalez, and Rodriguez left
the apartment without Davalos. Rangel told Davalos they were going to get food at Jack
in the Box.
Estepanie Cortez, Gonzalez’s then-girlfriend, was not present on March 15 or 16
(or on March 23 or 24). She testified under a grant of immunity that Gonzalez confided
in her after his arrest on April 1, 2010. He told her that he and Fresh (Adame) drove
Fresh’s white car to Filmore and “some other little street” and shot at some guys in
another car. Gonzalez further told her that one of the guys they shot at was named
Scrappy, and that he had “used” and “forced” Trippy, D Girl, and Whisper to get in
contact with Scrappy to set him up. In a recorded jailhouse conversation with Cortez that
was played for the jury, Gonzalez referred to a female witness and said, “she’s not even
going to be alive so hopefully she doesn’t go to court for me, man, so – that’s all they got
on me. As long as she doesn’t show up, I’m cool.” Cortez testified that Gonzalez’s
statement referred to Whisper (Garcia), whose house was shot at after she testified at a
preliminary hearing in the case.
10
Gonzalez also asked Cortez to save a letter Rangel wrote to him. In that letter,
which Cortez read to the jury, Rangel apologized “for everything [she] did and said” to
the police about the incident. Rangel also indicated that she was “going to deny
everything and not blame anything on” Gonzalez. Gonzalez characterized the letter as
“snitching.”
C. The March 23 Incident (Counts 5-15)
Davalos testified that he was hanging out with Gonzalez and Adame on March 23,
2010. Around 5:00 p.m., the trio went to Gonzalez’s house on Filmore Street in Pacoima
and hung out in the backyard. Gonzalez was wearing black. At some point after dark,
about four to six hours after they began hanging out in the backyard, Gonzalez said,
“Let’s go.” Gonzalez and Adame then left Davalos alone in the yard for about 20
minutes. While they were gone, Davalos heard something that sounded like shooting.
On cross-examination but not on direct or at the preliminary hearing, Davalos testified
that Gonzalez and Adame had firearms in their hands when they left.6 According to
Davalos, Adame had a handgun and Gonzalez had an “AK,” “some type of automatic
weapon.”
Gonzalez and Adame returned to the yard less than ten minutes after Davalos
heard the shooting noises. Davalos testified that when Gonzalez and Adame reentered
the yard, Gonzalez was holding two guns and Adame was holding his arm as if it were
injured. Davalos described one of the guns as a handgun and said that the other looked
like an assault rifle. Gonzalez stowed both guns between the yard’s wooden fence and a
board that was leaning against it. Gonzalez and Adame then began trying to figure out
how to get to a hospital.
Gonzalez eventually made a phone call and a woman named “Crazy” arrived at
the house, picked up Gonzalez, Adame, and Davalos, and drove them to Brotman
Hospital. During the approximately 30-minute drive to the hospital, which was more
6
Davalos also admitted on cross-examination that he had added details to his story
each time he met with police, including during a meeting the week before he took the
stand at trial, and that he had lied during the preliminary hearing.
11
than 25 miles away, Adame, who continued to hold his arm, said that he and Gonzalez
had opened fire on a group of “Black people” on Pinney Street “because them niggas
owed.” According to Davalos, Adame said that he and Gonzalez walked away from the
group, turned around, and then started “bucking on,” or shooting at, them. Davalos
testified that Adame also said that he was injured when people in the group shot back.
Los Angeles police officer Nicholas Torres testified that he was dispatched to
Brotman Hospital to speak to a shooting victim at approximately 11:50 p.m. on March
23, 2010. He identified that victim as Adame. Adame was “uncooperative” but told
Torres that he had been shot near Venice Beach, on Ocean Front Walk and Washington.
Neither Torres nor another police officer who testified, Kevin Pierce, received any other
reports of a shooting in the Venice Beach area that evening.
The police did receive multiple reports of a shooting on Pinney Street near Pala
Avenue in Pacoima at around 10:00 p.m. on the evening of March 23. Then-detective
Corey Farell was dispatched to the scene, which was approximately four blocks from
Gonzalez’s home and just north of San Fernando Gardens, at about 11:00 p.m.
Farell observed 23 nine-millimeter cartridge casings near the corner of Pinney and
Pala, a pool of blood on the sidewalk of Pinney, and a trail of blood up the walkway of
the home at 13205 Pinney. Farell and other officers who secured the scene also found
bullet impact marks, four bullet fragments, two bullet jackets, and abandoned cans,
bottles, and other personal effects including a purse and clothing outside of 13205
Pinney. The ballistic evidence suggested that two people shot in one direction. Farell
also spotted graffiti, the letters “PF” and “PJB,” near the scene. Farell, who had worked
as a uniformed gang officer for two years, testified that those letters were associated with
the Pacoima Flats and Project Boys gangs. Farell looked for but did not find any
weapons associated with the incident. None of the 18 firearms later recovered during a
search of Gonzalez’s home matched those used in the shooting.
After concluding his initial examination of the scene, Farell traveled to Holy Cross
Hospital to speak with some of the shooting victims. Farell was unable to speak with the
victims there; Terry Caver was in surgery and Vanessa Rankins, who later died from the
12
single shot to the head she sustained, was in “grave condition.” Farell also went to
Mission Community Hospital to speak to Anthony Jones, who had been shot in the leg,
and to U.S.C. Medical Center to speak to Eric Bradshaw. Farell eventually spoke with
Caver, Jones, and Bradshaw several weeks later. He described Caver as “reluctant” and
“fearful,” Jones as “uncooperative” and “hesitant,” and Bradshaw as “very nervous” and
“fearful.” Farell also interviewed uninjured witnesses Kenneth “Ken Don” Perry, whom
he described as “reluctant,” and Anthony Jackson, who was cooperative.
Several of the individuals Farell interviewed testified at trial. Perry, an African-
American man, testified that he, his girlfriend Vanessa Rankins, and his cousin and Front
Street Crips member Anthony “Chubs” Jones went to Perry’s aunt’s house near Pinney
Street and Pala Avenue at around 9:30 or 10:00 p.m. on March 23, 2010. They met
Perry’s cousin Eric Bradshaw there. Three others, Terry Caver, an African-American
man Perry knew as “Green Eyes,” and a man Perry knew only as “Happy Jack,” arrived
later. Perry testified that the group was “chilling” outside his aunt’s house with drinks.
Rankins was sitting on a planter and everyone else was standing around. No one in
Perry’s group had a gun.
At some point, Perry noticed a dark gray car with darkly tinted windows swerve
first down nearby Ralston Avenue and then past his aunt’s house. Shortly thereafter,
Perry saw two men wearing black hoodies walking down Pala Avenue. Perry estimated
that they were both about five feet nine inches tall and slim, though he could not be
certain because their dark clothing was loose. When the men reached the corner of Pala
and Pinney, one of them looked like he was going to walk toward Perry’s group but the
other pushed him and the duo continued to walk down Pala. At some point they stopped;
one of the men paced back and forth and the other stood on a wall looking in Perry’s
direction.
Around that same time, about 10-15 minutes after Perry and Rankins arrived at the
house of Perry’s aunt, Caver drove up. Perry asked Caver to watch the two men and
went to tell everybody at his aunt’s house that something was up. Perry had just reached
the group when he turned around and saw the two men standing shoulder-to-shoulder.
13
Perry then began to “power walk” back down the sidewalk of Pinney Street toward the
two men. As Perry was walking, he saw one of the men pull a gun from his waistband.
Perry saw sparks and heard repeated shots, like a “drumroll” or “chainsaw” from one gun
and a “pop pop pop pop” from another. Perry took cover between some cars parked
along Pinney and was not hit. When the shooting stopped about 15 seconds after it
began, Perry saw that Caver’s stomach was “hanging out” and “his legs were leaking
blood.”
Perry also saw that Bradshaw, Jones, and Rankins had been shot. Bradshaw and
Jones were saying, “I’m hit, I’m hit.” Bradshaw had been hit in the leg, Jones in the leg
and hip, and Rankins was “laid back” with “her brains hanging out.” Perry saw the dark
gray car come back about 15-20 seconds after the shooting and turn right on Van Nuys
Boulevard. Perry did not see the two men get into or out of the gray car.
Terry Caver testified that, on the night of March 23, 2010, he drove to 13205
Pinney Street to visit someone staying there. A lot of people often hung around outside
the front of that house, and Caver had heard that the house had some connection to drug
activity. When Caver pulled up, he saw a crowd of people outside the house but only
recognized Perry and Happy Jack. Caver parked his car on Pala. When he got out of his
car, he saw two unfamiliar people across the street, on the opposite corner of Pala and
Pinney. Caver noticed the two people, who were wearing all black and had hoods on,
walking toward him, but “it didn’t seem important to keep looking.”
As Caver began to walk to the house, Perry ran toward him. Caver testified that
Perry seemed to be trying to get his attention, but ran back toward the house before
saying anything. Caver heard a yell from the group standing outside the house and
looked behind him. He saw the same two people he had noticed earlier with guns in their
hands. The two people opened fire, with what Caver believed to be automatic or semi-
automatic weapons because of the speed with which they shot.
Caver was shot nine times. He hopped toward the house, leaving a trail of blood
on the concrete. When Caver reached the gate, two girls helped him get inside the house.
14
They also “got a towel and started holding [his] guts inside,” which is when he realized
that he had been shot in the stomach.
Paramedics cut Caver’s clothing off at the scene and transported him to Holy
Cross Hospital, where he stayed for fifteen days before being discharged on April 7,
2010. Caver recognized his own handwriting on a hand-drawn diagram and vaguely
recalled speaking to detectives during his stay at the hospital, but did not remember much
about the interviews because “they had me shot up with all type of medicine and stuff.”
He recalled telling officers that the shooters had been wearing all black. He also recalled
being shown six photographs, but could not remember what, if anything, he told the
officers about them.
Caver recognized his own voice on a tape of his interview with detectives,
portions of which were played for the jury; he indicated that his voice on the tape was
“dragging a little bit because [he] was under medication.” On the tape, Caver told
Detective Farell that the shooters had “narrow” faces and that the nose on one of the
photos looked familiar. Caver also said on the tape that the shooters were about his
height, five feet nine inches tall, and looked young. Caver did not remember making
those statements but testified that his state of mind had been “more pure” when he was in
the hospital because the events were very recent. Caver further testified that medication
made him drowsy but did not make him lie.
Eric Bradshaw testified that on March 23, 2010, he was hanging out in front of a
house at 13205 Pinney Street with several other people, including Ken Don Perry, Terry,
Chubs, Green Eyes, and Happy Jack. At some point that evening, Bradshaw saw Caver
walking down the sidewalk toward them and away from Pala. As Caver was
approaching, Perry ran over and “said something about two particular dudes.” Bradshaw
saw two people in dark hoodies walking but did not pay attention to them or Perry’s
comments. Bradshaw could not tell the race of the thinly built individuals, but estimated
them to be between five feet six inches and five feet nine inches tall.
Bradshaw heard someone say “duck,” and then heard “over ten” fast shots fired
from what sounded like a heavy gun. He saw Caver and Chubs fall to the ground.
15
Bradshaw was shot three times in the legs. Bradshaw was transported to U.S.C. Medical
Center, where he was treated and released the next day. He spoke with detectives several
months later. Detective Farell testified Bradshaw was “very nervous” during that
interview, but “had a pretty vivid recollection of the events as he saw them and as they
went down.” Bradshaw told detectives that the shooters were Hispanic males and that he
saw them produce guns and begin firing. He also said that one of the photos in the six-
pack Farell showed him was “getting to” him–that of Gonzalez–and that he recognized
another as Adame, a man from the neighborhood. Bradshaw did not remember saying
these things at the interview, but testified that he had been forthcoming and honest at the
time. Detective Farell agreed that Bradshaw had been forthright and candid.
The People also called Lamar Brown, a relative of Perry’s friend whose family
members called him “Bro.” Brown was not present at the shooting but had heard about it
from his family and from Ken Don, with whom he told police he had a phone
conversation on the evening of March 23. During his March 27, 2010 interview with
police, Brown, who was on parole at the time, told officers that Ken Don was a Front
Street Crip who “was the cause of” the shooting. According to Brown, Ken Don fought
with a member of the Project Boys on the afternoon of March 23 after the Project Boy
accused Ken Don of “shorting” him in a crack cocaine transaction. Later that day, Ken
Don saw two individuals in hoodies walk past his aunt’s house. Ken Don told Brown
that he thought the individuals were going to shoot at him and his friends, and that they
proceeded to do just that. Ken Don told Brown that one of the shooters pulled an assault
rifle from his pants and that the other was armed with a handgun. No one in Ken Don’s
group had a “strap,” i.e., a gun. Three members of Ken Don’s group were shot: his
girlfriend Vanessa Rankins was hit in the face, one person was hit in the legs, and another
was shot in the stomach.
Perry denied ever talking to “Bro” about the incident. Perry further denied
knowing anyone named Lamar Brown. Perry also denied dealing drugs, belonging to the
Front Street Crips, having personal problems with the Pacoima Project Boys or Flats, and
arguing or fighting with any members of the Project Boys. Perry denied ever seeing
16
defendant Gonzalez before or recognizing anyone in the courtroom from the night of the
shooting. He also stated that he was “emotionally distracted” at the time of the shootings
and had been “just saying things” to detectives during the investigation and on the stand
at the preliminary hearing.
Estepanie Cortez testified at trial that Gonzalez confided in her about this incident
as well. He “didn’t tell [her] much,” only that he and Fresh walked up to and shot at a
group of “niggers” because Gonzalez “hates niggers.” Gonzalez also told Cortez that he
and Adame ran from the scene and ultimately had someone pick them up and drive them
out of the city. During a recorded jailhouse call, Gonzalez discussed an alibi that
conformed to these facts and asked Cortez to assist him with it. Gonzalez wanted to get
Cortez and another woman “on the same page” about Adame being shot while they were
walking on Venice Beach. Cortez also discussed the Venice Beach alibi with Adame and
Adame’s mother.
D. The March 24 Incident (Count 16)
On March 24, 2010, Edwin Henriquez, a member of the North Hollywood Locos
gang, planned to meet his friend, Danny Perez. Perez had arranged for a female to give
Henriquez a ride from his house to Perez’s and Rangel’s apartment. When the car arrived
to pick up Henriquez, the female was accompanied by three males. Henriquez
recognized one of the males, the driver, as Casper, whom he identified in court as
Gonzalez. He recognized another as Trippy’s brother; he identified Trippy as Rangel in
court. Henriquez recalled that the others told him they were going to drop off Trippy’s
brother at his house. He testified that he did not remember anything beyond that point
but knew he was shot in the head that day. He also testified, however, that snitches can
get killed and that was why he said he did not remember anything on the stand and also
why he said the same thing to police officers who spoke to him at the hospital.
Henriquez was in the hospital for over two months, lost an eye, and continues to have
seizures as a result of the shooting.
Erick Davalos testified that he was one of the passengers in the car. Gonzalez and
a male from the North Hollywood Locos that Davalos knew as “Darky” (Henriquez) also
17
were there. According to Davalos, Rachel, the owner of the car, was sitting in the front
passenger seat, and a man was driving. Gonzalez was in the back with Davalos and
Darky. Davalos heard Gonzalez “bang on” Darky, which two gang experts explained
means asking a suspected gang member “where are you from” and eliciting violence if
the respondent is from a rival gang. When Gonzalez “banged on” Darky, Darky said he
was from the North Hollywood Locos. The North Hollywood Locos were not active
rivals of the Project Boys and Flats, but they were “not exactly friends either.”
Davalos was supposed to be dropped off at Rangel’s apartment. Before the car
arrived there, however, it stopped near Desmond Street in Pacoima. Gonzalez and Darky
got out of the car and walked toward Desmond Street. They were gone for about five
minutes. Davalos heard gunshots, and Gonzalez came running back to the car. Darky
did not come back. Gonzalez told everyone in the car that he and Darky had been shot at
and that Darky had run the other way. Gonzalez told them to get away from the area, and
the car drove off. Davalos never saw Darky again after that, but heard from Adame a few
days later that Darky was in the hospital. Adame also told Davalos that Gonzalez shot
Darky. During a jailhouse phone conversation with Cortez, Gonzalez stated that Davalos
had seen some things that he shouldn’t have seen and expressed concern about him
snitching.
Detective David Hunt testified that he and his partner were dispatched to the area
of Desmond Street and Telfair Avenue at around 11:20 p.m. on March 24, 2010. Hunt
saw a Hispanic male lying on the sidewalk with a bullet wound in the side of his face.
The victim’s eye “had popped out” and “was laying on his cheek,” and he was covered in
blood.
Hunt recovered six bullet casings and two bullet fragments from the scene of the
crime. A firearms analyst opined that all of the casings came from a single nine-
millimeter gun. She further opined that the casings came from an automatic or semi-
automatic weapon and matched some of the casings recovered from the Pinney and Pala
shooting the day before. The type of gun that ejected the casings could sound like a
chainsaw when fired.
18
E. Gang Evidence
According to the two gang experts who testified, the Pacoima Flats gang
originated in the 1970s in the San Fernando Gardens apartment complex. It had about
250 members at the time of trial. It shared territory and an “informal alliance” with its
“brother gang,” the Pacoima Project Boys, which was founded later but had about 300
members at the time of trial. The area of Pinney Street and Pala Avenue, which had high
levels of drug activity, was within the territory of both gangs. Both gangs used symbols
and abbreviations to represent themselves. The Flats used the shorthand “Pacas” and
“PF,” the latter of which had a corresponding hand signal. Members also wore Pittsburgh
Steelers and Pirates attire because they had the letter “P”for Pacoima on them. The
Project Boys referred to themselves as “Proyectos,” “Projects,” “Jets,” or “PJB.” They
frequently wore New York Jets and Toronto Blue Jays attire, and used a “PJ” hand
signal. Members of both gangs signified their status as “warriors” by getting Aztec-
themed tattoos. Gonzalez had the letter P tattooed on one arm and F on the other. He
also had an F on his finger, “Pacas” on his leg, and “Pacoima Flats” on his back. Adame
had Aztec-themed artwork tattooed on his chest and left arm, and was shown “throwing”
gang hand signals in several photographs.
Gangs have female members and associates. Associates are individuals who have
not been formally initiated into a gang but still hang out with the members. The female
associates often are the girlfriends of male gang members. They assist the gangs by
driving vehicles, acting as lookouts, hiding contraband, providing alibis, and passing
messages in and out of jail. Performing these and other tasks allows females to
demonstrate their loyalty to and elevate their status within the gang. Rodriguez, an
associate of the Project Boys, was christened “Danny Girl” after her boyfriend, gang
member Danny Orozco, was murdered in 2009. Rangel was a known associate of the
Project Boys and Flats.
Sometimes male gang members used force or threats to get female associates to
commit crimes. The commission of crimes, from petty vandalism to more serious drug,
robbery, and assault offenses, was a primary activity of both the Project Boys and the
19
Flats. Members “put in work” and “earned their stripes” by committing crimes; more
serious crimes merited more recognition or respect from the gang. Gang members
typically committed crimes in the presence of other members or associates, both to verify
the commission and to have assistance available if necessary. It was not unusual for
members and associates of the Project Boys and Flats to commit crimes together; their
reputations within both gangs would be elevated if they were successful. Certified court
records showed that a member of the Project Boys and a member of the Flats were
convicted of murder together. Certified court records further showed two additional
convictions for murder, one by a Project Boy and one by a Flats member, as well as the
conviction of a Flats member for being a felon in possession of a weapon.
The Project Boys and Flats both disliked African Americans. They also had
similar rivals, including the Knock Knock Boys. Both gangs identified rivals by asking
unfamiliar individuals the question, “Where are you from,” which was also known as
“banging on” them or “hitting them up.” If the unknown person belonged to a rival gang,
he or she would be subject to a violent response. Violent retaliation also typically
followed when a rival did something to a gang member. Prompt retaliation to rivals was
required to avoid being perceived as weak. Gang members also retaliated against
“snitches,” individuals who cooperated with police or testified in court. Gang members
would tolerate the presence and criminal activity of non-rivals within their territory if the
interlopers paid “taxes” or “rent” to the gang.
When presented with hypotheticals based on the facts of the three incidents
charged in this case, gang expert Rodolfo Rodriguez opined that all three crimes were
committed for the benefit of the Project Boys and Flats gangs.
III. Defense Evidence
Defendants Gonzalez and Rodriguez presented evidence. Defendants Adame and
Rangel did not.
A. Defendant Gonzalez
Gonzalez called one witness, Eduardo Ceballos, who testified that he lived up the
street from Gonzalez’s home for 15 years and occasionally played basketball there. He
20
testified that in 2010 Gonzalez’s backyard was completely enclosed by a wooden fence
that was 7-8 feet tall. He also said that there was a second, chain-link fence near the
house. Ceballos testified that Gonzalez’s father died about ten years before the events in
this case, which contradicted Detective Eric Reade’s testimony that he had spoken to
Gonzalez’s parents while searching Gonzalez’s home.
B. Defendant Rodriguez
Defendant Rodriguez called prosecution witnesses Alexis Garcia and Detective
Byers. Garcia testified that she did not know anything about the March 23, 2010 shooting
at Pinney and Pala. Byers testified that he had spoken to Davalos on January 31, 2013,
about a week before Davalos took the stand at trial. At that time, Davalos told Byers that
he met Danny Girl, defendant Rodriguez, through her boyfriend about two weeks prior to
the events in this case. Uncontroverted evidence admitted earlier at trial showed that
Rodriguez’s boyfriend, a member of the Project Boys, had been murdered in 2009, a year
before the events in this trial.
Rodriguez also called pathologist and toxicology expert Dr. Marvin Pitruszka.
Pitruszka explained that methamphetamine has both short- and long-term effects.
Immediately after ingesting the drug, users typically become alert, euphoric, energetic,
and may have heightened perceptions of light and sound. Over hours and days, however,
methamphetamine tires and injures the body, causing drowsiness, confusion, and
difficulty in concentrating, remembering, and decision-making. Users frequently “talk
about being stupid, they can’t remember certain facts.” These effects render users
unreliable “for performing executive function[s]” like “thinking clearly” and making
clear observations. When presented with a hypothetical about a methamphetamine user
who shared the usage patterns and physical characteristics of Alexis Garcia, Pitruszka
opined that the hypothetical individual would have injured brain cells and compromised
abilities to process and remember information. On cross-examination, Pitruszka
conceded that the effects of methamphetamine could vary from user to user.
Rodriguez’s final witness, private investigator Luis Reynoso, also called into
question Garcia’s ability to perceive the March 15-16 shooting. At about 11:45 p.m. on
21
February 8, 2013, Reynoso visited the location from which Garcia testified she viewed
the shooting. He observed and took photographs of the intersection, as well as wrought
iron fences and seven-to-nine-feet hedges around the houses where Garcia was standing.
The court also took judicial notice that there was a new moon on March 15, 2010.
DISCUSSION
All four defendants have appealed. Because each defendant filed his or her own
briefs and raised separate issues, we have organized our discussion by defendant. We
note, however, that each defendant has joined and adopted by reference the arguments
made by the others to the extent that the others’ arguments may inure to his or her
benefit. (See California Rules of Court, rule 8.200(a)(5); People v. Smith (1970)

4 Cal.App.3d 41

, 44.) Accordingly, “we shall consider all contentions as though made on
behalf of all appellants to whom they might be available.” (People v. Smith, supra, 4
Cal.App.3d at p. 44.) We will clarify the scope of our analyses as necessary throughout.
I. Defendant Gonzalez
Defendant Gonzalez contends that several instances of improper conduct by his
counsel, the prosecutor, and the court deprived him of a fair trial. For the reasons
explained below, we disagree and affirm his convictions.
A. Ineffective Assistance of Counsel
Gonzalez contends that he was denied his state and federal constitutional rights to
effective counsel because his privately retained counsel, Natalie Dodson, suffered from
actual conflicts of interest that caused her to place her own interests above his.
According to Gonzalez, these alleged conflicts consisted of Dodson’s financial incentive
to minimize her efforts on Gonzalez’s behalf and her desire to protect her own
professional reputation and avoid criminal prosecution under section 1045.2, subdivision
(a). Gonzalez argues that these conflicts adversely affected Dodson’s performance at
trial in a variety of ways. In his view, Dodson “should not have represented appellant
after his preliminary hearing and that [sic] thereafter, as her actual conflict compromised
her ability to effectively represent appellant, should have asked to be relieved due to her
divided sense of loyalty and her not being paid for trial.” Gonzalez further contends that
22
Dodson concealed from him the true extent of her conflicts, which prevented him from
making a timely motion to discharge her.
1. Background
a. Fee Arrangement
Gonzalez retained Dodson at some point prior to the initial preliminary hearing in
October 2010.7 Dodson represented Gonzalez from the time of that first preliminary
hearing through his sentencing in June 2013. The terms of their fee arrangement and
representation agreement are not in the record. However, Dodson did make two relevant
comments on the record, outside the presence of the jury, toward the end of the three-
month trial. On one occasion, she said she was “paid $5,800 to do the case.” On another,
during a hearing to show cause for her untimely arrival at trial one day, Dodson stated
that she was “stressed out” because she was “not getting any money for this trial.” The
court sanctioned Dodson $250 for her tardiness.
b. Disclosure of Witness Names to Cortez
Gonzalez’s former girlfriend, Estepanie Cortez, was a prosecution witness at the
second preliminary hearing and at trial. Cortez attended but did not testify at the first
preliminary hearing.
Immediately upon taking the stand at the second preliminary hearing, Cortez
testified that Dodson had given her documents related to the case. There “were some
names in the paperwork,” including those of Alexis Garcia and defendant Rangel, and
Cortez testified that she had relayed to Gonzalez the names of individuals who made
statements about him. Adame’s attorney, Steven Flanagan, requested a hearing to discuss
the “repercussions” of Dodson’s disclosure of witness information to Cortez in light of
section 1054.2, subdivision (a), which prohibits attorneys from disclosing “to a
defendant, members of the defendant’s family, or anyone else, the address or telephone
7
The People initially charged Gonzalez, Rodriguez, and Rangel in 2010.
Defendant Adame, who had fled to Mexico, was not charged in the initial information.
After Adame was apprehended, the People dismissed the first information and re-filed the
case against all four defendants in 2011.
23
number of a victim or witness whose name is disclosed to the attorney pursuant to
subdivision (a) of Section 1054.1.” The lead prosecutor, Tannaz Mokayef, noted that
recorded jailhouse conversations corroborated Cortez’s testimony about the reports and
agreed with Flanagan that a hearing might be warranted. The court asked Dodson to
consider over the lunch hour whether there was any reason that the preliminary hearing
could not proceed.
None of the defendants was present when the hearing reconvened after lunch. No
one objected to their absence or requested their presence, and the court heard argument in
their absence.
Flanagan expressed concern that Dodson could become a witness in the case
because she “is the only person who can impeach this particular witness and that creates a
conflict of interest.” He emphasized that it was unclear whether Cortez “knows what she
knows from Mr. Gonzalez’ mouth, or if she has actually learned something from the
police reports that she purportedly reviewed.” Mark P. Brandt, Rodriguez’s attorney,
echoed Flanagan’s concern that Cortez could be conforming her testimony to what she
read in the reports and stated that he did not “see how [Dodson] cannot be a witness”
because she would need to clarify when she gave the reports to Cortez. Brandt also
suggested that a conflict would arise between Dodson’s personal interest in showing that
she did not violate section 1054.2, subdivision (a), by providing improper information to
a witness, and her client’s interest in showing that Cortez received her information not
from him but from the documents Dodson shared with her. Mokayef argued that cross-
examining Cortez should be sufficient to reveal the source of her information. Mokayef
also noted that it was not clear how detailed the documents were, whether they were
redacted, or whether Dodson engaged in any wrongdoing by sharing them with Cortez.8
Mokayef did not believe that the issue would affect the preliminary hearing. Dodson
8
Dodson maintained that the police reports she shared with Cortez were redacted
and did not contain any prohibited information. The documents are not in the record
before us. We express no opinion as to whether the reports were redacted, whether
section 1054.2, subdivision (a), was applicable, or whether Dodson may have violated
that or any other statute or rule by sharing documents with Cortez.
24
declined to be heard on the issue. Rangel’s attorney, Frank DiSabatino, “join[ed] on
behalf of Ms. Rangel” after the court ruled on the issue.
The court ruled that the preliminary hearing could proceed. It noted that “[t]he
issues that counsel have raised may come up and they may not,” and declined to
“terminate these proceedings on the hypothetical that a conflict may arise.” Instead, it
ruled, “we’ll proceed for now and we’ll see what happens.” Defendants returned to the
courtroom, and the hearing proceeded.
Flanagan cross-examined Cortez about her receipt of documents. Cortez conceded
that she was “confused” about whether the information she testified to came from
Gonzalez, the previous preliminary hearing, or the documents she received from Dodson.
She made similar concessions at trial.
c. Pretrial Motion Regarding Disclosures to Cortez
At a pretrial hearing on the eve of trial, with defendants present, Dodson made an
oral motion pursuant to Evidence Code section 402. She informed the court (now
presided over by a different judge) that she “had an issue at preliminary hearing where
Ms. Mokayef accused me of turning unredacted copies of the police report to my client,
and associates of Mr. Gonzalez.” Dodson represented that she had received only
redacted copies of the reports and requested that no questions be “asked in regards to
that” because she did not “wish for any integrity attacks to unjustifiably be lodged during
the trial in front of the jury.”
Mokayef responded that Dodson’s alleged provision of information to Cortez
“becomes a gang issue in the trial in the sense of trying to intimidate and get at
witnesses,” because Gonzalez “is heard on numerous calls, tapes, saying to get at certain
witnesses, and the way he knows of these witnesses is because he has been provided
those witnesses by his attorney.” Mokayef further indicated that she planned to
“introduce the request of [Gonzalez] to his girlfriend to get paperwork from the attorney
so that he can get the witnesses to pass out [sic], and then there is another recording
where he actually talks about the witnesses to other people he has called, asking for them
to get at the witnesses. That’s it.”
25
The court asked whether Mokayef intended “to introduce or mention in any way
that Ms. Dodson engaged in any inappropriate conduct,” and she responded, “[n]ot in
front of the jury, no.” Mokayef suggested that she could say that Cortez got the
documents “from the attorney, an attorney” in lieu of identifying Dodson as the source.
Dodson said that was fine with her. The court accordingly ordered the People “[o]r any
of the other attorneys” not to “mention Ms. Dodson’s name in connection with that
reference of the course of the documents.”
No one mentioned Flanagan’s and Brandt’s previous concerns about Dodson
potentially becoming a witness in the case.
d. Jailhouse Recordings
During trial, the People played several recordings of jailhouse conversations
involving Gonzalez. It is undisputed that transcripts of the recordings were provided to
defense counsel in discovery. Dodson did not file any pretrial motions to exclude the
recordings. 9
One of the recordings contained a lengthy conversation involving Danny Perez,
Gonzalez, and various third parties. Dodson objected to the recording on relevance
grounds, well into the playing of the approximately 80-minute recording. She also
objected that the tape was cumulative and a waste of time. The court overruled all of her
objections and permitted the People to play the recording in its entirety.
According to the transcript of the recording, Gonzalez told an unidentified male
that his lawyer “was supposed to come today so I’m going to go ahead and call her right
now in a little bit . . . . so I can get that paperwork . . . .” Gonzalez continued, “this bitch
is hard to get a hold of. But I finally got a hold of her and she’s supposed to come
sometime today.” Later in the conversation, Gonzalez asked Perez to “call my dumb-ass
- - call my attorney up, please.” Later still, Gonzalez and Perez reached the following
9
Dodson previously had made a motion under Evidence Code section 352 to
exclude a conversation in which Gonzalez and Perez engaged in “phone sex.” The court
ultimately permitted the People to introduce the fact that Gonzalez and Perez had a sexual
relationship but excluded the “sex tape” itself as “extremely prejudicial.”
26
voicemail message: “Hello, you’ve reached attorney Natalie Dodson, please leave me a
message and I will call I [sic] right back.”
After the recording finished playing, Dodson objected that it violated the court’s
“ruling about the 402 regarding the paperwork and Mr. Gonzalez.” She also reiterated
her objections that the recording was cumulative and irrelevant. The court disagreed.
The court also overruled Dodson’s objections to the jury hearing all of the taped
calls Gonzalez made during the three years he had been in custody, and noted that
Dodson’s objections should have been made earlier. Dodson responded that she did not
know that the court would permit the People to play lengthy recordings in their entirety
when only small portions were relevant. Flanagan objected to “editing the tapes,”
because editing “takes the flavor away from the whole tape.” The court agreed with
Flanagan’s assessment but indicated that it was open to “a simple redaction.” The court
reminded Dodson to “make sure you make the proper objections before the tape is
played.”
The People also played for the jury several recorded conversations between
Gonzalez and Cortez. Dodson objected to the first recording as irrelevant, prejudicial,
and cumulative, but only after part of it already had been played for the jury. The trial
court overruled Dodson’s objections, finding the recording more probative than
prejudicial under Evidence Code section 352. The jury consequently heard Gonzalez say
that his lawyer was “going to push for the preliminary hearing already so she could try to
talk to that witness, and that she’s going to make a fool out of that witness . . . . she’s
going to have fun with her.” He also told Cortez that “I told her to give you a copy of the
police report and everything.” Later during the call, Gonzalez asked Cortez if his
“stupid-ass lawyer” had called. When Cortez said no, Gonzalez asked, “where did you
guys find her at?” Cortez replied that the attorney “used to be Marvin’s lawyer.”
Gonzalez responded, “she’s kind of smoked the fuck out, huh?” and Cortez replied,
“Yeah.” Gonzalez added, “She looks like she’s a good lawyer though, like – I don’t
know, but, smoked out.”
27
Dodson objected to the next recorded call before it was played, but the court
overruled her objection on Evidence Code section 352 grounds. The jury thus heard
Cortez complain about Gonzalez’s “damn lawyer” not calling her back. Gonzalez
replied, “I know. That bitch is smoked out. She said she’s going to call you on Friday.”
Before the next tape was played, Dodson asked for a sidebar “on some of the stuff
that’s going to be said in this transcript.” At sidebar, Dodson complained that she had
“been called dumb ass, stupid ass by [her] own client” and worried that she was “losing
credibility with the jury” as a result. She moved for a mistrial, “based on the fact that I
have already lost too much credibility, and if this tape is allowed to be played, I will
definitely really not be taken seriously by anyone anymore.” The court indicated that it
did not “see the probative value of additional insults to her” and agreed “with Ms.
Dodson that the negative, cumulative comments made by her client are really, at this
point, not necessary.” The court accordingly ordered the People to redact several
negative comments about Dodson, including that she “is kind of smoked the fuck out,”
“looks like a smooth little tweaker,” and “got some people out of some shit before with
witnesses.” The court also reiterated its earlier ruling that Dodson was not to be
mentioned by name as the source of the documents Cortez received, even as Flanagan
argued that it would be “almost impossible to keep Ms. Dodson’s name out of it” during
his planned cross-examination of Cortez. The court denied Dodson’s motion for mistrial
notwithstanding Flanagan’s additional argument that Dodson could become a witness if
Cortez “testifies to something other than the truth.”
The court cautioned counsel that it would not be entertaining further 402 motions
in the middle of testimony. The court offered to hear any remaining 402 motions the next
morning before the jury arrived. Dodson advised the court that she had reviewed the
transcripts but expressed concern that she would be “required to bring up all the potential
402’s based on two boxes of transcripts” by the next morning. The court told Dodson “to
assume the People are going to introduce all of them” and make any necessary motions
accordingly. The record does not reflect that any attorney took advantage of the court’s
28
offer to hear Evidence Code section 402 motions early the next morning; the transcript
picks up at 9:30 a.m. with testimony from Cortez.
The following day, the People played a recording in which Cortez and Gonzalez
mentioned that Gonzalez’s lawyer “was scolding” him about a visible tattoo he had
gotten while in custody. Gonzalez said she told him, “You could have at least got it on
your butt cheek or on your you-know-what.”10 The jury also heard that Cortez gave
“Natalie’s” number to Adame, and heard Gonzalez and Cortez refer to the “Jerry
Springer girl” and “the cracked out lady” before the People stopped the tape. At a
sidebar, the court, the People, and Dodson all agreed that it was unclear whom Cortez and
Gonzalez were discussing. Nonetheless, Dodson objected that “everything that’s been
said about me, I have completely lost credibility,” and that “the jury has already heard so
much stuff, I think the damage has already been done.” She complained, “I think I’m
pretty much ineffective. None of them will even look at me.” The court stated for the
record that it had “not seen that,” and the People echoed the court’s assessment. Dodson
also informed the court that Gonzalez “doesn’t feel I can represent him anymore,” which
the court characterized as a “different issue.”
e. Gonzalez’s Motion to Discharge Dodson
The court took up that issue during a break later that day, the 43rd day of trial
(including jury selection). Dodson informed the court that “Mr. Gonzalez believes I have
been so undermined in my credibility that he wouldn’t like to have me as his lawyer any
longer.” She also reiterated her earlier comments that she “believe[s she’s] completely
ineffective as his counsel,” that she no longer had “any credibility with the jury,” and had
“been called horrible names by” Gonzalez. She continued, “I feel I’m on trial, that I need
10
The People stopped the recording at that point, which means, contrary to
Gonzalez’s suggestion, the jury did not hear Gonzalez state that Dodson suggested she
and Gonzalez take a hiking trip together once she got him out of custody, said she loved
talking to Gonzalez because he is “fucking hilarious,” was “always acting all hyper and
shit,” and was “like us, baby.” The unredacted transcripts were admitted into evidence,
however.
29
to defend myself to the jury and my colleagues in this courtroom, as opposed to
defending Mr. Gonzalez.”
Gonzalez personally told the court, “I feel like my lawyer is not going to represent
me to her full 100 percent, and I think she might hold it against me, and so would the
jury. While you guys keep going to the back and doing sidebars, they are reading and
laughing. You guys don’t see it. You are in the back. Even if it is off the record, they
are still reading it. It is still in their hands. I think that is prejudicial and will affect me in
every way.”
Mokayef argued that Gonzalez’s name-calling on the recordings did not render
Dodson ineffective. She also argued that Gonzalez hired Dodson and “chose to say the
words he said about his attorney,” and that “the court redacted most of the statements
regarding this attorney.”
The court denied Gonzalez’s request to discharge Dodson as untimely and likely
to significantly prejudice him and unreasonably disrupt the trial. The court cited People
v. Ortiz (1990)

51 Cal.3d 975

in support of its decision. The court also advised Gonzalez
that it had instructed the jury not to read the transcripts during sidebar, that it presumed
the jury followed the instruction, and that “we cannot speculate that they were reading
something about the attorney and laughing about that.”
Two days later, Dodson put the following statement on the record outside the
presence of the defendants and the jury: “I’m afraid I might have said I’m ineffective. If
I said that, I meant it in the context of I believe I had been prejudiced with the jury
regarding the comments that Mr. Gonzalez said on the telephone, not that I felt like my
lawyering or my strategies or my representation of him was ineffective. Just that I felt I
had been discredited.” The court responded, “I understood that to mean it like that, but
I’m glad you’re clarifying that. Your comments were limited to the jury hearing the
negative comments?” Dodson agreed, and the court thanked her again for clarifying.
f. Cortez Cross-Examination
During her cross-examination of Cortez, Dodson asked a series of questions about
Cortez’s receipt of police reports from “the lawyer.” Cortez denied ever discussing doing
30
anything illegal with the reports or setting up a story with the lawyer. She also agreed
with Dodson that the “sole purpose of [Cortez] receiving those reports [was] to
investigate and come up with a valid defense, a truthful defense, for Mr. Gonzalez.”
Flanagan also addressed the issue of the reports while cross-examining Cortez. He
asked Cortez if it was correct that she “picked up those police reports from Mr.
Gonzalez’s attorney’s office,” “sometime in April of 2010,” and that “it was an ongoing
process . . . that continued up through the end of 2010.” Cortez affirmed the correctness
of all these statements. She further affirmed that she had spoken with Gonzalez’s
attorney “more than ten times” during 2010 and got “additional information about Mr.
Gonzalez’s case from this attorney.” She also testified that she had observed the initial
preliminary hearing and “heard everything the witnesses said.”
g. Additional Alleged Instances of Ineffective Representation
Gonzalez characterizes five additional incidents as exemplary “of how counsel’s
conflicts of interest hampered her representation of appellant.” First, he notes that
Dodson asked one of the People’s gang experts if he had been “informed that Mr.
Gonzalez had been convicted - -.” Mokayef interrupted Dodson midsentence with an
objection, and Dodson explained in chambers that Gonzalez never had been convicted of
a gang crime and that she was “trying to show he is not in a gang.” The court sustained
Mokayef’s objection and expressed “grave concern” that Dodson was “bringing up a
conviction.”11
Second, Dodson opened her cross-examination of Sergio Abrego, who was in
custody and wearing a prison-issued jumpsuit at the time he testified, by asking him,
“Where did you get that outfit? Shopping for your ex-boyfriend for - - ” Mokayef
objected. Dodson apologized and, before the court ruled, continued, “Does she want an
orange jumpsuit for her ex-boyfriend?” The court interjected, “Counsel, please, that’s
11
We note that the jury already had heard evidence that Gonzalez had at least one
prior contact with the criminal justice system. During her direct examination of Danny
Perez, Mokayef asked Perez where he met Gonzalez, and Perez responded, “He was
locked up with my little brother.”
31
not a proper comment.” Dodson apologized again and continued her cross-examination
without further incident.
Third, Dodson left the courtroom while Rangel’s attorney, Brandt, was making an
offer of proof as to certain testimony he sought from Alexis Garcia. It is not clear from
the record why Dodson left. The short hearing, which was held at the end of the day
outside the presence of the jury, continued without her.
Fourth, Dodson’s attempts to present Gonzalez’s mother and Detective Farell as
defense witnesses were unsuccessful, and she did not call the neighbor she originally
suggested she would. The sole witness Dodson ultimately called testified only that
Gonzalez’s father died about ten years before 2010 and that his house was surrounded by
a wooden fence and additionally had a chain-link fence in the back.
Finally, during the People’s closing argument, the court admonished Dodson for
nodding at the jury. Outside the presence of the jury, Dodson argued that the court’s
admonishment “showed prejudice” because the court “allowed the prosecutor to nod,
make faces, do this the entire time during this trial.” She also stated that she thought it
“was okay to look at the jury and nod and shake my head because Ms. Mokayef has done
it this entire trial.” The court denied observing any other attorney “look directly at the
jury, [and] nod to them with your head up and down,” and stated that such behavior was
“completely inappropriate.”
2. Applicable Law
“A criminal defendant's federal and state constitutional rights to counsel (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance.
When challenging a conviction on grounds of ineffective assistance, the defendant must
demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
32
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding. [Citations.]” (People v. Mai (2013)

57 Cal.4th 986

, 1009 (Mai).)
“The federal and state constitutional right to counsel in a criminal case also
includes the right to representation free of conflicts of interest that may compromise the
attorney’s loyalty to the client and impair counsel’s efforts on the client’s behalf. (E.g.,
Glasser v. United States (1942)

315 U.S. 60

, 69-70; People v. Doolin (2009)

45 Cal.4th 390

, 417 (Doolin).) For both state and federal purposes, a claim of conflicted
representation is one variety of claim that counsel provided ineffective assistance.
Hence, to obtain reversal of a criminal verdict, the defendant must demonstrate that (1)
counsel labored under an actual conflict of interest that adversely affected counsel’s
performance, and (2) absent counsel’s deficiencies arising from the conflict, it is
reasonably probable the result of the proceeding would have been different. (Mickens v.
Taylor (2002)

535 U.S. 162

, 166 (Mickens); Doolin,

People v. Gonzalez CA2/4 ( 2015 )

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