People v. Hernandez CA2/7 ( 2015 )

Filed 2/24/15 P. v. Hernandez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
THE PEOPLE, B240884
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA348445)
v.
EDWARD GIOVANI HERNANDEZ,
et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los Angeles County.
Larry P. Fidler, Judge. Affirmed.
John Lanahan, under appointment by the Court of Appeal, for Defendant
and Appellant Edward Giovani Hernandez.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant
and Appellant Boris Alexander Bonilla.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee,
Eric E. Reynolds, and Mark E. Weber, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Defendants and appellants Edward Giovani Hernandez and Boris Alexander
Bonilla1 were each convicted of first degree murder and attempted extortion, with gang
enhancements as to both crimes and gun enhancements as to the first degree murder
charges. The trial court instructed the jury on, among other things, aider and abettor
liability for first degree premeditated murder under a natural and probable consequences
theory. After this appeal was filed and fully briefed, the California Supreme Court
decided People v. Chiu (2014) 59 Cal. 4th 155 (Chiu), in which the court held that a first
degree premeditated murder cannot be a natural and probable consequence of a target
offense. In light of Chiu, defendants argue their convictions for first degree murder must
be reversed because the trial court erred in instructing the jury that the natural and
probable consequences doctrine served as a proper basis for a first degree murder
conviction. Although we agree the trial court erred in instructing on the natural and
probable consequences doctrine, we conclude such error was harmless. After addressing
defendants’ other contentions raised on appeal, we affirm the trial court’s judgments as to
both Hernandez and Bonilla.
FACTUAL BACKGROUND
This case involves the killing of a gang member at a casita that was being extorted
by members of the victim’s rival gang.2
1. The Casita, the Payment Arrangement, and the Shooting
Literally meaning “little house” in Spanish, a casita is an illegal establishment that
typically sells alcohol and drugs, while providing an after-hours venue for, among other
things, drinking, gambling, drug use, and prostitution. Casitas usually operate out of
apartments, houses, or abandoned businesses, and they are often located in gang
territories. Upon discovering a casita’s establishment in its territory, the territory’s
1
Sometimes collectively referred to as defendants.
2
We summarize the evidence in a light favoring the judgment. (People v. Barnes
(1986) 42 Cal. 3d 284, 303-304.)
2
controlling gang will usually approach the casita’s owners and demand payment in
exchange for the gang’s protection from other local gangs. Any payment is typically
drawn as a percentage of the casita’s proceeds. Generally, casita owners comply with the
controlling gang’s demands for payment because they often perceive the gang’s demands
as threats.
Once a gang establishes control over a casita, it does not always exclude rival
gang members from the casita; the controlling gang will often permit rival gang members
to partake in the casita’s services so long as those individuals do not disturb, or attempt to
take over, the casita’s operations. The controlling gang will often install in the casita its
own members to serve as security, and to ensure the casita’s owners are paying the gang
the correct amount of money. Generally, the gang members providing security are not
concerned with the safety of the casita’s patrons; rather, they are only concerned with
protecting their gang’s interest in the casita’s revenue. To preserve their gang’s interest
in the casita’s revenue, gang members providing security will often use violence to
remove, or sometimes kill, individuals that disturb or threaten the casita’s operations.
Around September 10, 2008, Evelyn Valdez and Jimmy Palacios, a couple from
Guatemala, opened a casita at their apartment located at 3002 James M. Woods
Boulevard in Los Angeles. Valdez and Palacios advertised their casita by dropping
small, business-card sized advertisements at bars located throughout the local
neighborhood, including Barra Latina, where Hernandez worked as a manager.
Within a few days of opening their casita, Valdez and Palacios received a phone
call on Palacios’s phone while they were working at the casita. The call came from
Valdez’s sister, who was calling from Valdez’s phone. According to Valdez’s sister, a
man had called Valdez’s phone demanding to speak to Valdez. The man said: “I’m
Cesar. Could you tell [Valdez] that I’m outside [the casita]. I’m out front on some
motorcycles, and if she doesn’t come out, I’m going to beat down the doors.”
After Valdez spoke with her sister, she and Palacios went outside to speak with
Cesar. Although she was scared of Cesar, Valdez believed she had no other choice but to
meet with him because he had threatened to break down the casita’s doors. When they
3
went outside, Valdez and Palacios saw a group of men standing near three or four
motorcycles. Valdez approached the group alone. She was then directed to speak to
Cesar, who she and Palacios later identified as Hernandez.
When Valdez introduced herself to Hernandez, he confirmed he was the man who
spoke to Valdez’s sister earlier that night. Hernandez then told Valdez she needed to pay
him between $350 to $450 per month so that he could protect the casita from some
“cholos” in the neighborhood. Hernandez told Valdez that the cholos were like children
and would not mind killing people for money. He said the cholos would not harm
anyone if they knew he was in charge of the casita. Valdez told Hernandez she needed to
speak with Palacios before agreeing to make any payments. She told Hernandez she
would call him when she was ready to discuss a potential arrangement.
The next day, while she was at a restaurant with Palacios and her sister, Valdez
saw Hernandez getting into a burgundy truck with doors that opened vertically. Scared
that he had followed her to the restaurant, Valdez called Hernandez to tell him she
wanted to meet to discuss a payment arrangement.
Later that night, Valdez and Palacios met with Hernandez at the casita. Hernandez
first spoke with Palacios alone while Valdez tended to the casita. He told Palacios he
wanted to collect rent from the casita and, in exchange for the payments, he would
provide protection for Valdez and Palacios. He told Palacios he hoped they could reach
an agreement because he did not want any trouble. Hernandez then proposed the rent be
set at $350 per month.
When Valdez returned, Hernandez asked her if she and Palacios sold cocaine
inside the casita. When Valdez replied they did not, Hernandez said he would send
someone to the casita to sell drugs. Hernandez told Valdez and Palacios he would lower
their payments to $250 per month if they gave him exclusive control over drug sales
inside the casita. Valdez and Palacios did not want anyone to sell drugs inside the casita;
however, they agreed to Hernandez’s arrangement because they were too afraid to tell
him no. Hernandez then told Valdez and Palacios he would send some people to the
casita to sell drugs and provide security.
4
The next night, Hernandez returned to the casita with a man named Willie.
Hernandez introduced Willie to Valdez as the person who would be selling drugs inside
the casita.
Several nights later, Hernandez and Bonilla arrived at the casita in a small white
car. Hernandez introduced Bonilla to Valdez and Palacios as his brother. Hernandez told
Valdez that Bonilla was going to watch the inside of the casita to ensure that no one else
sold drugs.
On the night of September 19, 2008, Hernandez and Bonilla returned to the casita.
Hernandez sold drugs to the casita’s customers while Bonilla sat by himself near the
kitchen.
The next night, Bonilla returned to the casita with two men, one of whom Bonilla
told Palacios would be selling drugs; Hernandez did not come to the casita that night. A
group of three men and a group of transvestites also came to the casita. Throughout most
of the night, Valdez watched the casita’s entrance, Palacios served beer from the kitchen,
the three men hung out in the casita’s living room, some of the transvestites played cards
in a bedroom, and Bonilla sat silently by himself near the kitchen.
Around 3:30 a.m. on September 21, 2008, after a long night of drinking, Jose
Enriquez Mendez, who lived above the casita, and his brother, similarly named Jose
Alfredo Enriquez Mendez (the victim), returned to the apartment complex where the
casita was located. The victim suggested they check out what was going on at the casita,
but his brother refused because he was too tired. The victim then went to the casita
alone.
When the victim entered the casita, Valdez noticed he was very drunk, and she
tried to turn him away. The victim refused and asked Valdez to bring him a beer. One of
the three men in the living room then approached Valdez and touched her shoulder. The
victim told the man not to touch Valdez. The victim then announced he was a cholo who
belonged to 18th Street, a local gang, and he claimed no one at the casita could touch
him. As the victim was saying these things, Valdez noticed Bonilla was watching angrily
from the kitchen.
5
The victim eventually began joking with the three men in the living room.
However, he continued saying he was from 18th Street, and at one point he lifted his shirt
to reveal a small tattoo of the number “18” located on the left side of his chest. Bonilla
continued to watch the victim.
After the victim lifted his shirt to reveal his tattoo, Valdez saw Bonilla pick up his
phone. At that point, Valdez went up to Bonilla to tell him everything was fine and to
calm down. Bonilla told Valdez he was texting his brother about what was happening in
the casita. He then said he was not the type of person that would put up with much, and
that he did not care about “what could happen.”
Around the same time, Palacios approached the victim and told him he needed to
leave the casita. The victim told Palacios that they need to look out for each other. The
victim then stepped out the front door to call his brother. While outside, the victim asked
his brother to pick him up from the casita because he believed someone was “tripping on
him.”
Not long after the victim stepped outside, Bonilla got up and made his way to the
front door. Valdez tried to stop Bonilla but he pushed her out of the way and exited the
casita. According to Valdez, the victim and Bonilla were the only people outside the
casita at that time.
Once outside, Bonilla approached the victim as Valdez watched from the
doorway. While the victim was still on the phone, Bonilla punched him in the head.
Bonilla then pulled out a gun and shot the victim in the front left shoulder. The victim
tried to run away but Bonilla shot him three more times, killing him. In total, Bonilla
shot the victim four times: twice in the front left shoulder, once in the right side of the
neck, and once in the back of the head.3 The shots to the victim’s head and neck were
3
Valdez testified that she saw Bonilla fire only three shots; however, the medical
examiner who conducted the victim’s autopsy testified that the victim had been shot four
times.
6
fatal. After shooting the victim, Bonilla ran from the casita down an alleyway across the
street.
2. The Investigation
After the shooting, Valdez called the police. When officers from the Los Angeles
Police Department (LAPD) arrived, Valdez did not tell them she had seen who shot the
victim. According to Valdez, she was hesitant to get involved with the LAPD’s
investigation because she was afraid she would be arrested for operating an illegal
business. However, she eventually told an LAPD detective that she saw Bonilla shoot the
victim.
During the same interview, Valdez provided the detective with the phone number
she used to contact Hernandez. At the detective’s direction, Valdez called Hernandez’s
phone. When Hernandez answered the phone, Valdez asked: “Is the man okay?”
Hernandez told Valdez the other man was okay. Hernandez also told Valdez not to worry
because he was going to move to another casita.
During the LAPD’s investigation of the murder scene, a phone clip was recovered
outside the casita’s front door. A DNA profile later taken from the phone clip was
consistent with a DNA sample obtained from a buccal swab of Bonilla’s mouth.
On November 7, 2008, the LAPD arrested Hernandez at his apartment located on
La Salle Avenue in Los Angeles. After arresting Hernandez, the LAPD interviewed his
girlfriend, Demetria Ramos. Demetria told the police she lived with Hernandez and
Bonilla at the La Salle apartment. She also said she and Hernandez shared several
vehicles, including a burgundy Toyota Tundra with doors that opened vertically, a white
two-door Honda, and two motorcycles. According to Demetria, Hernandez had recently
been working as a manager at the Barra Latina, which was located near the casita.
Demetria also told the police Hernandez had several tattoos of the letters “M.S.” on his
body, and that he had once told her he used to be in a gang.
After interviewing Demetria, the police obtained her phone records. According to
those records, the phone number Valdez told the police belonged to Hernandez was
7
registered in Demetria’s name. Demetria later confirmed that Hernandez often used one
of the phones registered in her name.
Demetria’s phone records for September 21, 2008 showed that several calls and
text messages were exchanged shortly before the victim’s murder between the number
linked to Hernandez and a number registered to a prepaid cell phone.4 The LAPD could
not trace the prepaid phone or obtain any records of the phone’s calls or text messages.
However, while the LAPD was conducting surveillance of the La Salle apartment several
days after Hernandez’s arrest, a detective obtained a receipt for a parcel delivered to the
apartment, which had the name “Boris” written on it, along with a phone number
matching the number registered to the prepaid phone. Additionally, during the LAPD’s
interview with Demetria, a detective searched her phone and found a contact listed under
the name “Boris.” The “Boris” contact listed the same number registered to the prepaid
phone.
On December 8, 2008, Bonilla was arrested inside Barra Latina. Officers from the
LAPD’s K-9 unit found Bonilla hiding in an alcove behind a jukebox. When the officers
found him, Bonilla was clutching a cell phone. A subsequent search of the cell phone
revealed a sent text message written in Spanish that, as translated into English, read: “I
almost had a fight with Moreno, the homie, the one who wants to -- the one who wants to
take away from me that of the streets.” The prosecution’s gang expert later testified that
the Moreno referenced in Bonilla’s text was a shot-caller for one of Mara Salvatrucha’s
(MS) local cliques.
During Bonilla’s booking, LAPD officers took photographs of Bonilla’s tattoos.
According to one of the detectives, Bonilla had the letters “M.S.” tattooed on the back of
his head. Valdez also testified that she saw the word “Sur” tattooed on Bonilla’s neck.
4
The LAPD was unable to obtain the content of the text messages from the phone
registered to Demetria because the phone’s network automatically purged the content of
the phone’s text messages five days after the phone’s messages were sent.
8
3. Gang Evidence
A. LAPD Gang Testimony
LAPD Detective Frank Flores, who specializes in MS, testified as the
prosecution’s gang expert. According to Detective Flores, Bonilla is a documented
member of MS, and he has several tattoos reflecting his membership in MS, as well as
other tattoos reflecting his affiliation with a larger gang, the Mexican Mafia. Detective
Flores also testified that Hernandez has several tattoos reflecting his associations with
MS and the Mexican Mafia. In Detective Flores’s opinion, both Bonilla and Hernandez
were members of MS at the time of the victim’s murder.
According to Detective Flores, MS’s primary gang activities are extortion and
drug sales. MS usually extorts businesses located within its territory by demanding
payments from those businesses in exchange for MS agreeing to protect the businesses
from local gangs.
MS’s primary rival is 18th Street. According to Detective Flores, if an individual
claims 18th Street affiliation in the presence of an MS member, the MS member will
likely assault, or even kill, that individual. Detective Flores testified that in his almost
16-year career, there had been a couple of hundred murders between MS and 18th Street.
Detective Flores also testified that the casita and Barra Latina are located in MS
territory. According to Detective Flores, if an individual leaves a gang (such as MS), it
would be dangerous for that individual to continue to associate around, or work in,
establishments located in the gang’s territory because that individual would be viewed as
a liability once he left the gang.
Detective Flores also answered several questions about a hypothetical based on
MS members taxing a casita located within the gang’s territory. Detective Flores opined
that in the event an MS member monitoring the casita was provoked by an individual
inside the casita claiming an association with 18th Street, that member would likely
assault or kill the individual claiming the rival gang’s association. However, the MS
member would likely have to obtain permission from a higher ranking MS member
before assaulting or killing that individual.
9
B. Defense Expert Gang Testimony
Alex Alonso, who has studied gangs since 1993, testified as a gang expert for the
defense. Before testifying in the instant case, Alonso had testified in approximately five
cases involving MS.
Alonso agreed that the casita and Barra Latina are located in MS territory, and that
18th Street is one of MS’s primary local rivals. However, he disputed whether MS and
18th Street’s feud was responsible for nearly 200 murders in Los Angeles. He also
opined that encounters between MS and 18th Street members do not always result in
violence. Additionally, he testified that larger prison gangs, such as the Mexican Mafia,
have started to encourage smaller street gangs to decrease their animosity toward each
other to increase money flow among all street and prison gangs.
Alonso opined that not all crimes committed by gang members are committed for
the benefit of their gang. In his opinion, one must look at the circumstances surrounding
the crime to determine whether it was committed for the benefit of a gang.
When shown photographs of Bonilla’s tattoos, Alonso agreed that the word “Sur”
and the letters “M.S.” were gang-related. However, he opined that Bonilla’s tattoos
appeared faded, indicating that Bonilla had started the process of having those tattoos
removed. According to Alonso, if a gang member with gang-related tattoos begins the
process of removing those tattoos, it is an indication that the gang member is trying to
obtain a job or distance himself from the gang. In response to a hypothetical based on
evidence of Bonilla’s gang-related tattoos and his alleged attempts to have them
removed, Alonso opined that such evidence indicated the individual with the tattoos was
likely an inactive gang member.
Alonso was presented a different hypothetical in which a woman opened a casita
and approached a man at a local bar to ask for help bringing in customers to the casita.
The man and the woman reached an agreement through which the woman would pay the
man a fee to bring in customers and provide security for the casita. During all
conversations between the man and the woman, the man never mentioned his
membership in a gang and made no mention of a gang name. Based on this hypothetical,
10
Alonso was unable to conclude whether an extortion was committed for the benefit of a
gang. In response to another hypothetical based on the events immediately leading up to
the victim’s murder, Alonso was unable to conclude whether the killing was committed
for the benefit of MS.
PROCEDURAL BACKGROUND
An information filed on April 26, 2011, charged Bonilla and Hernandez with
murder (Pen. Code, § 187, subd. (a), count 1)5 and attempted extortion (§§ 664/524,
count 2), along with gang enhancements (§ 186.22, subd. (b)) as to both crimes. As to
count 1, the information alleged a principal personally and intentionally used a handgun
and proximately caused great bodily injury and death (§ 12022.53, subds. (b), (c), (d), &
(e)(1)). The information further alleged Hernandez had previously been convicted of a
serious or violent felony (§ 667, subds. (b)-(i)). The information also charged Hernandez
with assault with a deadly weapon (§ 245, subd. (a)(1), count 3); however, that charge
was dismissed before the evidence phase of trial.
Following a jury trial, both Bonilla and Hernandez were found guilty of first
degree murder and attempted extortion. The jury also found true the gang allegations as
to both Bonilla and Hernandez. As to Bonilla, the jury found true the personal firearm-
use allegations (§ 12022.53, subds. (b), (c), (d), & (e)). As to Hernandez, the jury found
true the principal firearm-use allegations (§ 12022.53, subds. (d) & (e)). At the
sentencing hearing, the prosecution dismissed the prior conviction allegation against
Hernandez.
Bonilla and Hernandez were both sentenced to prison terms of 50 years to life,
consisting of terms of 25 years to life for the murder convictions and 25 years to life for
the firearm enhancements. As to the attempted extortion convictions, the court stayed
imposition of mid-term two-year sentences as to both Bonilla and Hernandez pursuant to
section 654. Among other fines and fees that are not challenged here, the trial court
5
All further statutory references are to the Penal Code unless otherwise specified.
11
ordered Bonilla and Hernandez to pay $7,680 for victim restitution. The trial court
awarded Bonilla 1,238 days of custody credit, and it awarded Hernandez 1,269 days of
custody credit. Bonilla and Hernandez timely appealed their convictions.6
DISCUSSION7
I. The Trial Court’s Error in Instructing on the Natural and Probable
Consequences Doctrine Was Harmless Beyond a Reasonable Doubt
After this case was fully briefed, our Supreme Court decided Chiu, in which the
court held first degree premeditated murder cannot be the natural and probable
consequence of a crime a defendant aided and abetted.8 (Chiu, supra, 59 Cal.4th at pp.
158-159.) Bonilla and Hernandez contend their convictions for first degree murder must
be reversed because the trial court instructed the jury on the natural and probable
consequences doctrine as a basis upon which it could convict them of first degree murder.
Although we find the trial court erred in instructing on the natural and probable
consequences doctrine as a basis upon which the jury could convict defendants of first
degree murder, we find the error harmless beyond a reasonable doubt as to both
defendants.
A. The Supreme Court’s Decision in Chiu
In Chiu, the defendant was convicted of first degree premeditated murder after he
was involved in a brawl during which one of his friends grabbed a gun and killed one of
the brawl’s participants. (Chiu, supra, 59 Cal.4th at pp. 160-161.) There was conflicting
evidence about whether the defendant had instructed his friend to grab the gun and shoot
6
Bonilla also filed a separate petition for a writ of habeas corpus on June 3, 2013.
We have denied that writ petition through a separate order.
7
Defendants join in each other’s arguments to the extent those arguments inure to
their benefit.
8
Because the Supreme Court decided Chiu after this case was fully briefed, we
requested supplemental briefing to address the effect of that decision, if any, on the
instant appeals.
12
the victim. (Id. at p. 160.) The prosecution pursued the defendant’s conviction for first
degree premeditated murder under two aider and abettor theories: a direct aiding and
abetting theory and a natural and probable consequences theory. (Ibid.) Accordingly, the
trial court instructed the jury that it could convict the defendant of first degree murder if it
found that he either directly aided and abetted the murder or aided and abetted the target
offense of assault or disturbing the peace, the natural and probable consequence of which
was murder. (Ibid.) The Supreme Court held the trial court erred in instructing the jury
that it could convict the defendant of first degree premeditated murder under the natural
and probable consequences doctrine. (Id. at pp. 159-160.)
The Supreme Court began its analysis by summarizing the principles underlying
the natural and probable consequences doctrine. “‘“A person who knowingly aids and
abets criminal conduct is guilty of not only the intended crime [target offense] but also of
any other crime the perpetrator actually commits [nontarget offense] that is a natural and
probable consequence of the intended crime.”’ [Citation.] ‘Thus, for example, if a
person aids and abets only an intended assault, but a murder results, that person may be
guilty of that murder, even if unintended, if it is a natural and probable consequence of
the intended assault.’ [Citation.]” (Chiu, supra, 59 Cal.4th at p. 161.) “A nontarget
offense is a ‘natural and probable consequence’ of the target offense if, judged
objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry
does not depend on whether the aider and abettor actually foresaw the nontarget offense.
[Citation.] Rather, liability ‘“is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted.”’ [Citation.]
Reasonable foreseeability ‘is a factual issue to be resolved by the jury.’ [Citation.]”
(Id. at pp. 161-162.)
In holding the trial court’s instruction on the natural and probable consequences
doctrine was error, the Supreme Court observed, “‘[b]ecause the nontarget offense [under
the natural and probable consequences doctrine] is unintended, the mens rea of the aider
and abettor with respect to that offense is irrelevant and culpability is imposed simply
13
because a reasonable person could have foreseen the commission of the nontarget crime.’
[Citation.]” (Chiu, supra, 59 Cal.4th at p. 164.) The court reasoned that because the
aider and abettor’s mens rea is irrelevant, “the connection between the defendant’s
culpability and the perpetrator’s premeditative state is too attenuated to impose aider and
abettor liability for first degree murder under the natural and probable consequences
doctrine . . . .” (Id. at p. 166.) The court then held, “punishment for second degree
murder is commensurate with a defendant’s culpability for aiding and abetting a target
crime that would naturally, probably, and foreseeably result in a murder under the natural
and probable consequences doctrine.” (Ibid.)
The Supreme Court added that its holding with respect to the natural and probable
consequences doctrine did not preclude an aider and abettor from being convicted of first
degree premeditated murder under felony murder and direct aiding and abetting
principles. (Chiu, supra, 59 Cal.4th at pp. 166-167.) The court stated, “Under [direct
aiding and abetting] principles, the prosecution must show that the defendant aided or
encouraged the commission of the murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing, encouraging, or facilitating its
commission. [Citation.] Because the mental state component—consisting of intent and
knowledge—extends to the entire crime, it preserves the distinction between assisting the
predicate crime of second degree murder and assisting the greater offense of first degree
premeditated murder. [Citations.] An aider and abettor who knowingly and intentionally
assists a confederate to kill someone could be found to have acted willfully, deliberately,
and with premeditation, having formed his own culpable intent. Such an aider and
abettor, then, acts with the mens rea required for first degree murder.” (Ibid.)
After holding the trial court erred in instructing the jury on the natural and
probable consequences doctrine, the Supreme Court turned to the issue of prejudice.
(Chiu, supra, 59 Cal.4th at pp. 167-168.) The court observed, “[w]hen a trial court
instructs a jury on two theories of guilt, one of which was legally correct and one legally
incorrect, reversal is required unless there is a basis in the record to find that the verdict
was based on a valid ground. [Citations.]” (Id. at p. 167.) The record in Chiu indicated
14
the jury may have relied on the natural and probable consequences doctrine in convicting
the defendant of first degree premeditated murder. (Id. at p. 168.) Accordingly, the
Supreme Court reversed the defendant’s conviction because it could not conclude beyond
a reasonable doubt the jury relied on a different and legally valid theory. (Ibid.) In doing
so, the Supreme Court offered the People the opportunity to accept a reduction of the
defendant’s conviction to second degree murder or retry the defendant’s case. (Ibid.)
B. The Trial Court’s Instructions
Here, the trial court instructed the jury that it could convict each defendant of
murder on at least one of three theories: (1) the victim’s death was the natural and
probable consequence of defendants’ attempted extortion or offer to sell drugs; (2) the
victim was killed with malice aforethought; or (3) the victim was killed during the
commission of an inherently dangerous felony. With respect to the natural and probable
consequences doctrine, the trial court instructed the jury in pertinent part as follows: “A
person is guilty of a crime whether he committed it personally or aided and abetted the
perpetrator. [¶] Under some specific circumstances, if the evidence establishes aiding
and abetting of one crime, a person may also be found guilty of other crimes that
occurred during the commission of the first crime. [¶¶] Before you may decide whether
the defendant is guilty of murder on an aiding and abetting theory, you must decide
whether he is guilty of attempted extortion. [¶] To prove that the defendant is guilty of
murder, the People must prove that:
“1. The defendant is guilty of attempted extortion;
“2. During the commission of the attempted extortion, a coparticipant in that
attempted extortion committed the crime of murder; [and]
“3. Under all of the circumstances, a reasonable person in the defendant’s
position would have known that the commission of the murder was a natural and
probable consequence of the commission of the attempted extortion.” In addition to
attempted extortion, the trial court instructed the jury that the crime of offering to sell
drugs also constituted a target offense under the prosecution’s natural and probable
consequences theory.
15
The trial court also instructed the jury on the elements of the felony murder rule
(CALCRIM No. 540B). Finally, the trial court instructed that, while every member of
the jury was required to agree the prosecution proved each defendant committed murder
under at least one of the three theories alleged, the jury was not required to reach a
unanimous decision as to which theory the prosecution proved (CALCRIM No. 548).
C. Hernandez’s Conviction
The jury convicted Hernandez of first degree murder. Hernandez contends that, in
light of Chiu, the trial court erred when it instructed the jury that it could convict him of
first degree premeditated murder under a natural and probable consequences theory. (See
Chiu, supra, 59 Cal.4th at p. pp. 159-160.) The People agree the instruction was error but
argue the error was harmless beyond a reasonable doubt because, if the jury relied on the
erroneous natural and probable consequences theory, it necessarily made the findings
required to support a first degree murder conviction under the legally valid felony murder
theory.
As the Supreme Court recognized in Chiu, when the trial court instructs the jury
on more than one theory of guilt, one of which was legally incorrect and the others
legally correct, “reversal is required unless there is a basis in the record to find [beyond a
reasonable doubt] that the verdict was based on a valid ground.” (Chiu, supra, 59 Cal.4th
at p. 167, citing People v. Guiton (1993) 4 Cal. 4th 1116, 1128-1129.) Similarly, if the
reviewing court can determine beyond a reasonable doubt that any reliance the jury may
have placed on the legally incorrect theory establishes that the jury necessarily made the
required findings to support a conviction under a legally valid theory, the trial court’s
error in instructing on the legally incorrect theory is harmless beyond a reasonable doubt.
(People v. Chun (2009) 45 Cal. 4th 1172, 1204-1205 (Chun).)
The People argue that in light of the evidence presented at trial, the instructions
provided to the jury, and the fact that attempted extortion and offering to sell drugs
served as the underlying crimes for the natural and probable consequences theory (i.e.,
the target crimes) and the felony murder theory (i.e., the crimes giving rise to the
underlying burglary), any reliance the jury may have placed on the natural and probable
16
consequences doctrine in convicting Hernandez necessarily demonstrates the jury also
made the findings required to support a first degree murder conviction under a felony
murder theory. Accordingly, the People assert the trial court’s error in instructing on the
natural and probable consequences doctrine was harmless beyond a reasonable doubt.
(See Chun, supra, 45 Cal.4th at p. 1205.) We agree.
In arguing the trial court’s error was harmless, the People rely on our Supreme
Court’s decision in Chun. In that case, the defendant was involved in the drive-by
shooting of an occupied vehicle, which killed one passenger and injured two. (Id. at p.
1179.) After he was arrested, the defendant admitted that he fired a gun out of the car in
which he was riding, but claimed that he did not point the gun at anyone; he told the
police that he just wanted to scare the other car’s occupants. (Ibid.) The defendant was
charged with murder, attempted murder, discharging a firearm from a vehicle, and
shooting into an occupied vehicle, all with firearm-use allegations. (Ibid.) The
prosecution sought a first degree murder conviction, and the trial court also instructed the
jury on second degree felony murder based on shooting at an occupied vehicle on both
direct perpetrator and direct aider and abettor theories. (Ibid.) The jury convicted the
defendant of second degree murder. (Ibid.)
The Supreme Court held the trial court erred in instructing on second degree
felony murder because the underlying assaultive felony of shooting at an occupied
vehicle merged with the homicide. (Chun, supra, 45 Cal.4th at pp. 1197-1205.)
Nevertheless, it found the error harmless beyond a reasonable doubt. (Ibid.) In finding
the trial court’s error harmless, the Supreme Court applied the following test: an error is
harmless “only if the jury verdict on other points effectively embraces this one or if it is
impossible, upon the evidence, to have found what the verdict did find without finding
this point as well.” (Id. at p. 1204, citing California v. Roy (1996) 519, U.S. 2, 7 [136
L. Ed. 2d 266, 117 S. Ct. 337] (conc. opn. of Scalia, J.).) Phrasing the test another way, if
“other aspects of the verdict or the evidence leave no reasonable doubt that the jury made
the findings necessary for [a valid theory supporting the defendant’s murder conviction],
the erroneous [] instruction was harmless.” (Chun, supra, 45 Cal.4th at p. 1205.)
17
Applying this test, the Supreme Court found the trial court’s error was harmless
beyond a reasonable doubt because, if the jury relied on the second degree felony murder
instruction in convicting the defendant, it necessarily found the defendant acted with
conscious-disregard-for-life malice, which supported a conviction for second degree
murder under a valid implied malice theory. (Chun, supra, 45 Cal.4th at p. 1205.)
Specifically, the court observed that, under the felony murder instruction given by the
trial court, the jury would have had to find the defendant willfully and maliciously shot a
firearm at an occupied vehicle or aided and abetted the shooting of a firearm at an
occupied vehicle to support a conviction under a felony murder theory. (Ibid.) The court
reasoned that no juror could have made such a finding without also finding the defendant
committed an act that was dangerous to life, and that he did so knowing of the danger and
with conscious disregard for life, which supported a second degree murder conviction
under an implied malice theory. (Ibid.)
Similar reasoning applies here to lead us to conclude the trial court’s error in
instructing the jury on the natural and probable consequences doctrine was harmless
beyond a reasonable doubt: if the jury relied on the natural and probable consequences
doctrine in convicting Hernandez of murder, it necessarily found he aided and abetted the
commission of the burglary supporting a conviction under a felony murder theory.
Under the felony murder rule, “[a] murder which is . . . committed in the
perpetration of, or attempt to perpetrate, . . . burglary, . . . is murder of the first degree.”
(§ 189; see also People v. Cavitt (2004) 33 Cal. 4th 187, 197 (Cavitt).) The jury was
instructed on felony murder pursuant to CALCRIM No. 540B, which sets forth the
elements of felony murder where the defendant is accused of aiding and abetting the
perpetrator of the killing in the commission of the underlying felony.9 The jury was
9
The trial court instructed the jury as follows: “The defendants may be guilty of
murder, under a theory of felony murder, even if another person did the act that resulted
in the death. . . . [¶] To prove that a defendant is guilty of first degree murder under this
theory, the People must prove that: [¶] 1. The defendant committed or aided and abetted
burglary; [¶] 2. the defendant intended to commit, or intended to aid and abet the
perpetrator in committing the burglary; [¶] 3. If the defendant did not personally commit
18
instructed that burglary was the underlying felony, and it was separately provided
instructions on the elements of burglary and the elements of the intended felonies
underlying the burglary allegation, namely extortion and offering to sell a controlled
substance. Additionally, with respect to the underlying burglary allegation, the jury was
correctly instructed that, while it was required to find Hernandez possessed the intent to
aid and abet the commission of one of the felonies giving rise to the underlying burglary,
it was not required to unanimously agree on which felony Hernandez intended to aid and
abet. (See People v. Failla (1966) 64 Cal. 2d 560, 569 (Failla) [“[I]n prosecutions for
burglary, as in murder and theft cases, the jurors need not be instructed that to return a
verdict of guilty they must all agree on the specific ‘theory’ of the entry - i.e., what
particular felony or felonies the defendant intended at the time-provided they are told
they must be unanimous in finding that a felonious entry took place.”]; People v. Russo
(2001) 25 Cal. 4th 1124, 1132-1133 [“If . . . the evidence showed a single entry, but
possible uncertainty as to the exact burglarious intent, that uncertainty would involve
only the theory of the case and not require the unanimity instruction.”]; see also id. at p.
1132 [“[W]here the evidence shows only a single discrete crime but leaves room for
disagreement as to exactly how that crime was committed or what the defendant’s precise
role was, the jury need not unanimously agree on the basis or, as the cases often put it,
the ‘theory’ whereby the defendant is guilty.”].)
If the jury relied on the natural and probable consequences doctrine, it would have
found Hernandez aided and abetted either attempted extortion or offering to sell a
controlled substance. As noted above, to convict Hernandez under a felony murder
theory, the jury was not required to unanimously agree on which felony giving rise to the
or attempt to commit burglary then a perpetrator, whom the defendant was aiding and
abetting, personally committed or attempted to commit burglary; [¶] 4. While committing
or attempting to commit burglary, the perpetrator caused the death of another person; [¶]
AND [¶] 5. There was a logical connection between the cause of death and the burglary.
The connection between the cause of death and the burglary must involve more than just
their occurrence at the same time and place. [¶¶] The defendant must have intended to
commit the burglary before or at the time that he caused the death.”
19
underlying burglary allegation Hernandez intended to aid and abet. (See Failla, supra,
64 Cal.2d at p. 569). Accordingly, the jury’s reliance on the natural and probable
consequences doctrine necessarily demonstrates that it found Hernandez aided and
abetted the burglary underlying the prosecution’s felony murder theory, where the same
felonies underlying the prosecution’s natural and probable consequences theory gave rise
to the burglary underlying the prosecution’s felony murder theory.
Additionally, if the jury followed the trial court’s instruction on the natural and
probable consequences doctrine, it would have also found the victim’s murder was a
natural and probable consequence of either attempted extortion or offering to sell a
controlled substance. Under the circumstances of this case, no juror could have made this
finding without also finding that the victim’s murder was logically connected to
Hernandez’s involvement in the burglary underlying the prosecution’s felony murder
theory.
To support a conviction under a felony murder theory, there needs to be a logical
connection beyond mere coincidence of time and place between the underlying felony
and the act resulting in death. (Cavitt, supra, 33 Cal.4th at p. 200.) However, this does
not require that the murder furthered or facilitated the underlying felony, or that the
murder was even a foreseeable consequence of the underlying felony. (Ibid.) “The
felony-murder rule is not . . . limited to killings which seem ‘probable’; it includes ‘a
variety of unintended homicides resulting from reckless behavior, or ordinary negligence,
or pure accident; it embraces both calculated conduct and acts committed in panic or rage
. . . ; and it condemns alike consequences that are highly probable, conceivably possible,
or wholly unforeseeable.’ [Citation.]” (People v. Anderson (1991) 233 Cal. App. 3d 1646,
1658 (Anderson); original italics.)
Here, the same evidence supports Hernandez’s conviction for murder under a
natural and probable consequences theory and a felony murder theory. More specifically,
the same evidence establishes that the victim’s murder was both a natural and probable
consequence of a crime Hernandez aided and abetted (attempted extortion or offering to
sell a controlled substance) and logically connected to the burglary of the casita, where
20
Hernandez intended to aid and abet the underlying felony of attempted extortion or
offering to sell a controlled substance.
Hernandez does not dispute that he and Bonilla attempted to extort Valdez and
Palacios, and he does not dispute that he initiated, and participated in, the drug-sales
scheme at the casita. Hernandez also does not dispute that he ordered Bonilla to provide
security at the casita on the night of the murder. Further, the undisputed evidence
established that Bonilla, and not another individual, killed the victim. Finally, the jury
found Bonilla and Hernandez committed murder and attempted extortion for the benefit
of a criminal street gang, a finding neither defendant challenges on appeal. These
undisputed facts and findings are consistent with the prosecution’s gang expert’s
testimony that, when a gang is in the process of extorting the owners of a casita or
controlling the sale of drugs within a casita, if a member of a rival gang threatens to
disrupt the operation of that casita, the controlling gang’s member responsible for
providing security at the casita will protect the controlling gang’s interest in the extortion
or drug-sales scheme by assaulting or killing the threatening rival gang member.
In light of these circumstances, no juror could find the victim’s murder was a
natural and probable consequence of the crime of aiding and abetting attempted extortion
or offering to sell drugs but not logically connected to Hernandez’s aiding and abetting
the burglary of the casita, where attempted extortion and offering to sell drugs were the
felonies giving rise to the burglary allegation underlying the prosecution’s felony murder
theory. (See Anderson, supra, 233 Cal.App.3d at p. 1658 [felony murder’s logical
connection requirement encompasses consequences of the underlying felony that are
highly probable, conceivably possible, or wholly unforeseeable].) Accordingly, the trial
court’s error in instructing on the natural and probable consequences doctrine as a theory
supporting a first degree murder conviction was harmless beyond a reasonable doubt.10
(See Chun, supra, 45 Cal.4th at p. 1205.)
10
Because we conclude the jury’s reliance on the trial court’s natural and probable
consequences instruction necessarily demonstrates that the jury made the findings
required to convict Hernandez of first degree murder under a felony murder theory, we
21
D. Bonilla’s Conviction
The jury also convicted Bonilla of first degree murder. In doing so, the jury found
true the allegation that Bonilla personally and intentionally discharged a firearm causing
death to the victim (§ 12022.53, subd. (d)).
Like in Hernandez’s case, the trial court erred in instructing the jury that it could
convict Bonilla of first degree murder under a natural and probable consequences theory.
(See Chiu, supra, 59 Cal.4th at pp. 158-159.) In Bonilla’s case, we conclude such error
was harmless beyond a reasonable doubt because the record demonstrates the jury based
its verdict on a direct liability theory of first degree murder.
“Aider and abettor culpability under the natural and probable consequences
doctrine is vicarious in nature.” (Chiu, supra, 59 Cal.4th at p. 164, citing People v. Croy
(1985) 41 Cal. 3d 1, 12, fn. 5.) It is this vicarious nature that renders a conviction for first
degree murder under the natural and probable consequences doctrine improper because
under that doctrine the intent of the aider and abettor in facilitating the nontarget murder
is irrelevant. (See Chiu, supra, 59 Cal.4th at pp. 164-166 [under the natural and probable
consequences doctrine, “the connection between the defendant’s culpability and the
perpetrator’s premeditative state is too attenuated to impose aider and abettor liability for
first degree murder . . . , especially in light of the severe penalty involved”].) However,
as already noted, the Supreme Court in Chiu acknowledged that, where a jury convicts a
defendant of first degree murder and, in doing so, demonstrates that it found the
defendant acted with the appropriate intent, a trial court’s erroneous instruction on the
natural and probable consequences doctrine as a grounds upon which the jury could
convict the defendant of first degree murder is harmless. (Ibid.; see also Chun, supra, 45
Cal.4th at p. 1205.) Accordingly, where a jury convicts a defendant of first degree
murder and also finds true separate allegations requiring the defendant’s personal
culpability, such as special-circumstance and firearm-use allegations, the jury’s verdicts
need not and do not address Hernandez’s argument that the trial court’s instruction on the
natural and probable consequences doctrine pursuant to former CALCRIM No. 403 was
impermissibly ambiguous.
22
on those allegations demonstrate the jury did not rely on the erroneous theory of vicarious
liability. (See People v. Ledesma (2006) 39 Cal. 4th 641, 718 (Ledesma).)
Here, the trial court instructed the jury as follows with respect to the personal
firearm-use allegation under section 12022.53, subdivision (d): “If you find Boris Bonilla
guilty of murder, you must then decide whether the People have proved the additional
allegation that [Bonilla] personally and intentionally discharged a firearm during that
crime causing death. [¶] To prove this allegation, the People must prove that:
“1. The defendant personally discharged a firearm during the commission of that
crime;
“2. The defendant intended to discharge the firearm; [and]
“3. The defendant’s act caused the death of a person.”
The jury returned a true finding as to this allegation. We conclude the jury’s true
finding establishes “a basis in the record to find that [Bonilla’s] verdict was based on a
valid ground.” (Chiu, supra, 59 Cal.4th at p. 167.)
In finding true the personal firearm-use allegation, the jury found Bonilla
personally and intentionally fired a gun at the victim, killing him. Bonilla does not
dispute this finding, and the finding is supported by the evidence. Valdez watched as
Bonilla followed the victim outside the casita, punched the victim in the head, and shot
the victim four times. Immediately after hearing gunshots while talking to the victim on
the phone, the victim’s brother saw Bonilla running from the casita. Further, the
evidence establishes that Bonilla was the only person who shot the victim: Valdez
testified that Bonilla and the victim were the only people outside the casita at the time of
the shooting, and no evidence was introduced suggesting otherwise.
Aside from the jury’s firearm-use finding and the undisputed evidence identifying
Bonilla as the individual who shot the victim, the prosecutor’s arguments provide an
additional basis for determining that the jury did not rely on the natural and probable
consequences doctrine in convicting Bonilla of first degree murder. In pursuing Bonilla’s
first degree murder conviction, the prosecution relied on a direct liability theory. The
prosecutor consistently referred to Bonilla as the “shooter” and the direct perpetrator of
23
the crime. The prosecutor also distinguished between the types of liability that would
support each defendant’s conviction for murder. For example, when explaining the
felony murder and natural and probable consequences theories to the jury, the prosecutor
argued that the jury did not “need these . . . legal theories [for Bonilla] because he is a
shooter.”
In light of the jury’s finding that Bonilla personally and intentionally shot the
victim, the undisputed evidence establishing that Bonilla shot and killed the victim, and
the prosecution’s reliance on a direct liability theory in arguing for Bonilla’s murder
conviction, we conclude beyond a reasonable doubt that the jury relied on a legally valid
theory in convicting Bonilla of first degree murder. (See Chiu, supra, 59 Cal.4th at p.
167; see also Ledesma, supra, 39 Cal.4th at p. 718.)
II. Sufficient Evidence Supports Hernandez’s Murder Conviction
As noted above, the trial court instructed the jury that it could convict Hernandez
of murder under three theories: (1) natural and probable consequences; (2) malice
aforethought; and (3) felony murder. Hernandez contends insufficient evidence supports
his murder conviction under any of these theories.
A. Standard of Review
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Avila (2009) 46 Cal. 4th 680,
701 (Avila).) In determining whether there was sufficient evidence to support a jury’s
finding, we must determine whether, after reviewing the entire record in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. (Ibid.) We neither reweigh evidence
nor reevaluate the credibility of witnesses. (People v. Linbderg (2008) 45 Cal. 4th 1, 27.)
“This standard applies whether direct or circumstantial evidence is involved.” (Avila,
supra, 46 Cal.4th at p. 701.)
24
“The standard of review is the same in cases in which the People rely mainly on
circumstantial evidence.” (People v. Cravens (2012) 53 Cal. 4th 500, 507.) “Although it
is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is
susceptible of two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court which must be convinced of the
defendant's guilt beyond a reasonable doubt. [Citations.]” (Id. at pp. 507-508.) “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment. [Citations.]” (Id. at p. 508.) Therefore,
before we may set aside the judgment, it must be clear that “upon no hypothesis whatever
is there sufficient evidence to support it.” (People v. Zamudio (2008) 43 Cal. 4th 327,
357.)
Where the defendant’s conviction is premised on more than one theory of guilt,
and one of those theories is not supported by sufficient proof, the defendant’s conviction
will be upheld so long as sufficient evidence supports a different and valid theory of guilt,
and the record does not affirmatively show that the jury relied on the unsupported
ground. (People v. Guitton (1993) 4 Cal. 4th 1116, 1128-1129; see also People v. Marks
(2003) 32 Cal. 4th 197, 233 (Marks).)
B. Felony Murder
Hernandez contends insufficient evidence supports his conviction for murder
under a felony murder theory. Specifically, he argues there was no logical connection
between Bonilla’s killing of the victim and defendants’ burglary of the casita. He asserts
the murder directly stemmed from Bonilla’s desire to maintain respect for Mara
Salvatrucha, and that it shared no relationship with defendants’ extortion or drug-sales
schemes underlying their burglary of the casita.
As noted, under the felony murder rule, an aider and abettor in a burglary is
criminally liable for any murder committed by the perpetrator who is being aided and
abetted, where the murder and the underlying burglary share a logical connection and
occur as part of a continuous transaction. (Cavitt, supra, 33 Cal.4th at p. 200; see also §
25
189.) A logical connection requires more than a mere coincidence of time and place
between the burglary and the act resulting in death, but the killing is not required to have
actually furthered or facilitated the underlying burglary. (Cavitt, supra, 33 Cal.4th at p.
200.) Further, there does not need to exist a strict causal or temporal relationship
between the burglary and the killing; rather, the burglary and the killing need only be part
of one continuous transaction. (People v. Wilkins (2013) 56 Cal. 4th 333, 340.)
Substantial evidence supports Hernandez’s murder conviction under a felony
murder theory. First, we acknowledge that Hernandez does not challenge the sufficiency
of the evidence supporting his attempted extortion conviction. Further, Hernandez does
not challenge the sufficiency of the evidence establishing that he aided and abetted
Bonilla’s burglary of the casita, through either his extortion or drug sales scheme.
Rather, he argues there was no logical connection between the burglary and the victim’s
murder. We disagree.
Hernandez’s uncharged burglary giving rise to the felony murder charge was
premised on his aiding and abetting the crimes of attempted extortion and offering to sell
a controlled substance. To facilitate these crimes, Hernandez ordered Bonilla to watch
over the casita to ensure no one interfered with Hernandez’s drug-sales or revenue-
collection arrangements. The victim’s murder was logically connected to, and part of the
same continuous transaction as, these arrangements.
Defendants were members of MS, and MS’s primary rival is 18th Street. MS’s
primary criminal activities are extortion and drug sales. Defendants approached Valdez
and Palacios to extort money from their (Valdez’s and Palacios’s) casita operation.
Hernandez also established the arrangement to sell drugs inside the casita and, on
occasion, he actually sold drugs there. To ensure no one interfered with the extortion and
drug-sales schemes, Hernandez arranged for Bonilla to watch over the casita. While
Bonilla was monitoring the casita, he killed the victim outside the casita’s front door
immediately after the victim announced to the casita’s patrons his association with 18th
Street and claimed that no one inside the casita could “touch him.” Bonilla’s conduct
was consistent with the prosecution’s gang expert’s testimony that gang members
26
involved with the extortion of a casita are likely to assault or kill a rival gang member
who threatens to disrupt the controlling gang’s interest in the casita.
In light of the foregoing, we conclude the evidence established a logical
connection between the murder of the victim, who was claiming membership in
Hernandez’s rival gang, and Hernandez’s involvement in the burglary of the casita, where
Hernandez ordered the perpetrator of the killing to monitor the casita for the purpose of
protecting Hernandez’s and MS’s interests in the extortion and drug-sales schemes.
Accordingly, we find there was substantial evidence to support Hernandez’s murder
conviction under a felony murder theory.
Because we conclude substantial evidence supports Hernandez’s conviction for
murder under a felony murder theory, we need not and do not reach the issue of whether
substantial evidence supports Hernandez’s conviction under a malice aforethought
theory. (See Marks, supra, 31 Cal.4th at p. 233 [“even if we assume that the jury
considered [one theory of murder] and insufficient evidence supported it, defendant’s . . .
murder conviction remains valid . . . [b]ecause there was sufficient evidence showing [the
victim’s] murder was [committed pursuant to a separate, valid theory].”].)11
III. Hernandez Failed To Preserve His Challenge to the Trial Court’s Admission
of Bonilla’s Statement Made to Valdez
Hernandez next contends the trial court erred in admitting Bonilla’s statement
made to Valdez, through which Bonilla told Valdez he was sending Hernandez a text
11
We reject Hernandez’s argument that the trial court erred in instructing the jury on
felony murder as a theory for convicting Hernandez of murder. Hernandez argues the
trial court should not have instructed on felony murder because the evidence did not
establish a logical connection or a continuous transaction linking the victim’s murder to
the uncharged burglary. We disagree for the reasons expressed in our discussion of the
substantial evidence supporting Hernandez’s conviction for murder under a felony
murder theory. Because substantial evidence supports a jury finding that the victim’s
murder was logically connected to, and part of the same continuous transaction as, the
burglary Hernandez aided and abetted, the trial court properly instructed the jury on
felony murder as a theory under which it could convict Hernandez of murder. (See
People v. Cummings (1993) 4 Cal. 4th 1233, 1311.)
27
message about what was happening at the casita immediately before he killed the victim.
Hernandez challenges the trial court’s admission of this statement on the ground that it
was inadmissible hearsay and violated his right to confront an accusing witness.
As a preliminary matter, Hernandez forfeited this claim on appeal. A failure to
object to testimony on hearsay or Confrontation Clause grounds forfeits that objection on
appeal. (Evid. Code, § 353, subd. (a); People v. Redd (2010) 48 Cal. 4th 691, 730
[Confrontation Clause]; People v. Pannah (2005) 35 Cal. 4th 395, 476 [hearsay].)
Further, a “failure to join in the objection or motion of a codefendant constitutes a waiver
of the issue on appeal.” (People v. Wilson (2008) 44 Cal. 4th 758, 793.) Although
Bonilla’s counsel objected to Valdez’s testimony about Bonilla’s statement as hearsay,
Hernandez’s counsel did not raise any objection.
In any event, even if we assume the trial court erred when it admitted Bonilla’s
statement implicating Hernandez, we find such error was harmless. “‘Confrontation
clause violations are subject to federal harmless-error analysis under Chapman v.
California (1967) 386 U.S. 18, 24 [87 S. Ct. 824, 17 L. Ed. 2d 705].’ [Citation.] [Under
Chapman,] [w]e ask whether it is clear beyond a reasonable doubt that a rational jury
would have reached the same verdict absent the error. [Citation.]” (People v. Loy (2011)
52 Cal. 4th 46, 69-70 (Loy).) The answer to this question is yes.
Even without reference to Bonilla’s statement, the evidence established that
Hernandez had ordered Bonilla to watch over the casita on the night of the victim’s
murder, and that he and Bonilla had communicated about the events transpiring at the
casita immediately preceding the victim’s murder. For example, Valdez testified that
Hernandez introduced Bonilla as the person who would be providing security at the
casita, and Valdez and Palacios both testified that, after they were introduced to him,
Bonilla began watching over the casita’s operations, including on the night the victim
was murdered. Further, Hernandez’s girlfriend told the police that Hernandez often used
a cell phone registered in her name, and her phone records showed that, in the moments
leading up to the victim’s death, that phone exchanged several calls and text messages
with a number registered to a prepaid cell phone, which was later connected to Bonilla.
28
Finally, the prosecution’s gang expert testified that a gang member assigned to provide
security inside a casita will often contact the gang member in charge of overseeing the
extortion of, and drugs sales inside, the casita before assaulting or killing a rival gang
member perceived as a threat to the controlling gang’s interest in the casita.
Even without consideration of Bonilla’s statement made to Valdez, the evidence
compellingly showed that Hernandez and Bonilla were communicating about the events
occurring at the casita immediately before the victim’s death. Accordingly, we conclude
exclusion of Bonilla’s statement would not have weakened the evidence connecting
Hernandez to the victim’s murder. (Loy, supra, 52 Cal.4th at p. 71.) Any error in
admitting Bonilla’s statement made to Valdez was harmless beyond a reasonable doubt.
(Ibid.)
IV. The Trial Court Was Not Required To Instruct the Jury on Consent as a
Defense To Burglary
Defendants next contend the trial court erred when it did not instruct the jury on
consent as a defense to burglary. Defendants never requested a consent instruction;
rather, they argue the trial court had a sua sponte duty to instruct on consent because the
evidence established that Valdez and Palacios consented to defendants’ entry into the
casita for the purpose of selling drugs.
As already discussed, defendants’ murder charges were premised on three
theories, one of which was felony murder. In relying on the felony murder theory, the
prosecution alleged the victim was murdered during defendants’ uncharged burglary of
the casita. A defendant is guilty of burglary if he enters a house, apartment, or business
with the intent to commit a felony. (§ 459.) Lack of consent to enter a building is not an
element of burglary. (People v. Sherow (2011) 196 Cal. App. 4th 1296, 1304-1305.)
Rather, consent is a defense to burglary, and a defendant asserting such defense bears the
burden of raising a reasonable doubt as to the facts underlying the defense. (Id. at pp.
1304-1305, 1309.) To establish a consent defense, the defendant must show that the
occupant of the subject building “(1) actively invited the defendant to enter with
knowledge of the defendant’s felonious intent, and (2) the defendant knew that the
29
occupant was aware of his felonious intent.” (Id. at p. 1305; see also People v. Felix
(1994) 23 Cal. App. 4th 1385, 1397-1398 (Felix).)
As a preliminary matter, there was no indication that either Bonilla or Hernandez
relied on consent as a defense to burglary at trial. (See Maury, supra, 30 Cal.4th at p.
425.) Neither of defendants’ counsel requested the instruction or argued that consent was
a defense to burglary. Nevertheless, defendants contend the trial court was required to
instruct on consent because the prosecution’s evidence supported such a defense and the
defense was consistent with defendants’ theories of the case. (See ibid.) We disagree.
A trial court has a sua sponte duty to instruct on a particular defense “only if it
appears that the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the defendant's
theory of the case. [Citation.]” (People v. Maury (2003) 30 Cal. 4th 342, 424 (Maury).)
That duty never arose in this case.
The prosecution’s evidence established that defendants gained access to the casita
through the use of fear and implied threats. Permission to enter a building obtained
through duress, the use of fear, threats of force, or fraud does not constitute consent
sufficient to defeat a charge of burglary. (People v. Brock (2006) 143 Cal. App. 4th 1266,
1275-1276 (Brock) [“Force, fear and duress negate apparent consent.”]; People v. Sipult
(1965) 234 Cal. App. 2d 862, 867 (Sipult) [apparent consent obtained through fraud is
ineffective]; see also People v. Waidla (2000) 22 Cal. 4th 690, 723 (Waidla) [evidence
that defendant gained entry to the building by instilling fear in the victim was material to
burglary because it was material to the element of entry]; Felix, supra, 23 Cal.App.4th at
p. 1398 [consent must be express and clear].)
Insufficient evidence supports defendants’ theory that they obtained clear, express,
and effective consent to enter the casita for the purposes of providing protection for
Valdez’s and Palacios’s casita. (See Maury, supra, 30 Cal.4th at p. 424.) Hernandez
initiated contact with Valdez and Palacios. After doing so, he used direct and implied
threats of harm to arrange the payment agreement through which he was to receive a
portion of the casita’s revenue and gain physical access to the casita for him and Bonilla.
30
For example, soon after Valdez and Palacios opened the casita, Hernandez called
Valdez’s phone from outside the casita demanding to speak with Valdez in person and
threatening to break down the casita’s doors if she did not meet with him. When Valdez
confronted Hernandez by herself, he was with a group of men. During this conversation,
he implied that those who worked at and frequented the casita were at risk of being killed
by local “cholos” if Valdez and Palacios did not agree to pay him a portion of the casita’s
revenues. In addition, during his conversation with Palacios, Hernandez said he hoped
they could reach an agreement because he did not want any trouble, implying that any
refusal by Valdez or Palacios to pay Hernandez would be met with violence.
At trial, both Valdez and Palacios testified that they were scared of Hernandez.
Their fear stemmed from the fact that they had never met or heard of Hernandez before
he threatened to break down the casita’s door, and because he had implied that they
would be the victims of gang violence if they did not cooperate with his demands. No
evidence was introduced suggesting that Valdez first approached Hernandez about
arranging a payment agreement for the casita’s protection.
Additionally, the evidence does not support a theory that Valdez and Palacios
freely, clearly, and effectively consented to defendants’ entry into the casita as part of a
mutual drug-sales agreement. Hernandez first raised the issue of drug sales, when he
asked Valdez whether she and Palacios sold drugs inside the casita. Valdez told
Hernandez that they neither sold, nor intended to sell, drugs there. When Hernandez told
Valdez and Palacios that he would sell drugs inside the casita and, as a compromise,
reduce the amount of payments he demanded from them, Valdez and Palacios were too
afraid to refuse his offer. This fear stemmed from Hernandez’s earlier threats and
implications that, if Valdez and Palacios refused to enter into a payment agreement with
Hernandez, they would be met with violence. No other evidence was introduced
indicating that Valdez and Palacios freely consented to Hernandez’s request to sell drugs
inside the casita. As a result, there was insufficient evidence to trigger the trial court’s
duty to instruct on consent based on Valdez’s and Palacios’s agreement to allow
Hernandez to sell drugs in the casita. (See Maury, supra, 30 Cal.4th at p. 424; see also
31
Brock, supra, 143 Cal.App.4th at p. 1275; Felix, supra, 23 Cal.App.4th at p. 1398
[consent must be express and clear].)
Defendants rely on People v. Superior Court (Granillo) (1988) 205 Cal. App. 3d
1478 to argue that sufficient evidence established that Valdez and Palacios consented to
their entry into the casita for the purposes of selling drugs so as to trigger the trial court’s
duty to instruct the jury on consent. This reliance is misplaced.
In Granillo, the Court of Appeal affirmed the trial court’s section 995 dismissal of
seven counts of burglary premised on the defendant’s entry into an undercover police
officer’s apartment with the intent to sell stolen property. (Granillo, supra, 205
Cal.App.3d at p. 1480.) In dismissing the burglary charges, the trial court found the
defendant had obtained informed and knowing consent from the undercover police
officer to enter the apartment with the intent to sell stolen property. (Id. at p. 1486.)
The trial court’s finding was based on the following facts: As part of a sting
operation, the Visalia Police Department assigned an undercover officer to live in an
apartment from within which he was supposed to purchase stolen property. (Granillo,
supra, 205 Cal.App.3d at p. 1480.) The undercover officer and other members of the
police department let it be known throughout the community that the officer was living in
the apartment, and that he was interested in buying stolen property. (Ibid.) The officer
also offered kickbacks to people who referred others to sell stolen property to him. (Id. at
p. 1481.) When the defendant learned that the undercover officer wanted to purchase
stolen property, he called the officer and offered to sell numerous stolen items. (Ibid.)
The officer told the defendant that he was interested in purchasing the items and asked
the defendant to come to his apartment. (Ibid.) At the apartment, the defendant offered
to sell the stolen items to the officer. (Ibid.) The defendant and the officer met at the
apartment for the same purpose on six subsequent occasions. (Ibid.)
The court in Granillo held that the trial court properly dismissed the defendant’s
burglary charges because the undercover officer knew of the defendant’s felonious intent
and invited the defendant to enter his apartment for purposes related to that intent, and, in
turn, the defendant knew the officer was aware of his felonious purpose and was
32
interested in buying stolen property from the defendant. (Granillo, supra, 205
Cal.App.3d at pp. 1485-1486.) The court also observed that the defendant’s entries into
the officer’s apartment could not be classified as an intrusion upon the officer’s
possessory interest or as a fundamentally deceitful act because the officer had intended to
set the burglaries in motion. (Id. at p. 1486, citing People v. Collins (1986) 42 Cal. 3d
378, 395.)
The instant case is materially distinguishable from Granillo. Although Valdez and
Palacios advertised their casita, they did not actively seek out individuals that would be
interested in selling drugs inside the casita or, as discussed above, freely consent to
defendants’ entry into the casita for the purpose of selling drugs. Indeed, Valdez and
Palacios did not want drugs inside the casita; however, they agreed to allow Hernandez
and his associates to sell drugs because they (Valdez and Palacios) could not otherwise
afford to pay Hernandez and were afraid he would harm them if they did not agree to pay
him.
Defendants next contend their convictions for attempted extortion necessarily
demonstrate that sufficient evidence supported their consent defenses because consent is
an element of extortion. (See § 518.) This argument is misguided.
First, defendants’ convictions for attempted extortion does not necessarily
establish that Valdez and Palacios consented to defendants’ entry into the casita on the
night of the murder. Consent is not an element of attempted extortion. (See § 524.) In
any event, the type of consent that supports a conviction for extortion is different from
that which supports a defense to burglary; consent for the purposes of extortion must be
obtained through the “wrongful use of force or fear.” (§ 518; see also People v. Torres
(1995) 33 Cal. App. 4th 37, 50 [in the crime of extortion, property is taken with the
victim’s “consent,” which is obtained through force or fear].) As discussed immediately
above, consent obtained through force or fear is insufficient to support a consent-based
defense to burglary. (See Brock, supra, 143 Cal.App.4th at p. 1275; Sipult, supra, 234
Cal.App.2d at p. 867; Waidla, supra, 22 Cal.4th at p. 723; Felix, supra, 23 Cal.App.4th at
p. 1398 [consent must be express and clear].) Therefore, the jury’s finding that
33
defendants committed attempted extortion does not establish sufficient evidence that
Valdez and Palacios consented to defendants’ entry into the casita so as to trigger the trial
court’s duty to instruct on consent as a defense to burglary.
In light of the foregoing, we conclude insufficient evidence supported a consent-
based defense to the uncharged burglary allegation underlying defendants’ felony murder
charge. Accordingly, the trial court was not required to instruct the jury on consent. (See
Maury, supra, 30 Cal.4th at p. 424.)
V. The Trial Court’s Error in Not Instructing the Jury on Accomplice
Testimony Was Harmless
Defendants next contend the trial court erred when it did not instruct the jury sua
sponte on accomplice testimony pursuant to section 1111. Defendants argue there was
sufficient evidence from which the jury could have concluded Valdez and Palacios were
accomplices to the victim’s murder. Defendants argue that, based on this evidence, the
trial court should have instructed the jury as follows: (1) it was required to determine
whether Valdez and Palacios were accomplices; and (2), if it did make such a
determination, that it was required to view Valdez’s and Palacios’s testimony with
caution and not rely on such testimony unless corroborated by independent evidence.
Valdez and Palacios testified as two of the prosecution’s primary witnesses.
Valdez and Palacios operated the casita at which the victim was murdered, and they were
the subjects of defendants’ extortion scheme. Valdez and Palacios also agreed to allow
Hernandez to sell drugs inside the casita. Additionally, Valdez and Palacios were at the
casita on the night the victim was murdered, and Valdez witnessed Bonilla’s conduct
immediately leading up to and through the time he killed the victim. Defendants argue
Valdez and Palacios were subject to prosecution for the victim’s murder under a natural
and probable consequences theory, and, as a result, qualified as accomplices for purposes
of section 1111.
Section 1111 provides in pertinent part: “A conviction can not be had upon the
testimony of an accomplice unless it be corroborated by such other evidence as shall tend
to connect the defendant with the commission of the offense; and the corroboration is not
34
sufficient if it merely shows the commission of the offense or the circumstances thereof.”
(§ 1111.) “‘[W]hen there is sufficient evidence that a witness is an accomplice, the trial
court is required on its own motion to instruct the jury on the principles governing the
law of accomplices,’ including the need for corroboration. [Citation.]” (People v. Tobias
(2001) 25 Cal. 4th 327, 331 (Tobias).)
An accomplice is defined as “one who is liable to prosecution for the identical
offense charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.” (§ 1111.) “[T]o be an accomplice, the witness must be chargeable
with the crime as a principal . . . and not merely as an accessory after the fact . . . .
[Citation.]” (People v. Felton (2004) 122 Cal. App. 4th 260, 268.) “It is not sufficient if
the person simply gives assistance with knowledge of the perpetrator's criminal purpose.
Merely giving assistance without sharing the perpetrator's purpose and intent establishes
liability only as an accessory, not as an accomplice. [Citations.]” (People v. Snyder
(2003) 112 Cal. App. 4th 1200, 1220 (Snyder).)
“‘“[W]henever the testimony given upon the trial is sufficient to warrant the
conclusion upon the part of the jury that a witness implicating a defendant was an
accomplice,”’ the trial court must instruct the jury sua sponte to determine whether the
witness was an accomplice in the charged offense. [Citations.] By the same token, if the
evidence adduced at trial establishes as a matter of law that a witness was an accomplice
to the charged offense, the jury must be so instructed.” (Snyder, supra, 112 Cal.App.4th
at pp. 1218-1219.) “Conversely, where, as a matter of law, the witness is not an
accomplice, the court does not err in refusing to charge that he is or in refusing to submit
the issue to the jury.” (People v. Hoover (1974) 12 Cal. 3d 875, 880 (Hoover).) “[T]o
establish that an individual is an accomplice, a defendant bears the burden of both
producing evidence raising that issue and of proving the accomplice status by a
preponderance of the evidence.” (People v. Belton (1979) 23 Cal. 3d 516, 523.)
If the trial court instructs on accomplice liability, and the jury determines that the
subject witness is an accomplice, the jury may not rely on that witness’s testimony unless
the testimony is corroborated by independent evidence. (People v. Szeto (1981) 29
35
Cal. 3d 20, 27 (Szeto).) It is then the prosecution’s burden to “produce independent
evidence which, without aid or assistance from the testimony of the accomplice, tends to
connect the defendant with the crime charged.” (Ibid.)
As a preliminary matter, we observe that Valdez and Palacios were the victims of
defendants’ extortion scheme. As a result, they could not be defined as accomplices
under the attempted extortion charge or any of the murder charges based on defendants’
attempted extortion or conspiracy to commit extortion. (See § 1111 [To qualify as an
accomplice, the witness must be subject to prosecution for the same offense charged
against the defendant]; see also Tobias, supra, 25 Cal.4th at p. 334 [“Because the
[witness] . . . is a victim and cannot be prosecuted as an accomplice, accomplice
instructions are not appropriate.”].)
However, the trial court should have instructed the jury sua sponte on accomplice
testimony because there was sufficient evidence from which the jury could have
concluded that Valdez and Palacios were accomplices to the victim’s murder under a
natural and probable consequences theory, where offering to sell a controlled substance
was the target offense. Valdez and Palacios agreed to allow Hernandez to sell drugs once
he offered to lower the amount of “rent” he demanded in exchange for him having
exclusive control over the casita’s drug sales. Although Valdez and Palacios testified that
they were scared of Hernandez, and that their fear influenced their decision to allow
Hernandez to sell drugs, that sentiment alone does not establish that they could not have
been subject to prosecution for aiding Hernandez in his sale of drugs inside the casita.
Valdez and Palacios did not testify that Hernandez threatened immediate and imminent
harm should his request to sell drugs be denied so as to give rise to a duress defense.
(See People v. Heath (1989) 207 Cal. App. 3d 892, 900 [“Duress is an effective defense
only when the actor responds to an immediate and imminent danger.”].) Further, there is
no evidence in the record that Valdez’s and Palacios’s decision to allow Hernandez to sell
drugs was the only course of action the couple could have taken to avoid any threats of
harm they perceived Hernandez to have made. (See Id. at pp. 900-901 [to give rise to a
necessity defense, “[t]he situation presented to the [actor] must be of an emergency
36
nature, threatening physical harm, and lacking an alternative, legal course of action”].) In
fact, at trial, Valdez testified that she was not opposed to the idea of selling drugs at the
casita. Accordingly, there was sufficient evidence from which the jury could have
concluded that Valdez and Palacios intended to aid and abet Hernandez’s drug-sales
scheme. For example, the jury could have concluded that Valdez and Palacios believed
they could have benefited financially from aiding Hernandez’s drug sales through a
potential increase in the number of patrons frequenting the casita and a decrease in the
amount of rent they would have had to pay Hernandez to continue operating the casita.
Further, the jury could have concluded that a reasonable person in the position of
Valdez or Palacios could have foreseen that the victim’s shooting was a foreseeable result
of Hernandez’s drug-sales operation inside the casita. (See Medina, supra, 46 Cal.4th at
p. 927 [liability under a natural and probable consequences theory is dependent on
whether a reasonable person in the accomplice’s position would have known that the
charged offense was a reasonably foreseeable consequence of the act the accomplice
aided and abetted].) Not long before she was first approached by Hernandez, Valdez had
been warned by an individual at the bar where she advertised the casita that gang
members would make her pay rent for operating the casita. Accordingly, the jury could
have concluded that Valdez and Palacios had reason to know Hernandez and Bonilla
were involved with a gang at the time they agreed to allow Hernandez to sell drugs inside
the casita. As the prosecution’s expert testified, gang-related violence, including murder,
is a foreseeable result of gang activity being conducted inside a casita located in gang
territory. In light of the foregoing, we conclude there was sufficient evidence to support
the trial court instructing the jury sua sponte on accomplice testimony with respect to
Valdez’s and Palacios’s statements made at trial.
Although the trial court should have instructed the jury on accomplice testimony
pursuant to section 1111, we nevertheless conclude the court’s failure to do was
harmless. “A trial court’s failure to instruct on accomplice liability under section 1111 is
harmless if there is sufficient corroborating evidence in the record.” (People v. Gonzales
37
(2011) 52 Cal. 4th 254, 303 (Gonzales), citing People v. Lewis (2001) 26 Cal. 4th 334,
370.)
For purposes of section 1111, corroborating evidence does not need to be
sufficient on its own to convict the defendant of the offense for which the accomplice’s
testimony is offered to prove. (Szeto, supra, 29 Cal.3d at p. 27.) Additionally, the
evidence does not need to corroborate every fact to which the accomplice testifies.
(Ibid.) Rather, the evidence is sufficient if it tends to connect the defendant to the crime
in a manner that enables the jury to reasonably determine the accomplice is telling the
truth. (Ibid.) Put another way, “[c]orroborating evidence may be slight, may be entirely
circumstantial, and need not be sufficient to establish every element of the charged
offense . . . .” (Gonzales, supra, 52 Cal.4th at p. 303.)
Here, Valdez’s and Palacios’s statements made at trial were corroborated by
independent evidence that connected defendants to the attempted extortion and murder
charges. First, Valdez’s sister testified that she answered a call on Valdez’s phone from a
man named Cesar, who told her that he was standing outside the casita and would break
down the casita’s doors if Valdez did not meet with him. Immediately after speaking to
the man named Cesar, Valdez’s sister called Valdez to tell her about the call. This
evidence corroborated Valdez’s testimony that she first met Hernandez outside the casita
when he introduced himself as Cesar and demanded that she pay him a portion of the
casita’s proceeds in exchange for his protection. Valdez’s sister’s testimony also
corroborated Palacios’s testimony that after Valdez spoke to her sister, he watched
Valdez meet a man outside the casita who he later identified as Hernandez.
Second, the victim’s brother testified that immediately before the victim was
murdered, he was on the phone with the victim. He also testified that while he was on the
phone with the victim, he heard gunshots, looked outside his window, and saw a man he
later identified as Bonilla running from the casita. This evidence corroborated Valdez’s
testimony that she saw Bonilla shoot the victim soon after the victim stepped outside the
casita to speak on the phone.
38
Finally, the prosecution’s witnesses testified to the cell phone exchanges linking
Hernandez to the events immediately preceding the victim’s murder. Hernandez’s
girlfriend testified that around the time of the victim’s murder Hernandez was using a cell
phone that was registered in her name. Verizon Wireless’s custodian of records testified
that, in the moments leading to the victim’s murder, the same cell phone exchanged
several calls and text messages with a number registered to a prepaid cell phone, which
was later connected to Bonilla. This evidence corroborated Valdez’s testimony that she
saw Bonilla using his cell phone immediately before the victim’s murder and that Bonilla
had told her that he was sending Hernandez a text message moments before he killed the
victim.
In light of the foregoing, we conclude sufficient independent evidence
corroborated Valdez’s and Palacios’s statements made at trial and tied defendants to the
charges of murder and attempted extortion. Accordingly, the trial court’s error in failing
to sua sponte instruct on accomplice testimony was harmless. (Gonzales, supra, 52
Cal.4th at p. 303; People v. McKinzie 54 Cal. 4th 1302, 1353.)
VI. Bonilla Was Not Prejudiced by His Trial Counsel’s Conduct
Bonilla separately contends he received ineffective assistance of counsel. Bonilla
argues his counsel rendered ineffective assistance by failing to request a jury instruction
addressing consent as a defense to burglary, and by failing to argue that defense to the
jury. Bonilla further argues his trial counsel rendered ineffective assistance by failing to
request a jury instruction addressing accomplice testimony. Because we conclude
Bonilla was not prejudiced by any of his counsel’s omissions, we reject his claims for
ineffective assistance of counsel.
“The benchmark for judging any claim of ineffective assistance of counsel must be
whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” (Strickland v.
Washington (1984) 446 U.S. 668, 686 (Strickland).) To establish a claim for ineffective
assistance of counsel, the defendant must satisfy two requirements. (See id. at pp. 690-
692.) First, the defendant must show his attorney’s conduct was “outside the wide range
39
of professionally competent assistance.” (Id. at p. 690.) Second, the defendant must
demonstrate there is a reasonable probability that but for his attorney’s conduct, the result
of the proceeding would have been different. (Id. at p. 694.) We are not confined to
analyzing a claim of ineffective assistance of counsel in any particular order; if it is easier
to dispose of an ineffective assistance of counsel claim on the ground that the defendant
was not prejudiced by his counsel’s conduct, we may proceed on that ground first. (Id. at
p. 697.)
A. Counsel’s Failure To Request the Consent Instruction and Argue Consent as
a Defense To Burglary
Bonilla has not established that he was prejudiced by his counsel’s failure to
request an instruction defining consent as a defense to burglary and to argue such defense
to the jury. As discussed above, there was insufficient evidence to establish that Valdez
and Palacios consented to defendants’ entry into the casita so as to support a consent-
based defense to burglary. As a result, the trial court could have properly denied the
instruction had Bonilla’s counsel requested it. (People v. Bohana (2000) 84 Cal. App. 4th
360, 370 [“The trial court has no duty to instruct on a defense that is not supported by
substantial evidence.”].)
Further, counsel’s failure to argue consent as a defense to burglary did not
prejudice Bonilla. Overwhelming evidence supported Bonilla’s conviction for murder as
the direct perpetrator under a malice aforethought theory. Further, no evidence was
introduced from which the jury could conclude that someone other than Bonilla killed the
victim. As a result, it is not reasonably likely the jury would have reached a more
favorable verdict had Bonilla’s counsel argued a consent-based defense to the
prosecution’s felony murder theory. (See Strickland, supra, 466 U.S. at p. 697.)
A conviction for first degree murder is proper under a malice aforethought theory
if the defendant “‘killed “as a result of careful thought and weighing of considerations; as
a deliberate judgment or plan; carried on cooly and steadily, . . . according to a
preconceived design.” [Citation.]’” (People v. Anderson (1968) 70 Cal. 2d 15, 26,
original italics.) Courts typically look to the following types of evidence in determining
40
whether the defendant acted with premeditation and deliberation: (1) whether the
defendant engaged in planning activity prior to the killing; (2) whether the defendant had
a motive to kill the victim; and (3) whether the defendant killed the victim in such a
manner as to show the killing was intentional and according to a preconceived design.
(Id. at pp. 26-27.) These factors are not required to be present in any specific
combination, and courts are not required to accord them any specific weight. (People v.
Pride (1992) 3 Cal. 4th 195, 247.)
Here, it is not reasonably probable that the jury would have reached a more
favorable verdict because overwhelming evidence supports Bonilla’s conviction under a
malice aforethought theory. Valdez witnessed the events leading up to, and through, the
victim’s murder. She saw the victim claim that he was a member of 18th Street and
reveal his tattoo of the number “18.” She saw Bonilla angrily watch the victim from the
time the victim claimed membership in 18th Street through the time he left the apartment.
When Valdez asked Bonilla to calm down as he watched the victim, he refused and told
her that he “was a person who wouldn’t put up with much, . . . that he didn’t care what
could happen.” When the victim stepped outside the casita to talk on the phone, Valdez
saw Bonilla follow him out. Valdez continued to watch Bonilla as he walked up to the
victim, punched the victim in the head, and shot the victim to death.
Valdez’s testimony that Bonilla was the shooter was corroborated by other
evidence. The victim’s brother testified that he heard gunshots while he was on the
phone with the victim and looked outside to see Bonilla running away from the casita.
Additionally, the police found a phone clip outside the casita’s door, near the location of
the shooting, that contained DNA consistent with a DNA sample obtained from Bonilla.
This evidence established that Bonilla acted with premeditation and deliberation.
Bonilla watched the victim the entire time he claimed membership in Bonilla’s rival
gang. Additionally, while he was watching the victim, Bonilla told Valdez that he would
not put up with much and that he did not care about “what could happen,” suggesting that
he was planning to attack the victim. Bonilla also had a motive to kill. While inside the
casita, the victim claimed membership in Bonilla’s rival gang. (See People v. Williams
41
(1997) 16 Cal. 4th 153, 194 [evidence of defendant’s gang membership and the victim’s
apparent membership in the defendant’s rival gang was highly relevant to the issue of
motive].) Finally, Bonilla killed the victim in a manner demonstrating that the killing
was intentional and executed according to a preconceived design. After watching the
victim claim membership in 18th Street, Bonilla waited for the victim to step outside the
casita. Bonilla then followed the victim outside, punched him in the head, and repeatedly
shot him as he tried to run away. In light of this overwhelming evidence establishing
Bonilla’s guilt under a direct malice aforethought theory, it is not reasonably likely the
jury would have reached a more favorable verdict had Bonilla’s counsel requested an
instruction on consent and argued a consent-based defense to the prosecution’s felony
murder theory. (See Strickland, supra, 466 U.S. at p. 697.)
B. Counsel’s Failure To Request the Accomplice Testimony Instruction
Bonilla also has not established that he was prejudiced by his counsel’s failure to
request an accomplice testimony instruction. Although we have concluded that there was
sufficient evidence to support an accomplice testimony instruction with respect to
Valdez’s and Palacios’s testimony, as discussed above, sufficient independent evidence
corroborated Valdez’s and Palacios’s statements connecting Bonilla to the murder and
attempted extortion charges. As a result, Bonilla’s counsel’s failure to request an
accomplice testimony instruction was harmless because there is no reasonable probability
the jury would have reached a different verdict had the instruction been requested and
provided to the jury. (See Gonzales, supra, 52 Cal.4th at p. 303 [failure to instruct on
accomplice testimony is harmless if there is sufficient evidence corroborating the
witness’s testimony]; see also Strickland, supra, 466 U.S. at p. 697.)
VII. Cumulative Error
Defendants next argue that even if the trial court’s instructional errors are harmless
when viewed in isolation, the cumulative effect of such errors warrants reversal of
defendants’ murder convictions. “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
42
defendant in their absence.’ [Citation.] When the cumulative effect of errors deprives
the defendant of a fair trial and due process, reversal is required.” (People v. Williams
(2009) 170 Cal. App. 4th 587, 646.)
It is not reasonably probable the jury would have reached a more favorable result
in the absence of the trial court’s instructional errors. As discussed, sufficient evidence
corroborated Valdez’s testimony linking defendants to the murder and attempted
extortion charges.
With respect to Hernandez, sufficient evidence supports his conviction for murder
under a felony murder theory, a valid theory independent of the natural and probable
consequences doctrine. (See Chiu, supra, 59 Cal.4th at p. 166.) Further, the court’s error
in instructing on the natural and probable consequences doctrine did not affect the jury’s
perception of the evidence supporting Hernandez’s conviction for murder under a felony
murder theory. Accordingly, the cumulative effect of the court’s errors in instructing on
the natural and probable consequences doctrine and failing to instruct on accomplice
testimony did not prejudice Hernandez.
With respect to Bonilla, the prosecution did not rely on the erroneous natural and
probable consequences instruction in pursuing his conviction for first degree murder.
Further, as discussed, there was overwhelming evidence that he was the individual that
shot and killed the victim, thereby establishing his liability as the direct perpetrator under
a malice aforethought theory. Accordingly, we find Bonilla was not prejudiced by the
cumulative effect of the trial court’s instructional errors.
VIII. Defendants’ Challenge To the Trial Court’s Victim Restitution Order
At the sentencing hearing, defendants stipulated that the amount they owed in
victim restitution was $7,680. The trial court then stated that it would “enter that order,”
but it did not specify whether defendants were jointly and severally liable for the $7,680
in victim restitution. The court’s minute orders from the sentencing hearing pertaining to
43
Bonilla12 and defendants’ abstracts of judgment also do not specify whether defendants
are jointly and severally liable for victim restitution.
Defendants contend that, in the event their convictions are not reversed, their
abstracts of judgment should be amended to reflect that each defendant’s liability for the
$7,680 in victim restitution is joint and several. The People agree, and so do we.
Although the court did not state that defendants are jointly and severally liable for victim
restitution, it had the authority to do so. (People v. Neely (2009) 176 Cal. App. 4th 787,
800 (Neely).) In light of defendants’ stipulation that the total amount owed in victim
restitution was $7,680, and the court’s acceptance of that stipulation, the record reflects
that the court intended to order defendants to be jointly and severally liable for victim
restitution. (See People v. Blackburn (1999) 72 Cal. App. 4th 1520, 1535; see also Neely,
supra, 176 Cal.App.4th at p. 800.) Accordingly, we order modification of the trial
court’s judgment to expressly provide that the restitution order is joint and several as to
Bonilla and Hernandez.
DISPOSITION
The trial court’s judgments against Bonilla and Hernandez are modified to
expressly provide that defendants are jointly and severally liable for direct victim
restitution. In all other respects, the judgments are affirmed.
WOODS, J.
We concur:
PERLUSS, P. J. ZELON, J.
12
The record contains duplicates of the sentencing minute orders for Bonilla but
does not contain any sentencing minute orders for Hernandez.
44