People v. Garcia CA5 ( 2021 )

Filed 8/18/21 P. v. Garcia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078383
Plaintiff and Respondent,
(Kern Super. Ct. No. BF171258A)
v.
DANIEL RAZO GARCIA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
A jury found appellant Daniel Razo Garcia guilty of first degree murder for the
2018 shooting death of Raul Quintana (Pen. Code, § 187, subd. (a);1 count 1). The jury
found true that Quintana’s murder was committed while appellant was engaged in the
commission of a robbery (§ 190.2, subd. (a)(17)(A)), and it also found true that appellant
intentionally and personally discharged a firearm that caused Quintana’s death
(§ 12022.53, subd. (d)). Based on the true finding of the robbery-murder allegation, the
trial court imposed a sentence of life in prison without the possibility of parole (LWOP).2
In light of the LWOP sentence, the court elected to strike the firearm enhancement.
Appellant argues the trial court abused its discretion when it refused to dismiss a
juror for alleged good cause. He also contends both his first degree murder verdict and
the robbery-murder special circumstance finding must be reversed for insufficient
evidence. Finally, he asserts evidentiary error occurred when the court permitted
admission of some of his social media messages. We reject these claims and affirm.
BACKGROUND
This homicide occurred in the evening of January 28, 2018, in an orchard near
Wasco, California. It was undisputed at trial that appellant shot Quintana.3 Appellant
claimed he acted in self-defense after Quintana had attempted to rob him at gunpoint.
Based on the verdict, it is clear the jury rejected appellant’s version of events. We
summarize the material trial evidence.
1 All future statutory references are to the Penal Code unless otherwise noted.
2 The jury was unable to reach an agreement on a special circumstance allegation
that this murder was committed by means of lying in wait. The trial court declared a
mistrial regarding that allegation.
3 Quintana’s nickname was “Rito.”
2.
I. This Homicide was Related to a Drug Debt
Appellant, who was 18 years old when this crime occurred,4 admitted to the jury
he was a drug dealer who regularly sold cocaine and marijuana. For a few months before
this homicide, appellant had regularly sold cocaine to Quintana. Appellant told the jury
that Quintana was his friend. The jury learned that Quintana also sold cocaine and
marijuana. Quintana was described at trial as a “low level street dealer.”
Leading up to this killing, Quintana owed appellant $120 after failing to pay for an
“eight ball” of cocaine he had received from appellant.5 On January 23, 2018, appellant
sent Snapchat6 messages to his friend “Geronimo”7 complaining that Quintana had not
paid him. Appellant had learned a person named “Matt” was either selling drugs to or for
Quintana. Appellant wrote a Snapchat message to Geronimo that he was going to “set
up” Matt. Appellant told the jury he had planned to meet Matt and take cocaine from him
in order to help offset the money that Quintana owed him. Appellant, however, never
met with Matt. Appellant admitted at trial he was coming up with a plan to get the
money back from Quintana. Appellant told the jury he was “pretty convinced” Quintana
was not going to pay him back.
Appellant messaged Geronimo that “shit is getting real” and Quintana had
“jacked” an eight ball from me. Appellant informed Geronimo that he (appellant) was
“shaking the tree and I’m ready if he wants problems.” Appellant wrote that Quintana
“did me dirty,” and appellant was not going to wait for his money. Appellant messaged
4 Appellant was born in October 1999.
5 The jury learned that an “eight ball” is an eighth of an ounce (3.5 grams) of
cocaine.
6Snapchat is a multimedia messaging app that permits users to communicate with
each other.
This person was identified at trial only as “Geronimo” who had a username of
7
“yoo_gmo” on Snapchat. The court reporter sometimes spelled this name as
“Giranamo.” We adopt the more traditional spelling of Geronimo.
3.
Geronimo that “[a]ctions speak louder than words.” Appellant reassured Geronimo that
he did not want to kill Quintana, but he wanted Quintana to take a loss. Appellant wrote
that Quintana “slit my throat. I’m going to slit it.” Appellant testified at trial that he gave
Quintana respect, “and he should give me the same respect back.” Appellant agreed at
trial that respect was shown by paying drug debts promptly.
II. Appellant Arranges a Meeting with Quintana
On or about January 28, 2018, appellant arranged to meet Quintana to buy cocaine
from him. In a series of messages, they agreed upon a purchase price, which included an
offset for the amount of money Quintana owed appellant. The jury learned that appellant
and Quintana had met previously at an orchard in the area of Scofield Avenue and
McCombs Road near Wasco in order for Quintana to buy drugs from appellant.8 They
would “typically” meet at this location. Appellant told the jury he “usually” sold drugs to
Quintana. He agreed it was “abnormal” for him to buy drugs from Quintana.
III. The Evidence was in Conflict regarding Where Appellant and Quintana
Initially Met on the Fatal Night.
The jury heard conflicting testimony regarding where appellant initially met
Quintana on the fatal night. According to appellant, he met Quintana near an orchard in
the area of Scofield and McCombs.9 He said he arrived first, and he waited for Quintana
to arrive. Appellant testified that his friend, Frank Sandoval, was with him when he
(appellant) met Quintana near the orchard. Appellant and Sandoval were in appellant’s
van.10
8 Appellant also used this location to sell drugs to others.
9
This homicide occurred in an orchard in the area of Scofield Avenue and
McCombs Road near Wasco, California.
10 The jury learned that Sandoval was often with appellant when appellant sold
drugs.
4.
Appellant told the jury that Quintana’s vehicle arrived about five minutes later,
and Quintana exited the vehicle from the passenger side. Appellant got out of the van
and they exchanged greetings. According to appellant, he met Quintana sometime
between 10:30 p.m. and 11:00 p.m.
A witness at trial contradicted some of appellant’s testimony. Alberto Andres
testified he was the one who had dropped off Quintana on the fatal night.11 According to
Andres, Quintana received a call on his cell phone and Quintana then asked Andres to
drop him off at Rose and Marvin Avenues. Andres testified that he dropped off Quintana
near an apartment complex sometime around 9:00 p.m. It was Andres’s understanding
that Quintana was meeting a “Daniel.”12 Andres testified that he did not know this
person, but he knew Quintana had previously conducted drug transactions with him.
Andres testified that, after he was dropped off, Quintana got into a van. At trial,
Andres identified photographs that depicted the van he saw Quintana enter. The
prosecution established that these photos portrayed appellant’s van. Andres agreed at
trial that Quintana was “not scared” to get into appellant’s van that fatal night.
Andres told the jury that, before being dropped off, Quintana had told him that he
should wait at a soccer field for him. Andres testified that, after he dropped off Quintana,
he waited for Quintana at the soccer field.
Andres told the jury that, after Quintana got inside appellant’s van near the
apartment complex in Wasco, he saw the van drive away. He denied knowing where the
van went.
IV. Appellant’s Trial Testimony About the Killing
At trial, appellant claimed he spoke with Quintana outside his van near the orchard
while Sandoval waited in the van. Appellant claimed that, at some point, Quintana held a
11 Andres testified under an immunity agreement.
12 Appellant’s first name is Daniel.
5.
revolver13 to appellant’s head and Quintana demanded money. Appellant testified he
was able to wrestle the gun away from Quintana, which fell to the ground and appellant
retrieved it. According to appellant on direct examination, Quintana “[k]ind of started to
run towards me and I shot him six times.” Appellant told the jury he thought Quintana
was going to kill him. Appellant testified that, after he fired at Quintana, he saw
Quintana run into the orchard.14
Appellant told the jury that after he fired the handgun, Sandoval exited the van and
asked him what had happened. Appellant claimed Sandoval “got mad,” and he retrieved
appellant’s 12-gauge shotgun from the van. Appellant testified he told Sandoval to leave,
but Sandoval approached Quintana, and appellant heard Sandoval fire the shotgun
multiple times.
Appellant told the jury he never intended to kill Quintana. He claimed he acted in
self-defense. He denied robbing Quintana or taking Quintana’s property.15
On cross-examination appellant claimed that, after Quintana held the gun to his
head, he wrestled with Quintana and the revolver fell to the ground. They both went for
the gun, and appellant retrieved it. Appellant started “instantly shooting” from about four
feet away. He claimed that Quintana was facing him the entire time for all six shots.
According to appellant, Quintana then turned and limped into the orchard.
Quintana stood by a tree and appellant saw Quintana hanging on to it.16 Sandoval
13 At trial, appellant agreed that Quintana’s revolver was consistent with a .38-
caliber.
14Appellant claimed that the vehicle which had dropped off Quintana had
remained in the area until shots were fired. According to appellant, this vehicle drove
away just after he fired the shots.
15Appellant told the jury he was “not sure” if Sandoval had any of Quintana’s
property when they drove away from the orchard that night.
16
Law enforcement discovered a gold necklace hanging loose and partially
wrapped around a lower limb in the orchard at the crime scene. At trial, one of
6.
retrieved the shotgun from the van and walked closer to Quintana. Appellant told
Sandoval that they should leave, but Sandoval would not listen to him. Appellant saw
Sandoval fire the shotgun once, and he heard another shot. He claimed he was only
aware of two gunshots after Sandoval entered the orchard.17
Appellant admitted at trial that he drove away in possession of Quintana’s
handgun. According to appellant, the next morning after this killing he gave Quintana’s
handgun to Sandoval, who “got rid of it.” Appellant told the prosecutor it was Sandoval
who had loaded appellant’s shotgun. According to appellant, Sandoval had loaded the
shotgun around 7:00 p.m. earlier on the fatal day using shells (“buckshot and some other
type”) that appellant had provided.
Appellant testified he never alerted authorities about what happened because he
had been scared. He told the jury he believed he would be arrested for murder and for
selling drugs.
V. The Forensic Evidence
On the morning of January 29, 2018, the day after the shooting, Quintana’s body
was discovered by employees working for the company that farmed the orchard.
Authorities were alerted.
Quintana was found lying on the ground on his back with his sweatshirt pulled up
and his pants pulled down. A pocket had been slightly pulled out. He did not have his
cell phone or wallet with him when authorities searched his body.18 An Apple watch,
Quintana’s friends confirmed that this gold chain had belonged to Quintana, and he
normally wore it around his neck.
17This testimony differed from appellant’s testimony on direct examination,
wherein he indicated he heard Sandoval fire the shotgun as many as four times.
18 The person who dropped off Quintana to meet appellant on the fatal night,
Andres, testified that, earlier that day, Quintana had about $1,500 in cash, which he had
placed in his wallet. Andres also testified that Quintana had an iPhone with him that day.
7.
however, was discovered on his wrist, which was only spotted after an evidence
technician pulled up a sleeve in order to better access Quintana’s hand.19 A small baggie
of suspected narcotics was lying on the ground next to Quintana’s body.
Based on the number of different indicators, law enforcement believed at least two
perpetrators, and perhaps three, were involved in shooting Quintana. Law enforcement
found evidence that both 12-gauge and 20-gauge shotgun shells had been fired at the
crime scene. A bullet, likely .38-caliber and fired from a revolver, was also recovered.
A pathologist performed an autopsy on Quintana. Quintana had been shot eight
times, and all shots were potentially lethal. The shots originated from a handgun and a
shotgun. Quintana had no defensive wounds.
The pathologist determined that Quintana had been shot four times with a handgun
that was consistent with a .38-caliber. Three of these wounds entered Quintana through
the back of his body. Two such wounds penetrated the back of Quintana’s right upper
arm, and one such wound penetrated his left back. Only one handgun wound (overall
wound number 2) penetrated Quintana’s body from front-to-back. The pathologist found
no sooting associated with any of the four wounds sustained from a handgun. The
pathologist explained that “sooting” is the “smoke” that exits a firearm’s barrel and gets
deposited on the victim’s skin around the entrance wound. Numerous variables – such as
the target’s distance, amount of gunpowder, and clothing on the victim – could impact
whether sooting occurs. The pathologist opined that “by four feet” sooting would not be
expected with a shot fired from a handgun.
Regarding the four shotgun wounds, at least one involved buckshot while the
remaining three involved slugs. These four shots entered the right side of Quintana’s
Quintana had “stuff” with him, including a satchel, when he met appellant. Quintana
kept drugs in the satchel.
19The jury learned that when an Apple watch is in close proximity with an iPhone
they synchronize.
8.
body. The pathologist opined that the three slugs were consistent with a 12-gauge. At
least three of the shotgun wounds had sooting. Those wounds (overall wound numbers
three four and five) had been inflicted from slugs consistent with a 12-gauge. The
pathologist testified he would be “surprised” to see “soot” from a shotgun greater than
eight to 10 feet away.
The pathologist determined Quintana had numerous drugs in his system at the time
of death, including a high amount of cocaine. He was intoxicated when this shooting
occurred. The cause of death was homicide from multiple gunshot wounds.
VI. Appellant is Arrested
Following interviews with various individuals, law enforcement identified
appellant and Sandoval as suspects in this homicide. On February 13, 2018, law
enforcement arrested appellant. A loaded 12-gauge shotgun was recovered from his van.
Appellant’s residence was searched that same day. Nothing belonging to Quintana was
located in appellant’s possession. Law enforcement never found Quintana’s cell phone.
Testing later confirmed that three of the four shotgun shells recovered at the crime
scene were fired from the shotgun recovered in appellant’s van. It was inconclusive
whether appellant’s shotgun fired the fourth recovered shell.20
VII. Appellant Lies to Detectives
On February 13, 2018, detectives interviewed appellant about this homicide. That
interview was recorded and played for the jury. During the interview, appellant
repeatedly lied to the detectives. He denied being with Sandoval on the night of this
killing, and appellant claimed he had been home that night. Appellant repeatedly denied
having any knowledge about Quintana’s death or being involved in this shooting. He
gave the detectives a name of someone, a person Quintana allegedly owed money, who
20 At trial, appellant told the jury he did not dispute that the 12-gauge shells found
at the crime scene were fired from his shotgun.
9.
might be responsible for this homicide. Appellant initially denied to detectives that he
had ever communicated with Quintana, but appellant eventually admitted he had texted
with Quintana on Snapchat. Appellant denied that Quintana owed him money, but he
later acknowledged that Quintana owed him $100. Appellant claimed he had loaned
Quintana that money after Quintana had been evicted by his mother. Appellant denied
that Quintana had pulled a gun on him. He denied meeting Quintana in the orchard.21
At trial, appellant admitted he had lied repeatedly during his interview with
detectives. He told the jury he had been scared to tell the truth because he believed the
detectives would just use his statements against him.
DISCUSSION
I. The Trial Court did not Abuse its Discretion When it Declined to Excuse a
Juror for Alleged Good Cause
Appellant asserts that the trial court abused its discretion when it failed to excuse a
juror for alleged good cause. He seeks reversal of his judgment.
A. Background
On the first day of jury deliberations, the trial court learned that juror number 10
had previously shared the same last name (Porcho) as the courtroom bailiff. The court
asked the juror if she was related to the deputy. She said, “I believe I am.” However, she
did not know how they were related. The juror disclosed she had asked the bailiff about
his last name, and she had informed him that it was her maiden name.
The court disclosed that the bailiff did not think he was related to juror number 10.
The juror then explained that, when she spoke with the bailiff, he had informed her that
he had known that someone in her family had died. She had told him it was her
grandfather. The bailiff said he did not go to the funeral and he did not know “that side
21 Following appellant’s arraignment on February 15, 2018, he called his mother
from jail. His conversation was recorded and played for the jury. Appellant indicated to
his mother that he had acted in self-defense.
10.
of the family.” The bailiff had never met the juror’s grandfather. The juror informed the
court that she had approached the bailiff “because his last name is Porcho and it’s a very
rare last name.” The juror explained she had this conversation with the bailiff “probably
two weeks ago.” She had already been selected as a juror when the conversation
occurred. The court asked if she thought “there might be some relationship between” her
and the bailiff. She replied, “Honestly, I have no idea. I don’t know.”
The court asked if her belief of a possible relationship with the bailiff would
impact her ability to be a fair juror. She stated, “No, it wouldn’t impact it at all.” The
court asked why she had not disclosed her conversation with the bailiff. She answered,
“You know, honestly, I should have probably said something, but I didn’t think – [¶]
[b]ecause I’ve never met him and I don’t know him.” The court told her it was “fine”
and she was excused.
The trial court spoke with the attorneys. The court reiterated the bailiff had denied
knowing he was related to juror number 10. Appellant’s trial counsel moved to dismiss
this juror, contending she should have disclosed this information during voir dire.
According to defense counsel, this was an issue of dishonesty because she did not bring
her possible relationship with the bailiff to the court’s attention even though she deemed
it important enough to ask the bailiff.
The prosecutor argued against excusing juror number 10, maintaining she had
been “forthcoming.” Defense counsel responded that the juror had not been forthcoming
because she had failed to bring this matter to the court’s attention. Defense counsel noted
that this issue only came to light because the defense had learned toward the end of trial
that the juror’s maiden name was Porcho.
The trial court acknowledged it had referred to the bailiff as “Deputy Porcho”
throughout the trial, which alerted all jurors about his last name. However, the court did
not believe juror number 10 had been dishonest during voir dire. The court was not
certain when the bailiff had been introduced to the jury panel. However, the court noted
11.
that members of the jury panel had been asked if they “have any close friends or close
relatives in law enforcement” and that did not appear to be applicable in this situation.
The court did not believe the juror had done anything that required her dismissal from the
panel. The court concluded that nothing showed the juror’s ability to be fair in deciding
this matter had been impacted. The court denied the motion.
B. Standard of Review
An abuse of discretion standard is used to review a trial court’s decision whether
to discharge a juror. (People v. Cleveland (2001) 25 Cal.4th 466, 474.) An appellate
court will uphold such a ruling if any substantial evidence supports it. (Ibid.) Our high
court holds that “a juror’s inability to perform as a juror “ ‘must appear in the record as a
demonstrable reality.’ ” [Citation.]’ [Citation.]” (Ibid.)
C. Analysis
According to appellant, reversal of his judgment is required because he was
“convicted by a jury that included a person who could not reasonably be expected to
serve as an impartial, indifferent juror.” He notes that many of the prosecution’s
witnesses were sheriff’s deputies. He contends there can be “no confidence” he received
a fair trial. He maintains the juror’s failure to disclose her possible relationship to the
bailiff, or her conversation with him, shows she was untrustworthy. Finally, appellant
maintains that substantial evidence does not support the court’s decision. According to
appellant, the juror’s own assurance that she would remain impartial could not provide
substantial evidence to support the court’s decision because she only disclosed what
occurred after the court summoned and questioned her. Appellant insists that the juror’s
explanations lacked credibility. He contends we must find an abuse of discretion and
reverse his judgment. We disagree.
Section 1089 authorizes a trial court to discharge a juror and substitute an alternate
if “good cause” is shown that the juror is “unable to perform his or her duty[.]” A juror
12.
may be excused for actual bias, which is “the existence of a state of mind on the part of
the juror in reference to the case, or to any of the parties, which will prevent the juror
from acting with entire impartiality, and without prejudice to the substantial rights of any
party.” (Code Civ. Proc., § 225, subd. (b)(1)(C); People v. Ledesma (2006) 39 Cal.4th
641, 670.)
In this matter, nothing demonstrates or reasonably suggests juror number 10 was
biased or she was unable to perform her duty in a fair and impartial manner. The bailiff
denied being related to juror number 10 and he did not know her family. Juror number
10 initially told the court she believed she was related to the bailiff, but she later stated
she did not know.
Nothing demonstrates that juror number 10 had any meaningful relationship with
the bailiff. Nothing reasonably suggests the juror was biased or untrustworthy. Juror
number 10 explained what happened, and her explanations appear reasonable. We reject
appellant’s assertion that she lacked credibility.
The court issued its ruling after thoughtfully considering the situation, and
substantial evidence supports the decision. The juror’s alleged inability to perform as a
juror does not appear in this record as a demonstrable reality. (See People v. Cleveland,
supra, 25 Cal.4th at p. 474.) The court acted well within its discretion in denying the
motion to remove her, and an abuse of discretion is not present. Therefore, we reject
appellant’s arguments, and this claim fails.
II. Substantial Evidence Supports the Conviction for First Degree Murder
Appellant contends his conviction for first degree murder must be reversed for
insufficient evidence.
A. Background
The trial court instructed the jury that appellant could be guilty of first degree
murder based on three alternative theories: (1) willful premeditation and deliberation;
13.
(2) lying in wait; and (3) felony murder in the commission of a robbery. Regarding
liability for felony murder, the jury was told appellant must have (1) committed robbery;
(2) intended to commit robbery; and (3) while committing robbery, he caused the death
of another person.22 The court provided the jury with the elements necessary to establish
robbery.
The prosecutor argued to the jury that all three theories supporting first degree
murder had been proven. The jury found appellant guilty of first degree murder, but it
did not specify which theory it used. However, the jury found true a robbery-murder
special-circumstance allegation. In contrast, it returned no finding on a lying-in-wait
special circumstance allegation.
B. Standard of Review
When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the record in the light most favorable to the judgment and decide
whether it contains substantial evidence from which a reasonable finder of fact could
make the necessary finding beyond a reasonable doubt. The evidence must be
reasonable, credible and of solid value. We presume every inference in support of the
judgment that the finder of fact could reasonably have made. We do not reweigh the
evidence or reevaluate witness credibility. We cannot reverse the judgment merely
because the evidence could be reconciled with a contrary finding. (People v. D’Arcy
(2010) 48 Cal.4th 257, 293.) The standard of review is the same in which a conviction is
based primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522,
625.)
22 The jury was also instructed regarding liability under a theory of aiding and
abetting.
14.
C. Analysis
Appellant asserts that, although his Snapchat messages show “he was clearly
irritated” that Quintana had failed to pay his debt, nothing shows he intended to rob or
kill Quintana. Appellant maintains insufficient evidence supports all three theories used
to establish first degree murder. First, he contends nothing demonstrates this killing was
willfully premeditated and deliberate. Second, he argues there is insufficient evidence of
lying in wait. Finally, he claims felony murder was not established because there is no
evidence that he held an intent to steal prior to firing the fatal gunshots, and the evidence
does not prove he stole any of Quintana’s money or possessions.
Before we turn to appellant’s arguments, we again note that the jury did not
disclose the theory it relied on in convicting appellant of first degree murder. The jury,
however, was permitted to convict appellant without making a unanimous choice of one
of several theories proposed by the prosecution.23 (See People v. Jennings (2010) 50
Cal.4th 616, 639; People v. Friend (2009) 47 Cal.4th 1, 54.) Although premeditated
murder and felony murder “have different elements, only a single statutory offense of
murder exists. Felony murder and premeditated murder are not distinct crimes, and need
not be separately pleaded. [Citations.]” (People v. Nakahara (2003) 30 Cal.4th 705,
712.)
In this matter, we reject appellant’s arguments. We conclude the first degree
murder verdict is supported with substantial evidence for all three theories.
1. Substantial evidence demonstrates appellant’s willful
premeditation and deliberation
A murder that is perpetrated by a “willful, deliberate, and premeditated killing” is
classified as murder of the first degree. (§ 189, subd. (a).) In People v. Anderson (1968)
23
During closing argument, the prosecutor informed the jurors that they did not
need to agree on which theory supported first degree murder. The prosecutor stated,
“You can find one of them, two of them or three of them with your individual votes to be
true.”
15.
70 Cal.2d 15 (Anderson), our high court set forth the types of evidence sufficient to
sustain a finding of premeditation and deliberation. The Anderson court divided the
evidence into the following three categories:
(1) Facts about what the defendant did before the actual killing showing that
the defendant was engaged in activity directed toward, and intended to result in, the
killing (the “ ‘planning activity’ ”). (Anderson, supra, 70 Cal.2d at pp. 26–27.)
(2) Facts about the defendant’s prior relationship or conduct (or both) with the
victim from which the jury could reasonably infer a motive to kill the victim. The high
court stated that an inference of motive, together with facts of planning activity or the
nature of the killing (discussed next) would, in turn, support an inference that the killing
resulted from a “ ‘pre-existing reflection’ and ‘careful thought and weighing of
considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’
[citation]….” (Anderson, supra, 70 Cal.2d at p. 27.)
(3) Facts about the nature of the killing from which the jury could infer that the
manner of killing was so particular that the defendant must have acted on a preconceived
design to kill in a particular way for a reason that the jury can reasonably infer from facts
of type (1) or (2). (Anderson, supra, 70 Cal.2d at p. 27.)
Our high court typically sustains verdicts of first degree murder when there is
evidence of all three types above. (Anderson, supra, 70 Cal.2d at p. 27.) In the
alternative, it requires at least extremely strong evidence of planning activity or evidence
of motive in conjunction with either planning activity or the manner of killing. (Ibid.)
Our Supreme Court has cautioned that the Anderson factors are merely a guide to
assist reviewing courts in assessing whether the evidence supports an inference that the
killing resulted from preexisting reflection and weighing of considerations. (People v.
Thomas (1992) 2 Cal.4th 489, 517.) The Anderson factors are “not exclusive” or
“invariably determinative.” (People v. Combs (2004) 34 Cal.4th 821, 850.)
16.
With the Anderson factors as a guide, we examine the record for substantial
evidence of premeditation and deliberation.
a. Planning Activity
Appellant argues that, based on his social media messages, his activity prior to the
killing “appears to have been oriented not toward making plans to kill Quintana but
toward trying to settle a debt.” He also claims nothing shows he “devised a plan to avoid
detection or capture after the killing.” He concludes the evidence suggests he “had no
preexisting plan whatsoever.” We disagree.
The evidence was in dispute regarding where appellant initially met Quintana on
the fatal night. The jury was entitled to credit Andres’s testimony in this regard and
reject appellant’s testimony. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 162
[jury holds exclusive province to determine witness credibility and the facts].) Based on
Andres’s testimony, Quintana met appellant near an apartment complex on the fatal night
and Quintana got into appellant’s van, which drove away. Quintana’s body was found
the next morning in an orchard in the area of Scofield Avenue and McCombs Road.
Appellant arranged to meet Quintana to buy drugs from him. Appellant, however,
testified it was unusual for him to buy drugs from Quintana. Instead, appellant typically
sold drugs to Quintana. The jury could have reasonably concluded that appellant
arranged the drug meeting not to purchase drugs from Quintana but to get Quintana alone
inside his van. The jury could have also reasonably determined that, had appellant
intended a drug sale to occur, that transaction could have taken place inside the van
without the need to drive to the orchard. The evidence reasonably suggests appellant
arranged to meet Quintana so that he and Sandoval could drive Quintana to a desolate
area where the killing could occur.
Moreover, appellant told the prosecutor that Sandoval loaded appellant’s shotgun
around 7:00 p.m. before they met Quintana. Sandoval loaded the firearm using shells
17.
(“buckshot and some other type”) that appellant had provided. From all of the evidence,
the jury had grounds to determine that appellant and Sandoval were planning to commit
this killing.
Finally, appellant testified at trial that, after this killing, he gave Quintana’s
handgun to Sandoval, who “got rid of it.” Appellant also lied repeatedly to detectives
about his involvement in this killing. Appellant took steps to conceal his involvement in
this crime.
Although appellant can point to an alternative view of how to interpret his social
media messages, his explanation is not the only possible inference that may be drawn.
An opposing interpretation of fact is insufficient to reverse the judgment. Instead, we
must presume every inference in support of the judgment that the jury could reasonably
have made, and we will not reverse the judgment merely because the evidence could be
reconciled with a contrary finding. (People v. D’Arcy, supra, 48 Cal.4th at p. 293.)
Based on the facts from this record, the jury had sufficient evidence to find that
appellant planned to kill Quintana.
b. Motive
Appellant asserts nothing shows he “had a significant motive” to kill Quintana.
However, our Supreme Court holds that “a specific motive” need not be established in
order for a reviewing court to affirm a judgment, even one involving first degree murder.
(People v. Edwards (1991) 54 Cal.3d 787, 814.) Even a “senseless, random, but
premeditated, killing supports a verdict of first degree murder.” (Ibid.)
Here, a motive to kill overwhelmingly exists. It was undisputed at trial that
Quintana owed appellant money for a prior drug transaction. Appellant expressed his
clear frustration that Quintana was not paying him back. Although appellant reassured
Geronimo in a message that he did not want to kill Quintana the jury was not required to
accept that statement as excluding a motive to kill. Instead, the jury was free to conclude
18.
that, as a drug dealer, appellant felt the need to send a message for Quintana’s lack of
respect. Based on the owed debt and appellant’s clear frustration with Quintana, a motive
to kill can be readily inferred from the record.24
c. The Manner of the Killing
The manner of killing strongly suggests premeditation and deliberation. Quintana
was shot eight times, and all shots were potentially lethal. The shots originated from a
handgun and a shotgun. Quintana had no defensive wounds.
The forensic evidence contradicts appellant’s claim of self-defense. Only one
handgun wound entered Quintana from front-to-back. That wound (overall wound
number two) entered Quintana’s chest and exited through the back near his shoulder
blade. The remaining three handgun wounds all struck Quintana from back-to-front. The
pathologist found no sooting associated with any of the four wounds sustained from a
handgun.
Because a majority of the .38-caliber handgun shots struck Quintana’s on his back
side, the forensic evidence strongly suggests Quintana was attempting to flee from
appellant when appellant fired. Moreover, the lack of sooting from these wounds
provides an inference that appellant shot Quintana at a distance of four feet or more.25
Besides belying appellant’s claim of self-defense, this evidence establishes a reasonable
inference that appellant fired the handgun in a willful, deliberate and premeditated way.
Moreover, Quintana was shot an additional four times from at least one shotgun.
One shotgun wound was caused by buckshot while the remaining three involved slugs.
These four shots entered the right side of Quintana’s body. At least three of the shotgun
24 As we discuss later in this opinion, substantial evidence supports the jury’s true
finding on the robbery-murder special circumstance allegation (§ 190.2,
subd. (a)(17)(A)). The jury had substantial evidence to find both an intent to kill and an
intent to rob.
25 The pathologist opined that “by four feet” sooting would not be expected with a
shot fired from a handgun.
19.
wounds had sooting, which suggests the shots were fired closer than eight to 10 feet
away.
In light of the forensic evidence, coupled with Andres’s testimony that Quintana
had entered appellant’s van and was driven to the orchard, the manner of Quintana’s
killing appears “so particular and exacting” that an inference exists appellant must have
intentionally killed according to a preconceived design to take Quintana’s life.
(Anderson, supra, 70 Cal.2d at p. 27.)
When the Anderson factors are considered, substantial evidence supports the
jury’s first degree murder verdict. This record demonstrates (1) some planning activity;
(2) a clear motive; and (3) a manner of killing that strongly suggests premeditation and
deliberation. Under these circumstances, it is appropriate to sustain the jury’s first degree
murder conviction because “there exists evidence of a motive to kill, coupled with
evidence of either planning activity or a manner of killing which indicates a preconceived
design to kill. [Citation.]” (People v. Edwards, supra, 54 Cal.3d at pp. 813–814; see also
People v. Lucero (1988) 44 Cal.3d 1006, 1018 [although no single Anderson factor was
particularly strong, at least some evidence was presented on each and evidence was
sufficient when considered in combination].)
Based on this record, the jury had substantial evidence to find appellant guilty
beyond a reasonable doubt of first degree murder based on a theory of premeditation and
deliberation. This evidence was reasonable, credible and of solid value. Accordingly,
the jury had a valid ground to find appellant guilty, and reversal is not warranted. In any
event, and as we discuss below, substantial evidence also supports first degree murder
based on a theory of felony murder.
2. Substantial Evidence Demonstrates Felony Murder
All murder committed in the perpetration (or attempt) of certain enumerated
felonies, including robbery, is murder of the first degree. (§ 189, subd. (a); People v.
20.
Gutierrez (2002) 28 Cal.4th 1083, 1140.) The mental state required for felony murder is
the specific intent to commit the underlying felony, and evidence must demonstrate the
defendant held a felonious intent either prior to or during the commission of the acts
which resulted in the victim’s death. (People v. Brooks (2017) 3 Cal.5th 1, 61.) First
degree felony murder does not require proof of a strict causal or temporal relationship
between the underlying felony and the killing. Instead, the killing and the felony must be
part of one continuous transaction. (Id. at pp. 61–62.) The killing need not occur during
the commission of the underlying felony so long as the felony is not merely incidental to,
or an afterthought to, the killing. (People v. Proctor (1992) 4 Cal.4th 499, 532.)
In the present matter, it is undisputed Quintana owed appellant $120 after failing
to pay for an “eight ball” of cocaine he had received from appellant. On January 23,
2018, appellant sent messages to his friend Geronimo complaining that Quintana had not
paid him. Appellant testified at trial he had learned a person named “Matt” was either
selling drugs to or for Quintana. Appellant wrote Geronimo that he was going to “set up”
Matt. Appellant admitted to the jury he planned to take cocaine from Matt to help offset
the money Quintana owed him. Appellant, however, never met Matt. Appellant
admitted at trial he was coming up with a plan to get the money back from Quintana.
Appellant told the jury he was “pretty convinced” Quintana was not going to pay him
back. Appellant testified at trial he gave Quintana respect “and he should give me the
same respect back.” Appellant agreed at trial that respect was shown by paying drug
debts promptly.
Appellant wrote that “shit is getting real” and Quintana had “jacked” an eight ball
from me. Appellant wrote to Geronimo that Quintana “did me dirty,” and appellant was
not going to wait for his money. Appellant wrote that “[a]ctions speak louder than
words.” Appellant reassured Geronimo that he did not want to kill Quintana, but he
wanted Quintana to take a loss. Appellant wrote that Quintana “slit my throat. I’m going
to slit it.”
21.
The jury was entitled to draw reasonable inferences from the circumstantial
evidence. (People v. Livingston (2012) 53 Cal.4th 1145, 1166.) A reasonable inference
exists from appellant’s text messages that he held an intent to take property from
Quintana when he arranged to meet Quintana. Appellant made it clear he intended to get
his money back. In addition, appellant testified at trial about a lack of respect from
Quintana, that he wanted Quintana to take a loss, and he was willing to take cocaine from
Matt in order to get even with Quintana. The jury could have reasonably concluded
appellant held an intent to rob Quintana prior to the killing.
Appellant’s intent to rob may also inferred from Andres’s testimony. The jury
was entitled to credit Andres’s testimony that Quintana met appellant near an apartment
complex on the fatal night and Quintana got into appellant’s van, which drove away.
Based on Andres’s testimony, the jury could have reasonably concluded that appellant
arranged the drug meeting not to purchase drugs from Quintana (which appellant
admitted at trial was unusual) but to get Quintana alone inside his van. Instead of
completing a drug transaction and allowing Quintana to leave, appellant and Sandoval
drove Quintana to the orchard where Quintana was shot multiple times and his clothing
was searched. Other than Quintana’s watch, which was initially hidden underneath the
sleeve of his sweatshirt, law enforcement never found Quintana’s belongings.
Moreover, appellant repeatedly lied to detectives about his involvement in this
murder. At trial, however, he claimed it was Quintana who had threatened him with a
handgun, and appellant claimed he had wrestled the gun away from Quintana and then
fired it six times. The jury clearly found appellant’s testimony lacking in credibility, and
it rejected his assertion of self-defense. In light of the totality of the evidence, the jury
had ample grounds to conclude appellant had held a specific intent to rob Quintana when
he arranged to meet him. Our Supreme Court holds that a verdict may not be disturbed
on appeal when the evidence justifies a reasonable inference of felonious intent. (People
v. Holt (1997) 15 Cal.4th 619, 670; People v. Cain (1995) 10 Cal.4th 1, 47.)
22.
Finally, although none of Quintana’s property was found in appellant’s possession
after this murder, appellant testified he took and kept Quintana’s handgun. According to
appellant, the morning after this killing he gave Quintana’s handgun to Sandoval, who
“got rid of it.” In addition, the circumstantial evidence strongly suggests Quintana’s
clothing had been searched. He was found lying on the ground with his sweatshirt pulled
up and his pants pulled down. One pocket had been slightly pulled out. Quintana’s cell
phone and wallet were missing. The reasonable inferences drawn from the evidence
demonstrate appellant took property belonging to Quintana through the use of force or
fear.
Viewing the record in the light most favorable to the judgment, substantial
evidence exists from which a reasonable jury could have convicted appellant beyond a
reasonable doubt of first degree murder based on a theory of felony murder. The
evidence was reasonable, credible and of solid value that appellant had held an intent to
rob Quintana before this killing occurred, and appellant took Quintana’s property through
force or fear. The circumstances demonstrate that appellant’s robbery of Quintana was
part of one continuous transaction with this killing. A reasonable inference exists that
Quintana’s robbery was not merely incidental to, or an afterthought to, the killing. As
such, substantial evidence supports the conviction in count 1. In any event, and as we
discuss below, substantial evidence also supports first degree murder based on a theory of
lying in wait.
3. Substantial Evidence Demonstrates Lying in Wait
The jury made no finding on the lying-in-wait special circumstance allegation.
However, during closing argument, the prosecutor informed the jurors that they did not
need to agree on which theory supported first degree murder. The prosecutor stated the
jurors could base the first degree murder conviction on one, two or all three of the
theories. Thus, although it is remote, a possibility exists the jury may have based the
23.
guilty verdict on a theory of lying in wait and, for whatever reason, failed to address the
special circumstance allegation. We conclude that, if the jury did rely on this theory to
find appellant guilty of first degree murder, substantial evidence supports it.
All murder perpetrated by means of lying in wait is murder of the first degree.
(§ 189, subd. (a); People v. Ceja (1993) 4 Cal.4th 1134, 1139.) First degree murder by
lying in wait requires “(1) a concealment of purpose, (2) a substantial period of watching
and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack
on an unsuspecting victim from a position of advantage .…” (People v. Morales (1989)
48 Cal.3d 527, 557 (Morales), overruled on other grounds by People v. Williams (2010)
49 Cal.4th 405, 459; see also People v. Poindexter (2006) 144 Cal.App.4th 572, 584–585
(Poindexter) [holding that these elements are required for both first degree murder by
means of lying in wait and the lying-in-wait special circumstance].)
According to our Supreme Court, lying in wait does not require physical
concealment. Instead, “[i]t suffices if the defendant’s purpose and intent are concealed
by his actions or conduct, and the concealment of purpose puts the defendant in a position
of advantage, from which the fact finder may infer that lying in wait was part of the
defendant’s plan to take the victim by surprise. [Citations.]” (People v. Ceja, supra, 4
Cal.4th at p. 1140.)
Two opinions are instructive: (1) People v. Cage (2015) 62 Cal.4th 256 (Cage)
and (2) Poindexter, supra, 144 Cal.App.4th 572.
a. Cage
In Cage, the defendant hid a shotgun in a laundry basket and took that with him to
the first victim’s door. (Cage, supra, 62 Cal.4th at p. 279.) The high court held that a
jury could rationally deduce from these facts that the defendant “planned and undertook a
deliberate subterfuge aimed at making his presence appear to be an innocuous offer” to
return clothes or request to do laundry so that the first victim “would open the door and
admit him. The ruse disguised his intent to kill.” (Ibid.) The high court also held that
24.
“[t]he lying in wait need not continue for any particular period of time provided that its
duration is substantial in the sense that it shows a state of mind equivalent to
premeditation or deliberation. [Citation.]” (Ibid.)
The Cage court addressed whether a “substantial period of watching and waiting”
occurred to support a theory of lying in wait. (Cage, supra, 62 Cal.4th at p. 279.) It held
that the evidence did not establish the specific length of time the defendant waited for the
first victim to open the front door, but nothing in the record suggested “it happened
instantaneously” upon the defendant’s arrival at the house. (Ibid., fn. omitted.)
According to the high court, “[a] rational jury could infer that there was some period of
watching and waiting at the door.” (Ibid.) In addition, although the record did not
establish how long the defendant interacted with the first victim before shooting, a
neighbor testified that the first victim’s dog “barked briefly around 10:30 or 10:45 p.m.
and that shots were fired several minutes later.” (Ibid.) According to the court, this
testimony “could support an inference” the defendant conversed with the first victim “for
a few minutes before removing the gun from the basket and shooting her. During such
time defendant could have reflected on his intentions, such that his subsequent actions in
taking the shotgun out of its hiding place and shooting [the first victim] and then
proceeding upstairs to [the second victim’s] room were not the product of a rash impulse.
[Citation.]” (Ibid.)
Finally, the Cage court concluded the defendant’s “surprise attack” on the victims
“followed in a continuous flow of events” after the defendant used his successful “ruse”
to persuade the first victim to open her front door. (Cage, supra, 62 Cal.4th at p. 280.)
Our high court stated, “The jury could reasonably determine that defendant’s actions met
the requirement of an immediate surprise attack on unsuspecting victims from a position
of advantage. [Citation.]” (Ibid.)
25.
b. Poindexter
In Poindexter, the defendant and the victim had a verbal exchange in the presence
of witnesses. The defendant told the victim words to the effect that “ ‘if you want to keep
living … stay here.’ ” (Poindexter, supra, 144 Cal.App.4th at p. 575, fn. omitted.) A
witness heard the defendant say he would “ ‘show’ ” the victim “ ‘what I mean.’ ” (Ibid.)
The defendant walked away. Within a minute, he returned with a shotgun. He carried
the shotgun pointed down, and he said something to the victim, who responded, “ ‘It’s
not that serious. It’s not that serious.’ ” The defendant shot the victim three times before
running away. (Ibid.)
On appeal, the defendant asserted the evidence was insufficient to support the
jury’s finding of first degree murder based on a theory of lying in wait. (Poindexter,
supra, 144 Cal.App.4th at p. 577.) The appellate court disagreed and affirmed the
judgment. (Id. at p. 589.) The Poindexter court held a reasonable jury could have
concluded the defendant’s statement to the victim, telling him to stay there if he wanted
to live, “was a subterfuge intended to convince the victim to stay put” so the defendant
could go and get his shotgun and kill him. (Id. at p. 586.) This fact supported “the
element of concealment of purpose.” (Ibid.) According to the appellate court, the
evidence also supported a finding that the lying in wait “was for a sufficient period of
time” because “it was sufficient to show a state of mind consistent with premeditation or
deliberation.” (Ibid., fn. omitted.)
Appellant contends that Poindexter is distinguishable. According to appellant, no
evidence could justify a conclusion he “met up with Quintana, or drove Quintana to the
orchard, but concealed from Quintana a pre-existing intent to attack him at some point
during their encounter.” Appellant further contends no evidence suggests how much time
elapsed from the moment he and Quintana “got together” and the time Quintana was
shot. Appellant maintains no evidence supports an inference that he killed Quintana
26.
following a period of time during which he “waited for an opportune time to act.” He
concludes that evidence of lying in wait is insufficient. We disagree.
In the present matter, and similar to Cage and Poindexter, the jury could have
reasonably deduced that appellant used a ruse and subterfuge to get Quintana into his van
by setting up a drug transaction with the intent to rob and murder him. Andres agreed at
trial that Quintana was “not scared” to get into appellant’s van that fatal night. This
suggests Quintana trusted appellant. A reasonable jury could have found that appellant
took advantage of that trust.
The jury could reasonably conclude appellant concealed his true intent and
purpose from Quintana. By having Quintana enter his van, appellant and Sandoval were
able to drive him to the orchard where the murder occurred. Under these circumstances,
driving Quintana to the orchard would show “a state of mind equivalent to premeditation
or deliberation. [Citation.]” (Cage, supra, 62 Cal.4th at p. 279.)
The forensic evidence strongly suggests Quintana was fleeing from appellant
when appellant shot him with the handgun. Three of those wounds entered Quintana
from back-to-front. Quintana was shot an additional four times from at least one shotgun,
and he had no defensive wounds. Based on the forensic evidence, a rational jury could
have determined that appellant surprised Quintana and attacked an unsuspecting victim
once they reached the orchard.
Viewing the record in the light most favorable to the judgment, substantial
evidence supports first degree murder by means of lying in wait. The jury could have
reasonably found “(1) a concealment of purpose, (2) a substantial period of watching and
waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on
an unsuspecting victim from a position of advantage .…” (Morales, supra, 48 Cal.3d at
p. 557.) This evidence was reasonable, credible and of solid value. Consequently, if the
jury relied on this theory in count 1 despite rendering no finding on the special
circumstance allegation, substantial evidence supports the murder verdict.
27.
Regardless of whether the jury based appellant’s conviction of first degree murder
on a theory of (1) premeditation and deliberation, (2) felony murder, or (3) lying in wait,
substantial evidence supports the guilty verdict in count 1. Accordingly, appellant’s
arguments are without merit and it is not appropriate to reverse his judgment.
III. Substantial Evidence Supports the Jury’s True Finding on the Robbery-
Murder Special Circumstance Allegation
Appellant received LWOP based on the jury’s true finding for the robbery-murder
special circumstance allegation (§ 190.2, subd. (a)(17)(A)). He argues this true finding
must be reversed. He contends no evidence establishes he had an intent to steal anything
from Quintana prior to the killing or that he stole Quintana’s property. He notes that a
felony-murder special circumstance allegation does not apply if the underlying felony
was merely incidental to the murder. Further, he notes this special circumstance does not
apply unless he formed the intent to steal before or while killing the victim.
Appellant maintains this record only discloses he had hoped to settle a debt with
Quintana, and it does not establish his intent to rob and kill Quintana. Appellant notes
that he messaged Geronimo indicating he wanted Quintana to take a loss and that he did
not intend to kill Quintana. Appellant acknowledges that his messages to Geronimo
suggest he intended “to confront Quintana and demand his money back,” but he argues
his message “cannot establish an intent to rob and kill.” He asserts that the prosecution
presented no eyewitness testimony concerning the sequence of events surrounding the
killing. Thus, “no evidence establishes that the killing was predicated on the commission
of a robbery.”
Finally, appellant notes that he was never found in possession of Quintana’s
property. He argues there is no evidence that he or anyone stole Quintana’s watch,
wallet, money, or gun before or after the killing. He maintains nothing establishes
Quintana had any property with him (except for his handgun) at the time he met appellant
28.
in the orchard. He concludes that the special circumstance finding must be reversed, and
his sentence stricken. We disagree. Substantial evidence supports the jury’s true finding.
“A jury’s true finding on a special circumstance allegation must be supported by
substantial evidence. [Citation.]” (People v. Boyce (2014) 59 Cal.4th 672, 691.) In
conducting this review, a court examines the entire record in the light most favorable to
the judgment below. (Ibid.) The issue is whether the record “ ‘discloses substantial
evidence – that is, evidence which is reasonable, credible, and of solid value – such that a
reasonable trier of fact could find the [special circumstance allegation true] beyond a
reasonable doubt.’ [Citations.]” (Ibid.)
“ ‘ “[T]o prove a felony-murder special-circumstance allegation, the prosecution
must show that the defendant had an independent purpose for the commission of the
felony, that is, the commission of the felony was not merely incidental to an intended
murder.” [Citations.]’ [Citation.] ‘[A] jury deciding the truth of the special
circumstance allegation is not required to assign a hierarchy to the defendant’s motives in
order to determine which of multiple concurrent intents was “primary,” but instead the
jury need only determine whether commission of the underlying felony was or was not
merely incidental to the murder.’ [Citation.] ‘[A] “concurrent intent to kill and to
commit an independent felony will support a felony-murder special circumstance.”
[Citation.]’ [Citation.]” (People v. Castaneda (2011) 51 Cal.4th 1292, 1326–1327.)
In large part, we have already rejected appellant’s arguments in analyzing whether
substantial evidence existed to support first degree murder based on a theory of felony
murder. Although appellant can point to other interpretations that may be drawn from
this record, the evidence supports a reasonable inference appellant held an intent to rob
Quintana before this murder occurred. In addition, the jury had substantial evidence to
find both an intent to kill and an intent to rob. Appellant’s messages show he intended to
get his money back from Quintana. Appellant testified at trial about a lack of respect
from Quintana, that he wanted Quintana to take a loss, and he was willing to take cocaine
29.
from Matt in order to get even with Quintana. The record establishes a clear motive for
appellant to both rob and kill Quintana. The jury could have reasonably concluded
appellant held an intent to rob Quintana prior to the killing, and he concurrently intended
Quintana’s death.
Appellant’s intent to rob may also inferred from Andres’s testimony. The jury
was entitled to credit Andres’s testimony that Quintana met appellant near an apartment
complex on the fatal night and Quintana got into appellant’s van, which drove away.
Based on Andres’s testimony, the jury could have reasonably concluded that appellant
arranged the drug meeting not to purchase drugs from Quintana (which appellant
admitted at trial was unusual) but to get Quintana alone inside his van in order to
effectuate a robbery.
Finally, appellant admitted at trial that he kept Quintana’s handgun, and the
circumstantial evidence strongly suggested Quintana’s clothing had been searched. Other
than Quintana’s watch, which was initially hidden underneath the sleeve of his
sweatshirt, law enforcement never found Quintana’s property. The jury was free to draw
the reasonable conclusion that appellant took Quintana’s property through force or fear,
and he intended to do so before this killing happened.
Viewing the record in the light most favorable to the judgment, substantial
evidence exists from which a reasonable jury could have found true the robbery-murder
special circumstance allegation (§ 190.2, subd. (a)(17)(A)). The evidence was
reasonable, credible and of solid value that appellant held an intent to rob Quintana
before this killing occurred, and appellant took Quintana’s property through force or fear.
The jury could have reasonably concluded appellant held a concurrent intent to rob and to
kill. As such, substantial evidence supports the jury’s determination. Accordingly,
appellant’s arguments are without merit, and we will not reverse the special circumstance
finding.
30.
IV. The Trial Court did not Abuse its Discretion in Permitting Introduction of
Appellant’s Snapchat Messages
According to appellant, the trial court abused its discretion in permitting
introduction of his Snapchat messages. He contends these messages were never properly
authenticated, and he seeks reversal of his judgment.
A. Background
Prior to the start of this trial, appellant’s defense counsel filed a motion in limine
seeking to exclude Snapchat and Facebook26 records that the prosecution claimed
belonged to appellant. The defense argued authentication was required to establish that
appellant actually wrote the messages or posted the content.
An evidentiary hearing occurred regarding this motion. A detective, Daniel Perez,
testified that during his investigation he learned appellant had Facebook and Snapchat
accounts. Appellant was known as “waffles_1999” on Snapchat. Because these accounts
were password protected, Perez needed to obtain warrants. Using subpoenas, Perez
obtained records purportedly belonging to appellant from both Facebook and Snapchat.
Perez accessed appellant’s Snapchat account, which included a photo of appellant and a
photo of a shotgun which looked similar to appellant’s shotgun seized in this matter.
Perez found text messages between appellant and Quintana, who had a Snapchat name of
“Chiefrito.” Based on the text messages, it appeared appellant and Quintana had
arranged a drug deal. Another text conversation showed appellant discussing with a
person known as “yoo_gmo” that Quintana owed him (appellant) money.
During the evidentiary hearing, Perez testified he could not recall if appellant ever
acknowledged that his Snapchat username was “waffles_1999” during his interview with
detectives.27 Perez admitted anyone can initiate a Snapchat account under any name.
However, based on the photos and videos posted on the account, Perez believed appellant
26 Appellant’s present claim only involves the records obtained from Snapchat.
27 Perez participated in interviewing appellant following his arrest.
31.
had exercised “dominion and control” over this Snapchat account. In addition,
appellant’s cell phone number appeared on some of the photos posted on this account.
At the conclusion of the testimony, the trial court delayed ruling on the motion in
limine. However, it deemed that, throughout the trial, the defense had an ongoing
objection to the admissibility of the Snapchat evidence.
At trial, the prosecution called at least three witnesses who discussed appellant’s
Snapchat account. One witness, I.A., testified he had purchased cocaine from appellant.
I.A. was familiar with appellant’s shotgun. I.A. testified he had previously seen a picture
of appellant’s shotgun posted on appellant’s Snapchat account, and I.A. identified that
photograph in court.
Another witness, S.M., testified he was a good friend of Quintana, and he
confirmed Quintana sold drugs. S.M. also knew appellant and he identified appellant in
court. S.M. testified he had communicated with appellant on Snapchat, and he had both
sold drugs to, and purchased drugs from, appellant. S.M. informed the jury that
appellant’s Snapchat name was “Waffles_1999.” S.M. testified that Quintana’s Snapchat
name was “Chiefrito.”
Finally, Perez informed the jury he had reviewed a Snapchat account under the
name “waffles_1999” and he believed it was appellant’s account. He had submitted a
search warrant to obtain the information from this account. He had received numerous
writings from Snapchat in response to his warrant, along with a proof of authenticity
from Snapchat. Perez saw pictures and video of appellant from that account, and Perez
identified appellant in court. This Snapchat account contained photos depicting cocaine,
marijuana and appellant’s shotgun. Perez told the jury he found personal information in
the text messages from this account that identified appellant as the sender. Perez found a
photo of appellant with his Snapchat username on it.
During the trial, the prosecutor reviewed the Snapchat messages with Perez.
These messages were admitted into evidence as People’s exhibit 117. The Snapchat
32.
messages showed appellant communicating with Quintana (Chiefrito) and with a person
known as “yoo_gmo.”28 These messages showed that Quintana owed a drug debt to
appellant; appellant was attempting to recover that money; appellant arranged to meet
Quintana for a drug purchase on the night Quintana was killed; and appellant was upset
that Quintana owed him money. Based, in part, on the information obtained from this
Snapchat account, Perez opined at trial that appellant was involved in the sales of
narcotics and marijuana.
B. Standard of Review
An abuse of discretion standard is used to review a trial court’s ruling on the
admission of evidence. (People v. Cowan (2010) 50 Cal.4th 401, 462.) Under this
standard, we will not disturb the trial court’s decision on appeal unless the court acted in
an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage
of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125; see People v.
Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in
question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis
Appellant argues the trial court erred when it permitted introduction of the
messages from his Snapchat account. According to appellant, these messages were never
properly authenticated, and he notes no witness testified from personal knowledge that he
posted these messages. He contends the admission of his Snapchat messages was
prejudicial, noting the prosecution relied heavily on them to prove his intent to kill and
rob Quintana. Appellant asserts his case is comparable with People v. Beckley (2010)
185 Cal.App.4th 509 (Beckley).
28At trial, Perez testified he did not know the identity of the person using
“yoo_gmo” on Snapchat. Appellant, however, later informed the jury that this was his
friend Geronimo.
33.
We disagree that the trial court abused its discretion in permitting introduction of
appellant’s social media messages. Evidence Code sections 250 and 1401,
subdivision (a), require that photographs and writings be authenticated before they are
admitted into evidence. Authentication requires “the introduction of evidence sufficient
to sustain a finding that it is the writing that the proponent of the evidence claims it
is .…” (Evid. Code, § 1400.) The author’s testimony is not required to authenticate a
document and authenticity may be established by circumstantial evidence. (People v.
Valdez (2011) 201 Cal.App.4th 1429, 1435.) Our Supreme Court holds that any
conflicting inferences go to the document’s weight as evidence, and not its admissibility.
(People v. Goldsmith (2014) 59 Cal.4th 258, 267.) “[W]hat is necessary is a prima facie
case. ‘As long as the evidence would support a finding of authenticity, the writing is
admissible.’ ” (Ibid.) “ ‘Prima facie evidence is that which will support a ruling in favor
of its proponent if no controverting evidence is presented. [Citations.] It may be slight
evidence which creates a reasonable inference of fact sought to be established but need
not eliminate all contrary inferences. [Citation.]’ [Citations.]” (Krinsky v. Doe 6 (2008)
159 Cal.App.4th 1154, 1180, fn. 14.)
Appellant’s cited opinion does not assist him. In Beckley, two defendants were
each convicted of first degree murder and two counts of attempted premeditated murder
following a drive-by shooting. Gang and firearm enhancements were found true.
(Beckley, supra, 185 Cal.App.4th at p. 512.) At trial, the prosecution offered a
photograph purportedly showing a witness, a girlfriend of one of the defendants, flashing
a gang sign. This evidence was introduced to rebut the witness’s testimony she did not
associate with a particular gang, and she had pressured her boyfriend to stop his gang
association. A detective testified he had downloaded the photograph from the
defendant’s “MySpace” page on the Internet. The trial court admitted the photograph
over both defendants’ objections it had not been authenticated. (Id. at p. 514.) The
appellate court concluded the trial court had erred in admitting the photograph. (Ibid.)
34.
In assigning error, the Beckley court noted that, although the defendants conceded
the witness’s face was in the photograph, the record did not contain sufficient evidence to
sustain a finding the photograph was an accurate depiction of the witness actually
flashing a gang sign. The detective could not testify from his personal knowledge, and
no expert testified the picture was not a composite or faked. (Beckley, supra, 185
Cal.App.4th at p. 515.) The Beckley court expressed concern that digital photographs can
be easily altered. (Ibid.) The appellate court, however, ultimately determined any error
was harmless in light of other evidence introduced against the defendants. (Id. at
pp. 516–517.)
Beckley is distinguishable and it does not warrant reversal of appellant’s judgment.
Unlike in Beckley, which involved the authentication of a photograph that was possibly
faked, the present issue involves the authentication of text messages sent through
appellant’s Snapchat account under the name of “waffles_1999.” An inference
overwhelmingly exists that appellant was the author of the disputed messages. During
his interview with detectives, appellant initially denied that he had ever communicated
with Quintana, but appellant eventually admitted to the detectives that he had texted with
Quintana on Snapchat. The jury heard from two witnesses, I.A. and S.M., who knew
appellant personally and identified him in court. They were both familiar with his
Snapchat account. S.M. testified he had communicated with appellant through that
account. S.M. confirmed at trial that appellant’s Snapchat name was “Waffles_1999.”
Perez reviewed that account, and found overwhelming evidence that appellant used it to
send the messages in question.
Appellant’s testimony was not required to authenticate the content from his
Snapchat account.29 (See People v. Valdez, supra, 201 Cal.App.4th at p. 1435.) The
29During his testimony, appellant admitted to the jury he was “Waffles_1999” on
Snapchat. He also admitted sending messages to Quintana and Geronimo from that
account.
35.
prosecution made a sufficient prima facie showing that appellant was the author of these
writings. Nothing reasonably suggests the messages originating from appellant’s
Snapchat account were written by someone else or could have been manipulated. Any
questions concerning the accuracy and reliability of the content from his account differ
dramatically from the questions concerning the accuracy and reliability of the
photographic evidence presented in Beckley. In permitting introduction of these
messages, the trial court did not act in an arbitrary, capricious or patently absurd manner.
Thus, an abuse of discretion is not present. Consequently, appellant’s arguments are
without merit and this claim fails.
DISPOSITION
The judgment is affirmed.
POOCHIGIAN, J.
WE CONCUR:
LEVY, Acting P.J.
DE SANTOS, J.
36.