California Court of Appeal May 31, 2022 No. E071786Unpublished
Filed 5/31/22 P. v. Pimentel CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071786
v. (Super.Ct.No. FSB1103091)
EMMANUEL PIMENTEL et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino County Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part,
remanded with directions.
Randi D. Covin, under appointment by the Court of Appeal, for Defendant and
Appellant, Emmanuel Pimentel.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for
Defendant and Appellant, Jesus Urzua.
1
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Kristen
Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Emmanuel Pimentel and Jesus Urzua appeal their three
murder convictions, for which the jury found true special circumstances and returned
verdicts of life without the possibility of parole. Pimentel and Urzua raise several
arguments about alleged errors in the proceedings below, some jointly and some
individually. We affirm the convictions, except, based on recent changes to the law, we
must vacate the jury’s true findings on gang-related special circumstances, gang
enhancement allegations, and certain personal firearm use enhancements and remand for 1 further proceedings.
I. BACKGROUND
On July 11, 2011, at about 6:00 p.m., a woman was outside her San Bernardino
mobile home when she saw two men walk by. She recognized Urzua; her grandson
would sometimes play video games with him. Urzua carried a shotgun pressed against
his leg.
Pimentel and Urzua went to space 52, a trailer where Jesus Tiburcio lived.
Tiburcio’s brother, Ruben Sanchez, lived in a nearby trailer. Their cousin, Evaristo
1 Undesignated statutory references are to the Penal Code.
2
Contreras, had stopped by to visit their sister Brenda Tiburcio, who also lived nearby and 2 had just given birth.
A second woman was outside another trailer helping her father wash his car. She
heard a loud bang, which she initially thought was fireworks. She saw five individuals,
including Sanchez, who was on the stairs of a trailer, and Tiburcio, who was on the
ground. She saw a man with a shotgun reach for shotgun shells from the man next to
him. The man with the shotgun then fired it at one of the other men, who then yelled
“Brenda” and “help me.”
Brenda looked out her window and saw Urzua, whom she knew. She also saw
Sanchez, whose face was “full of blood.” Urzua was laughing. She saw Urzua and “the
other person” run away. She ran outside and saw Contreras, who took a couple of steps
and fell. He said, “Brenda, I’m going to die.” Brenda asked who was responsible, and
Contreras replied “Jesus and his brother.” Brenda saw Tiburcio, who “had a hole in his
head” with blood “coming out like a water hose.” Later, in the ambulance, when a police
officer asked who shot him, Contreras replied “Jesus.”
Officers were dispatched around 7:08 to 7:14 p.m. and were notified that the
suspects were two Hispanic males running from the mobile home park. The officers saw
Pimentel and Urzua at 7:23 p.m.
2 For clarity, we refer to Jesus Tiburcio (a victim) as “Tiburcio” and Brenda Tiburcio (a witness) as “Brenda.” We mean no disrespect.
3
As the officers approached Pimentel and Urzua, Urzua (as well as a third
individual who was with defendants when the officers approached them) complied with
the officers’ demands. Pimentel ran. Pimentel threw away a silver handgun. A pursuing
officer eventually caught up to Pimentel, tackled him, and took him into custody.
Tiburcio, Sanchez, and Contreras all died from their wounds. Tiburcio and
Sanchez each died from a single handgun shot wound to the head, while Contreras died
from a single shotgun wound to the abdomen.
Pimentel and Urzua were each charged with three counts of first degree murder.
At a joint trial, the People contended that Pimentel shot Tiburcio and Sanchez while
Urzua shot Contreras; both, however, were alleged to have been aiders and abettors for
the murders of the victims they did not directly kill.
The People’s theory of the case was fourfold: (1) Pimentel and Urzua were
members of the Onterio Varrio Sur (OVS) criminal street gang; (2) Urzua was a suspect
in an earlier robbery; (3) Sanchez had given investigators information about Urzua as part
of an investigation into that robbery; and (4) the killings were meant to show the
neighborhood that OVS would retaliate against police informants.
An expert witness on criminal street gangs opined that Pimentel and Urzua were
active OVS gang members. This was based in part on their tattoos. Pimentel, for
instance, had “Onterio” tattooed on his stomach, and the expert stated that OVS spelled
Ontario with an “e.” Pimentel also had a “W” tattooed on his right leg and “E” on his left
leg, referencing “West End . . . Ontario being on the west side of . . . San Bernardino
4
county.” Pimentel also had the letters “OVS” tattooed in block letters on his head. Urzua
had “West End” tattooed on his wrist as well as an “I” on his right shoulder and an “E”
on his left, “Inland Empire” being another symbol of the OVS gang. Additionally, in
2004 and in 2007, Pimentel admitted that he was an OVS gang member, and Urzua told
police in 2009 and 2010 that he was an OVS gang member. Cynthia Urzua—Urzua’s
sister as well as the mother of Pimentel’s children—also testified that Pimentel was an
OVS member.
About a month before the homicides, police had investigated an attempted robbery
at Amigo’s Market in San Bernardino. An investigator learned that Sanchez might know
one of the two suspects. The investigator went to Sanchez’s trailer and spoke with him
briefly. Upon being asked whether an individual in a photo was “Jesus,” Sanchez stated
that it was. Sanchez then refused to answer whether he knew where Urzua lived and shut
the door. Although the conversation took no more than two minutes, the uniformed
officer and his partner were at the trailer park for about 10 minutes, and several other 3 people were standing outside of their mobile homes at the time.
The prosecution’s criminal street gang expert testified that “cooperating with law
enforcement, it’s almost the biggest thing that you can commit with gang culture. You
don’t talk to police. You don’t cooperate in any shape or form with law enforcement,
3 The parties stipulated at trial that the second suspect from the Amigo’s Market incident was not Pimentel.
5
that’s just Rule Number 1 within the gang. They like to keep everything secret. There’s
repercussions if you do cooperate with police.”
Pimentel and Urzua pursued different defenses.
Pimentel’s defense was that he shot all three victims in self-defense after the three
began attacking him and Urzua. Pimentel testified that about a month before the
shootings, a group of masked assailants kidnapped him as he walked to the Ontario
parole office to turn himself in for a violation. At one point the kidnappers pointed a gun
at him and demanded to know where Pimentel’s brother was, telling Pimentel that his
brother had “fucked up.” Pimentel eventually escaped, discovered that he had been taken
to Fresno, and returned home. A police investigation into the kidnapping revealed that
Pimentel’s brother had been involved in a failed drug deal.
A month later, on the day of the shootings, Pimentel decided that he would turn
himself in again and sought drugs to smuggle into prison. Urzua made a call to arrange a
purchase and handed the phone to Pimentel. Someone on the other end of the line
recognized Pimentel’s voice and began threatening him, saying “[w]e need to talk” and
that “[i]f you don’t show up, we know where your kids go to school, where your babies’
mother works, where your people stay at, and where your brother stays at.” Pimentel and
Urzua then went to Tiburcio’s trailer, where they were offered glasses of water before the
three men suddenly started attacking them. Pimentel and Urzua had only a handgun
between them. Pimentel fired at two of the men, then grabbed a shotgun from Urzua
(who had wrestled it from the third victim) and fired it. He then placed the empty casings
6
in his pocket and fled the scene with Urzua. When asked why he went to the trailer park,
Pimentel stated that “[m]y intent was to meet them halfway, since they asked me to go
over there and talk about whatever the issue was in regards to my brother, to basically
squash it. I don’t know if you guys know what that word means. Squash it, you know,
hope we can leave it at that and I can go turn myself in. And I worried about my family.”
During Pimentel’s cross-examination, the People read into the record two
handwritten messages (“kites”) Pimentel had written to Urzua while in jail pending trial.
The kites were found tightly bundled in Urzua’s socks.
The first kite described events leading up to the shooting that closely matched
Pimentel’s trial testimony. After describing Urzua’s phone call for drugs, the kite says:
“Once you heard this, you were surprised and couldn’t believe what you heard.” The kite
described the events as “what I’m putting on their heads,” that “the reason why I’m not
wanting to say that I didn’t shoot anyone of them in self-defense is cuss [sic] that will
look bad against me and you,” that “they already know . . . that their DNA was all over
me,” and that “[y]ou just have to back up my story to the very point where you pulled
back with the escopeta[4] and went into shock.”
In the second kite, Pimentel again described the events and stated that “when it
comes to our defence [sic], I need you to know and understand that it’s a pretension!!!”
Pimentel also stated that “no, my lawyer don’t know you had the escopeta on you or in
4 “Escopeta” is a Spanish word meaning “shotgun.” (Collins Dictionary, <https://www.collinsdictionary.com/dictionary/spanish-english/escopeta>.)
7
the pad. He asked me and I told him no, I never seen you with the escopeta, that the
escopeta came from the blue car.”
When questioned about the kites, Pimentel testified that he was simply reiterating
to Urzua what had actually happened and what he told his investigator.
Urzua, who did not testify, also contended that Pimentel shot all three men.
Urzua’s defense, however, was that Pimentel killed them in a jealous rage over
Tiburcio’s attempt to pursue Cynthia Urzua (Urzua’s sister and the mother of Pimentel’s 5 children) romantically.
Cynthia testified that she has two children with Pimentel but was no longer in a
relationship with him. She stated that Pimentel became jealous and acted violently
toward her on multiple occasions, such as dragging her by the hair. Cynthia had once
obtained a restraining order against Pimentel.
Cynthia and Tiburcio were “friends” on Facebook. About a month and a half
before the shootings, in response to a post Cynthia made, Tiburcio replied: “Damn, you
still looked good back then, jaja.” Cynthia also described two brief, private message
exchanges with Tiburcio. She read those aloud on the stand: “Go to sleep. Lol. Why
should I? I don’t know, cause is late and there’s nothing to do. And then May 29th,
12:05, So what do [sic] doing, Cynthia?”
5 We will hereinafter refer to Cynthia Urzua as “Cynthia” to distinguish her from the defendant. Again, we mean no disrespect.
8
Cynthia also described a phone call with Pimentel after he had been arrested.
During the call, Pimentel twice told Cynthia that she should have “thought about things,” 6 which suggested that the shootings were connected to her in some way.
The jury found Pimentel and Urzua guilty as charged, returning guilty verdicts on
three counts of first degree murder (§ 187, subd. (a)), finding true the alleged sentence
enhancements on all counts for firearm use (§ 12022.53, subds. (b)-(d), (e)(1)) and
committing the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)),
finding true special circumstance allegations on all counts for carrying out the crimes in
furtherance of a criminal street gang (§ 190.2, subd. (a)(22)), and finding true a special
circumstance allegation of committing multiple murders (§ 190.2, subd. (a)(3)).
Following the penalty phase of the trial, the jury returned verdicts of life without the
possibility of parole.
The trial court sentenced both defendants to life without the possibility of parole,
with each count running concurrently. For both defendants, the trial court also imposed a
consecutive term of 25 years to life for the firearm use enhancement under section
12022.53, subdivision (d) (for counts 1 and 3 for Urzua, and counts 1 and 2 for Pimentel, 7 but each term running concurrently) and stayed the other firearm use enhancements.
6 We include a portion of the transcript of the call and discuss the call further in section II. B. 1. , infra. 7 The trial court did not formally stay the gang enhancements under section 186.22, subdivision (b) but instead noted during sentencing that the enhancement “does not carry any additional term of imprisonment” because it “set[s] a statutory minimum of parole eligibility of 15 years.”
9
II. DISCUSSION
A. Pretrial Issues
1. Motion to Sever (Pimentel and Urzua)
As the case was preparing for trial, Urzua moved to separate his guilt and penalty
phase trials from those of Pimentel. Urzua contended that his and Pimentel’s defenses
were inconsistent and that the admission of the kites at trial against Pimentel would
prejudice Urzua. Pimentel joined the motion, and the trial court denied it.
On appeal, defendants claim that the denial of the severance motion was an abuse
of discretion and that the joint trial was fundamentally unfair. As we explain, we find no
abuse of discretion.
“Section 1098 expresses a legislative preference for joint trials. The statute
provides in pertinent part: ‘When two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must be tried jointly, unless the
court order[s] separate trials.’ [Citation.] Joint trials are favored because they ‘promote
[economy and] efficiency’ and ‘“serve the interests of justice by avoiding the scandal and
inequity of inconsistent verdicts.”’ [Citation.] When defendants are charged with having
committed ‘common crimes involving common events and victims,’ as here, the court is
presented with a ‘“classic case”’ for a joint trial.” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 40 (Coffman and Marlow).)
“[S]everance may be appropriate ‘in the face of an incriminating confession,
prejudicial association with codefendants, likely confusion resulting from evidence on
10
multiple counts, conflicting defenses, or the possibility that at a separate trial a
codefendant would give exonerating testimony.’” (Coffman and Marlow, supra, 34
Cal.4th at p. 40.) Additionally, “severance may be called for when ‘there is a serious risk
that a joint trial would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or innocence.’” (Ibid.)
“[L]ess drastic measures than severance, such as limiting instructions, often will suffice
to cure any risk of prejudice.” (Ibid.)
“A court’s denial of a motion for severance is reviewed for abuse of discretion,
judged on the facts as they appeared at the time of the ruling. [Citation.] Even if a trial
court abuses its discretion in failing to grant severance, reversal is required only upon a
showing that, to a reasonable probability, the defendant would have received a more
favorable result in a separate trial.” (Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
“Conversely, even if a trial court acted within its discretion in denying severance, ‘“the
reviewing court may nevertheless reverse a conviction where, because of the
consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair
trial or due process of law.”’” (People v. Thompson (2016) 1 Cal.5th 1043, 1079
(Thompson).)
We begin with Pimentel’s contentions, then address Urzua’s.
11
a. Irreconcilable Defenses
Pimentel contends that severance should have been granted because of
irreconcilable conflicts between his defense and that of Urzua. We disagree; the defenses
differed on the issue of motive, but the conflicts were far from irreconcilable.
“‘Although there was some evidence before the trial court that defendants would
present different and possibly conflicting defenses, a joint trial under such conditions is
not necessarily unfair. [Citation.] “Although several California decisions have stated
that the existence of conflicting defenses may compel severance of codefendants’ trials, 8] none has found an abuse of discretion or reversed a conviction on this basis.”[
[Citation.] If the fact of conflicting or antagonistic defenses alone required separate
trials, it would negate the legislative preference for joint trials and separate trials “would
appear to be mandatory in almost every case.”’” (Thompson, supra, 1 Cal.5th at p.
1081.) “‘Thus, “[a]ntagonistic defenses do not per se require severance, even if the
defendants are hostile or attempt to cast the blame on each other.” [Citation.] “Rather, to
obtain severance on the ground of conflicting defenses, it must be demonstrated that the
conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will
unjustifiably infer that this conflict alone demonstrates that both are guilty.”’ [Citation.]
When, however, there exists sufficient independent evidence against the moving
8 Pimentel contends that abuse of discretion was found in People v. Wheeler (1973) 32 Cal.App.3d 455, but he is incorrect; the court there made no such finding. At best, the Court of Appeal there held that even if denial of the severance motion were an abuse of discretion, it would have been harmless, but this does not mean that the court found an abuse of discretion. (Id. at p. 461.)
12
defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic
defenses do not compel severance.” (Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
Nothing about the conflict between Pimentel’s argument that the shootings were
made in self-defense and Urzua’s argument that the shootings were caused by a jealous
rage would itself tend to support an unjustifiable inference that both men were guilty.
Moreover, there was no attempt to shift responsibility for the killings to each other, even
though “[t]he mere fact that defendants ‘“may attempt to shift responsibility to each other
does not compel severance of their trials.”’” (People v. Daveggio and Michaud (2018) 4
Cal.5th 790, 820 (Daveggio and Michaud).) Here, both Pimentel and Urzua contended
that Pimentel shot all three men, and the only difference in their defenses was why. 9 Under these circumstances, we find no abuse of discretion.
b. Fundamentally Fair Trial
Pimentel also contends that the joint trial was fundamentally unfair.
“Defendants bear the burden of establishing that the trial was grossly unfair and
denied them due process of law, and ‘a judgment will be reversed on this ground only if it
is “reasonably probable that the jury was influenced [by the joinder] in its verdict of
guilt.”’” (Daveggio and Michaud, supra, 4 Cal.5th at p. 821.)
9 We note that Pimentel has made no attempt to show a reasonable probability that he would have received a more favorable result in a separate trial. (See Coffman and Marlow, supra, 34 Cal.4th at p. 41.) Accordingly, even if we had found an abuse of discretion, he would have failed to show that reversal is warranted.
13
In contending that the joint trial was fundamentally unfair, Pimentel relies on
United States v. Tootick (9th Cir. 1991) 952 F.2d 1078 (Tootick). Tootick does not
convince us that reversal is required.
In reversing convictions based on a prejudicial failure to sever, the federal Ninth
Circuit Court of Appeals in Tootick heavily relied on the lack of limiting instructions.
For instance, it noted that during opening statements, one defendant’s counsel referred to
the other defendant “twenty-five times by name, and seventy-two times by the use of
personal pronouns. After this highly inflammatory opening statement, the trial judge
proceeded directly to call for the government to present its case. No admonitory
comments were made to the jury. No additional instructions were provided. Not once in
the entire course of the morning proceeding did the court reiterate the generic instruction
that lawyer talk is not evidence.” (Tootick, supra, 952 F.2d at p. 1084.) Although some
limiting instructions were given, those instructions “consisted of brief statements to the
effect that arguments were not evidence, given only at the traditional times, and a generic
instruction pertaining to joint trials, given at the end of the trial.” (Id. at p. 1085, fn.
omitted.) As well, “[n]o cautioning instructions were given directly after the damaging
opening arguments of the respective defendants.” (Ibid.)
Here, during closing statements, Urzua’s attorney repeatedly stated a personal
belief that Pimentel shot all three men in a jealous rage, such as by arguing, “I told you
from the beginning that I think the best theory is jealousy.” However, after Pimentel’s
attorney objected, the trial court admonished the jury at length, noting that “during all of
14
the attorneys’ closing statements, they are permitted to talk about the evidence,
obviously, and what they believe the evidence either does or does not show or what are or
are not reasonable inferences or conclusions from the evidence. But the attorneys are not
permitted, and it’s improper for attorneys to give their own personal opinion or their own
personal beliefs or vouch for or against a particular witness or testimony. [¶] So
whenever it seems that an attorney is doing that, you should treat those statements as
being their argument as what the evidence shows, not their own personal opinion or their
own personal belief.”
Accordingly, in stark contrast to Tootick, the trial court here admonished the jury
soon after the arguably prejudicial attorney statements were made. In any event, as our
Supreme Court has noted, Tootick “predate[s] the United States Supreme Court’s
decision in Zafiro v. United States (1993) 506 U.S. 534[ . . .], where the high court
explained that ‘[m]utually antagonistic defenses are not prejudicial per se.” (Thompson,
supra, 1 Cal.5th at p. 1081; see also Daveggio and Michaud, supra, 4 Cal.5th at p. 819
[noting that Tootick is “a Ninth Circuit case applying rule 14 of the Federal Rules of
Criminal Procedure”].) Accordingly, Tootick does not support a conclusion that the joint
trial here was fundamentally unfair.
c. Co-Admissibility of Kites
Urzua also contends that severance should have been granted because his defense
was mutually antagonistic with Pimentel’s, he was prejudicially associated with Pimentel,
15
and the joint trial was fundamentally unfair. Urzua offers some different reasons than
Pimentel as to why this might be so. Again, however, we are not persuaded.
Central to all of Urzua’s contentions is the premise that because of the joint trial,
Urzua was “tied to the hip” of Pimentel’s self-defense theory. Urzua characterizes that
theory as “‘patently false’” in light of the two kites that Pimentel wrote, which appear to
acknowledge that the self-defense theory is a fabrication. Urzua contends that the kites
would not have been admissible against him in a separate trial, and that their admission in
the joint trial tied him, in essence, to Pimentel’s sinking ship. In our view, although the
kites likely would not have been admissible in a separate trial against Urzua, their
inclusion in the joint trial did not render the trial court’s denial of severance an abuse of
discretion.
At the same pretrial hearing where the court ruled on the severance motion, the
court also held that the kites were cross-admissible against Urzua as coconspirator
statements, which, though hearsay, are generally admissible. “‘Hearsay evidence is of
course generally inadmissible. (Evid. Code, § 1200.) Hearsay statements by
coconspirators, however, may nevertheless be admitted against a party if, at the threshold,
the offering party presents “independent evidence to establish prima facie the existence
of . . . [a] conspiracy.”’ [Citation.] Pursuant to Evidence Code section 1223[, which sets
for the coconspirator exception], ‘[o]nce independent proof of a conspiracy has been
shown, three preliminary facts must be established: “(1) that the defendant was
participating in a conspiracy at the time of the declaration; (2) that the declaration was in
16
furtherance of the objective of that conspiracy; and (3) that at the time of the declaration
the party against whom the evidence is offered was participating or would later
participate in the conspiracy.”’” (Thompson, supra, 1 Cal.5th at p. 1108.)
The trial court determined that the kites were made as part of a conspiracy “to
avoid prosecution and conviction” by having “a valid joint defense.” This rationale,
however, would not justify admission of the kites against Urzua.
If, on the one hand, the conspiracy at issue was a conspiracy to commit murder,
then the conspiracy ended when Tiburcio, Sanchez, and Contreras were killed, as “acts
committed by conspirators subsequent to the completion of the crime which is the
primary object of a conspiracy cannot be deemed to be overt acts in furtherance of that
conspiracy.” (People v. Zamora (1976) 18 Cal.3d 538, 560; see also Krulewitch v.
United States (1949) 336 U.S. 440, 443 [rejecting the idea that “even after the central
criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase
of the conspiracy always survives, the phase which has concealment as its sole
objective”].)
If, on the other hand, and as the trial court’s ruling indicated, the conspiracy was a
conspiracy to avoid prosecution and conviction by having a joint defense, then this is not
a true conspiracy at all, as planning such a defense is not a crime or civil wrong. (See
(Hispanic woman), and Juror 250 (black woman). Whether due to confusion or
conscious choice, the court construed the motion to include a challenge to a fifth juror
who had been dismissed by the People on a peremptory challenge, Juror 428 (Hispanic
woman).
The trial court began with Juror 477 and Juror 250, noting that “there are at least 10 two other, possibly three other, black females in the box now.” Urzua’s attorney
contended that the remaining panel members had no bearing on the proper analysis, to
which the court responded that “the test of course is whether or not there is a reasonable
inference that the peremptory challenge is being exercised solely on the basis of race”
and that “one factor in evaluating whether or not that is a reasonable inference is if the
prosecution has passed on other members in that class; that perhaps suggests there were
other reasons.” It then asked the prosecutor to state his reasons for the challenges.
The prosecutor stated four reasons for challenging Juror 477: a reluctance to
impose the death penalty, a high degree of confidence in experts and psychologists,
family involvement with the criminal justice system, and an expressed interest in hearing
the defense’s side of the story. The prosecutor also noted that he accepted the panel once
with Juror 477 on it before changing his mind.
Juror 250 was struck, the prosecutor stated, due to her prior service on a hung jury
and the prior removal of her children by the county.
10 The court used “now” metaphorically; of course, the proceedings regarding the Batson-Wheeler motion were held outside the presence of the jury.
22
The trial court then stated: “So in looking at the totality part which includes that
there are other black females still on the panel, and the district attorney has passed once
with them on the panel, and in looking at the reasons offered certainly with regard to
[Juror] 250, fact that a juror had been on a prior hung jury and had been the subject of
children being removed from her home by [the county] are obviously legitimate factors
for a prosecutor to take into consideration. Likewise with regard to [Juror] 477. The
Court finds the prosecution’s explanations for those excusals reasonable. They set forth
reasonable reasons that prosecutors often look at in making that determination. And so
on balance looking at the totality of the circumstances I’m satisfied there is not an
inference or a reasonable inference to be drawn that those peremptory challenges were
made on the basis of race. [¶] So the Batson-Wheeler motion with regard to black
female jurors is denied.”
The court then began its analysis as to Juror 682 and Juror 428 without soliciting
the prosecution’s reasons, noting that those jurors indicated “very strong views against
the death penalty” on their juror questionnaires. The court then asked the prosecutor for
his reasons for challenging Juror 255. After describing to the court Juror 255’s
questionnaire responses relating to the death penalty, the prosecutor stated that he “could
never get a clear read that she honestly and actually would impose the death penalty.”
The prosecutor also cited the fact that Juror 255 was searching for employment as well as
her potential connections to the Innocence Project, stating that she “did research for the
Innocence Project for a school assignment”—a reason that seems to have been related to
23
11 her views on or ability to impose the death penalty. The court denied the motion as to
these three jurors as well.
The 12 jurors and four alternate jurors who heard the case included two white
men, two white women, four black women, three Hispanic men, three Hispanic women,
and one Asian man.
b. Analysis
On appeal, Pimentel and Urzua do not contest the trial court’s ruling as to Juror
682 or Juror 428, two of the three Hispanic female jurors. Accordingly, we focus only on
Juror 477, Juror 250, and Juror 255. Our analysis in this case can only be performed with
a close and detailed review of the jury selection record. Following the standard of review
articulated below, we defer to the trial court’s conclusions to the extent it made a sincere
and reasoned effort to evaluate the proffered reasons, and to the extent those reasons are
supported by the record. We ultimately agree with the trial court that none of these
peremptory challenges were more likely than not made on account of a protected status.
(i) Applicable Law
“Both the state and federal Constitutions prohibit the use of peremptory challenges
to remove prospective jurors based on group bias, such as race or ethnicity.” (People v.
Davis (2009) 46 Cal.4th 539, 582.) “Exclusion of even one prospective juror for reasons
11 According to its website, the Innocence Project “exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice.” (The Innocence Project, About<https://innocenceproject.org/about/>.)
24
impermissible under Batson and Wheeler constitutes structural error, requiring reversal.”
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).)
“The high court set forth a three-step framework in Batson to determine whether a
litigant has violated this right. First, the moving party must establish a prima facie case
of discrimination ‘by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.’ [Citation.] Second, once the moving party ‘makes
a prima facie showing, the burden shifts to the [striking party] to come forward with a
neutral explanation for challenging’ the prospective juror in question. [Citation.] Third,
if the proffered justification is race-neutral, then the court must consider whether the
movant has proved it was more likely than not that the peremptory challenge was based
on impermissible discrimination.” (People v. McDaniel (2021) 12 Cal.5th 97, 121-122
(McDaniel).) “The three-step procedure also applies to state constitutional claims.” 12 (People v. Lenix (2008) 44 Cal.4th 602, 613.)
This case involves only the third step. “By asking the prosecutor to explain the
peremptory challenges, the trial court here implicitly found that defendant had made a
prima facie showing.” (People v. Jurado (2006) 38 Cal.4th 72, 104.)
12 Because the People have not raised it, we do not address the issue of whether “either black or Hispanic females” is a cognizable group for purposes of a Batson- Wheeler analysis. (Compare, e.g., People v. Motton (1985) 39 Cal.3d 596, 605-606 [black women constitute a cognizable group] with People v. Manibusan (2013) 58 Cal.4th 40, 83 (Manibusan) [“Both this court and others have declined to recognize ‘minority jurors’ as a cognizable group for purposes of a claim that the prosecution has excused a prospective juror for discriminatory reasons”].) Instead, we, like the trial court, will treat the motion as two separate ones, one on the basis of black female jurors and one on the basis of Hispanic female jurors.
25
“At step three, courts look to all relevant circumstances bearing on the issue of
discrimination. [Citation.] Relevant circumstances may include the race of the
defendant, the ultimate racial composition of the jury, the pattern of strikes, and the
extent or pattern of questioning by the prosecutor during voir dire.” (McDaniel, supra,
12 Cal.5th at p. 122.) “The prosecutor’s justification does not have to support a challenge
for cause, and even a trivial reason, if genuine and race neutral, is sufficient. The inquiry
is focused on whether the proffered neutral reasons are subjectively genuine, not on how
objectively reasonable they are. The reasons need only be sincere and
nondiscriminatory.” (People v. Melendez (2016) 2 Cal.5th 1, 15 (Melendez).) “The high
court has also held that comparative juror analysis may be probative of purposeful
discrimination at Batson’s third stage.” (McDaniel, supra, 12 Cal.5th at p. 122; see also
Miller-El v. Dretke (2005) 545 U.S. 231, 241 (Miller-El II) [“If a prosecutor’s proffered
reason for striking a black panelist applies just as well to an otherwise-similar nonblack
who is permitted to serve, that is evidence tending to prove purposeful discrimination to
be considered at Batson’s third step”].)
“When a reviewing court addresses the trial court’s ruling on a Batson/Wheeler
motion, it ordinarily reviews the issue for substantial evidence.” (Gutierrez, supra, 2
Cal.5th at p. 1159.) “We defer to a trial court’s ruling only if the court has made a
‘“sincere and reasoned effort to evaluate the nondiscriminatory justifications offered”’ by
the prosecutor.” (McDaniel, supra, 12 Cal.5th at p. 122.) “A court may make a sincere
and reasoned effort to evaluate a peremptory challenge even if it does not provide a
26
lengthy and detailed explanation for its ruling. [Citations.] Under our precedent, ‘[w]hen
the trial court has inquired into the basis for an excusal, and a nondiscriminatory
explanation has been provided, we . . . assume the court understands, and carries out, its
duty to subject the proffered reasons to sincere and reasoned analysis, taking into account
all the factors that bear on their credibility.” (People v. Baker (2021) 10 Cal.5th 1044,
1077-1078.) However, when “‘the proffered reasons lack[] inherent plausibility or [are]
contradicted by the record,’ the court’s failure to probe, or to explain, may eliminate the
basis for deference.” (Id. at p. 1078.) “The defendant has the ultimate burden of
persuasion.” (Melendez, supra, 2 Cal.5th at p. 14.)
(ii) Juror 477
As noted, the prosecutor gave four reasons for striking Juror 477: reluctance to
impose the death penalty, confidence in experts and psychologists, family involvement
with the criminal justice system, and an interest in hearing the defense’s story.
a) Death Penalty Views
Question 12 on the juror questionnaire asked prospective jurors to indicate the
group that best described their feelings and attitudes regarding the death penalty, ranging
from “Group 1,” which contained statements such as “I strongly favor the death penalty,”
to “Group 5,” which contained statements such as “I strongly oppose the death penalty.”
Juror 477 did not indicate which of the groups best described her views on the subject.
At one point during voir dire, the prosecutor asked her about the omission: “You left that
27
blank. As I was wondering as you sit here today, would you put yourself in one of those
groups?” She responded: “I’m willing to consider.”
Question 22 of the questionnaire asked: “For what kinds of crimes, if any, do you
believe the death penalty should be imposed?” Juror 477 wrote: “Child molestation,
robbery where lives (innocent) are lost.”
Question 24 asked: “Which punishment do you think is worse for the defendant,”
with options to choose either death or life in prison without the possibility of parole.
Juror 477 indicated that life in prison without the possibility of parole was worse,
explaining that “they get to relive all the crimes in their heads and think about the
families left behind missing their love [sic] ones.”
The prosecutor stated his concerns about Juror 477’s reluctance to impose the
death penalty: “I—my scale is one through five, one being completely going for the
death penalty and the other—five being completely against it. I had her as a four. I had
concerns on certain areas.
“Initially she said she agrees, she agrees. She didn’t circle one of the groups,
which caused me some reservation right from the beginning because I do find that as an
initial factor. We talked to her about it and I think she put herself around a three. That
was a concern of mine.
“The other concerns that I had were the time for death penalty were child
molestation, robbery, where lives of innocents are lost, which is obviously different from
our case. So that was another issue that caused me some concern with her. She also has,
28
‘Life in prison without possibility is worse,’ and that also is a reservation that I always
have. ‘They get to relive all the crimes they have in their heads and think of what they
left behind.’ Even though we tell them not to consider that as a factor—you have to
consider DP worse than LWOP—they think, well, I’m punishing them because I’m
giving them LWOP and not death.”
“A juror’s reservations about imposing the death penalty are an acceptable race-
neutral basis for exercising a peremptory.” (People v. Armstrong (2019) 6 Cal.5th 735,
770.) Here, the prosecutor noted his concerns about Juror 477 with regard to the death
penalty: her initial failure to answer question 12 on the juror questionnaire, her failure to
include murder in a list of crimes she believed were deserving of the death penalty, and
her view that life without the possibility of parole was a worse punishment than death.
These supported the prosecutor’s apprehension that she might be reluctant to vote for
death.
As defendants note, Juror 477 stated during voir dire that she understood that the
choice between death and life without the possibility of parole would not depend on her
personal feelings. But this statement may have not been enough to assuage the
prosecutor’s concern in light of her other statements and omissions, and our “inquiry is
focused on whether the proffered neutral reasons are subjectively genuine, not on how
objectively reasonable they are” (Melendez, supra, 2 Cal.5th at p. 15). As the prosecutor
himself stated, “[e]ven though we tell them not to consider that as a factor—you have to
29
consider [the death penalty] worse than [life without the possibility of parole]—they
think, well, I’m punishing them because I’m giving them LWOP and not death.”
Defendants also note that other jurors who were seated made similar statements,
such as indicating that life without the possibility of parole was worse than death or
omitting murder in a list of crimes deserving of death. However, it was quite plausible
that “these jurors’ questionnaire responses differed from [Juror 477]’s in ways the
prosecutor could well have regarded as significant.” (People v. Smith (2018) 4 Cal.5th
1134, 1153, fn. 3.) Two jurors, for example, did not specifically list murder as a crime
for which the death penalty should be imposed. However, one of those jurors, Juror 165,
wrote “serious crime” as his answer for question 22 (asking which are appropriate crimes
for the death penalty), and this generic response could well encompass murder, and Juror
165 did not indicate that life in prison without the possibility of parole was always worse
than death. (For that question, Juror 165 put a mark next to both death and life in prison
without the possibility of parole, and wrote: “Both, matter of opinion.”)
The other seated juror, Juror 647, answered “none” for question 22 and indicated
that life without the possibility of parole was worse than death. A comparison of Juror
477 and Juror 647—who was also a black woman—could reasonably lead to two
different conclusions about their views on the death penalty, but both conclusions support
the denial of the Batson-Wheeler motion. The first is that Juror 477 and Juror 647 had
substantially different views on the death penalty, notwithstanding their responses
regarding crimes deserving of death and whether death was the harsher punishment. For
30
example, for question 12, Juror 647 placed herself in “Group 2,” which contained the
statement: “I favor the death penalty . . . .” This response, along with others, could have
placated any concerns about the death penalty the prosecutor may have had with Juror
647.
Another way of evaluating the comparison between Juror 477 and Juror 647 would
be to conclude that they are alike, in that they are both black women who consider life
without parole a worse punishment and do not view murder as deserving of the death
penalty. If this is the case, however, it would also undercut defendants’ argument that
Juror 477 was struck for impermissible reasons, as Juror 647 ultimately sat on the jury.
In other words, to the extent that Juror 647 and Juror 477 are alike based on their gender,
race, and potential views on the death penalty, the prosecutor’s inclusion of one and
strike of another is evidence that the strike against Juror 477 was exercised for one of the
reasons that the prosecutor gave, rather than out of group bias.
In sum, we reject defendants’ comparisons between Juror 477 and other jurors on 13 this issue and find that the trial court’s findings were supported by substantial evidence.
13 We note that defendants’ factual assertions with regard to comparative analysis are at times unreliable. For example, defendants asserted that “[t]hree other jurors indicated they thought LWOP was or could be worse than death,” citing Juror 201, Juror 670, and Juror 701 as examples. Juror 201, a black woman who served as an alternate, did indicate on question 24 that she believed life without the possibility of parole was worse than death. Juror 670, however, indicated that death was a worse punishment in response to question 24, although she wrote in response to another question that life without the possibility of parole “could be worse punishment than death.” If Juror 670’s response to a separate question should be considered here, then likely so should Juror 165’s response, noted above, that both death or life without parole could be worse as a
31
b) Mental Health Professionals and Expert Testimony
The prosecutor’s second concern with Juror 477 was that “she has a lot of
confidence in psychologists” and that she “would likely believe or disbelieve anything an
expert said.” This was an accurate characterization of Juror 477’s responses. Question
47 of the questionnaire asked: “In general, how much confidence do you have in
psychiatrists, psychologists, and other mental health professionals?” Juror 477 wrote:
“A lot.” Additionally, question 49(c) asked: “Would you automatically believe or
disbelieve anything an expert said merely because the person claims to be an expert?”
Juror 477 marked the space next to “Yes.”
There were two seated jurors who gave comparable answers on their
questionnaires, but comparative analysis yields a less than clear result. The two other
jurors who gave similar answers to both questions were (again) Juror 165 and Juror 647.
In response to question 47, Juror 165 wrote “some, they are professionals,” and in
response to question 49(c), Juror 165 marked “Yes.” Similarly, Juror 647 wrote “much
confidence” in response to question 47 and marked “Yes” to question 49(c). During voir
dire, the prosecutor questioned Juror 165 about those responses over the course of six
“matter of opinion.” And Juror 701 was never seated as a juror or as an alternate, and thus the fact she (like Juror 477) thought life without the possibility of parole was worse does not meaningfully add to defendants’ argument. Additionally, defendants neglected to mention that Juror 123, Juror 566, Juror 647, and Juror 715—who were all seated as jurors—also indicated in response to question 24 that life without the possibility of parole was worse than death.
32
14 pages of the trial transcript. However, the prosecutor asked no questions about those
portions of the questionnaire with Juror 647 or Juror 477.
The United States Supreme Court has recognized the inference a reviewing court
can draw from inconsistent questioning on a topic that the state claims is important. In
Miller-El II, the Court concluded that a prosecutor’s rationale for exercising a peremptory
strike was “unsupportable” because, although the prosecutor asked the excused juror
about an issue of concern, it did not do the same with other jurors whose responses
should have raised the same concern. (Miller-El II, supra, 545 U.S. at p. 246.) That
inconsistency was concerning, the Court stated, because “[i]f, indeed, [the excused
juror]’s thoughts on [the issue] did make the prosecutor uneasy, he should have worried
about a number of white panel members he accepted with no evident reservations.” (Id.
at p. 244; see also Ex parte Travis (Ala. 2000) 776 So.2d 874, 881 [“[T]he State’s failure
to engage in any meaningful voir dire examination on a subject the State alleges it is
concerned about is evidence suggesting that the explanation is a sham and a pretext for
discrimination”], cited in Miller-El II, supra, at p. 246.)
Here, Miller-El II suggests that the prosecutor may not have been genuinely
worried about an overreliance on experts or mental health professionals because although
14 A portion of that exchange reads: “[Prosecutor:] I want to make sure that you feel comfortable enough that we just don’t automatically accept whatever comes out of someone’s mouth because they say they’re an expert. [¶] You feel you can feel comfortable doing that? [¶] PROSPECTIVE JUROR No. 165: Yes.”
33
the prosecutor asked Juror 165 questions about it, he did not do the same with Juror 477
before excusing her.
Juror 647, however, complicates that analysis. As noted, Juror 647, a black
woman, wrote that she had “much confidence” in mental health professionals and that she
would “automatically believe or disbelieve anything an expert said merely because the
person claims to be an expert” (underlining omitted). Thus, Juror 647 and Juror 477 are
all but identical in this respect, yet Juror 647 was ultimately seated on the jury, while
Juror 477 was excused.
One possible explanation for this muddled set of circumstances is that the
prosecutor’s purported reliance on responses relating to mental health professionals and
other experts was indeed a subsequently manufactured, rather than actual, reason for the
challenge to Juror 477, but that it nevertheless was not a pretext for discriminating
against black women. Another possible explanation, equally unsatisfying, would be that
the prosecutor’s inconsistency was inadvertent, given the hundreds of potential jurors
screened. We do not have to conclude one way or the other here, however. At a
minimum, the evidence on this issue does not show that the prosecutor used reliance on
expert testimony as a pretext to discriminate against black women.
c) Family Involvement with the Criminal Justice System
The prosecutor’s explanation for his third reason for striking Juror 477 was
succinct: “She had some siblings that had criminality.” In response to question 42 of the
34
questionnaire (“Has anyone close to you ever been arrested, accused of a crime, or
prosecuted?”), Juror 477 marked the space next to “Yes” and wrote: “A sibling.”
The dilemma here is the same: although the prosecutor cited this as a reason for
striking Juror 477, six of the 16 seated and alternate jurors also answered “Yes” to
question 42 and listed family members. Of those six, two were black women. None of
the parties have pointed us to any portion of the trial record where the prosecutor might 15 have asked follow-up questions on this topic from any of these jurors.
In its brief, the People state that “[n]otably, all but Juror 477 and Juror 605
provided additional information about the crime when answering the question.” But even
taking this as true, it does not help the People. For one, the prosecutor did not cite a lack
of additional information here as a reason for striking Juror 477 the same way he did with
her failure to place herself into a death penalty group. (See Miller-El II, supra, 545 U.S.
at p. 252 [“a prosecutor simply has got to state his reasons as best he can and stand or fall
on the plausibility of the reasons he gives”], italics added.) For another, as the People
themselves note, Juror 605 also did not give information about the crime (he only wrote
“[o]ne of my sons”), yet he was seated on the panel.
15 The respondent’s brief makes reference to a brief exchange during voir dire in which the prosecutor asked Juror 477 if she had any family member accused of being in a gang, and she said she had a cousin so accused, but “[t]hat was their personal opinions. I just seen him as my cousin.” The prosecutor’s reference during the Batson-Wheeler motion to Juror 477’s “siblings,” however, strongly suggest he was referring to Juror 477’s questionnaire response, not the voir dire exchange. In any event, the People do not argue that the voir dire exchange would have provided a justifiable reason for striking Juror 477.
35
Ultimately, we reach the same, limited conclusion: whatever the comparative
analysis and other evidence on this issue might show, it does not show that the prosecutor
used family involvement with the justice system as a pretext to discriminate against black
women.
d) Desire to Hear Defendants’ Side of Story
The prosecutor explained his fourth and final reason for striking Juror 477—a
desire to hear defendants’ versions of events—as follows: “If you look at the last page,
would you like to be a juror, ‘curious to hear their side of the story.’ And so, even though
the defense may look at that as a way of saying, oh, well, she’s trying to burden shift, I
look at more, well, she’s interested in what the defense has to say. Now that may be an
amicable quality, but as a prosecutor, I don’t want people that are interested in what the
defense has to say because I would like them to be more inclined to what I have to say.
So that obviously is a concern that I have. I obviously prefer things differently
sometimes in how they say it than the defense would, but that was my concern with her.”
In response to question 95 of the questionnaire (“Would you like to be a juror on this
case?”), Juror 477 marked the space next to “Yes” and wrote: “Curious to hear their side
of the story.”
None of the jurors who heard the case made similar remarks about wanting to hear
defendants’ version of events. Defendants contend that the prosecutor’s reason here was
not genuine, both because (in defendants’ words) an “ideal juror listens to all the
evidence, including any defense evidence” and because this and other responses
36
suggested that Juror 477 expected the defendants to prove their innocence, “a trait more
commonly objectionable to the defense than to the prosecutor.”
As we have noted, however, the step three inquiry does not focus on how
“objectively reasonable” a proffered reason is, only whether it is “subjectively genuine.”
(Melendez, supra, 2 Cal.5th at p. 15, italics omitted.) Although whether an argument is
subjectively genuine in turn depends, at least partially, on reasonableness—because
“implausible or fantastic justifications may (and probably will) be found to be pretexts
for purposeful discrimination” (Purkett v. Elem (1995) 514 U.S. 765, 768 (per
curiam))—it does not matter whether the prosecutor seeks “ideal” jurors, either from a
prosecutor’s vantage point or society’s.
“So, for example, if a prosecutor believes a prospective juror with long, unkempt
hair, a mustache, and a beard would not make a good juror in the case, a peremptory
challenge to the prospective juror, sincerely exercised on that basis, will constitute an
entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] It
matters not that another prosecutor would have chosen to leave the prospective juror on
the jury. Nor does it matter that the prosecutor, by peremptorily excusing men with long
unkempt hair and facial hair on the basis that they are specifically biased against him or
against the People’s case or witnesses, may be passing over any number of conscientious
and fully qualified potential jurors. All that matters is that the prosecutor’s reason for
exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of
being nondiscriminatory.” (People v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso).)
37
Here, we see no basis to distinguish the reasoning stated in cases such as Melendez
and Reynoso. The fact that the prosecutor did not want jurors who sought to hear the
defendants’ versions of events may well have meant excusing “fully qualified potential
jurors” (Reynoso, supra, 31 Cal.4th at p. 924). And the prosecutor acknowledged this as
well, telling the trial court that even though Juror 477’s response demonstrated an
“amicable quality,” he preferred jurors who would have been “more inclined to what [he
had] to say.” However, we see nothing to suggest that this proffered concern was a
pretext for discrimination.
e) Other Evidence
Having concluded that none of the individual reasons the prosecutor gave for
striking Juror 477 were a pretext for discrimination against black women, we note two
additional reasons why we believe defendants have not met their burden of showing
impermissible discrimination.
The first reason is that neither Pimentel nor Urzua share either the race or the
gender of the identified group. “No doubt, a litigant may raise a Batson/Wheeler
objection regardless of the race of the defendant or the victim.” (People v. Baker, supra,
10 Cal.5th at p. 1080.) But the fact that neither defendant is “a member of any of the
actual or assumed cognizable groups involved . . . [is] a factor that, because it is absent,
fails in this case to support an inference of discrimination.” (People v. Bell (2007) 40
Cal.4th 582, 600, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th
665, 686, fn. 13; see also People v. O’Malley (2016) 62 Cal.4th 944, 980 [noting that the
38
case “did not involve a situation in which ‘[r]acial identity between the defendant and the
excused person,’ or between the victim and the majority of remaining jurors, raises
heightened concerns about whether the prosecutor’s challenge was racially motivated”].)
The second reason is that the ultimate racial composition of the jury strongly
suggests that the prosecutor did not harbor bias against black women. (See McDaniel,
supra, 12 Cal.5th at p. 122 [relevant circumstances to consider at step three include “the
ultimate racial composition of the jury”].) Here, of the 16 jurors and alternate jurors,
four—or one quarter—were black women. No other group based on race and gender had
as many jurors. (Two groups had three members: Hispanic women and Hispanic men.)
Additionally, the fact that the People accepted the panel when it had enough remaining
peremptory challenges to strike the four black women suggests that the prosecutor did not
harbor bias against them. (See id. at p. 124; see also ibid. [noting that “the final racial
composition of the jury was diverse and contained more Black jurors than jurors of any 16 other race”].)
In sum, we find no error in the trial court’s denial of defendants’ Batson-Wheeler
motion as to Juror 477.
(iii) Juror 250
The prosecutor gave two reasons for striking Juror 250: the fact that “she had
been on a hung jury before with molestation,” and that “[s]he implicated her children
16 The People ultimately exercised 23 of their 30 allowed peremptory challenges. (See Code of Civ. Proc., § 231, subd. (a) [in a capital case with two defendants, the prosecution has 30 peremptory challenges total].)
39
were removed by the courts,” which concerned the prosecutor “because obviously it was
in this county.”
On appeal, defendants acknowledge that prior service on a hung jury can be a
legitimate reason for excusing a juror. (See Manibusan, supra, 58 Cal.4th at p. 78 [“Of
course, the circumstance that a prospective juror has previously sat on a hung jury is a
legitimate, race-neutral neutral reason for exercising a strike”].) Defendants note that no
other jurors who heard the case reported serving on a hung jury. As well, defendants do
not argue that prior removal of a juror’s children would be an improper reason for
excusing a juror.
Defendants argue that Juror 250 was improperly excused because her answers to
other questions would have made her an ideal juror for the prosecution. As noted,
however, the fact that the prosecutor’s strikes may result in some qualified potential
jurors from serving does not, by itself, show improper discrimination. (See Reynoso,
supra, 31 Cal.4th at p. 924.) We therefore find no error with the trial court’s ruling on 17 Juror 250.
17 Defendants also contend that the prosecutor’s dismissal of Juror 477 and Juror 587 raise an inference of discrimination with regard to Juror 250. We have already rejected the challenge as to Juror 477 above. Any challenge as to Juror 587 is forfeited for defendants’ failure to raise it at trial. (See People v. Bolin (1998) 18 Cal.4th 297, 317.)
40
(iv) Juror 255
The prosecutor gave two reasons for excusing Juror 255, a Hispanic woman. First,
he stated that he “had an issue of her being unemployed and saying she would stick
around here. I tried to go and speak to her about that, it was like, Oh, yeah, just trying to
work it out with my employer. I didn’t want a situation where she was going to be here
and then leave us halfway through.”
The second reason was that he “could never get a clear read that she honestly and
actually would impose the death penalty.” This was based in part on some of her answers
to questions regarding the death penalty and in part on her potential connection to the 18 Innocence Project.
18 The prosecutor’s remarks were as follows: “Concerns I had with her were she indicated—excepted in very specific instances, meaning to question 15, ‘must be 100 percent sure of guilt.’ Then she had, in question 20 she indicates what do you believe the purpose of the death penalty is, ‘to punish the most heinous of crimes and to balance an order,’ which started to worry me about her and her ability to only have the focus on certain types of crimes. Then 23, 24—even though she circled ‘yes,’ she says, ‘I would be reluctant to put a person to death without thinking it over once again. Yet if I believe them guilty, without any doubt would vote for death.’ And I just saw this as a person who would go beyond even lingering doubt. She would have to have no doubt in her mind to vote for the possibility of death. “She did research for the Innocence Project for a school assignment, kind of a thing I’m not really—wouldn’t be inclined to keep somebody who is researching for the Innocence Project. It appears to me most Innocence Project situations deal with death penalty cases, and it’s not that she’s working for the DA’s office in trying to help right [sic] motions to oppose death verdicts. She’s actually working for the Innocence Project as a school assignment. So that caused me a lot of reservation for that. “There were questions where she marked group two and different things, but those responses were inconsistent with other responses. And I could never get a clear read that she honestly and actually would impose the death penalty.”
41
In denying the motion as to Juror 255, the trial court stated that it was “satisfied
that the explanations offered by the prosecution are reasonable explanations, based on
question—answers in the questionnaire that reasonably would give a reasonable
prosecutor cause for concern.” Although we find the issue to be close, we hold that the
motion was properly denied.
The first reason the prosecutor gave—employment concerns—was inadequate.
For one, the trial court did not rely on this reason in its ruling. For another, there is
nothing in the record to substantiate the prosecutor’s claim that he spoke with Juror 255 19 and she said she would “work it out” with her employer. Although we have no reason
to disbelieve the prosecutor’s assertions, accepting the unsubstantiated statements here—
which also seem to have not been observed by the defendants or the trial court—would
veer too much toward allowing the prosecutor “to rebut the defendant’s case merely by
denying that he had a discriminatory motive or ‘[affirming] [his] good faith in making
individual selections,’” which would make “the Equal Protection Clause ‘. . . a vain and
illusory requirement.’” (Batson, supra, 476 U.S. at p. 98.)
The second reason—reluctance to impose the death penalty—does not appear to
be any more supported by the record. In response to question 15 (“What are your general
feelings about the death penalty?”), Juror 255 wrote: “Accept it in very specific
instances. Must be 100% sure of guilt. Can be convinced to go either way.” Juror 255
19 There is a brief voir dire exchange involving Juror 255, but Juror 255 never mentioned an employer then, and it was in response to questions by the trial court, not the prosecutor.
42
also responded “Yes” to the question: “If you conclude that the defendant is guilty of
first-degree murder and that a special circumstance is true, and that a sentence of death is
legally warranted in this case, would you be reluctant to personally vote for a sentence of 20 death?” She explained: “I would be reluctant to put a person to death without thinking
it over once again, yet if I believe them guilty without any doubt would vote for death.”
Portions of these responses, such as the desire to be 100 percent sure of guilt and
the stated reluctance to impose the death penalty—which the prosecutor alluded to in his
proffered reasons—do support the notion that Juror 255 could have been reluctant to
impose the death penalty. (See Manibusan, supra, 58 Cal.4th at p. 84 [prosecution may
properly be concerned if juror states that the “‘death penalty must really be warranted’”].)
Comparative analysis, however, reveals that at least one other juror made substantially
similar remarks. Juror 8, a white man who sat on the jury, also marked “Yes” in response
to the question about reluctance and explained: “I would want to be 100% sure that the
evidence is accurate before voting for death.” Both also mentioned that the death penalty
applied to “heinous” crimes: Juror 255 wrote that the purpose of the death penalty was
“[t]o punish the most heinous of crimes and to keep balance and order,” and Juror 8
wrote that the death penalty was “an appropriate sentence for heinous crimes.”
Additionally, Juror 8, like Juror 255, put himself in “Group 2,” something the prosecutor
20 This question, like another question discussed above, was enumerated as question 24 on the questionnaire.
43
21 stated made (only) Juror 255 “inconsistent” and therefore a concern. In light of the
prosecutor’s proffered reasons and a comparative analysis of Juror 255 and Juror 8
focusing on those reasons, we decline to credit the prosecutor’s reliance on Juror 255’s 22 questionnaire responses regarding a potential reluctance to impose the death penalty.
The only substantive difference between Juror 255 and Juror 8 in this area was
Juror 255’s connection to the Innocence Project. In response to question 63 (“Have you
ever visited any internet web sites dealing with victims of crime, law enforcement, or the
criminal justice system?”), Juror 255 marked the space next to “Yes” and wrote:
“Researched the innocence project for a school assignment.” Although Juror 8 also
marked “Yes” to the same question, he wrote: “I’ve visited the SB court Open Access
site to review divorce [illegible text] some of my ex-wife’s charges.”
While giving his proffered reasons, the prosecutor appears to have overstated Juror
255’s connections to the Innocence Project. Although Juror 255 only stated that she
researched the organization for a school assignment, the prosecutor stated that she was
“researching for the Innocence Project” (italics added) and that “[s]he’s actually working
21 Other seated jurors made remarks suggesting they might require a higher standard of proof than proof beyond a reasonable doubt, but we focus here on Juror 8, whose responses on these questions were the most similar to Juror 255. 22 Although both the trial court and the prosecutor asked Juror 255 questions about her ability to impose the death penalty, the prosecutor’s proffered reasons for excusing Juror 255 made no reference to those questions or responses and instead relied only on her questionnaire responses. In any event, Juror 255 repeatedly stated during questioning that she would have no problem weighing the aggravating and mitigating factors during a penalty phase.
44
for the Innocence Project as a school assignment.” Unlike Juror 255’s questionnaire
responses, the prosecutor’s statements implied that Juror 255 had taken a position at the
organization, even if a temporary one, as part of a school assignment. Moreover, no one
asked Juror 255 any follow-up questions about her response to this question or about the
Innocence Project. The prosecutor’s proffered reasons for excusing Juror 255 based on
her connection to the Innocence Project were therefore not supported by the record.
The insufficiency of the prosecutor’s proffered reasons for excusing Juror 255 is
troubling. The reasons given were either unsupported by the record or were
unproblematic as to other, non-Hispanic female jurors who heard the case. We ultimately
find, however, that “the fact that the prosecution accepted a panel with [three Hispanic
female] jurors when it had enough remaining peremptory challenges to strike them”
(McDaniel, supra, 12 Cal.5th at p. 124) is heavily probative here. As we have noted, of
the group of 16 sitting and alternate jurors, only one group based on race and gender had
more members (four black women), and the only other group to have the same number of
members was Hispanic men.23 As our Supreme Court has recently shown, the final
composition of the jury can be a highly significant factor. (See People v. Holmes,
McClain and Newborn (2022) 12 Cal.5th 719, 842 (dis. opn. of Liu, J.) [noting, in
dissenting opinion in a step one case, that the majority “relies on the final composition of
the jury, which included four Black women, and the fact that the prosecutor had sufficient
23 If the cognizable group were instead “either black or Hispanic females,” as defendants stated when bringing the Batson-Wheeler motion, then seven of the 16 sitting and alternate members of the jury, or nearly half, would have been members of the group.
45
peremptory challenges remaining to strike them at the time he accepted the jury”].)
Under these circumstances, even though the prosecutor’s proffered reasons were not
supported by the record, defendants have not demonstrated that the genuine reasons were
discriminatory, so their Batson-Wheeler motion was properly denied.
B. Guilt Phase Issues
1. Motion for Mistrial (Pimentel)
Pimentel argues that Urzua’s attorney committed misconduct during his closing
argument by stating his (the attorney’s) personal belief in Pimentel’s guilt and that the
trial court erred when it denied Pimentel’s motion for mistrial on the same ground. We
find the contention meritless.
a. Additional Factual Background
Pimentel’s argument here is based on several related statements made by Urzua’s
attorney. For context, we include the relevant portion of the attorney’s closing argument:
“I told you from the beginning that I think the best theory is jealousy. I told you
it’s my theory, but I tried to give you facts that supported it. We know that jealousy is
one of the most common reasons why people get killed. I suspect that’s what happened
here. Now, this is CALCRIM 370, basically it says you can consider if someone has a
motive and you can consider if they don’t have a motive. I just talked a while why my
client doesn’t have a motive. I think the codefendant may have had motive.
“Cynthia Urzua came and testified. She testified three times, I think. When I had
her testify, she said Pimentel was jealous and beat her up at least ten times just over
46
jealousy. She talked about one incident where she had a baby that was a few weeks old
and he slapped her while the baby was in her arms and pulled her by the hair and dragged
her across the floor. Now, a lot of people get jealous. We all get jealous; right? Most
people don’t slap a woman just after they had a baby and drag her by the hair. She said
there were nine other incidents.
[¶] . . . [¶]
“[W]e know that Cynthia was on Facebook. We know she was Facebook friends
with Mr. Pimentel. We know that she was Facebook friends with Jesus Tiburcio. Jesus
is giving her a message that, Damn you looked good back then, ha-ha. If you think about
what you know about jealous men who beat up girls, it’s not a good idea to go talk to a
woman next to her man and say you look hot.
“If he’s a jealous guy, he may take that personally. He may not like that. What
else do we have? We have Mr. Tiburcio, himself. There were injuries here. [A witness]
testified that those could be up to 24 hours old, but they could have been as recently as
the incident where he got shot. And you see one, two, three. I believe the best
explanation for those marks is that Pimentel took the shotgun and hit him in the head
three times. I think that he rushed Pimentel after Pimentel killed Contreras. When he hit
him with that shotgun, I think that’s probably what caused the shotgun to jam. That’s
speculation, but it’s an inference based on the facts. [¶] But I don’t think he needed to
hit him three times. I think the extra hit had something to do with jealousy or rage.”
47
Urzua’s attorney then discussed a recorded phone call between Pimentel and
Cynthia that took place after Pimentel had been arrested. The attorney played a tape of
the call, a portion of the transcript of which we recited earlier but state here again for
reference:
“Emmanuel Pimentel: I, I need a place . . .
“Cynthia Urzua: You think I like fucking seeing my brother in there?
“Emmanuel Pimentel: No. No[.]
“Cynthia Urzua: You think I like to [sic] fucking fact that my kids are never going
to fucking see their dad?
“Emmanuel Pimentel: Well you should have thought about things . . .
“Cynthia Urzua: Honestly, I haven’t thought about fucking shit Manny.
“Emmanuel Pimentel: Laughs
“Cynthia Urzua: Hello, this is all fucking you.
“Emmanuel Pimentel: You should have thought about things first man.
“Cynthia Urzua: I should have fucking thought about shit. Stop fucking trying to
make me fucking feel guilty for whatever the fuck you are fucking going through right
now, alright?
“Emmanuel Pimentel: I’m not, I’m not.
“Cynthia Urzua: I’m tired of your fucking trying to fucking make me feel guilty
about everything.”
48
Immediately before playing the tape, Urzua’s attorney stated: “So I’m telling you
when I say—you should have thought about things, I mean, to me, it screams out that
he’s blaming her.” After playing the tape, Urzua’s attorney continued:
“That’s her. That’s not me. Here are my conclusions: Pimentel is blaming
Cynthia for something; right? She had nothing to do with the kidnapping. . . . [¶] I have
already told you why I think the gang theory is absurd. But let’s presume that he was
ordered by his gang, somehow, to go over and kill those three men. If the gang ordered
him to do it, why would he blame her for that? She’s not part of the gang. She’s not part
of the OG’s in the gang. But we know she had contact with Jesus Tiburcio. We know
she Facebooked him. In the context of what has occurred, in the context of what she’s
saying, doesn’t this make the most sense? Stop fucking blaming me. Why is he blaming
her? He’s blaming her because he got mad at Tiburcio. He got jealous about something
and he killed her (sic). [¶] I think that’s the most reasonable conclusion.”
b. Applicable Law and Discussion
“‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such “‘unfairness as to make the resulting conviction a
denial of due process.”’ [Citations.] Under state law, a prosecutor who uses deceptive or
reprehensible methods commits misconduct even when those actions do not result in a
however, answers given, without an admonition, to questions an officer should know are
reasonably likely to elicit an incriminating response may not be admitted in the
prosecution’s case-in-chief.” (Id. at pp. 531-532, fn. omitted.) This is because “broader
questioning during the booking process may elicit incriminating responses depending on
the circumstances,” and “unadmonished custodial interrogation implicates the Fifth
Amendment.” (Id. at p. 536.)
For example, our Supreme Court held in Elizalde that “routine questions about
gang affiliation, posed to [a] defendant while processing him” and asked “for institutional
53
security purposes,” “exceeded the scope of the exception.” (Elizalde, supra, 61 Cal.4th at
p. 527.) Although “‘[d]isclosure of [one’s] name and address is an essentially neutral
act,’” questions about gang affiliation exceeded the scope of the exception because the
“officers should have known [such] questions were reasonably likely to elicit an
incriminating response because of California’s criminal gang statutes and defendant’s
pending charges.” (Id. at pp. 535, 527.)
We need not address here whether information about when an individual last
washed his or her hands for purposes of a GSR test is the kind of biographical data that
falls within the booking exception, or whether it is likely to elicit an incriminating
response depending on the circumstances. Even assuming the information was
erroneously admitted, its admission was harmless beyond a reasonable doubt.
“The erroneous admission of a defendant’s statements obtained in violation of the
Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard
of Chapman v. California (1967) 386 U.S. 18. [Citations.] That test requires the People
here ‘to prove beyond a reasonable doubt that the error complained of did not contribute
to the verdict obtained.’” (Elizalde, supra, 61 Cal.4th at p. 542.)
The People satisfy that burden here. Urzua’s statement that he had last washed his
hands approximately two to three hours prior, when considered with the timing of other
events that night and the uncontroverted testimony of the forensic specialist who elicited
the statement from Urzua and performed the GSR test, means that the only reasonable
inference the jury could draw from the statement was that he last washed his hands prior
54
to meeting the three victims. This, along with the fact that the test came back negative,
means that the statement could not have implicated his guilt in any meaningful way.
One witness testified that she saw Urzua and Pimentel walk past her mobile home
at about 6:00 p.m. Another witness testified that she heard a loud bang she thought was
fireworks after 7:00 p.m. Police were dispatched to the area at around 7:08 p.m. Urzua
was taken into custody at approximately 7:23 p.m. following defendants’ initial contact
with police and Pimentel’s attempted flight from the scene on foot. The forensic
specialist who performed Urzua’s GSR test testified that he obtained the sample (and
asked Urzua when he last washed his hands) at the San Bernardino Police Department
before heading to a location on 17th Street to take photographs. The forensic specialist
testified that he arrived at the 17th Street location at approximately 8:50 p.m.
The only reasonable conclusion the jury could have drawn from the hand washing
statement and these witnesses’ testimony, which Urzua does not dispute with any citation
to the record, was that Urzua had last washed his hands prior to meeting Tiburcio,
Sanchez, and Contreras. As such, there is no plausible way that the hand washing
statement would have made the evidence more incriminating than if it had been excluded.
If anything, the statement would have been evidence tending to show innocence, a point
Urzua’s attorney understood—and expressed—to the jury during closing argument: “We
know every time you shoot a gun, gunshot residue comes out. We know if you shoot a
gun, handle a gun, or here is a good one, are near a gun when it’s operated, you can get it
on your body. We know every time you shoot a gun, it comes out. Three different times,
55
three different opportunities. He doesn’t have to shoot a gun if he’s close to it. There is
zero gunshot residue on my client. The lack of evidence sometimes is very strong
evidence.”
Accordingly, whether or not Urzua’s statement about his last hand washing fell
under the booking exception, its admission into evidence was harmless beyond a
reasonable doubt.
3. Sufficiency of the Evidence on Counts 1 and 2 as an Aider and Abettor (Urzua)
Urzua contends that the evidence was insufficient to convict him of Sanchez’s and
Tiburcio’s murders (counts 1 and 2) on an aiding and abetting theory. He does not
challenge the sufficiency of the evidence on his conviction for Contreras’s murder (count
3), which was pursued on a direct perpetrator theory. We hold that the evidence was
sufficient.
“‘All persons concerned in the commission of a crime, . . . whether they directly
commit the act constituting the offense, or aid and abet in its commission, . . . are
principals in any crime so committed.’” (People v. McCoy (2001) 25 Cal.4th 1111, 1116-
1117, citing § 31.) “Thus, a person who aids and abets a crime is guilty of that crime
even if someone else committed some or all of the criminal acts.” (Id. at p. 1117.) “‘A
“person aids and abets the commission of a crime when he or she, acting with (1)
knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.”’” (People
56
v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) As is the case here, “‘[w]hen the
offense charged is a specific intent crime,’” and “when the charged offense and the
intended offense . . . are the same, . . . the aider and abettor must know and share the
murderous intent of the actual perpetrator.” (People v. McCoy, supra, at p. 1118.)
“‘Whether a person has aided and abetted in the commission of a crime ordinarily
is a question of fact.’” (Nguyen, supra, 61 Cal.4th at p. 1054.) “Factors to be considered
by the trier of fact in determining ‘whether one is an aider and abettor include presence at
the scene of the crime, failure to take steps to attempt to prevent the commission of the
crime, companionship, flight, and conduct before and after the crime.’” (People v.
Garcia (2008) 168 Cal.App.4th 261, 273.)
“‘“‘When the sufficiency of the evidence is challenged on appeal, the court must
review the whole record in the light most favorable to the judgment to determine whether
it contains substantial evidence—i.e., evidence that is credible and of solid value—from
which a rational trier of fact could have found the defendant guilty beyond a reasonable
doubt.’”’ [Citation.] ‘Evidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a
conviction.’” (Nguyen, supra, 61 Cal.4th at pp. 1054-1055.) Additionally, “[a]ppellate
inquiry into the sufficiency of the evidence ‘does not require a court to “ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
57
the essential elements of the crime beyond a reasonable doubt.’” (Id. at p. 1055, citing
Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
Urzua’s liability as an aider and abettor in Sanchez’s and Tiburcio’s murders is
supported by substantial evidence.
First, both Pimentel and Urzua were members of the OVS gang. Pimentel
admitted that he was an OVS gang member in 2004 and 2007. Cynthia, the mother of
Pimentel’s children, testified that Pimentel was an OVS gang member. Urzua stated to
police in 2009 and 2010 that he was an OVS gang member. The People’s expert witness
on criminal street gangs opined that both Pimentel and Urzua were active OVS gang
members. Both Pimentel and Urzua had tattoos that, according to the gang expert, were
signs and symbols used by the OVS gang: Pimentel, for instance, had “Onterio” tattooed
on his stomach, tattoos of the letter “W” on his right leg and “E” on his left leg (for
“West End”), and the letters “OVS” tattooed in block letters on his head. Urzua had
“West End” tattooed on his wrist as well as an “I” on his right shoulder and an “E” on his
left (for “Inland Empire”).
Second, as gang members, Pimentel and Urzua would have had a motive in killing
Sanchez as well as those accompanying him: retribution for cooperating with the police.
A month prior to the murders, Urzua and another person attempted to rob Amigo’s
Market. A detective investigating the attempted robbery learned that one of the suspects
was possibly named Jesus and that someone else—who turned out to be Sanchez—might
know more information. The detective went to Sanchez’s mobile home, showed Sanchez
58
a picture, and asked if the picture was Jesus. Sanchez said yes but then refused to answer
additional questions. The detective testified that there were several other people standing
outside of their mobile home parks at the time.
As the People’s criminal street gang expert testified, “cooperating with the police”
was the “ultimate low in the gang culture,” and that retribution would have demonstrated
that “you don’t testify against South Side Onterio. You don’t mess with South Side
Onterio. And if you do, these are the repercussions.” The fact that Sanchez had
identified Urzua as part of an investigation would have given Urzua (as well as Pimentel)
a motive for murdering all three victims, even if Pimentel was the direct perpetrator in
Sanchez’s and Tiburcio’s death.
Third, Urzua’s presence at the scene of the crime, his failure to take any steps to
prevent the murders, and his companionship with Pimentel all provide further
circumstantial evidence for the finding that Urzua aided and abetted in Sanchez’s and
Tiburcio’s murders. (People v. Garcia, supra, 168 Cal.App.4th at p. 273 [factors to
consider by trier of fact in determining aiding and abetting liability include “presence at
the scene of the crime, failure to take steps to attempt to prevent the commission of the
crime, [and] companionship”].)
Despite Urzua’s argument to the contrary, substantial evidence placed Urzua at the
scene. Not only was there a dying declaration from Contreras that “Jesus” had shot him
as well as testimony from at least two eyewitnesses (as well as Pimentel) that Jesus was
there), fingerprints recovered from drinking glasses outside Sanchez’s trailer matched
59
Urzua’s. Urzua’s presence at the scene of the crime—which was not the result of
happenstance—suggests that he and Pimentel shared a common purpose. (See People v.
Campbell (1994) 25 Cal.App.4th 402, 409 [defendant “did not independently happen by
the scene of the crime,” and defendants’ “concerted action reasonably implies a common
purpose”].) Additionally, nothing in the record—including anything set forth by Urzua in
his defense—tends to support the conclusion that Urzua took steps to prevent Pimentel
from shooting Sanchez and Tiburcio. Urzua has not attempted to argue otherwise.
As for companionship, Pimentel and Urzua were members of the same gang, and
Urzua’s sister (Cynthia) was the mother of Pimentel’s children. Cynthia testified that
Pimentel was “like an older brother” to Urzua. Pimentel’s nickname was “Vamps,” and
he called Urzua “Little Vamps.” At least one witness stated that some people thought
Pimentel and Urzua were brothers. This may have included Contreras, who stated after
being shot that it was “Jesus and his brother” who shot him. The close relationship
between Pimentel and Urzua further supports the conclusion that the two shared a mutual
motive.
All of this evidence could have rationally led a jury to find that Urzua aided and
abetted Sanchez’s and Tiburcio’s murders. Accordingly, the evidence was sufficient for
Urzua to be convicted of murder on counts 1 and 2.
60
C. Penalty Phase Issues
1. Sufficiency of the Evidence Regarding Gang Special Circumstance Findings
and Gang Enhancement Findings (Pimentel and Urzua)
Pimentel and Urzua contend that there was insufficient evidence to support either 24 the gang special circumstance findings or the gang enhancement findings.
To the extent that defendants’ arguments are based on Urzua’s challenge that there
was insufficient evidence to show he was an aider and abettor—which we have rejected
above—we reject those arguments here as well.
However, after briefing had concluded in this matter, the Legislature enacted
Assembly Bill No. 333 (2021-2022 Reg. Session) (Assembly Bill 333). We ordered the
parties to submit supplemental briefs addressing Assembly Bill 333. We now hold that
(1) defendants’ gang special circumstance findings and gang enhancement findings must
be vacated, and the prosecution be allowed an opportunity to retry those allegations under
the law as amended by Assembly Bill 333, and (2) section 1109, enacted by Assembly
Bill 333, does not warrant reversal of the remainder of the judgment.
24 To be precise, Urzua contended in his opening brief that there was insufficient evidence to support the gang special circumstance findings on counts 1 and 2 and the gang enhancements on all counts, incorporating his argument that there was insufficient evidence to show he was an aider and abettor. Pimentel joined in the argument in his reply brief and incorporated it by reference. As we discuss, because we base our holdings here on a law enacted after briefing on this case had completed, we construe the issue to apply to the gang special circumstance findings, the gang enhancement findings, and the personal firearm use enhancements on all three counts for both defendants, as applicable.
61
a. “Criminal Street Gang”
A gang enhancement finding as well as a gang special circumstance finding rely
on the definition of the term “criminal street gang.” Section 186.22 enhances the
punishment of a person convicted of an enumerated felony committed “for the benefit of,
at the direction of, or in association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1), (4).) Similarly, section 190.2, subdivision (a)(22) sets the punishment for
first degree murder as death or life without the possibility of parole if “[t]he defendant
intentionally killed the victim while the defendant was an active participant in a criminal
street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried
out to further the activities of the criminal street gang.”
Assembly Bill 333 narrowed the definition of “criminal street gang.” What used
to be defined as “an ongoing, organized association or group of three or more
persons . . . whose members individually or collectively engage in, or have engaged in, a
pattern of criminal gang activity” (former § 186.22, subd. (f), italics added) is now
defined as “an ongoing, organized association or group of three or more persons . . .
whose members collectively engage in, or have engaged in, a pattern of criminal gang
activity” (§ 186.22, subd. (f), italics added). Assembly Bill 333 also raised the bar for
proving a “pattern of criminal gang activity,” which is needed to establish a criminal
street gang, in various ways: (1) predicate offenses now must be proven to have
“commonly benefitted a criminal street gang, and the common benefit of the offense[s] is
62
more than reputational”; (2) the last predicate offense must have occurred within three
years of the date of the currently charged offense; (3) the predicate offenses must have
been committed by two or more “members” of the gang, as opposed to any persons; (4)
the currently charged offense no longer counts as a predicate offense; and (5) the list of
qualifying predicate offenses is shortened. (Assem. Bill 333, § 3, revised § 186.22, subd.
(e)(1)-(2).)
These changes to the law brought by Assembly Bill 333 apply retroactively to
defendants; their judgments will not be final when the amendments take effect, and there
is no disagreement among the parties whether this portion of Assembly Bill 333 is
retroactive. (See People v. Lopez (2021) 73 Cal.App.5th 327, 344.)
Defendants may also be able to benefit from these changes. The parties stipulated
at trial that OVS was a criminal street gang for purposes of section 186.22. However, the
stipulation was that OVS was a “criminal street gang” as previously defined more
broadly than in the revised, narrower definition that now applies to this case.
Accordingly, the proper remedy is to vacate the findings and remand to give the
prosecution an opportunity to retry the gang special circumstance findings and the gang
enhancement allegations under the new standards. (See People v. Lopez, supra, 73
Cal.App.5th at p. 348 [vacating enhancements in light of Assembly Bill 333 and 25 remanding for limited retrial].)
25 We note that this also means vacating (and allowing the prosecution an opportunity to retry) the firearm use enhancements in count 3 for Pimentel and counts 1
63
b. Section 1109
Assembly Bill 333 also added section 1109 to the Penal Code. As relevant here,
under section 1109, in a case where a gang enhancement finding is alleged, the defense
may demand a bifurcated trial such that “[t]he question of the defendant’s guilt of the
underlying offense shall be . . . determined” before any “further proceedings to the trier
of fact on the question of the truth of the enhancement.” (§ 1109, subd. (a)(1)-(2).)
The parties dispute whether section 1109 is also retroactive. Two cases have held
that it is. (People v. Burgos (2022) 77 Cal.App.5th 550 (Burgos); People v. Ramos
(2022) 77 Cal.App.5th 1116 (Ramos); but see Burgos, supra, at p. 569 (dis. opn. of Elia,
and 2 for Urzua, as those enhancements were imposed pursuant to section 12022.53, subdivision (e)(1), which allows for a personal firearm use enhancement to apply to a “principal in the commission of an offense” only if a violation of section 186.22, subdivision (b) is “pled and proved.” Additionally, we note that imposition of the gang enhancements here meant that defendants would not be eligible for parole for 15 years (§ 186.22, subd. (b)(5)), which would have no direct effect on their sentence so long as there remained a sentence of life without the possibility of parole on any of their counts. Similarly, vacating the gang special circumstance findings would not affect the sentences so long as the special circumstance finding of multiple murder (§ 190.2, subd. (a)(3)) applied, and the additionally imposed term of 25 years to life (to run consecutively to the life without parole terms) would also remain even if the personal firearm use enhancements noted above were vacated. This could well render the issue unlikely to make any significant difference. However, we nevertheless reach the issue because the People may wish at some later point to invoke the historical fact of the jury’s true findings on these enhancements and special circumstance findings, making resolution of the adequacy of that finding appropriate on appeal. (See In re Varnell (2003) 30 Cal.4th 1132, 1137-1138 [trial court’s decision to strike prior conviction does not “‘“‘wipe out’”’” the fact of the prior conviction or its effect in connection with future prosecutions].) In any event, in contending that the findings were proper, the People did not contend that the issues were moot.
64
J.) [contending that section 1109 is not retroactive].) We assume without deciding that
section 1109 is retroactive. (See People v. E.H. (2022) 75 Cal.App.5th 467, 480.)
Even if section 1109 is retroactive, however, defendants have not shown that
reversal is required. Unlike Burgos, which stated that the failure to bifurcate “likely
constitutes ‘structural error’” (Burgos, supra, 77 Cal.App.5th at p. 568), we do not view
the failure as one defying harmless error analysis, as it remains possible to determine
whether it is reasonably probable defendants would have obtained a more favorable result
if their trials had been bifurcated pursuant to section 1109. (See Ramos, supra, 77
Cal.App.5th at p. 1131 [citing People v. Watson (1956) 46 Cal.2d 818, 836], People v.
E.H., supra, 75 Cal.App.5th at p. 480 [same].) Here, defendants have not identified any
evidence that would have been rightfully withheld until the gang enhancement phase of
the trial. Virtually all (if not all) of the gang-related evidence introduced at trial was
relevant to establish issues such as identity and motive; the fact that the evidence also
tended to show defendants’ possible connections to gangs would not by itself have
warranted exclusion during the first phase of trial. “[E]vidence of gang membership is
often relevant to, and admissible regarding, the charged offense. Evidence of the
defendant’s gang affiliation—including evidence of the gang’s territory, membership,
signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can
help prove identity, motive, modus operandi, specific intent, means of applying force or
fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez
(2004) 33 Cal.4th 1040, 1049; see also Ramos, supra, 77 Cal.App.5th at p. 1132
65
[“nothing in Assembly Bill 333 limits the introduction of gang evidence in a bifurcated
proceeding where the gang evidence is relevant to the underlying charges”].)
Accordingly, we find that section 1109 does not warrant reversal here.26
2. Firearm Enhancement Striking (Pimentel and Urzua)
Senate Bill No. 620 (Senate Bill 620), effective January 1, 2018, revised section
12022.53, subdivision (h) to give the trial court discretion in striking firearm use
enhancements, which it did not have before. (See § 12022.53, subd. (h); Stats. 2017, ch.
682, § 2; former § 12022.53, subd. (h).) Pimentel and Urzua argue that remand is
necessary because the trial court was unaware of its discretion under this section when it
sentenced them.
Pimentel and Urzua were both sentenced on December 6, 2018. Section 12022.53,
subdivision (h) took effect nearly an entire year before that date. Thus, Pimentel is flatly
in error when he asserts that imposition of the firearm enhancements was mandatory at
the time of sentencing. Urzua, who recognizes that sentencing occurred after Senate Bill
620 became effective, argues instead that there was no indication that the trial court was
aware of its discretion under that section. All this would mean, however, is that the
26 As a separate issue, the People challenge the constitutionality of Assembly Bill 333 to the extent that it narrowed the circumstances to which the gang special circumstance applies, as the special circumstance was added to the Penal Code by ballot initiative. We decline to reach the issue at this time. It is possible that the jury will find the special circumstance true even under the law as amended, and there is no reason to believe that the prosecution will need to introduce any evidence on the gang special circumstance it will not already have introduced on the gang enhancement allegations. Any additional burden placed on the prosecution in proving the gang special circumstance on retrial would be minimal. Should the issue remain at play following retrial, we will address its merits then.
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record was silent on the issue, and “in light of the presumption on a silent record that the
trial court is aware of the applicable law, including statutory discretion at sentencing, we
cannot presume error where the record does not establish on its face that the trial court
misunderstood the scope of that discretion.” (People v. Gutierrez (2009) 174
Cal.App.4th 525, 527.) However, in light of our remand for a limited retrial under
Assembly Bill 333, defendants may request that the trial court exercise its discretion
under Senate Bill 620 at resentencing.
D. Cumulative Error (Urzua)
Urzua contends that the cumulative effect of the alleged errors denied him a
fundamentally fair trial. The only errors we have assumed for the sake of argument are
the improper admission of the kites against Urzua and the improper admission of his un-
Mirandized statement regarding when he last washed his hands prior to the GSR test.
With respect to each claim individually, we have concluded that any error would
have been harmless under the applicable standard. We reach the same conclusion after
reviewing them cumulatively. “‘[N]one of the errors, individually or cumulatively,
“‘“significantly influence[d] the fairness of [Urzua’s] trial or detrimentally affect[ed] the
jury’s determination of the appropriate penalty.”’”’” (Coffman and Marlow, supra, 34
Cal.4th at p. 128.)
III. DISPOSITION
The matter is remanded for the trial court to (1) vacate the gang enhancement
allegations under section 186.22 on all counts for each defendant; (2) vacate the special
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circumstance findings under section 190.2, subdivision (a)(22) on all counts for each
defendant; (3) vacate the firearm use enhancements under section 12022.53 on count 3
for Pimentel and counts 1 and 2 for Urzua; (4) provide the prosecution an opportunity to
retry the enhancements and special circumstance allegations under the law as amended by
Assembly Bill 333; (5) if the prosecution elects not to retry the enhancements and
allegations, or at the conclusion of retrial, resentence defendants either by reinstating
their previous sentences or by imposing new sentence without the enhancements or
allegations, as appropriate; and (6) if defendants request it, exercise its discretion under
section 12022.53, subdivision (h). In all other respects the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
FIELDS Acting P. J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendants' murder convictions but vacated the gang-related special circumstances, gang enhancements, and certain personal firearm use enhancements due to changes in the law, remanding for further proceedings.
Issues
Whether the trial court abused its discretion in denying the defendants' motion to sever their trials.
Whether the joint trial was fundamentally unfair due to conflicting defenses and the admission of co-defendant statements.
Whether the gang-related enhancements and special circumstances remain valid under recent changes to the law.
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“We affirm the convictions, except, based on recent changes to the law, we must vacate the jury’s true findings on gang-related special circumstances, gang enhancement allegations, and certain personal firearm use enhancements”
“A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling.”