California Court of Appeal Nov 3, 2022 No. E073016Unpublished
Filed 11/3/22 P. v. Lopez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E073016
v. (Super.Ct.No. INF1601092)
ANGEL ZACARIAS LOPEZ, JR., et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge.
Affirmed in part, reversed in part, remanded with directions.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant, Angel Zacarias Lopez, Jr.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant, Jose Antonio Armendariz.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and
Appellant, Cesar Anthony Monzon, Jr.
1
Randi Covin, under appointment by the Court of Appeal, for Defendant and
Appellant, Andrew Malanche.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland and Julie L. Garland, Assistant Attorneys General, Robin
Urbanski, Donald W. Ostertag and Paige B. Hazard, Deputy Attorneys General, for
California District Attorneys Association and Gregory D. Totten, Chief Executive
Officer, as Amicus Curiae on behalf of Plaintiff and Respondent.
Defendants and appellants Angel Zacarias Lopez, Jr., Andrew Marquie Malanche,
Jose Antonio Armendariz, and Cesar Anthony Monzon, Jr., were jointly tried and
convicted on charges, including first degree murder, relating to a fatal drive-by shooting.
We reject most of defendants’ challenges to the judgments, but several prison prior
enhancements imposed in sentencing Monzon and Armendariz must be vacated under
Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). Another post-trial change
in the law, Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) requires
us to vacate the jury’s findings on certain enhancement and special circumstance
allegations. We order the matter remanded for the People to have an opportunity to retry
those allegations, and for resentencing. In all other respects, we affirm the judgment.
I. BACKGROUND
Late into the evening on August 6, 2016, and continuing after midnight, 22-year-
old Adrian Valdez, along with a group of family and friends, gathered outside in front of
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his family’s house in Indio. The house is within territory claimed by the criminal street 1 gang North Side Indio (NSI), and there was NSI graffiti on the house’s front curb. There
is some evidence that Valdez was an NSI member, though there is also some evidence to
the contrary. There is a long history of violence between NSI and Jackson Terrace (JT),
another criminal street gang that claims territory in Indio. In 2014, a JT member named
Julian “JJ” Palomino was murdered by an NSI member. In 2016, about two weeks before
the events in this case, Palomino’s uncle, George Pacheco, was also murdered. Although
Pacheco was not gang-affiliated, his murder was apparently gang-motivated; the
murderer profanely denounced JT and proclaimed “This is North side” or “This is North
Side Indio” before shooting him. It is undisputed that Monzon is a JT member. Lopez
and Armendariz are not JT members, but Lopez is Palomino’s cousin, and Armendariz is 2 Lopez’s cousin. Malanche is not a member of JT, but there is evidence that he is friends
with at least one JT member (Monzon), as well as Lopez.
According to the prosecution, around 6:00 p.m. on August 6, 2016, Monzon
visited the Palomino family home, where both Palomino and Pacheco had lived. That
evening, Monzon, Lopez, and Malanche, along with Monzon’s girlfriend Jane Doe and
several others—but not Armendariz—visited Palomino’s gravesite. Doe’s presence
created some tension; she grew up in NSI territory, had NSI friends, and had previously
1 The graffiti was the letters “NSI” and “SMG,” which stand for “North Side Indio” and “Sick Made Gangsters.” A gang expert testified that Sick Made Gangsters was a “smaller subset” of NSI, “still belonging to the larger gang.” 2 Nevertheless, Armendariz is apparently not a blood relative of either Palomino or Pacheco. The record does not establish exactly how the family trees intertwine.
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dated NSI members. Lopez, in particular, expressed dissatisfaction about her presence
given her ties to NSI. After a short time, the group dispersed. Monzon had Doe drive
him to pick up bullets—she could not remember exactly where, perhaps at her house—
and then drop him off where several other JT gang members lived. The gun Monzon was
carrying then, as he often did, was a .38 revolver.
At 12:42 a.m. on August 7, 2016, two vehicles—an SUV and an older model
sedan—drove past Valdez’s family’s house and made a U-turn. As they passed by again,
people in the vehicles began shooting at the group outside using at least three types of
firearms, including two handgun types (a .22 caliber semiautomatic and a .38 caliber
revolver) and a 30-30 caliber rifle. Members of Valdez’s group fired at the vehicles from
at least two handguns (a .40 caliber and a 9 mm caliber). Who fired first was a disputed
trial issue. After passing Valdez’s house, the SUV stopped in front of the house next
door, while the sedan passed the SUV and drove away. Both front doors of the SUV
opened momentarily, as more shots were fired at Valdez’s group, before the doors closed
and the SUV, too, drove off.
During the shooting, a bullet entered the right side of Valdez’s chest, with a
trajectory slightly from back to front. He died from that wound shortly after being taken
to a hospital. The bullet broke into pieces in Valdez’s body, so the pathologist could not
determine its caliber. The pathologist also could not determine the distance from which
he had been shot.
4
Evidence led police to believe that defendants were the ones who shot at Valdez
and his group. Among other things, the shooting was captured by a nearby home’s video
surveillance camera. The video showed the sedan was a Chevrolet Caprice. A few
minutes after the shooting, Lopez arrived with Malanche at a local emergency room,
driving a Chevrolet Caprice with a shattered window. An investigating officer later
concluded, from broken glass inside the car, that it had been shot into. Both Lopez and
Malanche had gunshot wounds; Lopez’s was only superficial, but a bullet had entered
Malanche’s back and lodged near his spine. Lopez attempted to leave once Malanche
was getting treated, but he had left the keys in the ignition, and a hospital security guard
took them to prevent anyone driving the car away before police arrived. After realizing
he did not know where the keys were, Lopez was observed putting some items from the
car into a backpack and walking around to the side of the building.
Around that time, a hospital security guard observed another vehicle enter the
hospital lot and park. Two men, one wearing a black tank top and the other a black shirt,
exited the vehicle. The security officer ran inside the hospital to inform a police officer
who had arrived. As the security guard exited the hospital again, he saw the two men
approaching Lopez. The male in the black tank top ran away when the police officer
exited the hospital. The prosecution’s theory was that the man in the black tank top was
Armendariz; we will discuss that theory in more detail below. A different police officer
contacted the second man, who did not run away. The hospital security guard, however,
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did not direct the police to the car the men had arrived in. Our record contains no further
information about either the second man or the vehicle.
The police officer followed Lopez and found him, holding the backpack, behind
bushes on the hospital’s side. The backpack contained (1) a .22 caliber handgun with an
empty magazine; (2) a .38 caliber revolver with six expended shell casings; and (3) more
.22 and .38 caliber ammunition. Another box of .22 caliber ammunition was found
behind the bushes where Lopez had been, and additional live .38 caliber rounds were
found in the Caprice and in Malanche’s clothing, and he had a handgun holster on his
waistband. Ballistics analysis showed that all the .22 caliber shell casings and .38 caliber
bullets found at the shooting scene came from the guns in Lopez’s backpack. Lopez’s
fingerprints were on the .22 caliber pistol’s magazine.
Surveillance video of the shooting showed that the SUV was a Toyota Sequoia.
Video evidence identified that vehicle by its license plate. Police recovered the Sequoia
when they executed a search warrant at Armendariz’s residence two days after the
shooting. Someone had recently patched three bullet holes in the side of the vehicle.
Police also found on the floorboards several unexpended rounds, one .22 caliber and the
other .38 caliber, as well as an expended bullet slug. In Armendariz’s master bedroom,
police found a gun cleaning kit (“a Hoppe’s gun cleaning kit for a .22 or .17 HMR
round”), but no firearms or ammunition.
Monzon had been released from prison three months before the shooting, and at
the time of the shooting he was wearing a GPS tracking device as a parole condition.
6
GPS data showed Monzon’s location correlated with surveillance video from the
shooting scene and several other locations, placing Monzon in either the Caprice or the
Sequoia right before and during the shooting. Monzon removed his tracking device
shortly after the shooting, and it was recovered from his father’s backyard, but Monzon
was not there. He was eventually arrested in Mexico. According to Doe, the morning
after the shooting, Monzon told her what had happened, inculpating himself, Lopez, and
Malanche; those statements will be further discussed below.
Based in part on the data from Monzon’s GPS tracking device, together with
surveillance video and other evidence, the prosecution offered the following version of
the events. Monzon and Lopez met up with Armendariz at the home of a JT member
who lives on Valencia Street, where Doe dropped Monzon off. Shortly before midnight
on August 6, 2016, Monzon, Lopez, and Armendariz were in the Sequoia at a gas station
near NSI territory. The three then drove around in NSI territory for about a half hour
before leaving briefly and going to a convenience store. Armendariz, wearing a black
tank top, was driving. From the convenience store, they returned to NSI territory, and at
12:34 a.m. they drove past Valdez’s house. They then returned to the convenience store
where they met Malanche, who had pulled into the store parking lot at 12:38 a.m. and
waited in the Caprice. The occupants of the two cars did not stop to speak to one
another; the Sequoia pulled into the parking lot, then pulled out again, and the Caprice
followed. From there, the two vehicles returned to NSI territory. They went first to a
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location near an elementary school, where Lopez and Monzon switched from the SUV to 3 the Caprice. From there, they drove to Valdez’s house, where the shooting occurred. 4 All four defendants were charged with first degree murder (Pen. Code , § 187,
subd. (a), count one), and all except Malanche (who had no prior criminal record) were
charged with unlawful possession of a firearm (§ 29800, subd. (a)(1), count 2).
Regarding the murder charge, the prosecution at first alleged two special circumstances
as to each of the defendants: that they committed the murder by discharging a firearm
from a motor vehicle (§ 190.2, subd. (a)(21)) and that they committed the murder while
they were active participants in a criminal street gang (id., subd. (a)(22)). The second of
those special circumstance allegations, however, was dismissed on the prosecution’s 5 motion as to all defendants except Monzon. For all defendants, the murder charge was
also accompanied by firearms enhancement allegations (§§ 12022.5, subd. (a), 12022.53,
subds. (c), (d), & (e)) and gang enhancement allegations (§ 186.22, subd. (b)(1)(C)). The
3 This theory of events leaves only one of the four defendants (Armendariz) in the Sequoia. Surveillance video, however, strongly suggests at least two people were in the Sequoia during the shooting; as doors on both sides of the vehicle were opened and then closed around the same time during the gunfire. Whether this suggests other unidentified participants in the shooting (perhaps the second person who was at the hospital with the person in a black tank top who the prosecution contended was Armendariz), or a different arrangement of the four defendants between the two vehicles, was a question of fact for the jury. 4 Undesignated statutory references are to the Penal Code. 5 Confusingly, amended informations filed as to Lopez, Armendariz, and Malanche after this dismissal continued to allege the section 190.2, subdivision (a)(22) special circumstance. These clerical errors are not significant because the jury was asked to decide that allegation only as to Monzon.
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prosecution further alleged that Monzon and Armendariz each had one prior strike
conviction (§ 667, subd. (a)), and two prison priors (§ 667.5, subd. (b)).
At the start of trial, Lopez and Armendariz both pleaded guilty to count two. The
jury convicted defendants as charged on count one, including the alleged special
circumstances and firearm and gang enhancements, and found Monzon guilty on count
two. In bifurcated proceedings, the trial court found true Monzon’s and Armendariz’s
recidivism-based enhancement allegations.
The court sentenced each defendant to life in prison without the possibility of
parole for the special circumstances murder, plus a consecutive indeterminate term of 25 6 years to life for the section 12022.53, subdivision (d) firearm enhancement. For count
two, Lopez also received a consecutive determinate term of 3 years, while Monzon and
Armendariz each also received a consecutive determinate term of 13 years (three years,
doubled to six years by a strike prior, plus five years for a prior serious felony and two 7 one-year prison priors). The court stayed punishment for the section 186.22, subdivision
(b)(1) enhancements and the remaining firearm enhancements.
6 More precisely, the trial court imposed the punishment described in section 12022.53, subdivision (d) as to each defendant, applying the theory of vicarious liability described in section 12022.53, subdivision (e)(1). This circumstance will be discussed below. 7 The trial court’s oral pronouncement of judgment included a three-year term on count two for Malanche. This was erroneous, as Malanche was not charged with or convicted on count two. However, the minute order of sentencing and abstract of [footnote continued on next page]
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II. DISCUSSION
A. Evidence of Out of Court Statements by Monzon
1. Additional background
Monzon’s girlfriend at the time of the shooting, Jane Doe, testified at trial for the
prosecution, and she recounted statements Monzon made to her the morning after the
shooting. A police officer who interviewed Doe testified as to statements that Doe had
then said that Monzon made. These out of court statements by Monzon were admitted as
to all four defendants, over their objections.
Monzon’s statements described in the officer’s testimony differed in some respects
from those described in Doe’s trial testimony. The officer testified that in a September
2016 interview, Doe stated that Monzon had told her that he and others had been “driving
around [NSI territory] looking for anybody standing outside.” Doe stated that the reason
for the shooting was retaliation for the murders of Palomino and Pacheco. Both people
who had been in the car with Monzon during the shooting had been shot; Doe recalled
Monzon naming Lopez as one of the people, but she did not recall the second person’s
name. She did, however, identify the second person as someone she remembered seeing
at the cemetery with his young child on the evening of August 6, 2016, and at trial Doe
identified Malanche as that person. Monzon also told Doe that he was certain he
(Monzon) had been the one that “got” Valdez “because he was aiming right at him” as
Valdez was running to the trunk of a car to retrieve a firearm.
judgment correctly reflect that Malanche was convicted only on count one and related enhancements, and reflect no determinate sentence.
10
At trial, Doe testified that Monzon told her that he and his friends “were driving
through North Side Indio and something went wrong.” Monzon did not identify who
exactly had been with him, but he said that there had been more than one car. They were
looking for someone named Esteban who had recently been in a verbal dispute with
Monzon because of comments Esteban made on social media about Palomino and the
circumstances of his murder. Doe testified that Monzon told her that they saw Esteban
standing in front of a house, went down the street and made a U-turn, and “[w]hen they
came back . . . it turned into a shootout.” Doe stated that Monzon said “everybody” shot
at Valdez because he ran to a car and retrieved a gun from the trunk (“they all went for
him” because he “came out in front with a street sweeper”). Doe testified that Monzon
told her two people he was with had been shot, but she did not recall him identifying
them.
2. Analysis
Lopez and Malanche disagree with the trial court’s ruling that Monzon’s
statements to Doe fall within the hearsay rule’s exception for declarations against penal
interest (Evid. Code, § 1230). We do not.
Evidence Code section 1230 provides that a statement is not inadmissible hearsay
if it “when made, . . . so far subjected [the declarant] to the risk of . . . criminal
liability . . . that a reasonable man in his position would not have made the statement
unless he believed it to be true.” The prosecution is required to show the declarant is
unavailable, the statement was against the declarant’s interests when made, and the
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statement was sufficiently reliable to warrant admission despite being hearsay. (People v.
Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) The exception’s rationale is that “‘a
person’s interest against being criminally implicated gives reasonable assurance of the
veracity of his statements made against that interest,’ thereby mitigating the dangers
usually associated with the admission of out-of-court statements.” (Ibid.) In determining
whether a statement falls within Evidence Code section 1230, the trial court may consider
not just the words spoken but the circumstances. (People v. McCurdy (2014) 59 Cal.4th
1063, 1108.) Our review is for abuse of discretion. (Grimes, at pp. 711-712.)
We find no abuse of discretion. Monzon was unavailable because he did not
testify at trial and could not be compelled to do so. His statements to Doe were against
his penal interest because he admitted his role in the shooting, including his belief that he
personally had fired the bullet that killed Valdez. His statements also tended to show the
shooting was premeditated and gang-related, committed in retaliation for the murders of
Palomino and Pacheco by NSI members, whether directly or in response to Esteban’s
comments on social media. Although Monzon’s description of the events also implicated
Lopez and Malanche, it was nevertheless “‘so far contrary to [Monzon’s] interests “that a
reasonable man in his position would not have [admitted it] unless he believed it to be
true.”’” (People v. Brown (2003) 31 Cal.4th 518, 536.)
Malanche and Lopez contend that Monzon’s statements inculpating them “were
not specifically disserving to [his] interests because they did not subject him to any
additional punishment.” Such reasoning, however, is inconsistent with our Supreme
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Court’s application of Evidence Code section 1230. For example, in People v. Cortez
(2016) 63 Cal.4th 101 (Cortez), a declarant made statements implicating the defendant as
someone with whom he “had engaged in a joint, planned drive-by shooting.” (Id. at p.
126.) The Supreme Court rejected the defendant’s argument that the declarant’s
“identification by name of who accompanied him was not specifically disserving of his
interest.” (Ibid.) The Court noted that the declarant knew “the defendant and her car
were already in police custody,” so “by identifying her, he was increasing the likelihood
that evidence connecting him to the shooting would be found,” and “‘being linked to’
defendant ‘would implicate’ him in a drive-by shooting for which defendant had been
arrested.” (Id. at p. 127.) Thus, the declarant’s “identification of defendant by name
specifically disserved his penal interest.” (Ibid.) The Court also found it relevant that the
declarant’s statements “‘were in no way exculpatory’ or ‘self serving.’” (Id. at p. 128;
see Grimes, supra, 1 Cal.5th at p. 715 [although “portions of a third party’s confession
that are self-serving or otherwise appear to shift responsibility to others” should be
excluded, “we have permitted the admission of those portions of a confession that,
though not independently disserving of the declarant’s penal interests, also are not merely
‘self-serving,’ but ‘inextricably tied to and part of a specific statement against penal
interest’”].)
Similarly, here, it was reasonable for the trial court to conclude that Monzon’s
identification of Lopez and Malanche specifically disserved Monzon’s penal interest.
Monzon admitted he was a shooter, and at least in the version of the statements that Doe
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recounted to the police officer, he claimed to have been the shooter who personally fired
the bullet that killed Valdez. He never attempted to diminish his responsibility, even
though his statements also implicated Lopez and Malanche. Also, the record does not
establish whether Monzon already knew Lopez and Malanche had been arrested when he
spoke to Doe. Nevertheless, the statements show that Monzon knew that Lopez and
Malanche had been shot and presumably had sought treatment, so police were likely to be
involved. Thus, linking himself to them could implicate him in the shooting, too.
Malanche and Lopez further argue that Monzon’s statements were insufficiently
trustworthy to be admitted. They assert that testimony of an alleged accomplice is
“inevitably suspect,” especially when the alleged accomplice “does not testify and cannot
be tested by cross-examination.” (Bruton v. U.S. (1968) 391 U.S. 123, 136.) They
further argue that there was “reason for Monzon to dissemble or exaggerate,” because he
was “likely bragging to his girlfriend, also a gang member, and seeking to enhance his
reputation within the gang.” They also emphasize that Monzon’s “status as a convicted
felon on parole further reduced the reliability of his statements.”
Lopez and Monzon have not demonstrated, however, that such factors compel the
conclusion that the statements were so unreliable that they should be excluded from
evidence. (See People v. Dalton (2019) 7 Cal.5th 166, 207-208 [rejecting on similar
grounds defendant’s argument that statement was not against penal interest of declarant
because he was just “‘bragging or puffing’” to cellmate].) On the contrary, it was
reasonable, and therefore no abuse of discretion, for the trial court to view Monzon’s
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statements as having been made in “‘“the most reliable circumstance,”’ that is, ‘“one in
which the conversation occurs between friends in a noncoercive setting that fosters
uninhibited disclosures.”’” (People v. Arceo (2011) 195 Cal.App.4th 556, 577.) We
therefore will not disturb the court’s determination that the statements were admissible.
Additionally, Malanche contends that the trial court should have excluded
Monzon’s statements “as substantially more prejudicial than probative under [Evidence
Code] section 352.” This issue was forfeited because it was not raised in the trial court.
(Evid. Code, § 353, subd. (a); People v. Holt (1997) 15 Cal.4th 619, 666.) In any case,
however, there was no abuse of discretion. (See People v. Roberto V. (2001) 93
Cal.App.4th 1350, 1366-1367.) Monzon’s statements were highly probative regarding
central issues in the case, including whether Lopez and Malanche took part in Valdez’s
murder and the motive for the shooting. The damage to the defendants’ defenses flowed
from the statements’ probative value on relevant issues, not any sense in which the
statements would “tend to inflame the jurors’ emotions or cause them to punish [them]
because of an emotional reaction.” (Cortez, supra, 63 Cal.4th at p. 129.) The trial court
would have been well within its discretion to admit the statements over an objection
under Evidence Code section 352.
Malanche and Lopez argue that their federal constitutional right to due process
was violated by the admission of Monzon’s statements. This argument, however, rests on
the premise that Monzon’s out of court statements to Doe must be viewed as unreliable, a
premise that we have already rejected. Moreover, “[t]he routine and proper application
15
of state evidentiary law does not impinge on a defendant’s due process rights.” (People
v. Riccardi (2012) 54 Cal.4th 758, 809, overruled on other grounds by People v. Rangel
(2016) 62 Cal.4th 1192.)
We conclude Malanche and Lopez have not demonstrated that the trial court erred
by admitting Monzon’s statements, either through testimony by the police officer who 8 interviewed Doe or Doe’s own trial testimony.
B. Officer Testimony Regarding Surveillance Video
The prosecution’s witnesses included Jason Polanco, an Indio Police Department
detective who obtained surveillance video from a nearby house that showed the shooting.
Lopez and Armendariz argue that the trial court erred by allowing Polanco to testify
about the video’s contents, which they characterize as improper lay opinion. We find no
error.
Lopez and Armendariz arguably forfeited their arguments by failing to raise a
specific objection in the trial court. (See Evid. Code, § 353; People v. Marks (2003) 31
Cal.4th 197, 228 [“A general objection to the admission or exclusion of evidence, or one
based on a different ground from that advanced at trial, does not preserve the claim for
appeal”].) During cross-examination, in a sidebar out of the jury’s presence, the
prosecutor stated he intended to question Polanco about the contents of the video on
redirect if defense counsel did so during cross examination, after Malanche’s counsel
8 It follows from our conclusion here that Malanche’s request for a limiting instruction, requiring that the jury consider Monzon’s statements only as to Monzon himself, and not any other defendant, was properly denied.
16
began asking such questions. Malanche’s counsel conveyed his intention to object to any
such prosecution questioning. Armendariz’s counsel, too, expressed a general objection.
Later, during questioning on redirect by the prosecutor, Armendariz’s counsel objected
based on the secondary evidence rule: “I’m going to have to object . . . pursuant to
[Evidence Code section] 1521 and 1523.” These were general objections or specific
objections on other grounds, so they did not preserve for appeal the claim that Polanco’s
testimony was improper lay opinion.
Nevertheless, during redirect examination, Malanche’s counsel objected that the
video “speaks for itself,” commenting that “[t]he jury can see the video on its own.” An
objection that something “‘speaks for itself’” is not a specific evidentiary objection, but
courts have sometimes treated it as an objection that the testimony is not the proper
subject of expert opinion. (See, e.g., People v. Sloss (1973) 34 Cal.App.3d 74, 86.)
Here, for similar reasons but in a different context, it is arguably reasonable to construe
the comment that a video “speaks for itself” as an objection to improper lay opinion.
And, under the trial court’s order at the beginning of trial, an objection by any defendant
was deemed an objection made by all defendants.
In any event, assuming Lopez and Armendariz did not forfeit their arguments
about Polanco’s testimony, we reject them on the merits. A lay witness may give opinion
testimony if it is “rationally based on the witness’s perception and helpful to a clear
understanding of the witness’s testimony.” (People v. Leon (2015) 61 Cal.4th 569, 601
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(Leon).) We review a trial court’s decision to admit lay opinion testimony for an abuse
of discretion. (Id. at p. 600.) For the following reasons, we find no abuse of discretion.
Most of Polanco’s testimony was not opinion at all, but assuming it was, there was
ample reason to find it both rationally based on the detective’s perception and helpful to
the jury. On this point, the reasoning of People v. Son (2020) 56 Cal.App.5th 689 (Son)
is instructive. In Son, a detective testified as to what she perceived in surveillance video
of a stabbing. (Id. at p. 695.) In rejecting the defendant’s claim that the testimony was
improper lay opinion, the Court of Appeal stated that it did not “see any opinions
expressed” in the detective’s testimony, reasoning that she “essentially just testified to
what she saw . . . If she had witnessed the actual murder and given the exact same
testimony, we certainly would not characterize it as opinion testimony. It would be
percipient testimony. Why does it become an opinion just because she saw it in a
video?” (Id. at p. 697.) Assuming the testimony was opinion, however, the court found
it was rationally based on the detective’s perception and helpful to the jury, where she
watched the video multiple times, including in slow motion. (Id. at pp. 695, 697.)
Among other things, the detective was able to discern and point out the moment a “shiny
object (which she later clarified was ‘a stabbing instrument’) [flew] out of defendant’s
right hand midway through the assault.” (Id. at p. 695.) The Court of Appeal found such
testimony helpful because it enabled the jury “to speed up the process of teasing out
obscure details in the video.” (Id. at p. 697; accord U.S. v. Torralba-Mendia (9th Cir.
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2015) 784 F.3d 652, 659 [“an officer who has extensively reviewed a video may offer a
narration, pointing out particulars that a casual observer might not see”].)
Similarly, here, both the prosecution and defense counsel asked Polanco what he
saw upon close examination of the video, and he described what he saw. Among other
things, Malanche’s counsel showed a short portion of the video, from when “the car
[was] in front of the residence,” and asked if the detective saw “those little dust things
that went off the ground.” When the detective responded affirmatively, counsel asked if
that was “consistent with . . . a bullet ricocheting on the street.” The detective agreed that
it was. On redirect, the prosecutor asked Polanco: “did you see anything happen prior to
those ricochets with respect to the Toyota Sequoia?” He did: “I saw what I believe to be
muzzle flash from the Sequoia before you actually see the ricochet.” Further questioning
clarified the concept of a muzzle flash: “So given that it’s dark, there’s a quick flash of
light. Typically, when a gun is fired, you’ll see muzzle flash if . . . the lighting
condition’s right.” Further redirect questions, accompanied by repeated viewing of a few
seconds of the video, focused on the order of the ricochets and muzzle flashes, as well as
correlating the muzzle flashes with locations where police recovered a type of bullet
casings from the street. This was mainly testimony about what was occurring on a video,
not easily discernible except on close attention, like the testimony that Son found both
rationally based on the detective’s perception and helpful to the jury.
Polanco’s limited testimony that went beyond literally recounting the video also
was not problematic. Armendariz and Lopez suggest that distinguishing muzzle flashes
19
from other flashes of light on a video is something that requires expert opinion, rather
than lay opinion. Opinions derived from a police officer’s general familiarity with
firearms and how they work, however, have been held “not so far ‘beyond [the] common
experience’ that expert testimony was required.” (People v. Lewis (2008) 43 Cal.4th 415,
504-505 [detective “properly testified as a lay witness” regarding “strike marks” on a
shotgun shell recovered at a crime scene].) And Armendariz and Lopez offer no
authority in support of the notion that expert scientific opinion is required to distinguish a
muzzle flash from a different sort of flash of light in a video. Analogously, lay opinion is
admissible to show that a person depicted in a surveillance video is the defendant, so long
as the opinion is based on the witness’s relevant personal knowledge. (Leon, supra, 61
Cal.4th at p. 601.) Moreover, where the video is played for the jury, the jurors can “make
up their own minds” about whether the identification is reliable. (Ibid.) That logic
applies to the testimony of a lay witness with personal knowledge of the appearance of
muzzle flashes, who opines that a particular flash of light in a video appears to be one.
Questions about the witness’s familiarity with the appearance of muzzle flashes, or any
ambiguities arising from the character of the video, generally will go to the weight, not
the admissibility, of the testimony. (Ibid.)
Armendariz and Lopez have not demonstrated that the trial court erred by allowing
Polanco’s testimony regarding what he saw in the surveillance video. We therefore need
not and do not address the parties’ arguments about prejudice.
20
C. Substantial Evidence
Defendants have raised sundry substantial evidence challenges to their
convictions, both as to substantive offenses and enhancements. We are not persuaded by
any of these arguments. Although we discuss each of them in turn, we note that a
recurring theme will be defendants’ failure to account for the standard of review.
Defendants all acknowledge, either expressly or by adopting the arguments of co-
defendants, the familiar proposition that in conducting substantial evidence review an
appellate court must examine the whole record in the light most favorable to the
judgment. (E.g., People v. Lindberg (2008) 45 Cal.4th 1, 27; see also People v. Wilson
(2008) 44 Cal.4th 758, 806 [sufficiency of the evidence standard for enhancements is
same as that for convictions].) In so doing, we must “presume in support of the judgment
the existence of every fact the jury could reasonably have deduced from the evidence.”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) If the evidence reasonably justifies the
trier of fact’s findings, the reviewing court’s opinion that the evidence might also support
a contrary finding does not warrant reversal. (People v. Jones (2013) 57 Cal.4th 899, 961
(Jones); see also People v. Kurey (2001) 88 Cal.App.4th 840, 848-849 (Kurey)
[“. . . whether, upon review of the entire record, there is substantial evidence of solid
value, contradicted or uncontradicted” to support finding].) Moreover, circumstantial
evidence alone may be sufficient to connect a defendant with a crime and prove guilt
beyond a reasonable doubt. (Ibid.) Defendants’ arguments, however, are often grounded
in discussions of the evidence that do not take such a deferential perspective.
21
1. “Friendly fire” theory
Defendants emphasize that it is undisputed that the evidence does not establish
who fired the single bullet that struck and killed Valdez, or even what type of bullet it
was. The prosecution’s theory was that someone in either the Sequoia or Caprice fired
the shot that killed Valdez, and all of the defendants at least intended to aid and abet that
person, if they were not the direct perpetrator. (See People v. Santamaria (1994) 8
Cal.4th 903, 919 [“Sometimes, as probably occurred here, the jury simply cannot decide
beyond a reasonable doubt exactly who did what. There may be reasonable doubt that
the defendant was the direct perpetrator, and a similar doubt that he was the aider and
abettor, but no such doubt that he was one or the other”].) Defendants’ alternative theory
was that Valdez was killed by “friendly fire”—a bullet fired by one of Valdez’s
companions—rather than by any bullet fired from the Sequoia or the Caprice. They
contend on that basis that the prosecution failed to establish that defendants must be
either direct perpetrator or aider and abettor, so there is insufficient evidence to support
any of their convictions for murder, or the special circumstance allegations that the
murder was committed while firing from a car in violation of section 190.2, subdivision 9 (a)(21).
9 We “cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule.” (People v. Kunkin (1973) 9 Cal.3d 245, 251.) We therefore do not consider whether defendants could have been convicted, for example, under the provocative act murder doctrine, which “has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle . . . and the police, or a victim of the underlying crime, responds with privileged [footnote continued on next page]
22
This argument, however, rests on a limited subset of the evidence. Defendants
essentially take the trajectory of Valdez’s wound—slightly from back to front—and some
ambiguity as to exactly where he was standing when he was shot, and conclude that the
evidence “was consistent with the defense theory.” Defendants do not account for other
evidence tending to support different conclusions. For example, as the prosecution
argued, the location of blood pools, from which Valdez’s approximate location when shot
can reasonably be inferred, combined with the locations where spent casings were
recovered or not recovered, at least arguably showed the implausibility of the defense’s
“friendly fire” theory. The jury was also entitled to give weight to Monzon’s reported
certainty that he had personally fired the shot that “got” Valdez. We find no appropriate
basis to disturb the jury’s resolution of this conflict in the evidence.
2. Armendariz
Armendariz argues that the prosecution failed to present evidence sufficient to
support the jury’s conclusion that he was present for or involved in Valdez’s shooting, let
alone that he was guilty of murder. We are not persuaded.
Surveillance video gave police the license plate of the Sequoia used in the
shooting. That information led them to Armendariz’s residence, where they found the 10 vehicle on August 8, 2016. That was some circumstantial evidence of Armendariz’s
lethal force by shooting back and killing the perpetrator’s accomplice or an innocent bystander.” (People v. Cervantes (2001) 26 Cal.4th 860, 867.) 10 Police executed the search warrant for the residence by observing until Armendariz left home (in a different vehicle than the Sequoia), and then pulling him over [footnote continued on next page]
23
involvement in the shooting, as it means that the day after the shooting, he was found in
possession of the involved vehicle with freshly patched bullet holes and an expended slug
on the floorboard. Further, the jury was informed of Armendariz’s admission that he was
“in possession of a firearm at some point and time” on August 7, 2016. Additionally,
surveillance video showed the Sequoia driver just before the shooting generally matched
Armendariz’s description, wearing a black tank top, though the video showed the driver’s
face for only a few seconds and from some distance. A person with a similar description,
and also wearing a black tank top, arrived at the hospital shortly after Lopez and
Malanche did, apparently intending to meet Lopez, but then fleeing at the sight of police.
And Armendariz’s familial connection with Lopez, and through Lopez to Palomino and
Pacheco, suggests a motive for Armendariz to participate in the shooting. Viewed in the
deferential light required, the jury’s decision that this evidence, in the aggregate,
constituted proof of Armendariz’s presence for and participation in the shooting was a
reasonable conclusion derived from circumstantial evidence.
Armendariz’s arguments in support of a different conclusion focus on various
“holes” in the prosecution’s case against him. Among other things, the prosecution did
not attempt to demonstrate that Armendariz owns the Sequoia, or otherwise explain how
the vehicle’s license plate led them to search Armendariz’s residence. Ideally, the video
surveillance footage showing a glimpse of the driver of the Sequoia would have given a
closer look at his face. Armendariz, unlike Lopez and Malanche, was not implicated by
on a traffic stop. Armendariz was detained, and his wife, who was with him, went back to the residence with police to let them in.
24
the statements Monzon reportedly made to Doe, and he was not with Monzon, Lopez,
and Malanche at the cemetery in the hours before the shooting. There is no direct
evidence that Armendariz was the person who attempted to repair the bullet holes in the
Sequoia. In the present procedural posture, however, such arguments are misplaced. Our
question is not whether the prosecution’s case could have been stronger, but whether
there is a minimum of “substantial evidence of solid value, contradicted or
uncontradicted,” to support the jury’s decision. (Kurey, supra, 88 Cal.App.4th at p. 848;
see also Jones, supra, 57 Cal.4th at p. 961 [“If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances might
also reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment” (cleaned up)].) As discussed above, there is that necessary minimum of
supporting, albeit circumstantial, evidence.
Armendariz’s arguments based on People v. Kegler (1987) 197 Cal.App.3d 72
(Kegler) are also not persuasive. In Kegler, the defendant was accused of committing a
string of robberies over about an hour, during the last of which the victim was shot and
killed. (Id. at p. 77.) The perpetrator drove a car owned by a person named Wright, who
testified that he had loaned the car to the defendant a few hours before the shooting in
exchange for some cocaine. (Id. at p. 78.) The defendant failed to return the car the next
day, as they had agreed, and several days later Wright learned that it had been
impounded. (Id. at p. 78.) Police had found the car within about a day after the crimes,
abandoned not far from the defendant’s residence. (Id. at p. 78.) The Court of Appeal
25
affirmed the trial court’s decision not to give an instruction, requested by the defense, on
third party culpability; in closing arguments the defense conceded the prosecution had
proven the defendant committed the earlier robberies, but argued that Wright committed
the last of the robberies and the murder. (Id. at pp. 79-80.) The Court of Appeal
reasoned, in relevant part, that “no evidence placed Wright at the scene of the murder or
in possession of his car, indisputably used in the commission of the murder, at the time of
the offense.” (Id. at p. 80.) Additionally, although Wright and the defendant both
matched physical descriptions given by witnesses, those descriptions also fit “‘probably
100,000 people in Los Angeles.’” (Id. at p. 80.) On that basis, the Court of Appeal found
the defendant had failed to present “direct or circumstantial evidence linking [Wright] to
the actual perpetration of the crime.” (Id. at p. 80.)
In support of his contention that the evidence was insufficient to demonstrate that
he was in any way involved in Valdez’s shooting, Armendariz analogizes the evidence
against him to the evidence against Wright. (Kegler, supra, 197 Cal.App.3d at p. 80.)
The analogy, however, does not withstand close scrutiny. In Kegler, it was undisputed
that the defendant, and not Wright, had possession of the car about an hour before the
robbery/murder, while he committed the earlier robberies. (Id. at pp. 78-79.) In contrast,
there is no evidence, only speculation, that anyone other than Armendariz might have had
possession of the Sequoia before, during, or after the shooting. In Kegler, the car was
recovered by police near the defendant’s residence, not Wright’s (id. at p. 78), whereas
the Sequoia was found in Armendariz’s garage. In Kegler, an eyewitness to the murder
26
testified that he was “certain” that the defendant, and not Wright, was the person he saw
shoot the victim. (Id. at p. 78.) Here, although no eyewitness definitively identified
Armendariz as one of the shooters, there is also no evidence that, if credited, would
exclude the possibility that he was one of the shooters. The different circumstances
reasonably justify different conclusions about the evidence.
In short, we are not persuaded that the jury’s decision to convict Armendariz of
murder lacked the support of substantial evidence.
3. Premeditation and deliberation
Malanche argues that the evidence was insufficient to support the jury’s
conclusion that he acted with premeditation and deliberation. Armendariz makes a
similar point in passing (during an argument on another issue, self defense, which we
address below), asserting that “there was no evidence the defendants were executing a
plan to kill members of NSI in general or [Valdez] and his companions in particular,
which at least might permit an inference that they were [driving by Valdez’s house] to
commit a shooting.” We disagree.
In the context of first-degree murder, “‘premeditated’ means ‘considered
beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result
of careful thought and weighing of considerations for and against the proposed course of
action.’” (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled on other grounds as
stated in People v. Scott (2015) 61 Cal.4th 363, 390, fn.2.) “The process of premeditation
and deliberation does not require any extended period of time. The true test is not the
27
duration of time as much as it is the extent of the reflection. Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .”
(People v. Lee (2011) 51 Cal.4th 620, 636 [cleaned up].)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, our Supreme Court “identified
three categories of evidence relevant to determining premeditation and deliberation: (1)
events before the murder that indicate planning; (2) a motive to kill; and (3) a manner of
killing that reflects a preconceived design to kill.” (People v. Gonzalez (2012) 54 Cal.4th
643, 663 [discussing People v. Anderson].) These factors “are not all required [citation],
nor are they exclusive in describing the evidence that will support a finding of
premeditation and deliberation.” (Ibid.) “It also is not necessary that any of these
categories of evidence be accorded a particular weight [citation], and it is not essential
that there be evidence of each category to sustain a conviction.” (People v. Gonzalez
(2012) 210 Cal.App.4th 875, 887.) Rather, these factors are intended “to aid reviewing
courts in assessing whether the evidence is supportive of an inference that the killing was
the result of preexisting reflection and weighing of considerations rather than mere
unconsidered or rash impulse.” (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
Applying the factors of People v. Anderson, supra, 70 Cal.2d 15, and reviewing
the evidence in the light most favorable to the judgment, sufficient evidence supports the
conclusion that Valdez’s shooting was the result of preexisting reflection and weighing of
considerations rather than a rash impulse. The defendants’ decision to arm themselves
and go driving in NSI territory is reasonably interpreted as evidence that they were
28
looking for trouble. That three of them drove around for a time in NSI territory until they
passed the gathering outside Valdez’s family’s house, then exited NSI territory briefly to
meet up with an additional person in a second car, then returned to Valdez’s house, where
they opened fire on the group, suggests exactly what kind of trouble they were looking
for. The first of the Anderson factors, therefore, weighs in favor of a finding of
premeditation and deliberation. Second, whether simply the latest expression of the long-
standing enmity between NSI and JT, or more specifically intended as retaliation for the
murders of Palomino and Pacheco or for recent acts of disrespect by a particular NSI
member, the evidence supports the conclusion that defendants had a motive to kill.
Finally, the immediacy with which multiple people in two separate cars opened fire on
Valdez’s group, as well as the volume of gunshots fired, is reasonably viewed as
suggesting a preconceived design to kill. Thus, each of the three Anderson factors
supports the jury’s conclusion that defendants acted with premeditation and deliberation.
Armendariz correctly points out that there was no direct evidence of premeditation
or deliberation. Direct evidence is not, however, required; circumstantial evidence alone
can constitute substantial evidence. (Jones, supra, 57 Cal.4th at p. 961.) Indeed, it is
“not unusual” that intent to kill “must be inferred from circumstantial evidence
surrounding the crime.” (People v. Canizales (2019) 7 Cal.5th 591, 606.) Armendariz
proposes different, more innocent inferences that he believes reasonably could be drawn
from the evidence. Again, however, on substantial evidence review, such arguments are
misplaced: “Although it is the duty of the jury to acquit a defendant if it finds that
29
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence, it is the jury, not the appellate court which must be convinced of
the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a reversal of
the judgment.” (Jones, supra, 57 Cal.4th at pp. 960-961 [cleaned up)].)
Similarly, Malanche proposes that the jury should have drawn different inferences
from the evidence, arguing that “[a]lthough Monzon may have planned a gang shooting,
there is insufficient evidence Malanche did.” The argument lacks merit, as there is
sufficient evidence of Malanche’s premeditation and deliberation even if he was not one
of the overall planners. As Malanche notes, there is some room to argue from the
evidence that before the shooting he was not with the others at the cemetery where
Palomino was buried. In the same vein, it is undisputed that Malanche was not a gang
member, that he had no prior criminal record, and that he was not with the other three
defendants during their initial cruise through NSI territory. But he was present in a
vehicle at the scene and, based on what was found in his clothes at the hospital, Malanche
had with him a holster and live rounds of .38 ammunition, matching shell cases at a scene
where it was clear that multiple persons were firing from the vehicles multiple times,
with plenty of time for premeditation and deliberation. While there is no more direct
evidence that Malanche pulled a trigger, it was within the jury’s province to decide what
30
inferences were reasonable from these facts. (Jones, supra, 57 Cal.4th at pp. 960-961.)
On this record, we find no appropriate basis to disturb the jury’s determinations.
We find that substantial evidence supports the jury’s finding of premeditation and
deliberation.
4. Self Defense/Defense of Another
Lopez, Malanche, and Armendariz argue that substantial evidence does not
support the jury’s finding that they did not act in self-defense or defense of another. We
are not persuaded.
The prosecution bears the burden of proving beyond a reasonable doubt that the
defendant did not act in lawful self-defense or defense of another. (People v. Cruz-
Partida (2022) 78 Cal.App.5th 32, 46.) “For killing to be in self-defense, the defendant
must actually and reasonably believe in the need to defend. If the belief subjectively
exists but is objectively unreasonable, there is imperfect self-defense, i.e., the defendant
is deemed to have acted without malice and cannot be convicted of murder, but can be
convicted of manslaughter. To constitute perfect self-defense, i.e., to exonerate the
person completely, the belief must also be objectively reasonable.” (People v. Humphrey
(1996) 13 Cal.4th 1073, 1082 [cleaned up].) The same analysis applies when the issue is
whether the defendant acted in defense of another person. (See, e.g., People v. Randle
(2005) 35 Cal.4th 987, 994-1001, overruled on a different point in People v. Chun (2009)
45 Cal.4th 1172, 1201.)
31
Generally, neither perfect nor imperfect self-defense may be “invoked by a
defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack
or the commission of a felony), has created circumstances under which his adversary’s
attack or pursuit is legally justified.” (People v. Enraca (2012) 53 Cal.4th 735, 761
[cleaned up].) However, if the defendant starts a fight using non-deadly force and the
opponent suddenly escalates to deadly force, the defendant may use deadly force in
defense. (People v. Quach (2004) 116 Cal.App.4th 294, 301-302.)
At trial, the question of who fired first was disputed. Defendants are simply
incorrect that there is “no evidence who fired first” or that the evidence affirmatively
required the conclusion that someone in Valdez’s group shot first. On the contrary,
regardless of any evidence in support of the defense perspective, there was also some
evidence that defendants fired first. In addition to video surveillance evidence, which at
least arguably showed defendants firing first, an eyewitness also testified that the “first
shots” were fired from defendants’ vehicles. There was therefore ample basis for the jury
to find the prosecution had carried its burden to prove the doctrines of self-defense or
defense of another did not apply.
Lopez and Malanche emphasize that the first gunshot Polanco identified in the
video surveillance footage came from the Sequoia, followed by ricochets from return fire
by Valdez’s group, and only then a muzzle flash from the Caprice. Of course, Lopez and
Malanche were free to argue, as they did at trial, that the jury should infer from this order
of events that they were acting in self defense or in defense of others. It is not apparent,
32
however, why the jury might be required to find that to be a plausible inference. As
discussed above in relation to premeditation and deliberation, the jury was free to instead
infer from the totality of the circumstances that both cars were acting in a coordinated
fashion with the intent of executing a drive-by shooting, even if those in the Caprice
opened fire a few moments after those in the Sequoia.
We conclude that the jury’s finding that defendants did not act in self defense or
defense of another was supported by substantial, albeit largely circumstantial, evidence.
5. Discharge of firearm “from a motor vehicle”
Defendants contend that insufficient evidence supported the jury’s conclusion that
Valdez was murdered by a firearm intentionally discharged “from a motor vehicle,” as
required for the section 190.2, subdivision (a)(21) special circumstance found true as to
each of them. This contention rests on video evidence showing that during the gunfire
exchange, after passing the house where Valdez’s group had gathered, the Sequoia
slowed to a stop for a moment and the front doors were opened before at least one
additional shot was fired. An eyewitness also testified to seeing someone step out of the
rear passenger door of the Sequoia and rest a gun on the hood of the vehicle to point it
back at Valdez’s group. From this, defendants argue that some of the shots fired at
Valdez’s group were not fired “from a motor vehicle” in the meaning of section 190.2,
subdivision (a)(21). In defendants’ view, there is no way to determine exactly which shot
hit Valdez, so the jury’s conclusion that Valdez was killed by a bullet shot at him “from a
motor vehicle” lacks support.
33
The evidence, however, is reasonably interpreted to support jury’s verdict. The
surveillance video does not confirm the eyewitness’s testimony about someone exiting
the Sequoia’s passenger side and shooting across its hood. To the contrary, it is more
consistent with the same eyewitness’s initial police statement, that someone leaned out
the vehicle’s rear passenger window and put the gun on the car’s roof. Additionally,
although the video’s angle is not ideal, it is reasonably viewed as showing the occupants
opening the Sequoia’s doors but not stepping out, and instead only leaning out or
pointing weapons out for a few seconds, before closing the doors and driving away. In
this light, the evidence reasonably supports the conclusion that all of the shots fired at
Valdez’s group were by someone in either the Sequoia or the Caprice. Thus, substantial
evidence supports the jury’s finding that Valdez was killed by a bullet shot “from a motor
vehicle” in the meaning of section 190.2, subdivision (a)(21).
6. Gang enhancements
In their initial appellate briefs, Armendariz, Lopez, and Malanche argue that the
jury’s true findings on their section 186.22, subdivision (b)(1)(C) gang enhancements
lack the support of substantial evidence. After briefing was completed, the Legislature
adopted Assembly Bill 333, which changed certain requirements for such enhancements.
We requested, and the parties submitted, supplemental briefing regarding the effect of
Assembly Bill 333. We will address that issue below. Nevertheless, we must address the
parties’ substantial evidence challenges to the jury’s findings under the former law, as the
outcome could render the supplementally briefed issues moot. (See People v. Seel (2004)
34
34 Cal.4th 535, 544 [unlike a reversal for trial error, “the double jeopardy clause
precludes a second trial after a conviction is reversed based solely on insufficient
evidence”].)
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.” (Former § 186.22, subd. (b)(1), (4).) Thus, there are “two
prongs to the gang enhancement under section 186.22, subdivision (b)(1).” (People v.
Perez (2017) 18 Cal.App.5th 598, 606.) First, the prosecution must prove that the
underlying felonies were committed “for the benefit of, at the direction of, or in
association with any criminal street gang.” (Former § 186.22, subd. (b)(1).) Second, the
prosecution must prove that the crimes were committed with “the specific intent to
promote, further, or assist in any criminal conduct by gang members.” (Ibid.)
Lopez and Armendariz contend there is no substantial evidence they committed
the shooting “for the benefit of, at the direction of, or in association with” JT, within the 11 meaning of former section 186.22, subdivision (b)(1). Not so. A gang expert,
presented with a hypothetical based on the facts of this case, opined that such a shooting
would benefit the reputation of JT, even though only one of the four alleged shooters was
a documented JT member. (See People v. Albillar (2010) 51 Cal.4th 47, 68 [section
11 There is no dispute, for purposes of defendants’ substantial evidence arguments, that JT was proven to be a “criminal street gang” under the law in effect at the time of trial.
35
186.22 gang enhancement “does not depend on membership in a gang at all”].) The
expert described not only a general reputational benefit, but also the specific benefit tied
to demonstrating that “murders against members of their gang . . . would not be
tolerated.” Among other things, Monzon’s statements to Doe, describing the motive for
the shooting as retaliation for the murders of Palomino (a JT member) and Pacheco
(family to a JT member, though not himself gang-affiliated) by NSI members, ground
this theory of benefit in actual, non-hypothetical facts. (Cf. People v. Ochoa (2009) 179
Cal.App.4th 650, 660, 662 [requiring “something more than an expert witness’s
unsubstantiated opinion” for first prong of gang enhancement analysis, namely, “specific
evidentiary support”].) The jury reasonably inferred that Monzon did not keep his own
motives secret from Lopez and Armendariz and that, by participating in the shooting,
Monzon, Lopez and Armendariz demonstrated that they each intended the same benefit
to JT. (See People v. Garcia (2016) 244 Cal.App.4th 1349, 1367 [“Committing a crime
in concert with known gang members can be substantial evidence that the crime was
committed in ‘association’ with a gang”].) Lopez’s behavior at the cemetery,
demonstrating animus to anyone with NSI connections, arguably supports the same
inference.
Emphasizing their connections to the extended Palomino/Pacheco family, and
their lack of formal ties to JT, Lopez and Armendariz argue that the evidence better
supports the conclusion that “any beef the defendants had with NSI was personal—a
family matter.” This would have been a non-frivolous argument to make at trial, though
36
neither Armendariz nor Lopez did so. Again, however, on substantial evidence review,
this argument is misplaced. Our question is whether the inferences the jury chose to
make were supported by substantial evidence, not whether other inferences were arguably
reasonable, too. (See Jones, supra, 57 Cal.4th at p. 961.) Similarly, as Armendariz and
Lopez point out, the case in favor of the gang enhancement would have been stronger had
there been evidence “typical” of such crimes, such as “gang colors, gang clothing, gang
[accoutrements], gang signs, gang epithets, help by other gang members.” (People v.
Perez, supra, 18 Cal.App.5th at p. 613-614.) Our question, however, is whether there is
substantial evidence to support the jury’s decision, not whether the evidence could have
been stronger. (Kurey, supra, 88 Cal.App.4th at p. 848; Jones, supra, at p. 961.)
Malanche and Armendariz also argue that there is no substantial evidence in
support of the second prong of the analysis, regarding specific intent to promote, further, 12 or assist in criminal conduct by gang members. Again, not so. It is undisputed that
Monzon is a member of JT. Above, we found substantial evidence to support the jury’s
findings that Malanche, Armendariz, and Lopez all participated in the shooting along
with Monzon, and that each acted with premeditation and deliberation. It follows that all
of the defendants acted with the requisite specific intent for the second prong of the gang
enhancement analysis.
12 Lopez conceded that there was “sufficient evidence that he had the specific intent to assist criminal conduct by a member of JT, i.e., Monzon,” contesting only the first prong regarding intent to benefit the gang.
37
Malanche’s argument to the contrary, joined by Armendariz, rests on the premises
that (1) there is no evidence that they are JT members, or less formally associated with
the gang, and (2) there is no direct evidence that they knew Monzon was a JT member.
(Cf. People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [defendant’s commission of
crime in association with another person he knows to be a fellow gang member supports
the inference that he acted with the requisite specific intent].) As noted, whether or not
Malanche and Armendariz were themselves gang members is not an element of the
analysis. (People v. Albillar, supra, 51 Cal.4th at p. 68.) Moreover, there is ample
circumstantial evidence from which the jury could reasonably infer that Malanche and
Armendariz were well aware of Monzon’s gang affiliation, and by extension the gang-
related motivation for the shooting. Doe recalled Monzon referring to Malanche, as well
as Lopez, as two “friends” of his who were shot. The jury may have concluded it was
unlikely that Monzon kept his JT membership a secret from “friends.” On the contrary,
among other things, he advertises his affiliation through tattoos, including “a large JT on
the backside of his neck” and the letters “VJT” behind one of his ears. There was
evidence (albeit disputed by Malanche) that hours before Valdez’s shooting in NSI
territory, Malanche, along with Monzon and Lopez, attended a gathering at the gravesite
of a JT casualty in the long-running conflict between JT and NSI. Armendariz was not at
the gravesite but met up with Monzon and Lopez shortly afterwards, apparently at the
residence of another JT gang member, before the three went on their drive together
through NSI territory. The jury, it seems, found it implausible that either Armendariz or
38
Malanche were ignorant of Monzon’s JT affiliation. Viewing the evidence in the light
most favorable to the verdict, as we must, we find that interpretation of the circumstantial
evidence to be entirely reasonable.
We conclude that, as to all defendants, the jury’s true findings on the gang
enhancement allegations were supported by substantial evidence.
7. Firearms enhancements
Lopez, Malanche, and Armendariz each challenge the sufficiency of the evidence
for the vicarious liability firearm enhancement imposed against them (§ 12022.53, subd.
(d) and (e)). Malanche and Armendariz also argue that there is no substantial evidence in
support of their personal use firearm enhancements (§ 12022.53, subd. (c)). We find no
merit in any of these contentions.
Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of enumerated offenses: a 10-year enhancement for
the personal use of a firearm (§ 12022.53, subd. (b)); a 20-year enhancement for the
personal and intentional discharge of a firearm (§ 12022.53, subd. (c)); and a 25-year-to-
life enhancement for the personal and intentional discharge of a firearm causing great
bodily injury or death (§ 12022.53, subd. (d)). Additionally, section 12022.53,
subdivision (e)(1) “imposes vicarious liability under this section on aiders and abettors
who commit crimes in participation of a criminal street gang.” (People v. Garcia (2002)
28 Cal.4th 1166, 1171.) Thus, vicarious liability may be imposed if the defendant
“violated subdivision (b) of Section 186.22” and “[a]ny principal in the offense
39
committed any act specified in [section 12022.53,] subdivision (b), (c), or (d).”
(§ 12022.53, subd. (e)(1); see also § 31 [defining “principal” to include both a direct
perpetrator and an aider and abettor].)
For all defendants, the murder charge (count 1) was accompanied by firearms
enhancement allegations under section 12022.53, subdivisions (c), (d), and (e). The
prosecution ultimately chose not to proceed on a section 12022.53, subdivision (d),
enhancement independently, conceding that it could not prove which of the defendants
had personally fired the bullet that killed Valdez. Rather, the prosecution argued that
defendants were vicariously liable for the subdivision (d) enhancement, per section
12022.53, subdivision (e)(1), because each of the four defendants were principals in the
commission of the offense, the gang enhancement under section 186.22, subdivision (b)
applied to all four, and one of the four (although it could not be established from the 13 evidence which one) had personally fired the bullet that killed Valdez.
Defendants’ substantial evidence challenges to the jury’s true findings on the
vicarious liability firearms enhancements under section 12022.53, subdivisions (d) and
(e), rest on arguments we have already rejected. We found above that evidence
adequately supports the jury’s findings that each of the defendants was liable for
13 If an unidentified fifth or sixth person in either the Caprice or Sequoia with the four defendants had personally and intentionally fired the fatal bullet, the same reasoning would still apply. (See People v. Garcia, supra, 28 Cal.4th at p. 1174 [“Although the aider and abettor must first be convicted of the underlying offense before the enhancement may apply [citation], the prosecution need not plead and prove the conviction of the offense by the principal who intentionally and personally discharged a firearm”].)
40
premeditated murder, including its implicit rejection of defendants’ friendly fire theory,
as well as its true findings on gang enhancements under former section 186.22,
subdivision (b). For the same reasons, the evidence also supports vicarious liability
under section 12022.53, subdivisions (d) and (e).
We also find no lack of substantial evidence in support of the section 12022.53,
subdivision (c) enhancements for personally using a firearm. As to Malanche, two
firearms were found in the backpack Lopez tried to hide in bushes near the hospital, a .22
caliber pistol and a .38 caliber revolver. Unlike Lopez, whose fingerprints were found on
the .22 caliber pistol, Malanche’s fingerprints were not found on either of the two
weapons. Nevertheless, there was circumstantial evidence connecting Malanche to the
revolver, namely, the holster and live .38 caliber rounds found in his clothing. Notably,
the revolver holds six rounds, and exactly six rounds were found in Malanche’s clothing,
arguably suggesting preparation for reloading, instead of the rounds finding their way
there by accident, as Malanche has argued. The rounds loaded in the revolver were all
expended, and forensics showed that the .38 caliber bullets recovered from the shooting
scene came from that revolver. Monzon’s reported comment that “everybody” started
shooting at Valdez when he tried to retrieve a weapon from a car’s trunk is reasonably
interpreted to include Malanche. On substantial evidence review, such evidence is more
than adequate to support the jury’s finding, regardless of any arguments that might be
marshalled in support of a different conclusion. (See Jones, supra, 57 Cal.4th at p. 961;
Kurey, supra, 88 Cal.App.4th at pp. 848-849.)
41
Similarly, there is ample evidence to support the personal use firearm
enhancement as to Armendariz. As discussed above, substantial evidence supports the
conclusion that, during the shooting, he was driving the Sequoia later found in his garage.
Further, surveillance video of the shooting showed that, when the Sequoia briefly stopped
after passing Valdez’s house, the driver’s side door opened, and a flash of light arguably
consistent with a muzzle flash can be seen through the driver’s window, before the door
closed and the Sequoia sped away. It was reasonable for the jury to conclude from this 14 evidence alone that Armendariz personally fired at least one shot.
Defendants have not demonstrated a lack of substantial evidence as to any of the 15 firearms enhancements imposed.
D. Malanche’s section 12022.53, subds. (d), (e) firearms enhancement
Malanche contends that the trial court abused its discretion by declining to dismiss
his vicarious liability firearms enhancement (§ 12022.53, subds. (d), (e)) in the interest of
justice pursuant to section 1385. The argument is without merit.
A trial court “may, in the interest of justice pursuant to Section 1385 . . . strike or
dismiss an enhancement otherwise required to be imposed by [section 12022.53].”
(§ 12022.53, subd. (h).) A court’s discretionary decision not to dismiss or strike a
14 The prosecution introduced a variety of evidence aimed at demonstrating that the weapon Armendariz fired was a 30-30 caliber rifle. For present purposes, we need not delve into those details. 15 For other reasons discussed below, however, we will vacate the firearms enhancements as to all defendants. (See Part II.M.3, infra.)
42
sentencing enhancement under section 1385 is “subject to review under the deferential
abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “[A]
trial court does not abuse its discretion unless its decision is so irrational or arbitrary that
no reasonable person could agree with it.” (Id. at p. 377.)
We find nothing irrational or arbitrary in the trial court’s decision. Malanche’s
argument rests largely on his view that he had only a “minor, ambiguous role” in
Valdez’s murder. The trial court was not compelled to accept that view of the evidence.
The jury did not do so, as demonstrated by its verdict on Malanche’s charges and their
enhancements. As discussed above, those findings were supported by substantial
evidence. The record also does not support Malanche’s suggestion, based on the
probation report, that the trial court failed to consider mitigating factors such as his
“youth, lack of gang ties, and stable work and family history.” On the contrary, the trial
court expressly acknowledged Malanche’s counsel’s arguments to that effect, agreeing
that it was a “complete waste and tragic” that someone with “his whole life ahead of him”
would do what the jury found Malanche had done. The trial court just did not give those
mitigating factors the weight Malanche would have preferred.
We also disagree with Malanche’s suggestion that the trial court failed to give due
weight to the public policies that underlie the relatively recent change in the law allowing
trial courts the discretion to strike section 12022.53 enhancements in the interests of
justice. Even after that expansion of the trial court’s discretion, the same policy
considerations that underpin the enhancements remain valid. (See, e.g., People v.
43
Pearson (2019) 38 Cal.App.5th 112, 117 [trial court must consider factors for
determining whether to strike enhancements, general objectives in sentencing, and
circumstances in aggravation and mitigation].) It was up to the trial court to weigh
conflicting policy imperatives and judge how they apply in this case. We find nothing in
the record showing either that the trial court misunderstood the scope of its discretion, or
that it exercised that discretion in a manner that was irrational or arbitrary.
E. Evidence of Armendariz’s admission to firearm possession
Armendariz was charged in count 2 with violating section 29800, subdivision (a),
based on the allegation that “on or about August 7, 2016” he possessed “a certain firearm,
to wit, a handgun,” while being a convicted felon. Before trial, Armendariz pleaded
guilty to that offense, agreeing on the plea form that he “did the things that are stated in
the charges that I am admitting.” During the in-court plea process, the prosecutor asked
Armendariz if it was true “that on August 7th, 2016, you were in possession of a
firearm,” to which Armendariz responded: “Yes, sir.”
During trial, the prosecution requested that the trial court inform the jury that 16 Armendariz admitted possessing a firearm on August 7, 2016, by his guilty plea.
Armendariz objected that his admission in connection with his plea lacked relevance and
was unduly prejudicial. The court rejected those arguments and read the following to the
jury: “Ladies and gentlemen, as part of the People’s case in chief, I am informing you,
16 The prosecution also requested that the jury be informed of Lopez’s admission to possessing a firearm but Lopez has not asserted any similar claim of error.
44
through what we call judicial notice, that on the date of January 24th of 2019, the
defendant Mr. Armendariz admitted to being in possession of a firearm at some point [in]
time on the date of August 7th of 2016.
Armendariz does not contest that, generally, a defendant’s guilty plea is judicially
noticeable. (See People v. Lee (2011) 51 Cal.4th 620, 650-651 (Lee).) Furthermore,
when offered against himself, it also “falls within the hearsay rule exception for
declarations against interest.” (People v. Cummings (1993) 4 Cal.4th 1233, 1321.)
Nevertheless, “‘judicial notice, since it is a substitute for proof [citation], is always
confined to those matters which are relevant to the issue at hand.’” (Mangini v. R.J.
Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) In Armendariz’s view, his
admission to possessing a “firearm” on August 7, 2016 was irrelevant to count one and its
enhancements, given that (1) the firearm in question was specified to be a “handgun” in
the information; (2) Armendariz agreed, on his plea form, to the facts as “stated in the
charges”; (3) the prosecution’s theory of the case at trial was that Armendariz used a 30-
30 rifle, not a handgun. 17 We decline to adopt Armendariz’s reasoning. A defendant’s guilty plea is
properly treated as an admission to the elements of the offense, but only those elements.
(People v. Saez (2015) 237 Cal.App.4th 1177, 1206 [guilty plea “admits every element of
the crime charged, but no more” (cleaned up)]; see Descamps v. U.S. (2013) 570 U.S.
17 The People argue that Armendariz forfeited the argument by failing to object to the specific form of the trial court’s statement to the jury. We decide the issue on the merits and decline to address the parties’ arguments regarding forfeiture.
45
254, 270 (Descamps) [“when a defendant pleads guilty to a crime, he waives his right to a
jury determination of only that offense’s elements,” no matter what the defendant “says,
or fails to say, about superfluous facts”].) And for good reason: “A defendant, after all,
often has little incentive to contest facts that are not elements of the charged offense—
and may have good reason not to.” (Descamps, supra, 570 U.S. at p. 270.) Even
stipulating to a particular document, such as an information or complaint, as the factual
basis for a plea does not admit facts beyond the elements of the charged offense. (Saez,
supra, 237 Cal.App.4th at p. 1206; see also People v. Gallardo (2017) 4 Cal.5th 120, 139
fn. 6 [“questions about the proper characterization of a prior conviction are for a court to
resolve, based on its evaluation of the facts necessarily encompassed by the guilty verdict
or admitted by the defendant in pleading guilty to the prior crime” (italics added)].)
Armendariz’s possession of a “firearm” was a necessary element of the offense to
which he pleaded guilty, a violation of section 29800, subd. (a)(1). (See People v. Clark
(2021) 62 Cal.App.5th 939, 958 [stating elements].) It is an element of the offense that
the item at issue is a “real firearm,” as opposed to a toy gun, pellet gun, or BB gun.
(Ibid.) Whether the firearm is a handgun or a rifle, however, is legally insignificant.
(Ibid.; see § 16520, subd. (a) [defining firearm as “a device, designed to be used as a
weapon, from which is expelled through a barrel, a projectile by the force of an explosion
or other form of combustion”].) Thus, it would have been improper for the trial court to
take judicial notice of an admission by Armendariz that he had possessed a “handgun”;
46
he made no such admission by means of his guilty plea. But the trial court properly
instructed the jury that Armendariz admitted possessing a “firearm.”
To be sure, the admission to possessing a “firearm” has a degree of ambiguity that
an admission to a “handgun” would not. That does not, however, render Armendariz’s
admission irrelevant. Although the prosecution’s theory was that he possessed and used a
30-30 rifle, Armendariz was free to argue that he did not possess that firearm.
In this regard, Lee, supra, 51 Cal.4th at p. 620, a case cited by Armendariz, is
instructive. During the penalty phase of that capital murder trial, the prosecution sought
to prove, as evidence in aggravation, that on a particular date in 1995 the defendant
“either drove or rode as a passenger in a car that was driven rapidly into a yard where a
family was having a barbecue,” forcing them “to scatter to avoid being hit.” (Id. at p.
649.) Three witnesses, including a Joseph Scruggs, testified about the incident, but none
were able to identify the defendant as having been in the car. (Ibid.) At the prosecution’s
request, over defense objection, the trial court took judicial notice that in January 1996
the defendant had pleaded guilty to a misdemeanor assault charge, with the victim being
Joseph Scruggs. (Id. at p. 650.) The trial court further instructed that the conviction itself
was not to be treated as a factor in aggravation, but only offered “for the limited purpose
of assisting you in determining the identity of the individual involved in” the incident
“involving the car at the barbecue.” (Ibid.) Our Supreme Court affirmed, even though
the plea “said nothing about the identity of the car’s driver,” and in spite of the
defendant’s argument that the guilty plea showed only that he had “acquiesced in a
47
resolution of his criminal liability rather than taking the risk of going to trial.” (Id. at p.
651.) Such arguments, the Court found, “go to the weight of the evidence, not its
admissibility.” (Ibid.) Similarly, here, Armendariz was free to argue (and he did in fact
argue) that his admission to possessing a firearm on August 7, 2016 did not mean that he
possessed and used a firearm during Valdez’s shooting. But such arguments go to the
weight of the evidence, not its admissibility.
We conclude that there was no error.
F. Prosecutorial Misconduct
Defendants contend the prosecutor committed misconduct by commenting on their
decisions not to testify. This argument was forfeited because none of the defendants
timely objected. (See People v. Fayed (2020) 9 Cal.5th 147, 204 [“To preserve a claim
of prosecutorial misconduct on appeal, ‘“a criminal defendant must make a timely and
specific objection and ask the trial court to admonish the jury to disregard the
impropriety”’”].) Nevertheless, we address the claim on its merits. (See People v.
Williams (2000) 78 Cal.App.4th 1118, 1126 (Williams) [addressing on appeal forfeited
issue to “forestall a petition for writ of habeas corpus based on a claim of ineffectual
counsel”].) We find no misconduct.
1. Additional Background
During part of closing arguments, the prosecutor focused on the 30 minutes before
Valdez’s murder, arguing that the evidence demonstrated that three of the defendants
48
spent that time “hunting . . . looking for anyone that fit the profile.” The prosecutor
continued the point as follows:
“And you heard all about that. And you heard there’s no reason for them to be
there. There’s nothing, nothing in the evidence, zero, no facts to suggest that they were
in the neighborhood of North Side Indio for any other purpose. There’s nothing.”
The prosecutor further commented as follows:
“All four of these [defense] attorneys are going to get up to speak to you, and they
won’t be able to give you an alternate explanation for why they’re there because it’s not
in the evidence. And, remember, if it’s not in the evidence, you can’t rely on it. So what
you have is 30 minutes of hunting, 30 minutes of looking for someone to murder.
“How do we know they wanted to murder that night?
“They’re driving through the neighborhood where they’re not supposed to be;
rival gang member in the car.
“But the biggest factor of them all, the biggest factor of them all, they all have
guns.
“For what?
“What other purpose are they looking for? Every single one of them has guns.
And we’re not talking one or two bullets in their guns, they are fully loaded, and they
49
have extra ammunition just in case.
“Why?
“Why?
“Because they’re there to murder. There’s no alternate explanation. You may
hear about self-defense. And we’ll get into that. We’ll talk about that in a little bit. You
may hear that. But you’re not going to hear an alternate explanation for why they’re
there.
“And if they’re there hunting, each with a gun fully loaded, with a rival gang
member in their car, they are guilty of first degree, special circumstances murder. And
the facts are as simple as that.”
Later in closing arguments, the prosecutor focused on evidence that three of the
defendants drove past Valdez’s house, briefly left NSI territory, and then returned:
“And the fact that can’t be explained to you, this alternative theory besides the
hunt, is why they passed the house the first time. 12:34, they go by it for the first time,
and they return to commit murder.
“No alternate explanation based on the facts for that except they saw Adrian
Valdez and his friends and they found their target.
“Only explanation. Only explanation that you’ll hear based on the facts.”
In rebuttal argument, the prosecution made similar comments:
“They’re all asking you to speculate. In my entire argument that I made to you, I
50
never once said, ‘maybe,’ ‘perhaps.’ I gave you the evidence to support the argument.
“Each and every point that I gave you was based on the evidence. And I told you
in my original argument that you would hear nothing, nothing about that 30 minutes and
what else they could have been doing.
“And did you?
“Did any one of defense counsel address those 30 minutes of hunting?
“No. No. Because there’s no evidence in the record to suggest they were doing
anything but.
“So that’s where your starting point is now. They were hunting. Nothing in the
record suggests anything different.
“Yes, Andrew Malanche wasn’t there yet. But Jose Armendariz, Angel Lopez,
and Cesar Monzon were hunting for 30 minutes. And there’s zero evidence in the record
to suggest anything else.”
Later in rebuttal argument, the prosecutor addressed defendants’ arguments
regarding self defense:
“There is no reasonable conclusion of all of the evidence that suggests self-
defense, and that’s all the defense has. They can’t explain why else they were there;
can’t explain why they shifted cars; can’t explain why they’re fully loaded with guns.
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And, therefore, they can’t explain why it’s not first degree, special circumstance murder.”
2. Analysis
It is “well established” that Griffin v. California (1965) 380 U.S. 609 “prohibits
reference to a defendant’s failure to take the stand in his own defense.” (People v.
Vargas (1973) 9 Cal.3d 470, 475-476.) “‘“Griffin forbids either direct or indirect
comment”’” on the defendant’s decision not to testify. (People v. Hughes (2002) 27
Cal.4th 287, 372.) For example, a prosecutor “may commit Griffin error if he or she
argues to the jury that certain testimony or evidence is uncontradicted, if such
contradiction or denial could be provided only by the defendant, who therefore would be
required to take the witness stand.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339
(Bradford).) Nevertheless, a prosecutor is permitted “to comment on a defendant’s
failure to introduce material evidence or call logical witnesses.” (People v. Brown (2003)
31 Cal.4th 518, 554; see Bradford, at p. 1340 [references to the “lack of evidence, which
might have been presented in the form of physical evidence or testimony other than that
of defendant” are permissible]; People v. Ratliff (1986) 41 Cal.3d 675, 690-691 (Ratliff)
[pointing out defense failure to present exculpatory evidence, such as alibi testimony, is
not Griffin error].) In the same vein, argument challenging defense counsel to provide a
reasonable interpretation of the evidence consistent with the defendant’s innocence is not 18 impermissible comment on the defendant’s decision not to testify. (People v. Stewart
18 As Malanche notes, there is some federal appellate authority that finds argument couched in “how can he explain” to violate Griffin. (See United States v. Cox (1st Cir. 1985) 752 F.2d 741, 745 (Cox); United States v. Skandier (1st Cir. 1985) 758 [footnote continued on next page]
52
(2004) 33 Cal.4th 425, 505-506 (Stewart); People v. Medina (1995) 11 Cal.4th 694, 755-
756 (Medina).)
Taken in context, the remarks here fall within the range of permissible
commentary about the evidence. The prosecutor argued that the evidence supported only
one reasonable inference, specifically, that defendants were deliberately “hunting” for
someone to murder in the 30 minutes before Valdez’s shooting. This argument tracks the
prosecution’s burden at trial regarding circumstantial evidence, that is, to persuade the
jury that the only reasonable conclusion supported by the circumstantial evidence is guilt.
(See Jones, supra, 57 Cal.4th at pp. 960-961 [noting “‘duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two interpretations’”].)
The prosecution challenged defense counsel to provide an interpretation of the evidence
that reasonably supported any other conclusion, and asserted that the defense had failed
to do so. Such arguments are permissible, Griffin notwithstanding. (Bradford, supra, 15
Cal.4th at p. 1340; Stewart, supra, 33 Cal.4th at pp. 505-506.)
In arguing for a different conclusion, defendants propose that they were capable of
rebutting the prosecution’s comments only by testifying, so the prosecutor’s comments
were the functional equivalent of commenting on their failure to testify. (See Bradford,
supra, 15 Cal.4th at p. 1339.) Not so. Armendariz, in particular, who has argued he was
F.2d 43, 45; United States v. Wilkins (7th Cir. 1981) 659 F.2d 769, 774.) We are, however, bound to follow the reasoning of our Supreme Court, which has reached a different conclusion. (See People v. Bradley (1969) 1 Cal.3d 80, 86 [“we are not bound by the decisions of the lower federal courts even on federal questions”]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
53
not even present for the shooting, was not precluded from producing alibi testimony from
someone other than himself, if it existed. (See Ratliff, supra, 41 Cal.3d at pp. 690-691.)
Any of the defendants could have, and in fact did, offer their own interpretations of the
evidence, arguing their own points of view as to what reasonable inferences could and 19 should be made about their clients’ actions and states of mind. And there is no logical
reason why additional direct or circumstantial evidence of an alternative, innocent
purpose for the defendant’s foray into NSI territory would have to be in the form of their
own testimony, as opposed to physical evidence or the testimony of others. (Cf., People
v. Murtishaw (1981) 29 Cal.3d 733, 757, fn. 19 [prosecution comments emphasizing that
testimony regarding statements made when only defendant and witness were present was
“‘uncontradicted’” constituted Griffin error]; In re Rodriguez (1981) 119 Cal.App.3d 457,
468 [prosecution comment that it was “‘undisputed that there was a kidnap,’” arguably
referring to defendant’s failure to rebut testimony of incriminating statements by
defendant, together with repeated admonitions reminding jury of the defendant’s silence,
constituted Griffin error].) The rule regarding prosecution commentary about evidence
that could only be rebutted by the defendant’s own testimony simply does not apply here.
19 For example, Lopez’s counsel contended that the shooting video and other evidence showed the Caprice driver was “surprised” when the Sequoia leading him made a U-turn, and that the physical evidence showed Lopez could only have “shot up in the air to try and scare people.” Malanche’s counsel argued that the circumstances were consistent with Malanche “thinking he’s taking these guys to a party or somewhere. He’s not thinking they’re going to go into a shooting.” Monzon’s counsel focused his closing argument on the notion that the physical evidence showed Valdez to have been shot by “friendly fire,” rather than by any of the defendants, and on attacking Jane Doe’s testimony as uncorroborated accomplice testimony.
54
We find the challenged remarks to be permissible argument regarding the state of
the evidence, rather than direct or indirect comment on defendants’ decision not to
testify. Because we find no Griffin error, we need not and do not address the parties’
arguments regarding prejudice.
G. Instructional Error
Defendants, or some of them, claim that the jury instructions were erroneous in 20 several respects. We find none of these claims persuasive.
1. Corroboration of accomplice testimony
The parties disputed whether Jane Doe’s testimony should be treated as that of an
accomplice, or simply as that of a witness. Over the prosecution’s objection, the trial
court decided to “err on the side of giving” an instruction regarding accomplice
testimony.
To that end, the court instructed based on CALCRIM No. 334, which is entitled
“Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is
Accomplice.” The instruction required that, before considering Doe’s statements or
testimony, the jury had to decide whether she was an accomplice, and gave the standard
for that determination. The instruction provided that, if the jury decided Doe was not an
accomplice, “then supporting evidence is not required and you should evaluate her
statements or testimony as you would that of any other witness.” If it decided she was an
20 Again, we exercise our discretion to address these claims on the merits, despite the lack of timely objections in the trial court. (Williams, supra, 78 Cal.App.4th at p. 1126.)
55
accomplice, however, then her statements or testimony could be used to convict the
defendants only if “1. The accomplice’s statement or testimony is supported by other
evidence that you believe,” “2. That supporting evidence is independent of the
accomplice’s statement or testimony,” and “3. That supporting evidence tends to connect
the defendant to the commission of the crime.”
Separately, the jury was instructed with CALCRIM No. 104, defining “evidence”
to include “the sworn testimony of witnesses, the exhibits admitted into evidence, and
anything else I tell you to consider as evidence.” It also received instruction, based on
CALCRIM No. 318, on how to consider unsworn pretrial statements, allowing such
evidence to “evaluate whether the witness’s testimony in court is believable” and as
“evidence that the information in that earlier statement is true.”
On appeal, defendants do not argue that these instructions, taken individually, are
incorrect statements of the law. Monzon (joined by Malanche) contends, however, that
when put together the instructions effectively “permitted [jurors] to corroborate Doe’s in-
court testimony with (1) Monzon’s pre-trial statements Doe testified to and (2) her own
pre-trial statements.” Understood in that light, the instructions would be incorrect, and in
Monzon’s view thereby violated state law and constitutional due process principles. (See
People v. Andrews (1989) 49 Cal.3d 200, 214 [“an accomplice may not corroborate
himself”].)
We are not persuaded. The instructions correctly required that the corroboration
of Doe’s testimony—to the extent necessary at all due to a finding that she was an
56
accomplice—be “independent” of her statement or testimony. We find it implausible that
the jury, so instructed, would believe Doe could corroborate herself as Monzon proposes.
It is not the most natural reading of the instructions, whether individually or as a whole,
and in the trial court, no party suggested such a strained reading. The trial court had no
sua sponte duty to provide clarification of the concept of “independent” corroboration.
(See People v. Kimble (1988) 44 Cal.3d 480, 503 [“because the trial court correctly
instructed the jury. . .it was defendant’s obligation to request any clarifying or amplifying
instruction on that subject”].)
Because we find no merit in this instructional error claim, we have no need to
address whether any error was harmless. We will note, however, that the evidence
tending to corroborate Doe’s testimony—including, among other things, the GPS
tracking evidence placing Monzon at the shooting scene, the bullet wounds suffered by
Lopez and Malanche, for which they sought treatment shortly after the shooting, and the
shot-up Sequoia found in Armendariz’s garage—was far more substantial than the
“slight” evidence of corroboration required for an accomplice’s testimony. We find no
possibility, let alone likelihood, that some further elaboration on the concept of
corroboration would have changed the jury’s evaluation of Doe’s testimony, nor the
verdicts.
57
2. CALCRIM No. 359 (Corpus Delicti: Independent Evidence of a Charged
Crime)
Monzon, joined by Malanche, argues that, in the circumstances of this case, the
version of CALCRIM No. 359 used at trial was erroneous because it “undercut the state’s
burden” of proving both the murder count and the degree of murder beyond a reasonable
doubt. We find no error.
The version of CALCRIM No. 359 used here was the following:
“A defendant may not be convicted of any crime based on his out-of-court
statements alone. You may rely on a defendant’s out-of-court statements to convict him
only if you first conclude that other evidence shows that the charged crime or a lesser
included offense was committed.
“That other evidence may be slight and need only be enough to support a
reasonable inference that a crime was committed.
“This requirement of other evidence does not apply to proving the identity of the
person who committed the crime and/or the degree of the crime. If other evidence shows
that the charged crime or a lesser included offense was committed, the identity of the
person who committed it and the degree of the crime may be proved by a defendant’s
statements alone.
58
“You may not convict a defendant unless the People have proved his guilt beyond 21 a reasonable doubt.”
The focus of defendants’ argument is the third paragraph of the instruction.
Monzon proposes that the jury could have interpreted the last sentence of that paragraph
to mean that, so long as there is other evidence the charged murder was committed, the
defendant’s statements alone are sufficient evidence to carry the prosecution’s burden of
proof regarding the degree of the murder, no matter the contents of the statements.
Monzon argues that his statements, as recounted by Doe, were actually insufficient, on
their own, to prove the degree of the crime, so “[t]elling jurors they could nevertheless
rely on [his] statements to infer the degree of this crime or the presence or absence of
malice for a murder as opposed to a manslaughter conviction directly undercut the state’s
burden to prove the degree of these charges beyond a reasonable doubt.”
Our question here is whether there was a reasonable likelihood the jury misapplied
the instruction in the manner Monzon proposes. (People v. Williams (2013) 56 Cal.4th
630, 688-689.) The challenged instruction is not viewed in isolation but is considered in
the context of the instructions as a whole. (People v. Moore (2011) 51 Cal.4th 1104,
1140.) Applying this standard, we find no merit in Monzon’s claim of error.
First, even taken out of context, the instruction is not naturally read as Monzon
proposes. The instruction states, in straightforward language, the correct statement of
21 The version of CALCRIM No. 359 quoted by Monzon in briefing is not the version used in this case. The substance of his argument, however, applies to both versions.
59
law that the jury is permitted to use a category of evidence as proof of the degree of the
crime, and that a defendant’s statements alone “may” be sufficient evidence to prove the
degree of a crime. (See, e.g., People v. Rosales (2014) 222 Cal.App.4th 1254, 1261.)
The instruction does not state that any particular defendant’s statements are, or are
presumed to be, legally sufficient to prove the crime to be of one degree rather than
another. And, although the prosecution emphasized the evidentiary importance of
Monzon’s statements, at no point did it argue or imply that Monzon’s statements alone
were sufficient to establish first degree murder. Particularly in the context of various
other instructions describing the standard for finding a killing to be first degree murder,
as opposed to a lesser offense or no offense at all, and this and other instructions
emphasizing that it is the People’s burden to prove the defendant’s guilt beyond a
reasonable doubt, it is implausible that the jury understood CALCRIM No. 359 in the
manner Monzon proposes. And, again, in the absence of a request for clarification, the
trial court was under no obligation to elaborate on the plain language of the instruction.
(People v. Kimble, supra, 44 Cal.3d at p. 503.)
Monzon’s reliance on Francis v. Franklin (1985) 471 U.S. 307 (Francis) is
misplaced. Francis involved an instruction that set up a mandatory rebuttable
presumption regarding intent, which was found to be an unconstitutional shifting of the
burden of proof. (Id. at p. 316.) CALCRIM No. 359 describes a permissible finding, not
a mandatory presumption. The reasoning of Francis is not applicable here.
We conclude that there was no instructional error regarding CALCRIM No. 359.
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3. CALCRIM No. 505 (Justifiable Homicide: Self-Defense or Defense of Another)
The trial court instructed the jury on self defense using, among other pattern
instructions, CALCRIM No. 505. Monzon, joined by Malanche, argues that a clause in
that instruction misstates the law. That clause is the italicized part of this sentence:
“Defendant’s belief [in the need for self defense] must have been reasonable and he must
have acted only because of that belief.” (Italics added) According to defendants, the jury
should not have been precluded from finding the killing justified if it found they acted
based on mixed motives. We find CALCRIM No. 505 correctly states the law.
By statute, a homicide is justifiable “when committed by any person . . . [¶] (1)
When resisting any attempt to murder any person . . . or to do some great bodily injury
upon any person . . . [¶] . . .(3) When committed in the lawful defense of such person . . .
when there is reasonable ground to apprehend a design . . . to do some great bodily 22 injury, and imminent danger of such design being accomplished . . . .” (§ 197.) “A
bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of
Section 197, to prevent which homicide may be lawfully committed, is not sufficient to
justify it. But the circumstances must be sufficient to excite the fears of a reasonable
22 Other justifiable homicides, less relevant here, include “(2) When committed in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein” and “(4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.” (§ 197.)
61
person, and the party killing must have acted under the influence of such fears alone.”
(§ 198.)
The statutory language “such fears alone” does not permit adopting a rule that a
homicide is justifiable in self-defense if the defendant’s honest and reasonable fear for his
life (or for the life of another) is only one of several factors motivating the killing, rather
than the sole basis for the killing. Such a rule would be inconsistent with more than a
century of California case law holding that self-defense applies as a defense to murder
only when the killing is motivated by fear alone, and not some other, more culpable
The trial court instructed the jury on mutual combat or acting as an initial 23 aggressor as a limitation on self-defense using CALCRIM No. 3471. Malanche, joined
by Armendariz, contends that the instruction “was not supported by substantial evidence
23 The instruction, as given, was the following: “A person who engages in mutual combat or who starts a fight has a right to self- defense only if: “1. He actually and in good faith tried to stop fighting; “AND “2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; “AND “3. He gave his opponent a chance to stop fighting. “If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. “However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to stop fighting, or communicate the desire to stop the opponent, or give the opponent a chance to stop fighting. “A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.”
65
and should not have been given.” Monzon concedes that there was substantial evidence
to justify the instruction, but argues that the instruction was “fundamentally incorrect.”
We find no error.
First, there was ample evidence to justify instructing with CALCRIM No. 3471.
A reasonable fact finder could have concluded from the video of the shooting, among
other evidence, that defendants and Valdez’s group began shooting at one another close
to simultaneously. Arguably, this circumstance could be understood to suggest an
implicit agreement to engage in mutual combat; in a matter of seconds, they saw each
other, recognized each other as enemies, and opened fire. Alternatively, the jury could
have concluded that the circumstances showed that defendants initiated a fight by
repeatedly driving past Valdez’s group, thereby displaying their presence on NSI
territory. In the context of the conflict between NSI and JT, a challenge and an implicit
threat of some level of imminent force is, at least arguably, expressed by such behavior.
The fact finder could have concluded, however, that it was Valdez’s group that suddenly
escalated the confrontation to one involving deadly force. For each of these reasons, it
was appropriate to instruct the jury on the law of self defense in the context of mutual
combat or where the defendant was the initial aggressor, but using only non-deadly force.
Further, we find no error in the pattern instructive given by the court. Monzon
contends the italicized portion of the instruction is erroneous: “[I]f the defendant used
only non-deadly force, and the opponent responded with such sudden and deadly force
that the defendant could not withdraw from the fight, then the defendant had the right to
66
defend himself with deadly force...” (Italics added) He contends the trial court should
have added the words “in safety” after the word “withdraw,” so that it would read
“...could not withdraw in safety from the fight....” Monzon proposes that since he was in
a car, “the answer to the question as presented . . . was a foregone conclusion—of course
he could have retreated.” In his view, the correct, “more nuanced” question would have
been whether he could withdraw in safety. He argues that on the facts of the case,
“involving two people in the car being actually hit by gunfire and one car riddled with
bullets, jurors could reasonably find the answer was no, and that self-defense was
therefore available.”
This argument fails for several reasons. First, our Supreme Court and the Court of
Appeal have long used the term “withdraw” in this context interchangeably with
retreating or withdrawing “in safety” or “with safety.” In Hecker, supra, 109 Cal. at p.
461, the Supreme Court articulated the point in the manner later used in CALCRIM No.
3471, describing the defendant’s use of deadly force as justified where the defendant,
even though the initial aggressor with non-deadly force, “was put in such sudden
jeopardy by the acts of the deceased that he could not withdraw, and if it was thus that
[the victim] met his death.” (Italics added.) The Hecker court later restated the same
point, but using the phrase “retreat with safety.” (Id. at p. 464.) In People v. Sawyer
(1967) 256 Cal.App.2d 66, the Court of Appeal approved an instruction using the term
“withdraw” alone. (Id.at p. 75, fn. 2.) In People v. Gleghorn (1987) 193 Cal.App.3d
196, the Court of Appeal, citing Sawyer, similarly stated the rule: “However, when the
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victim of simple assault responds in a sudden and deadly counter assault the original
aggressor need not attempt to withdraw and may use reasonably necessary force in self-
defense.” (People v. Gleghorn, supra, 193 Cal.App.3d. at p. 201 (Italics added).) The
instruction given to the jury in Gleghorn, however, had used the phrase “retreat with
safety.” (Ibid.) In People v. Quach (2004) 116 Cal.App.4th 294, the court discussed
with approval all of this case law, describing it as addressing a repeated issue in “virtually
identical fashion.” (Id. at p. 302.)
The bottom line, in our view, is that the aspect of self-defense at issue here is
adequately conveyed by CALCRIM No. 3471 as given by the trial court. The concept of
withdrawing from a fight in the face of a sudden, deadly counterattack necessarily
implies that the one seeking to withdraw be able to do so without harm, so the instruction
is correct with or without the additional gloss of “in safety.” Assuming an arguable
ambiguity, we find no reasonable likelihood that jurors would construe the instruction in
the manner Monzon proposes, to deny the defense to an initial aggressor who used only
nondeadly force, even if retreat would leave him in danger of a deadly counterattack.
Defendants have demonstrated no error as to the instruction based on CALCRIM
No. 3471, which was appropriate to give on the facts and which correctly stated the law.
H. Verdict Form
Armendariz asserts, joined by Lopez and Malanche, that the verdict forms for the
firearms enhancements under section 12022.53, subdivisions (d) and (e) were erroneous.
The prosecution sought to hold defendants liable for a subdivision (d) enhancement only
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indirectly, via the vicarious liability provision of subdivision (e)(1). The verdict forms
cited to subdivisions (d) and (e), but they did not recite the statutory vicarious liability
language: “Further, we find the defendant . . . in the commission of the offense charged
under count 1 of the Information did, personally and intentionally discharge a firearm and
proximately caused great bodily injury and death to another person, not an accomplice
within the meaning of Penal Code section 12022.53, subdivision (d) and (e).” The jury
returned true findings as to each of the four defendants on this enhancement.
Nevertheless, according to defendants, the lack of vicarious liability language on the
verdict form means that the jury made no vicarious liability finding, so there is no basis
to impose any vicarious liability firearms enhancement against them. We find no merit in
this argument.
Armendariz, Lopez, and Malanche waived any claim of error regarding the verdict
form by failing to raise a specific objection in the trial court. (People v. Johnson (2015)
61 Cal.4th 734, 784 (Johnson).) At no point did any defendant object to the verdict form,
nor did any of them seek clarification when the court polled the jury concerning its
verdict. In this context, enforcement of the requirement of imposing a timely objection is
particularly crucial. (Ibid.; see Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 270
[without a timely objection, “a court cannot avoid or cure the defect: after the jury’s
discharge, the court can neither complete the polling nor return the jury to its
deliberations”]; People v. Kennedy (2005) 36 Cal.4th 595, 612 [“the forfeiture rule
ensures that the opposing party is given an opportunity to address the objection, and it
69
prevents a party from engaging in gamesmanship by choosing not to object, awaiting the
outcome, and then claiming error”].)
In any event, however, there was no prejudice to defendants from any defect in the
verdict form. (See Johnson, supra, 61 Cal.4th at p. 785 [“‘“[T]echnical defects in a
verdict may be disregarded if the jury’s intent to convict of a specified offense within the
charges is unmistakably clear, and the accused’s substantial rights suffered no
prejudice”’”].) The jury was properly instructed on the single theory of liability for the
section 12022.53, subdivision (d) enhancement that was asserted by the prosecution,
namely, via the vicarious liability provisions of subdivision (e)(1). In closing argument,
the People walked the jury through the instruction and the verdict form, explaining the
concept of vicarious liability with specific reference to the applicable subdivisions of
section 12022.53. Moreover, in the circumstances of this case, the jury’s true findings
regarding the vicarious liability firearms enhancement follow inevitably from its guilty
verdicts on count 1 (demonstrating its implicit rejection of the defendants’ friendly fire
theory) and the section 186.22 gang enhancements. Thus, we find the jury’s intent to
make the requisite findings for the vicarious liability firearms enhancement unmistakably
clear. Even if defendants’ arguments as to omitted language were not waived for lack of
specific objection, they would not justify reversal.
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I. Cruel and Unusual Punishment
Malanche argues that his sentence of life without the possibility of parole plus a
consecutive term of 25 years to life constitutes cruel and unusual punishment, prohibited
by the United States and California Constitutions. We are not persuaded.
The Eighth Amendment to the United States Constitution states: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” (U.S. Const., 8th Amend.) Similarly, the California Constitution provides:
“Cruel or unusual punishment may not be inflicted or excessive fines imposed.” (Cal.
Const., art. I, § 17.)
In Miller v. Alabama (2012) 567 U.S. 460 (Miller), the United States Supreme
Court acknowledged that “children are constitutionally different from adults for purposes
of sentencing,” as juveniles have diminished capacity and greater prospects for reform
than adults. (Id. at p. 471-472.) On that basis, it found “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.” (Id. at p. 479.) Our Supreme Court has applied this principle in People v.
Franklin (2016) 63 Cal.4th 261, among other cases, holding that “juvenile homicide
offenders may not be sentenced to the functional equivalent of life without parole . . .
without certain protections afforded by the Eighth Amendment as interpreted in [Miller].”
(People v. Contreras (2018) 4 Cal.5th 349, 359.)
Malanche is not a juvenile offender, as he was 25 years old when Valdez was shot.
Rather, he contends that “the same transitory characteristics of youth which make a
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mandatory life-without-parole sentence unconstitutional for juveniles continue past the
age of eighteen and into the twenties.” He urges us to conclude that the “hallmark
characteristics of youth which make sentences of life without the possibility of parole
unconstitutionally cruel and unusual as to the vast majority of juveniles apply equally to a
25-year-old” like him.
As Malanche acknowledges, however, several California cases have rejected
similar arguments because “[o]ur nation’s, and our state’s, highest court have concluded
18 years old is the bright-line rule and we are bound by their holdings.” (People v. Perez
(2016) 3 Cal.App.5th 612, 617 [rejecting claim by 20-year-old offender]; accord People
v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221 [18-year-old offender]; People v.
Argeta (2012) 210 Cal.App.4th 1478, 1482 [18-year-old offender].) We find no good
reason to reach a different conclusion. (See People v. Bradley (1969) 1 Cal.3d 80, 86
[Court of Appeal bound by Supreme Court of United States on federal law matters]; Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Court of Appeal bound
by California Supreme Court precedent]; People v. Gipson (2013) 213 Cal.App.4th 1523,
1529 [in the absence of “good reason to disagree,” we “typically follow the decisions of
other appellate districts or divisions”].)
Malanche further argues that his sentence is “grossly disproportionate to his
individual moral culpability, considering all the circumstances of this case.” Again,
however, this argument rests primarily on his relative youth. He also emphasizes other
mitigating factors, such as his “lack of gang ties, and stable work and family history,” and
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what he describes as his “minor, ambiguous role” in the murder. He fails, however, to
address most of the factors that either federal or California law identify to determine
whether a non-capital sentence is cruel and unusual. (See Graham v. Florida (2010) 560
U.S. 48, 59-60 [discussing Eighth Amendment analysis for “term-of-years sentences”]; In
re Lynch (1972) 8 Cal.3d 410, 425 [describing “three-pronged test” for claims of cruel
and unusual punishment under the California Constitution].) We construe Malanche’s
failure to discuss these factors as a concession that they do not weigh in his favor.
Moreover, Malanche cites no appellate authority, from any jurisdiction, holding a
sentence of life without the possibility of parole to be unconstitutionally cruel and
unusual as to an adult convicted of first-degree murder. The only case he cites that so
holds is an order from the United States District Court for the District of Connecticut,
granting habeas relief to a defendant who was eighteen at the time of the offense. (Cruz
v. United States (D.Conn. Mar. 29, 2018, No. 11-CV-787 (JCH)) 2018 U.S.Dist.LEXIS
52924 (Cruz).) Malanche fails to note in briefing that Cruz was reversed by the Second
Circuit Court of Appeals, which found the order inconsistent with both its own prior
binding authority and United States Supreme Court precedent. (Cruz v. United States (2d
Cir. 2020) 826 F.App’x 49, 52.) We need not discuss the issue in any further detail,
except to note that we find the Second Circuit’s analysis persuasive.
Malanche has not demonstrated that his sentence constitutes cruel and unusual
punishment under either the United States Constitution or the California Constitution.
73
J. Senate Bill No. 1393
Monzon and Armendariz argue that the trial court misunderstood the scope of its
sentencing discretion, failing to recognize the changes enacted by Senate Bill No. 1393
(2017-2018 Reg. Sess.) (Senate Bill 1393). Their argument is based on the trial court’s
lack of express comment on its decision not to strike their prior serious felony conviction
enhancements, even though it did comment on its decision not to strike firearm
enhancements. They infer that the trial court did not know it had the discretion to strike
the prior serious felony conviction enhancements. Even assuming the trial court
misunderstood the scope of its discretion, however, there is no doubt as to how the trial
court would have exercised that discretion.
Effective January 1, 2019, Senate Bill 1393 amended sections 667, subdivision
(a), and 1385, subdivision (b), to allow a court, in its discretion, to strike or dismiss a
Under the versions of these statutes in effect prior to January 1, 2019, the court was
required to impose a five-year consecutive term for “any person convicted of a serious
felony” (former § 667, subd. (a)), and the court had no discretion “to strike any prior
conviction of a serious felony for purposes of enhancement of a sentence under Section
667 (former § 1385, subd. (b)).
Senate Bill 1393 had been in effect for months when defendants were sentenced
on June 17, 2019. On a silent record, we must presume that the trial court is aware of the
applicable law; “we cannot presume error where the record does not establish on its face
74
that the trial court misunderstood the scope of [its] discretion.” (People v. Gutierrez
(2009) 174 Cal.App.4th 525, 527.) Where the record is ambiguous as to whether the
court understood the scope of its discretionary powers, remand may be appropriate.
(People v. Ochoa (2020) 53 Cal.App.5th 841, 853-854.)
It is questionable, at best, whether defendants have identified any ambiguity in the
record as to whether the trial court understood the scope of its discretion under Senate
Bill 1293. Nevertheless, we will not spill much ink on the issue. For other reasons we
discuss below, defendants will need to be resentenced. We trust that when the trial court
does so, it will exercise its discretion as appropriate in light of current law.
K. Cumulative Error
Lopez, Malanche, and Armendariz each argue that they are entitled to reversal
because of cumulative errors. We have not found a series of trial errors to be individually
harmless. The cumulative error doctrine does not apply.
L. Senate Bill No. 136
The parties agree that under section 667.5, subdivision (b), as amended by Senate
Bill No. 136 (Stats. 2019, ch. 590, § 1), the prison prior enhancements imposed on
Monzon and Armendariz should be stricken. The parties are correct. Under section
667.5, subdivision (b) as amended, such enhancements may only be imposed for certain
sexually violent offenses. Monzon’s and Armendariz’s prior prison sentences were not
for such offenses. Furthermore, although Senate Bill No. 136 did not become effective
until January 1, 2020, the change in law applies retroactively to cases not yet final. (See
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People v. Lopez (2019) 42 Cal.App.5th 337, 341; In re Estrada (1965) 63 Cal.2d 740,
748.) Accordingly, those enhancements must be stricken.
M. Assembly Bill No. 333
After briefing was completed, on our own motion, we directed the parties to file
supplemental briefing addressing the effect of the statutory changes made by Assembly
Bill 333 on this appeal. We received supplemental briefs as requested from the parties,
as well as an unsolicited brief from an amicus. We separate our discussion into three
sections, each addressing a different aspect of Assembly Bill 333’s changes to the law.
1. Bifurcation of Gang Enhancement Allegations
Assembly Bill 333 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 retroactive, so that it would apply to 24 judgments, like defendants’, that were not yet final when Assembly Bill 333 took effect.
California courts are split on the issue. (People v. Ramos (2022) 77 Cal.App.5th 1116,
1128-1131 (Ramos) [finding § 1109 is retroactive]; People v. Burgos (2022) 77
24 More precisely, Armendariz, Lopez, and Malanche argue that section 1109 is retroactive, and requires reversal of the judgments against them in their entirety. Monzon does not discuss section 1109 at all. The People address section 1109 only in a footnote, taking the position that section 1109 is “not relevant to this case,” and that section 1109 “would appear to apply prospectively only.”
76
Cal.App.5th 550, 564-568 (Burgos) [same]; People v. Montano (2022) 80 Cal.App.5th
82, 105-108 (Montano) [same]; People v. Perez (2022) 78 Cal.App.5th 192, 207 [finding
§ 1109 is not retroactive]; People v. Ramirez (2022) 79 Cal.App.5th 48, 65 [same].) The
justices of this court have not come to a consensus on the issue. (Compare People v.
Boukes (September 29, 2022) 2022 Cal.App.Lexis 826 [holding § 1109 is not retroactive]
with id. (J. Slough concurring) [would hold § 1109 retroactive, but find error harmless].)
We need not resolve this question. Even assuming that section 1109 applies
retroactively, we find the failure to bifurcate the gang enhancements did not result in a
miscarriage of justice and would be harmless as to the underlying convictions. (See
People v. Tran (2022) 13 Cal.5th 1169, 1208 [declining to resolve split in authority but
holding failure to bifurcate gang enhancement under § 1109 was harmless as to
underlying conviction under standard articulated in People v. Watson (1956) 46 Cal.2d
818, 836].) Virtually all, if not all, of the gang-related evidence introduced at trial was
relevant to establish issues such as motive and intent. (See People v. Hernandez (2004)
33 Cal.4th 1040, 1049 [observing that “evidence 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”].) By itself, a tendency to show defendants’
possible connections to gangs does not justify the exclusion of evidence during the first
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phase of trial. (See Ramos, supra, 77 Cal.App.5th at p. 1132 [“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”].) We find no reasonable probability that
defendants would have obtained a more favorable result if their trials had been bifurcated,
so section 1109 does not warrant reversal here.
2. Constitutionality
Under section 190.2, subdivision (a)(22), the punishment for first degree murder is
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 did not directly modify section
190.2, but it did modify several concepts incorporated into that statute.
Specifically, Assembly Bill 333 narrowed the definition of “criminal street gang.”
What was previously defined as an “ongoing organization, 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 the “pattern of criminal gang activity” needed to establish a criminal
street gang, as: (1) predicate offenses now must be proven to have “commonly benefitted
78
a criminal street gang, and the common benefit of the offense[s] is more than
reputational”; (2) the last predicate offense must have occurred within three years 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).)
The People contend that Assembly Bill 333’s amendments to section 186.22,
subdivisions (e) and (f), are invalid as applied to section 190.2, subdivision (a)(22)
special circumstances. The gang murder special circumstance was enacted in 2000 as
part of the voter initiative Proposition 21. (People v. Shabazz (2006) 38 Cal.4th 55, 65.)
Proposition 21 provided that its provisions could not be amended by the Legislature
except by a two-thirds vote of each house, or a statute that becomes effective only when
approved by the voters. (Prop. 21, § 39.) “Assembly Bill 33 satisfies neither
requirement. Thus, if Assembly Bill 333 amended Proposition 21 at all, it violates the
Constitution.” (People v. Rojas (2022) 80 Cal.App.5th 542, 553 (Rojas); see Amwest
Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251 [under Cal. Const., art. II, § 10,
subd. (c), voters’ power to decide whether or not Legislature can amend or repeal
initiative statutes is “absolute”].) Amicus California District Attorneys Association ask
that we hold Assembly Bill 333 to be an unconstitutional amendment of Proposition 21
not only as applied to section 190.2, subdivision (a)(22) special circumstances, but also to
section 186.22 subdivision (b)(1) gang enhancements.
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There is a split of authority on the constitutionality of Assembly Bill 333 as
applied to section 190.2, subdivision (a)(22). In Rojas, supra, 80 Cal.App.5th at p. 542, a
majority of the panel held that “Assembly Bill 333 ‘takes away’ from the scope of
conduct that Proposition 21 made punishable under section 190.2” (id. at p. 555), so it is
“unconstitutional to the extent it would amend that initiative” (id. at p. 557). The Rojas
majority found the “appropriate remedy is not to void Assembly Bill 333 in its entirety,
but rather to disallow this unconstitutional application of Assembly Bill 333.” (Id. at p.
557-558.) Thus, “[i]n practical effect, Rojas holds that a special circumstance murder
allegation under section 190.2(a)(22) may be proven based on a different, less restrictive
definition of a ‘criminal street gang’ than is found in the current version of section
186.22.” (People v. Lopez (022) 82 Cal.App.5th 1, 15. (Lopez).)
The court in People v. Lee (2022) 81 Cal.App.5th 232 (Lee) reached a different
conclusion, holding that Assembly Bill 333 did not unconstitutionally amend section
190.2, subdivision (a)(22). And in Lopez, the court of appeal followed and expanded on
Lee’s reasoning in holding that “Assembly Bill 333’s amendments to section 186.22,
subdivisions (e) and (f) lawfully apply to section 182.5,” another statute which expressly
incorporates aspects of section 186.22. (Lopez, supra, 82 Cal.App.5th at p. 25.) Both
Lee and Lopez focus on the question of voter intent, analyzing whether in enacting
Proposition 21 the voters intended to “‘impose a time-specific incorporation’” of section
186.22, and concluding that they did not. (Lopez, supra,, at p. 15, quoting Lee, supra, 81
Cal.App.5th at p. 245.)
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We find Lee and Lopez more persuasive than Rojas, and we adopt their reasoning
as our own. In particular, we note that section 186.22 took effect in 1988, long before
Proposition 21 was passed. (Lopez, supra, 82 Cal.App.5th at p. 16; Lee, supra, 81
Cal.App.5th at p. 242.) In Proposition 21, the electorate demonstrated that it “knew how
to express the intent to freeze a statutory definition,” that is, to incorporate the statute
specifically as it already existed on the date Proposition 21 became effective and without
regard to any later amendments. (Lee, supra, 81 Cal.App.5th at p. 243; see Lopez,supra,
at p. 24.) Proposition 21 did exactly that for several amendments to the Three Strikes 25 law. But the voters inserted no similar language to section 190.2 or section 186.22.
“‘When the Legislature “has employed a term or phrase in one place and excluded it in
another, it should not be implied where excluded.”’” (Lopez, at p. 25, quoting Pasadena
Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576; see also Lopez, at p.
25, quoting People v. Briceno (2004) 34 Cal.4th 451, 459 [“‘“In interpreting a voter
initiative . . . we apply the same principles that govern statutory construction”’”].)
25 For example, “Proposition 21 added section 667.1 to the Penal Code to read: ‘Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act.” (Lopez, supra, 82 Cal.App.5th at p. 24.) Similarly, Proposition 21 added section 1170.125, which reads: “‘Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994 General Election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act.’” (Lopez, at p. 24.)
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We find nothing in the statutory language, nor anywhere else, suggesting that the
voters who enacted Proposition 21 intended to freeze section 186.22, subdivisions (e) and
(f) in the version that existed when Proposition 21 was enacted. As such, Assembly Bill
333’s changes to section 186.22, subdivisions (e) and (f) are not unconstitutional
amendments Proposition 21. Rather, those changes lawfully apply to both section 190.2,
subdivision (a)(22) and section 186.22.
3. Application
Having concluded that Assembly Bill 333 is constitutional as applied to both
section 190.2, subd. (a)(22) section 186.22, we turn to how the changes in the law apply
in this case.
To start, aside from the constitutionality argument we have already addressed, the
People concede the changes to section 186.22 enacted by Assembly Bill 333 retroactively
apply to all defendants whose judgments are not yet final on appeal. We agree. To our
knowledge, no court has disagreed, as there is nothing in Assembly Bill 333 that might be
interpreted to rebut the inference of retroactivity that applies to “ameliorative statutes.”
(People v. Frahs (2020) 9 Cal.5th 618, 634; see, e.g., People v. Lopez (2021) 73
Cal.App.5th 327, 343-344.)
The parties also agree, as do we, that the jury’s verdicts may be upheld, Assembly
Bill 333 notwithstanding, if the deficiencies in the jury’s instructions (as viewed in light
of the changes to the law) are harmless under the standard articulated in Chapman v.
California (1967) 376 U.S. 18, 24. (People v. Sek (2022) 74 Cal.App.5th 657, 668 (Sek).)
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“Under the Chapman standard, reversal is required unless ‘it appears beyond a reasonable
doubt that the error did not contribute to th[e] jury’s verdict.’” (Sek, supra, 74
Cal.App.5th at p. 668.) “[T]o prove harmless error under the Chapman standard, it is not
enough to show that substantial or strong evidence existed to support a conviction under
the correct instructions.” (People v. E.H. (2022) 75 Cal.App.5th 467, 479 (E.H.).) “The
inquiry ‘is not whether, in a trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict actually rendered in this trial
was surely unattributable to the error.’” (Ibid.)
The parties disagree as to whether that harmless error standard is satisfied. We
conclude the defendants have the better side of the dispute; we do not find that the
deficiencies in the jury’s instructions harmless beyond a reasonable doubt. Among other
things, the jury was not instructed that to find the section 186.22, subdivision (b)(1)
allegations true, it had to find that the benefit to the gang from both the current offenses
and the predicate offenses was more than reputational, as is now required. (§ 186.22,
subds. (e)(1), (g).) The People may well be correct that there is “ample evidence”
presented to support the jury reaching the same conclusions as it did, even under the
current law. Nevertheless, the jury could have rejected the People’s view of the
evidence. Moreover, defendants did not previously have any incentive or opportunity to
present evidence or argument disputing the issue, particularly as to the predicate offenses.
Because “we cannot rule out the possibility that the jury relied on reputational benefit to
the gang as its basis for finding the enhancements true” (Sek, supra, 74 Cal.App.5th at p.
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669) and because the record does not compel the conclusion that “the guilty verdict
actually rendered in this trial was surely unattributable to the error” (E.H., supra, 75
Cal.App.5th at p. 479), reversal of the affected portions of the jury’s verdicts is required.
The proper remedy under these circumstances—when “newly required elements
were ‘never tried’ to the jury” and the jury was allowed to make findings on grounds that
are no longer permissible—“is to remand and give the People an opportunity to retry the
affected charges.” (E.H., supra, 75 Cal.App.5th at p. 480.) Thus, the jury’s true findings
on the gang enhancements (§ 186.22, subd. (b)(1)) found true as to all defendants must be
vacated. It follows that the vicarious liability firearm enhancements (§§ 12022.53, subds.
(d), (e)) found true as to all defendants and the section 190.2, subdivision (a)(22) gang-
murder special circumstance found true as to Monzon, which were based on those section
186.22 findings, must also be vacated. We will remand “to give the People the
opportunity to prove the applicability of the enhancements [and special circumstance]
under the amendments to section 186.22.” (People v. Lopez, supra, 73 Cal.App.5th at p.
346.) After that limited retrial, or if the People elect not to retry these allegations, the
trial court will resentence defendants.
N. Additional Issues
With our leave, the parties submitted additional supplemental briefing on several
other recent changes to the law, specifically Senate Bill No. 567 (2020-2021 Reg. Sess.),
which amended our determinate sentencing law, and Senate Bill No. 81 (2021-2022),
which amended section 1385 to specify factors that the trial court must consider when
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deciding whether to strike enhancements in the interest of justice. Because we have
already concluded that the matter must be remanded, including for resentencing, we need
not address the parties’ disagreements as to how these changes in the law apply here. On
resentencing, of course, the trial court will be required to apply these new laws, as well as
any other new laws that have gone into effect.
III. DISPOSITION
We vacate the true findings on gang murder special circumstance (§ 190.2, subd.
(a)(22)) as to Monzon, the gang enhancements (§ 186.22, subd. (b)(1)) as to all
defendants, and the vicarious liability firearms enhancements (§ 12022.53, subds. (d), (e))
as to all defendants, but the prosecution may elect to retry those allegations under the law
as amended by Assembly Bill 333. In any event, defendants shall be resentenced. We
also vacate the prior prison term enhancements (§ 667.5, subd. (b)) imposed against
Armendariz and Monzon, which may not be retried, but instead are stricken. In all other
respects, we affirm the judgments.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
MILLER Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendants' murder convictions but vacated certain prison prior enhancements under Senate Bill 136 and vacated findings on specific enhancement and special circumstance allegations under Assembly Bill 333, remanding for potential retrial and resentencing.
Issues
Whether the trial court abused its discretion by admitting an accomplice's out-of-court statements as declarations against penal interest.
Whether the trial court erred in allowing lay opinion testimony regarding the contents of surveillance video.
Whether certain prison prior enhancements and special circumstance findings must be vacated due to subsequent changes in state law.
Disposition. Affirmed in part, reversed in part, remanded with directions.
Quotations verified verbatim against the opinion
“We reject most of defendants’ challenges to the judgments, but several prison prior enhancements imposed in sentencing Monzon and Armendariz must be vacated under Senate Bill No. 136”
“Another post-trial change in the law, Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333) requires us to vacate the jury’s findings on certain enhancement and special circumstance allegations.”
“We order the matter remanded for the People to have an opportunity to retry those allegations, and for resentencing. In all other respects, we affirm the judgment.”