Opinion
C078457 C078504 C078505
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. FREDY CAUDILLO, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. RICKY LOZANO CAUDILLO, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRE JAVIER GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM37431) (Super. Ct. No. CM37432) (Super. Ct. No. CM37256)
Brothers Fredy and Ricky Lozano Caudillo, along with Alejandre Javier Gonzalez, participated in shooting at a vehicle carrying rival gang members, resulting in the murder of Alonso Morales. A jury found Fredy, Ricky, and Gonzalez guilty of second degree murder and shooting at an occupied vehicle based on that incident.
We refer to the Caudillo brothers by their first names as they share a surname.
The day after Morales was shot, Fredy and Ricky were alleged to have been involved in a drive-by shooting at a 7-Eleven store. The jury found Fredy guilty of shooting at an occupied building and an occupied vehicle based on the 7-Eleven incident, but did not reach verdicts as to Ricky on those counts.
The trial court sentenced Gonzalez and Ricky to aggregate indeterminate terms of 15 years to life in prison and Fredy to an aggregate indeterminate term of 45 years to life in prison. The instant appeals resulted.
Contentions on Appeal
Gonzalez contends (part I) the trial court abused its discretion in denying his motion to sever his trial from the trial of Fredy and Ricky. We conclude the trial court did not abuse its discretion in denying the motion to sever.
Fredy, Ricky, and Gonzalez contend (part II) the evidence was insufficient to sustain their convictions in various respects; we address each in turn and conclude that each lacks merit. All three defendants also contend (part III) the trial court erred in instructing the jury in various respects; as we will explain, we conclude the instructions were proper as to self-defense and natural and probable consequences, and any error as to accomplice corroboration was harmless.
Fredy contends (part IV) that because he was 18 years old at the time of the crimes, his trial counsel was constitutionally deficient for failing to produce evidence relevant to an eventual youthful offender parole hearing. We agree only that Fredy is entitled to remand for a hearing because the law now provides for an eventual youthful offender parole hearing for those who commit crimes when they are 18 years old.
Fredy, Ricky, and Gonzalez further contend (part V) the trial court violated their right to a public trial when it excluded their family members from the courtroom for a short time during jury selection. We conclude defendants acquiesced to the exclusion and, in any event, the exclusion was de minimis and does not require reversal.
Gonzalez and Ricky contend (part VI) they were denied the right to confront and cross-examine percipient witness Omar Larios. We conclude that any error was harmless beyond a reasonable doubt.
In addition, all three defendants contend (part VII) the prosecutor committed prejudicial misconduct by appealing to the jury's passions in closing argument and by extensively questioning Larios even though he refused to respond. We conclude the prosecution did not commit misconduct in its argument to the jury and that any misconduct associated with questioning Larios was harmless.
Ricky contends (part VIII) that because he was 16 years old at the time of the crimes, he is entitled to conditional reversal and remand to the juvenile court for a transfer hearing as a result of Proposition 57. We agree.
Gonzalez and Fredy contend (part IX) the trial court erred in imposing concurrent terms for second degree murder and shooting at an occupied vehicle when it should have stayed punishment for shooting at an occupied vehicle pursuant to Penal Code section 654. We conclude the trial court properly imposed concurrent terms because the shooting at an occupied vehicle was committed against multiple victims within the vehicle.
Further undesignated statutory references are to the Penal Code.
Finally, all three defendants contend (part X) they are entitled to remand for a hearing on their ability to pay the fines and fees imposed by the trial court, citing People v. Dueñas (2019) 30 Cal.App.5th 1157). We conclude Dueñas was wrongly decided and disagree.
We will affirm the judgments as to Gonzalez and Fredy and remand as to Fredy to give him an opportunity to enter into the record evidence relevant to an eventual youthful offender parole hearing. As to Ricky, we will conditionally reverse the judgment and remand to the juvenile court for a transfer hearing.
BACKGROUND
The crimes occurred on two consecutive days. Only Fredy was found guilty of the crimes committed on the second day.
The First Day - October 1, 2012
On the first day, four members of the Norteño street gang -- Alonso Morales (the eventual murder victim), Gino Grimaldo, Omar Larios (the eventual reluctant witness who is the subject of multiple claims of error), and Francisco Escalante -- drove in a black Hummer past all three defendants on Scarlett Oak Drive in Gridley. Morales was in the front passenger seat. Defendants were members of the rival Sureño street gang. The Norteños shouted at defendants and defendants shouted back. When one of the defendants reached into a gold-colored Buick, making the Norteños believe he was reaching for a gun, the Norteños drove away. Defendants got into the Buick and chased the Norteños. Nearby residents saw the Norteños pull over on Locust Street, get out of the Hummer, and throw rocks at the Buick. The Norteños got back into the Hummer and drove toward the Buick, which had turned around. As the two cars passed, one of the defendants extended his arm out of the window and shot at the Hummer. The single shot killed Morales, hitting him in the head and severing his brain stem.
The Second Day - October 2, 2012
Early in the evening on the second day, Keith Underwood, Santino Gonzalez, and Silvano Maldonado, all known Norteño gang members, were at a 7-Eleven in Oroville. H.D. was driving near the 7-Eleven when he heard three to five shots fired. He saw three men run to the back of a red and white Chevrolet Impala, look at the back of the Impala, get in the Impala, and then drive away.
P.Q. had been at the 7-Eleven and had seen the three men standing in the parking lot. A bullet went through the closed rear passenger window of P.Q.'s truck and passed out through the rear window of the truck. P.Q. heard the shooting, which he described as being "around the corner," but he did not see anyone actually shooting.
Law enforcement responded to a report of shots fired at the 7-Eleven and a report that a tan four-door Buick was involved. The subjects were reported to be Hispanic males. An officer driving near the 7-Eleven saw a tan or gold four-door Buick with two Hispanic males inside, so he stopped the Buick. The occupants of the Buick were Fredy and Ricky. There were two bullet holes in the driver's side of the Buick. Officers found a .380-caliber handgun under the front passenger seat with an empty magazine inserted in the handgun, an unspent .22-caliber round in the back seat, and an empty small-caliber magazine in the console.
Officers found six .380-caliber casings in the street near the 7-Eleven and five nine-millimeter casings in the 7-Eleven parking lot. A home near the 7-Eleven was penetrated by a bullet and a bullet recovered from the home was a .380 or a nine-millimeter. Two days later, officers found the Impala, which in the interim had been painted all white. There was a hole in the molding of the passenger door.
We will recount additional facts later as those facts become relevant to our discussion of defendants' contentions on appeal. Because there are no gang-related contentions in defendants' briefs, we do not recount the gang-related evidence presented at trial.
The Charges
The District Attorney charged all three defendants with murder (count 1; § 187, subd. (a)) and shooting at an occupied vehicle (count 2; § 246) based on events of the first day. Defendants Fredy and Ricky were charged with shooting at an occupied building (count 3; § 246) and shooting at an occupied vehicle (count 4; § 246) based on events of the second day. As to count 1, the information alleged defendants discharged a firearm from a vehicle resulting in death. (§ 12022.55.) As to counts 2, 3, and 4, the information alleged the named defendants committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).)
The information also alleged, as to count 1, that defendants discharged a firearm resulting in death in a gang case. (§ 12022.53, subds. (d) & (e)(1).) However, the jury did not receive a verdict form for that enhancement allegation. The Attorney General speculates the prosecution elected not to go forward on that enhancement allegation.
Defendants were tried together by the same jury. The jury found all three guilty of second degree murder on count 1 and found the gang enhancement allegation true, but the enhancement allegation for shooting from a vehicle not true. On count 2, the jury found all three defendants guilty of shooting at an occupied vehicle and found true the gang enhancement allegation. On counts 3 and 4, the jury found Fredy guilty of shooting at an occupied building and shooting at an occupied vehicle, both with true findings on the gang enhancement allegations. The jury was not able to reach verdicts on counts 3 and 4 as to Ricky.
The trial court sentenced both Gonzalez and Ricky to aggregate indeterminate terms of 15 years to life in prison: 15 years to life for second degree murder and a concurrent 15 years to life for shooting at an occupied vehicle.
The trial court sentenced Fredy to an aggregate indeterminate term of 45 years to life in prison: 15 years to life for second degree murder and a concurrent 15 years to life for shooting at an occupied vehicle, plus a consecutive 15 years to life for shooting at an occupied building (count 3), and a consecutive 15 years to life for shooting at an occupied vehicle (count 4).
We address the relevant fines and fees later in the discussion.
DISCUSSION
I
Motion to Sever
Gonzalez contends the trial court abused its discretion by denying his motion to sever his trial from the trial of Fredy and Ricky.
Gonzalez's pretrial motion to sever asserted (1) he would be "seriously prejudiced" by being tried with his codefendants, (2) Fredy's out-of-court statements were not admissible against Gonzalez, (3) he would be unable to call Fredy and Ricky as witnesses to exonerate him, and (4) the defenses were antagonistic. In a hearing on the motion to sever trials, counsel for Gonzalez argued that the prosecution's introduction of out-of-court statements by Fredy that incriminated Gonzalez would present a confrontation problem for the trial of Gonzalez if Fredy did not testify. Counsel also expressed a desire to have the codefendants tried prior to Gonzalez so they could be called to testify in Gonzalez's trial. Finally, counsel argued that the defenses were antagonistic. Counsel proposed that, if the court was unwilling to sever the trials, the court could impanel a separate jury to hear Gonzalez's case. The court denied the severance motion as well as the request for two juries.
"[T]wo or more different offenses of the same class of crimes or offenses" may be charged and tried together in a single case. (§ 954.) Here, the four counts encompassing the October 1 and October 2 events were presumptively properly charged and tried together under section 954 because the defendants overlapped and assaultive crimes belong to the same class. (People v. Lucky (1988) 45 Cal.3d 259, 276; People v. Stitely (2005) 35 Cal.4th 514, 531 (Stitely).)
A trial court's denial of a motion to sever cases properly joined under section 954 will not be disturbed unless the denial was an abuse of discretion resulting in substantial prejudice to the defendant. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1114.) In reviewing for abuse of discretion, we consider only the record before the trial court at the time it ruled on the motion. (People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) The defendant bears the burden of demonstrating that denial of severance was a prejudicial abuse of discretion and that this prejudice outweighs the state's strong interest in efficiency. (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1433-1434.) However, even if the trial court's pretrial denial of a severance motion was not an abuse of discretion based on the record at the time the motion was made, a defendant may prevail on appeal if the denial actually resulted in gross unfairness amounting to a denial of due process. (Stitely, supra, 35 Cal.4th at p. 531.)
In deciding whether to sever the cases, the particular circumstances a trial court may consider are: (1) whether the evidence would be cross-admissible in separate trials; (2) whether certain charges would be "unusually likely" to inflame the jury against the defendant; (3) whether a weak case is joined with a strong case, or with another weak case so that there is a "spillover" effect; and (4) whether any of the charges carries the death penalty or joining them turns the case into a capital case. (People v. Carter (2005) 36 Cal.4th 1114, 1153-1154.) Cross-admissibility "alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges." (Soper, supra, 45 Cal.4th at p. 775.)
Gonzalez acknowledges this is not a case involving a capital offense, but he argues that all of the other circumstances weighed in favor of severance. We disagree. Virtually all evidence relating to counts 1 and 2 was cross-admissible because defendants acted together in committing those crimes. Although Gonzalez concentrates his argument on counts 3 and 4, he was not charged in those counts. Because so much of the evidence to be presented at trial was cross-admissible as to the first day, where all three defendants were charged together, and Gonzalez was not charged in the crimes occurring the second day, the trial court did not abuse its discretion by denying the motion to sever. (Soper, supra, 45 Cal.4th at p. 775 [cross-admissibility alone sufficient to dispel prejudice].)
In any event, the other relevant circumstances also did not weigh in favor of severance. Contrary to Gonzalez's arguments, the evidence concerning events of the second day was not likely to inflame the jury against Gonzalez--the charges surrounding the 7-Eleven shooting were not as serious as the murder charges--and the evidence against him as to the events of the first day was not weak, as we discuss later. Further, the jury actually hung on one of the two defendants (Ricky), who was charged in all four counts, as to the events of the second day. This supports the finding that the jury was not inflamed by introduction of the additional evidence supporting counts 3 and 4.
For the same reasons, we reject Gonzalez's argument that the denial of the severance motion actually resulted in gross unfairness amounting to a denial of due process. (Stitely, supra, 35 Cal.4th at p. 531.)
To the extent that Gonzalez suggests the trial court erred in failing to sever counts 1 and 2 from a separate trial of defendants Fredy and Ricky on counts 3 and 4, Gonzalez did not move to sever trial of the various counts in the trial court (just the defendants) and therefore failed to preserve that argument for appeal. (People v. Miranda (1987) 44 Cal.3d 57, 77-78 [severance issues must be raised in trial court].) But the lack of prejudice discussed above dispenses with that argument as well.
II
Sufficiency of the Evidence
Defendants claim the evidence was insufficient to sustain their convictions in several respects: (A) Fredy contends the evidence at trial was insufficient to negate self-defense on counts 3 and 4; (B) Gonzalez contends the evidence of his involvement in counts 1 and 2 was insubstantial; (C) Ricky contends the evidence against him was insufficient to sustain convictions on counts 1 and 2 under aiding and abetting and natural and probable consequences theories; and (D) all defendants contend the evidence was insufficient to convict them of second degree murder (count 1) under newly enacted Senate Bill No. 1437.
" 'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We reverse for lack of substantial evidence only if " 'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A. Fredy's Self-Defense Claim
Assault is justified, and therefore not a crime, when committed in self-defense. (CALCRIM No. 3470.) However, a person engaged in mutual combat cannot claim self-defense except in narrow circumstances not relevant here. (CALCRIM No. 3471.)
Fredy argues the evidence at trial was insufficient for the jury to conclude he did not act in self-defense as to the 7-Eleven shooting on the second day. He argues that there was no evidence Fredy and Ricky shot first in the 7-Eleven parking lot or that they were engaged in mutual combat and, therefore, the prosecution did not prove beyond a reasonable doubt that they did not shoot in self-defense, as required. This contention fails because the uncontroverted evidence did not establish self-defense as a matter of law.
"[W]here the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the jury to determine." (People v. Clark (1982) 130 Cal.App.3d 371, 379.) Quoting this sentence from Clark, Fredy appears to contend evidence of self-defense was uncontroverted.
Fredy notes that Butte County Deputy Sheriff Silver Paley testified he had no video evidence that, when defendants Fredy and Ricky shot at the Norteños, they did not shoot in self-defense. But the question of fact and law concerning whether the evidence as a whole or in part established defendants Fredy and Ricky acted in self-defense is not the province of a deputy sheriff. His opinion on this legal matter has no weight. Fredy also suggests his position was supported by the prosecutor's closing argument. But a prosecutor's statements are not evidence (CALCRIM No. 222), and in any event the argument as to who did what when was ambiguous at best.
Fredy argues there was no evidence of who fired first. But the only support cited in Fredy's briefing for the notion that the Norteños may have fired shots at all, let alone fired first, was the presence of the nine-millimeter casings found in the 7-Eleven parking lot and the consciousness-of-guilt inference from the fresh paint on the Impala. None of the percipient witnesses described the Norteños with guns or firing shots. Further, the jury could have reasonably inferred from H.D.'s testimony that Fredy and Ricky fired first. H.D. heard shots, and he saw the Norteños gang members run to the back of the Impala to inspect it and get in the Impala before quickly driving away. From this evidence, a jury could infer that the Norteños were simply reacting to someone shooting at them by inspecting the Impala and quickly driving away. Although this inference does not account for the nine-millimeter casings in the parking lot, no one testified to seeing the Norteños with guns. There was sufficient evidence to support an inference that Fredy and Ricky shot first, thus the evidence supporting self-defense was not uncontroverted. Fredy's argument therefore fails.
Because we find there was sufficient evidence that Fredy and Ricky fired first, which the jury could find negated self-defense, we need not determine whether Fredy and Ricky were involved in mutual combat with the Norteños, which could also negate self-defense regardless of who shot first.
B. Gonzalez's Involvement in his Counts of Conviction
Gonzalez contends the evidence of his involvement in counts 1 and 2, committed on October 1, 2012, was insubstantial. Ricky joins in the contention.
Sergeant Scott Smallwood of the Gridley Police Department testified that he had contacts with Gonzalez, who lived on Scarlet Oak Drive in Gridley, since Gonzalez was 12 years old. In October 2012 Smallwood was a detective in the gang unit. Gonzalez admitted to Smallwood that he goes by the name Mickey. At the time of trial, Gonzalez had changed his appearance. When he was younger he had shaved his head, but at trial he had hair. In October 2012 there was a cornfield in the area of Gonzalez's home.
On October 1, 2012, Tatiana Gonzalez was with Ricky, who was her boyfriend, and Fredy in the Oroville area. Fredy had a gun in his pants but put it under his seat in a gold-colored Buick when they left the Caudillos' home. With Fredy driving, they picked up two other young women, Laurie Gonzalez and a person named Cynthia, and eventually went to Gridley where they picked up a person named Mickey.
Tatiana testified that she did not know Mickey and did not know any other name for him. When investigators interviewed Tatiana at her school, she said Mickey had a gun on October 1, 2012. However, at the preliminary hearing, she said she had lied when she said Mickey had a gun. She said she was covering for Ricky and Fredy. At trial, she maintained that her preliminary hearing testimony was true. Tatiana testified at trial that, during the preliminary hearing, she did not see Mickey in the courtroom.
Laurie also testified that Mickey was with Fredy and Ricky in Gridley on October 1, 2012. They picked up Mickey at a house in Gridley. She did not know Mickey before. Laurie saw a gun in the Buick.
The confrontation between the Norteños and defendants began when the Norteños drove past defendants on Scarlett Oak Drive in Gridley, where Gonzalez lived. Morales was in the front seat of the Hummer when it passed by them on Scarlet Oak Drive in Gridley. When the Norteños passed the home and shouted, defendants told the young women with them to run. Tatiana, along with Laurie and Cynthia, ran away and eventually hid in a cornfield.
Larios was called to testify but refused to answer questions. Larios did not tell investigators who did the shooting.
Francisco testified that he was looking down at his phone when the shooting occurred. Francisco did not tell investigators who did the shooting.
Gino testified that, after Morales was shot, Larios, who was driving the Hummer, screamed over and over again, "It was Mickey." Also in this trial testimony, Gino said that his statements to officers on the day of the shooting that he had seen the shooting were false. He did not see the shooting but instead ducked when he saw an arm extending out of the approaching Buick. Gino was shown a photo lineup in which Gonzalez's photo was number three and chose a different photo in the lineup as "Mickey." Gino also testified that he lied at other times during the investigation and during the preliminary hearing.
Gonzalez's fingerprints were not found in the Buick.
Gonzalez points out that no witness at trial identified him as the shooter, his fingerprints were not found in the Buick, and his home was not searched. He also points out that Tatiana could not identify him as "Mickey," even though she testified that "Mickey" was with Fredy and Ricky on October 1, 2012. He argues that there is no evidence that he was the Mikey described by the witnesses, that Gino's testimony about what Larios screamed in the car was inadmissible and unreliable, and that Gino was not a believable witness.
The record does not support Gonzalez's view of the evidence. There was evidence that "Mickey" was Gonzalez. Smallwood testified that Gonzalez lived on Scarlet Oak Drive in Gridley and went by the name of Mickey. Witnesses testified that "Mickey" was with Fredy and Ricky on Scarlet Oaks Drive when the Norteños drove past, which led to the fatal confrontation. Larios, the driver of the Hummer screamed, "It was Mickey," after the fatal shooting. From this evidence, the jury reasonably inferred that Gonzalez was Mickey.
Gonzalez fails to support his assertion that Larios's statement, "It was Mickey," was inadmissible and unreliable. He notes that the statement was hearsay when related at trial, which is true. But he offers no authority or reasoning for the assertion that the statement was unreliable and inadmissible, including any explanation as to why the statement would not properly be classified as admissible despite its hearsay nature under any of the multiple exceptions to the rule. Accordingly, we disregard the assertion. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794-1795 [appellate court may disregard assertions not supported by authority].)
To the extent Gonzalez argues the evidence was insufficient because the witnesses lied at various times, the argument fails. The jury acted within its province in resolving the credibility issues. (See People v. Lewis (2001) 26 Cal.4th 334, 361.) "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) The evidence supporting the convictions on counts 1 and 2 was neither physically impossible nor inherently improbable.
Because there was evidence supporting a reasonable inference that Gonzalez was "Mickey," who was with Fredy and Ricky on October 1, 2012, and a reasonable inference that Gonzalez fired the shot that killed Morales, Gonzalez's contention that the evidence was insufficient to sustain convictions on counts 1 and 2 is without merit.
C. Ricky's Involvement in his Counts of Conviction
Ricky contends the evidence was insufficient to sustain convictions on counts 1 (second degree murder) and 2 (shooting at an occupied vehicle) under aiding and abetting and natural and probable consequences theories.
A defendant may be criminally liable for aiding and abetting a crime. (§ 31.) "[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225.) Aiding and abetting liability may extend beyond the crime the defendant intended to aid and abet if the perpetrator commits a crime that is the natural and probable consequence of the intended crime. (People v. Medina (2009) 46 Cal.4th 913, 920.)
In this case, we need not consider the extension of aiding and abetting liability under the natural and probable consequences doctrine because the evidence was sufficient to support a jury inference that Ricky intended to aid and abet the second degree murder and shooting at an occupied vehicle.
The evidence recounted above concerning the shooting of Morales on October 2, 2012, is relevant to this discussion, as is the following evidence: Morales had at one time been a Sureño gang associate, but he switched allegiance to the Norteño gang. As a result, he was, in gang parlance, a "hood hopper." At the time of the shooting, the Sureño gang had a "green light," an order to hurt or kill, on Morales. Also at the time of the shooting, the Sureños and Norteños were at war, with escalating violence between them in the Gridley area.
Ricky argues that the record is devoid of evidence that he aided and abetted the shooter in this case; we disagree. Defendants had a gun with them from the time they got together on October 1, 2012. It was in the Buick when Ricky and Fredy went to Gonzalez's home in Gridley. When the Norteños drove by on Scarlet Oak Drive in Gridley, one of the defendants went to the Buick and reached in, as if reaching for a gun. One of the young women with defendants recognized Morales in the front seat of the Hummer; therefore, it is reasonable to infer defendants were also aware of his presence in the Hummer and his status as a hood hopper. Defendants told the young women with them to run, leading to a reasonable inference that defendants understood there would be violence. Acting together, defendants got in the Buick and gave chase, pursuing a Hummer containing Morales, a hood hopper on whom the Sureños had a green light. After the Buick passed the Hummer and Morales threw rocks at the Buick, the Buick turned around and gave chase. One of the defendants reached out of a window, shooting and killing Morales. From all these facts, the jury could reasonably infer Ricky aided and abetted the second degree murder of Morales and the shooting at an occupied vehicle.
Ricky argues that no one saw what he was doing in the Buick and no one placed him at the scene. But the evidence showed he got into the Buick when it gave chase to the Hummer. And the jury could reasonably infer from all of the circumstances we have already described that Ricky was engaged with the other two in going after Morales. This is not a case in which a fellow gang member unexpectedly committed a crime in Ricky's presence; instead, it was a concerted effort.
Ricky also argues that his mere presence at the scene and membership in the Sureño gang were insufficient to sustain the convictions based on the aiding and abetting theory. His argument, however, ignores the particular course of events leading to Morales's death that we have described. Instead of guilt simply by association, the evidence suggested defendants acted together as fellow gang members going after a specific target in the events that led to and included the shooting.
Ricky does not single out any other element of a conviction under an aiding and abetting theory and claim that element was not supported by sufficient evidence. Because we find no merit in the arguments he has made, we reject his sufficiency-of-evidence contention and, as noted, we need not discuss a natural and probable consequences theory.
D. Senate Bill No. 1437
Defendants contend the evidence was insufficient to convict them of murder (count 1) under the changes made to sections 188 and 189 in Senate Bill No. 1437, which went into effect on January 1, 2019. (Stats. 2018, ch. 1015, § 3.) We will not consider the merits of this contention because the exclusive procedure for determining the effect of the changes made to sections 188 and 189 after conviction is by petitioning the sentencing court under section 1170.95. That remedy applies even though the changes were made before defendants' convictions became final. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1147-1152; People v. Martinez (2019) 31 Cal.App.5th 719, 724-728.)
III
Claims of Error in Jury Instructions
Defendants contend the trial court erred in instructing the jury with respect to three matters: (A) self-defense on counts 3 and 4, as to Fredy only, (B) natural and probable consequences, and (C) accomplice corroboration.
"[E]ven in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
A. Self-Defense Instructions
Fredy contends the trial court erred by failing to instruct the jury sua sponte on self-defense as to counts 3 and 4, involving the 7-Eleven shooting. For this contention, he relies on the facts recounted in his argument that the prosecution failed to establish that he did not act in self-defense, which we discussed in part II(A) above. Consistent with our analysis as to that contention, we disagree there was substantial evidence that Fredy acted in self-defense such that a sua sponte instruction was required.
Fredy notes that his trial counsel argued in closing that there was no evidence of who fired first at the 7-Eleven. However, in his briefing on appeal, Fredy cites to no evidence in the record that the Norteños at 7-Eleven shot first or engaged in any behavior leading Fredy to believe he needed to defend himself. We therefore conclude he has not established that the trial court should have instructed the jury on self-defense as to counts 3 and 4.
B. Natural and Probable Consequences
Defendants contend the trial court erred by instructing the jury that, in determining whether defendants aided and abetted the murder (count 1) under the natural and probable consequences doctrine, the jury could consider whether defendants committed active participation in a criminal street gang (the gang crime), with murder as the felonious conduct required to commit the gang crime. (§ 186.22, subd. (a).)
This contention involves four layers of instructions. First, the trial court instructed the jury on the elements and degrees of murder. Second, the court instructed the jury that defendants could be found guilty of murder as aiders and abettors under the natural and probable consequences doctrine. The court explained that defendants were aiders and abettors of murder if they intended to aid and abet a crime the natural and probable consequences of which included murder, even if they did not intend to aid and abet murder. The instruction identified three target (intended) crimes for this theory: disturbing the peace; battery; and the gang crime. (See People v. Nguyen (1993) 21 Cal.App.4th 518, 529-531 [for discussion of natural and probable consequences doctrine].) Third, the court instructed the jury on the elements of those target crimes. And fourth, in the instruction on the gang crime, the court told the jury that an element of the gang crime is promoting, furthering, or assisting in any felonious criminal conduct, which the trial court defined as "murder or shooting at an occupied motor vehicle."
The logical problem with this instruction is apparent. The trial court instructed the jury that it could find each defendant guilty of murder if it found that defendant committed the gang crime based on the felonious conduct of murder. To the extent the instruction for the gang crime allowed the jury to conclude a defendant committed murder because he committed murder, the instruction was flawed. Murder should not have been part of the instruction on the gang crime, because the gang crime was not a charged crime but instead was included in the instructions only to define for the jury the elements of the proposed target crimes for the purpose of applying the natural and probable consequences doctrine to the murder charge.
Defendants assert the instructions were also incorrect for allowing the jury to use shooting at an occupied vehicle to satisfy an element of the gang crime. But the trial court instructed the jury on the natural and probable consequences doctrine only as to murder. Defendants provide no authority for the proposition that a charged offense (shooting at an occupied vehicle) cannot be used to satisfy an element of the gang offense. Likewise, the jury could have properly concluded defendants committed disturbing the peace or battery as an element of the gang crime. As to those crimes, the trial court's instructions were proper.
We must determine whether this flaw in the instructions prejudiced defendants. Defendants and the Attorney General argue different standards for determining prejudice on appeal. We need not resolve that argument because the flaw in the instructions was harmless under any standard. There is no reasonable probability defendants would have had better outcomes absent the flawed instructions, and the flaw in the instructions was harmless beyond a reasonable doubt.
Defendants label the instructions as "circular reasoning," "classic bootstrapping," and " 'cart before the horse' reasoning." However, the essence of the flawed part of the instructions, leaving out the parts of the instructions that are not material to this discussion, was that a defendant could be found guilty of murder under the natural and probable consequences if he committed the gang crime with the target crime of murder. Reduced even further, the instructions allowed the jury to find defendants guilty of murder if they committed murder. At most, this is a harmless and meaningless tautology. The instructions did not affect the jury's duty to find the People had proven all of the elements of murder. There was no prejudice.
Defendants cite People v. Lamas (2007) 42 Cal.4th 516, 521 to 527, but that case is distinguishable. In Lamas the California Supreme Court considered whether carrying a loaded firearm in public, which is a misdemeanor unless done while committing the gang crime, can be used as the felonious conduct supporting a gang crime count. (Id. at pp. 521-522.) The court determined such use was inconsistent with the applicable statutes. The court wrote: "[The] defendant's misdemeanor conduct—being a gang member who carries a loaded firearm in public—cannot satisfy [the gang crime]'s third element, felonious conduct, and then be used to elevate the otherwise misdemeanor offense to a felony." (Id. at p. 524.)
This case is unlike Lamas. Relying on a finding that a defendant committed murder to determine whether a defendant aided and abetted a murder under the natural and probable consequences doctrine does not elevate the crime of murder beyond what it already was. Lamas's holding that misdemeanor conduct cannot constitute felony conduct under the circumstances presented in that case is not helpful to defendants here.
Defendants argue that the prosecutor, in closing argument, relied heavily on the natural and probable consequences doctrine and the gang circumstances of this case to encourage the jury to find defendants guilty of murder. This argument does not account for the fact that the challenged instructions did not affect the People's burden to establish every element of murder. Defendants fail to establish prejudice.
C. Accomplice Corroboration
Defendants argue that, because the fellow gang members of the murder victim (Morales) could be prosecuted for Morales's murder, those gang members are defendants' accomplices, and the trial court was required to instruct the jury, sua sponte, that the testimony of those gang members (namely, Larios, Gino, and Francisco) must be corroborated under section 1111. We conclude that, even assuming the trial court had a duty to instruct the jury concerning accomplice testimony with respect to Morales's fellow gang members, any error was harmless because there was evidence of defendants' involvement in the shooting independent of the testimony of Morales's fellow gang members.
"A conviction [cannot] be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . ." (§ 1111.) "An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant on trial . . . ." (§ 1111.) " ' "[W]henever the testimony given upon the trial is sufficient to warrant the conclusion upon the part of the jury that a witness implicating a defendant was an accomplice," ' the trial court must instruct the jury, sua sponte, to determine whether the witness was an accomplice." (People v. Zapien (1993) 4 Cal.4th 929, 982.)
Defendants claim that the Norteños riding in the same Hummer as Morales when Morales was killed (Larios, Gino, and Francisco) are defendants' accomplices. They rely on People v. Smith (2014) 60 Cal.4th 603, which held that a defendant gang member may be properly convicted of murder for the death of members of his own gang if the defendant gang member committed a crime and the natural and probable consequence of the crime was the killing of the fellow gang members, even though the defendant gang member did not desire the fellow gang members' death. (Id. at p. 606.)
Defendants argue that because Morales's fellow gang members initiated the violent confrontation, they would be guilty of aiding and abetting in defendants' target crimes including, for example, assault and battery. Under defendants' reasoning, that would make Morales's fellow gang members participating in the events that day accomplices to the murder of Morales. And, if they were accomplices, the trial court was required to instruct, sua sponte, that their testimony required corroboration under section 1111.
We need not resolve this issue, because we conclude that even if the instruction should have been given, any error was harmless.
A trial court's failure to specifically instruct on accomplices is harmless if there is sufficient corroborating evidence in the record. (See People v. Avila (2006) 38 Cal.4th 491, 562.) "To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' "The corroborative evidence may be slight and entitled to little consideration when standing alone." ' " (Id. at pp. 562-563.)
The evidence independent of the testimony of Morales's fellow gang members placed all three defendants in the Buick with a gun at the time of the murder and established that there was a conflict between the occupants of the Hummer and the Buick. This was more than slight evidence to corroborate the testimony of Morales's fellow gang members that defendants were guilty of Morales's murder.
IV
Youthful Offender Parole Hearing
Fredy, who was 18 years old at the time of the crimes, contends his trial counsel was constitutionally deficient for failing to put on the record, under People v. Franklin (2016) 63 Cal.4th 261 (Franklin), evidence relevant to an eventual youthful offender parole hearing. To the contrary, trial counsel was not constitutionally deficient because Fredy was not entitled, at the time of sentencing, to provide evidence relevant to an eventual youthful offender parole hearing. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [no ineffective assistance of counsel if performance of counsel objectively reasonable].) Nevertheless, he is entitled to remand for a Franklin hearing now because the law changed to provide an eventual youthful offender parole hearing to those who commit crimes when they are 18 years old.
Fredy was born on June 27, 1994, so he was 18 years old when he committed the crimes. The trial court sentenced him on February 6, 2015.
"[T]he California Legislature passed Senate Bill No. 260 (2013-2014 Reg. Sess.), which became effective January 1, 2014, and enacted sections 3051, 3046, subdivision (c), and 4801, subdivision (c), to provide a parole eligibility mechanism for juvenile offenders." (People v. Perez (2016) 3 Cal.App.5th 612, 618.) "In October 2015, the Legislature amended section 3051, and effective January 1, 2016 [after sentencing in this case], anyone who committed his or her controlling offense before reaching 23 years of age [became] entitled to a youth offender parole hearing. (§ 3051, subd. (a)(1), amended by Stats. 2015, ch. 471, § 1.)" (Ibid.)
As the Attorney General acknowledges, Fredy had no reason to believe he would be eligible for a youth offender parole hearing at the time of his sentencing and thus was not provided with any opportunity to make a record for that eventuality. Accordingly, remand is appropriate to provide him with a Franklin hearing. (See Franklin, supra, 63 Cal.4th at p. 284.)
V
Right to Public Trial
Defendants contend the trial court violated their right to a public trial when it excluded defendants' family members from the courtroom for 46 minutes during jury selection because there were no available seats in the courtroom.
On the first day of jury selection, the trial court convened with a panel of prospective jurors at 8:45 a.m. After introductions and instructions, the court said: "As soon as we have seats, we will have you come in. I anticipate we'll have seats shortly." The record at this point does not reflect to whom this statement was addressed, and the statement did not draw an immediate response from defendants. However, the record of a later discussion between counsel and the trial court makes it clear that defendants' family members had entered the courtroom but were asked to leave until seats were available.
The trial court had the court clerk administer the oath to the prospective jurors, heard hardship excusal requests, and read the list of permitted hardship excusals during the time defendants' families were excluded from the courtroom.
At 9:36 a.m., the hardship excusals left the courtroom, and counsel for Gonzalez asked to put something on the record. He said: "[A]t approximately 8:50 family members of Mr. Gonzalez and the Caudillo brothers tried to come into the courtroom, and the Court did not allow them to come in." The trial court added: "I indicated that we did not have a place for them to sit because of the jury. There was no seat available for them to sit, and I indicated that as soon as we had seats available for them that we would welcome them into the courtroom."
A defendant has a right to a public trial (U.S. Const., 6th & 14th Amends.; Cal. Const. art. 1, § 15), and the public trial right extends to jury selection (Presley v. Georgia (2010) 558 U.S. 209, 210-216). "[W]ithout exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present." (In re Oliver (1948) 333 U.S. 257, 271-272.) The denial of a public trial is, under some circumstances, structural error requiring automatic reversal. (Arizona v. Fulminante (1991) 499 U.S. 279, 310; Weaver v. Massachusetts (2017) ___U.S.___ [198 L.Ed.2d 420, 433] (Weaver).)
"A defendant 'may, by his own acts or acquiescence, waive his right [to a public trial] and thereby preclude any subsequent challenge by him of an order excluding the public. Unlike the jury trial right which requires an express personal waiver [citation], the constitutional guarantee of a public trial may be waived by acquiescence of the defendant in an order of exclusion.' [Citations.]" (People v. Edwards (1991) 54 Cal.3d 787, 813.)
Here, defendants acquiesced in the exclusion of their family members from the courtroom until counsel for Gonzalez raised the issue for the first time during a pause in jury selection. There is no indication in the record that defendants' family members were excluded from the courtroom after defendants raised the issue.
Citing Weaver, defendants argue that reversal is required if an objection is made at the time of the error in the trial court. Weaver, however, is distinguishable on the issue of acquiescence. In Weaver the trial court closed the courtroom to the public for two days of jury selection. The defendant did not object in the trial court to an unlawful closure of the court based on violation of his public-trial right but, instead, sought reversal based on his counsel's ineffective assistance for failing to object to the closure. (Weaver, supra, ___ U.S. at p. ___ .) Under those circumstances, the United States Supreme Court wrote: "[I]n the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to 'automatic reversal' regardless of the error's actual 'effect on the outcome.' [Citation.]" (Id. at ___ .)
Here, defendants objected at trial, and the trial court prospectively provided the proper remedy, allowing defendants' family members into the courtroom. Weaver did not consider this situation.
In any event, even assuming no acquiescence, the brief closure of the courtroom to defendant's family members was a de minimis restriction of public-trial rights and does not require reversal. (People v. Bui (2010) 183 Cal.App.4th 675, 688-689.) In Bui the trial court temporarily excluded defendant's family members from the courtroom for about 40 minutes during jury selection. (Id. at pp. 685-686.) On appeal, the court held any violation of the public-trial right was de minimis and did not require reversal. (Id. at pp. 686-689.) In doing so, the court determined that the United States Supreme Court's then newly issued decision in Presley did not require reversal. (Id. at p. 678.)
In his reply brief, Gonzalez argues that Bui was wrongly decided. That argument is too late because Gonzalez failed to acknowledge Bui in his opening brief and therefore failed to give the Attorney General the opportunity to respond to the argument that Bui was wrongly decided. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Furthermore, Bui was decided over 10 years ago, has not been criticized or disapproved, and has been cited approvingly by our Supreme Court. (People v. Virgil (2011) 51 Cal.4th 1210, 1237-1238.) Accordingly, we conclude the de minimis restriction of defendants' public-trial rights does not require reversal.
VI
Confrontation of Witness Omar Larios
Gonzalez and Ricky contend they were denied the right to confront and cross-examine Larios, to whom the prosecutor directed 27 leading questions, many of which were based on Larios's alleged prior statements. These questions were asked despite the fact that Larios had made it clear he would not answer questions.
Out of the presence of the jury, Larios informed the trial court that he intended to exercise his Fifth Amendment right to remain silent. The trial court instructed Larios that he was required to answer questions because he was being granted use immunity so that his testimony could not be used against him. Larios said he understood. When Larios took the stand in the presence of the jury, he immediately indicated he would "Plead the Fifth." He answered questions about his current incarceration, but after that he refused to answer questions about this case, either attempting to invoke the Fifth Amendment or simply stating that he was not going to or did not want to answer.
The nature of the questions the prosecutor asked Larios is important to our resolution of this issue. Therefore, we set forth the questions that Larios refused to answer:
"Do you know Alonso Morales?"
"Do you know this lady sitting back here?"
"You grew up with Alonso Morales, didn't you?"
"You were present when Alonso was shot, weren't you?"
"You were sitting in the driver's seat when Alonso Morales was shot; is that correct?"
"When he was shot, Mr. Morales was sitting in the passenger seat of your vehicle; is that correct?
"Do you recognize the vehicle depicted in that photograph?"
"The vehicle depicted in the photograph . . . is your Hummer H-3; is that correct?"
"That's the vehicle that Alonso Morales was sitting in when he was shot; correct?"
"You were in the driver's seat of that vehicle when Alonso was shot; correct?"
"You saw who shot Alonso; didn't you?"
"After Alonso was shot, you were pretty upset; weren't you?"
"Specifically, after Alonso was shot in the head sitting in the passenger seat of your car, blood running out of his head, you were driving him to the hospital, didn't you tell the other passengers that you observed the shooter and named who the shooter was?" (An objection to this question was sustained.)
"Mr. Morales was sitting beside you when he was shot; correct?"
"You told the officers at the hospital later that night and in your subsequent interview that you actually felt the bullet go by the front of your face; is that correct?"
"At the time that Alonso was shot, the driver's side window of your Hummer was down; correct?"
"The shot that killed Alonso Morales came in through the driver's side window and crossed your face; correct?"
"You saw who shot Alonso; didn't you?"
"What are you in state prison for?"
"It's not a Fifth Amendment problem with those cases; right?"
"You were convicted of 186.2(a), felony gang offense, subsequent to the shooting of Alonso Morales; correct?"
"Subsequent to that, you were convicted of a second gang offense and that is what actually sent you to prison; correct?"
"On the evening of October 1st at Gridley Biggs Memorial Hospital, you met with and talked to Officer Todd Farr of the Gridley Police Department; correct?"
"You subsequently took Officer Farr, went with Officer Farr, and showed him where you were when Alonso was shot; correct?
"You subsequently were interviewed by Sergeant Smallwood and Sergeant Khan on October 3rd at the Gridley Police Department with regards to the death of Alonso Morales; is that correct?"
"You told the sergeants at that time that the bullet that killed Alonso went right across your face and you could feel it?"
"You saw who shot Alonso; didn't you?"
There is no indication in the record that the trial court held Larios in contempt for refusing to answer the questions.
The trial court gave the jury the standard instruction that the attorneys' questions are not evidence.
Douglas v. Alabama (1965) 380 U.S. 415, 419 to 421 held a prosecutor violated the confrontation rights of a defendant when the prosecutor asked a witness a series of questions concerning the crime charged against the defendant after the witness invoked the right against self-incrimination. The prosecutor repeatedly asked the witness whether the witness had made a statement, and the witness refused to answer the prosecutor's questions. (Id. at pp. 416-417.) The United States Supreme Court found the prosecutor's reading of the statement, while technically not testimony, may well have been the equivalent in the jury's mind that the witness made the statement and it was true. (Id. at pp. 419-420.)
California law likewise provides that a defendant's right to confrontation is violated when, in examining a recalcitrant witness, the prosecutor poses leading questions providing the details of prior statements the witness made to law enforcement regarding a defendant's commission of a crime. (People v. Murillo (2014) 231 Cal.App.4th 448, 455-456.) In Murillo a witness refused to answer more than 100 leading questions based on the witness's out-of-court statements, creating an illusion of testimony. This procedure denied the defendant the constitutional right to cross-examine the witness. (Id. at pp. 449-450.) The court in Murillo concluded the error required reversal because the evidence of the defendant's guilt was not strong, and no other witness identified the defendant. (Id. at p. 456.) The court was not convinced beyond a reasonable doubt that the error did not contribute to the verdict. (Id. at p. 458; Chapman v. California (1967) 386 U.S. 18, 24.)
In this case, the prosecutor continued asking leading questions of Larios even though it was apparent that he would not answer and, consequently, would not be subject to cross-examination. While Larios did not have the right to invoke his constitutional right to remain silent, there was no doubt he intended to persist in his intransigence. Under Douglas and Murillo, the procedure violated defendants' confrontation rights.
But the error was harmless beyond a reasonable doubt. While the prosecutor used some facts apparently from Larios's prior statements as the basis for leading questions, none of those statements were crucial to the verdicts.
Gonzalez argues: "[T]he prosecutor's questions communicated to the jurors that Larios had been interviewed by the police, that he told them he was there, saw the shooting, and knew who did it." While this is true, other evidence amply supported the conclusions Larios saw the shooting and knew who did it. Gino stated Larios was driving the Hummer and that Larios screamed, "It was Mickey." Gonzalez continues: "The prosecutor's questions also obliquely emphasized [] the notion that gang members are loyal to each other, thus planting the suggestions (1) that the statements in the untested evidence must be true and (2) that [Gonzalez] must somehow be responsible for Larios's refusal to testify, though there was no evidence of that." This is no more than speculation. Likewise, the argument that this was a close case is unconvincing. While it was a complex case and presented the jury with much work to come to verdicts, the evidence of defendants' guilt was strong, and the nature of the prosecutor's questioning of Larios did not patch weak areas in the evidence. We are convinced beyond a reasonable doubt that the prosecutor's examination of Larios did not contribute to the verdict. (See People v. Murillo, supra, 231 Cal.App.4th at p. 458.)
VII
Prosecutorial Misconduct
Defendants contend the prosecutor committed prejudicial misconduct in two ways: by appealing to the jury's passions in closing argument and by questioning Larios even though Larios had made it clear he would not answer the questions.
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
If a court concludes the prosecutor committed misconduct, reversal is required only if there is a reasonable likelihood the jury " ' "construed or applied the complained-of remarks in an objectionable fashion." ' " (People v. Friend (2009) 47 Cal.4th 1, 29.)
During closing argument, the prosecutor argued that the "war" between the gangs in this case was not figurative and that "they are not only shooting at each other, they are shooting in ways that endanger everyone else." Concerning the 7-Eleven shootings, the prosecutor observed that there were people other than gang members in the parking lot who were endangered by the shooting. In rebuttal argument, the prosecutor said: "The law is to protect us from any incidences [sic] exactly like this, from gang bangers who decide that their petty squabbles are more important than the lives and safety of everyone around; that their feelings of disrespect are worth endangering everyone else around . . . ." The prosecutor concluded: "They're all bullies and terrorists, but the victims of their bullying and terrorism is [sic] not the other gang, it's all of us. It's the innocent people. . . . It's the other unnamed persons that you'll see on those videos that were in that parking lot."
Defendants argue the prosecutor, by these statements, urged the jury to convict defendants "in order to protect community values, preserve civil order, or deter future lawbreaking" (United States v. Sanchez (9th Cir. 2011) 659 F.3d 1252, 1256) and that the prosecutor improperly "calculated to arouse passion or prejudice" (see People v. Mayfield (1997) 14 Cal.4th 668, 803).
Although we do not condone the comments, as they were not relevant to the specific charges here, it is clear that the comments were related to the dangers inherent in the crimes charged and merely stated the obvious. Defendants were charged with murder and with shooting at an occupied motor vehicle and an occupied building. The information alleged the shots were fired from a motor vehicle and that defendants committed the acts for the benefit of a criminal street gang. These are crimes that endanger the public. It was clear without the prosecutor's argument that the manner in which these crimes were committed endangered everyone in the vicinity.
" 'It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. . . . .' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets warranted by the evidence." ' " (People v. Wharton (1991) 53 Cal.3d 522, 567.) " 'Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
Here, the trial court properly instructed the jury that the prosecutor's arguments were not evidence. Furthermore, the argument did not put the jury in the position of doing anything other than determine whether the facts supported convictions. Accordingly, the prosecutor's statements during closing argument did not constitute prosecutorial misconduct.
Concerning the prosecutor's questioning of Larios after he made it clear he would refuse to answer, any misconduct was harmless. We concluded in part VI, above, that the questioning of Larios was harmless beyond a reasonable doubt. Therefore, there is no reasonable likelihood the jury "construed or applied the complained-of remarks [or prosecution tactics] in an objectionable fashion.' [Citation.]" (People v. Friend, supra, 47 Cal.4th at p. 29.)
VIII
Proposition 57
Ricky was born on May 3, 1996, and was 16 years old at the time of the crimes. He contends he is entitled to conditional reversal and remand to the juvenile court for a transfer hearing as a result of Proposition 57. We agree.
After defendants' conviction, California voters passed Proposition 57, the Public Safety and Rehabilitation Act of 2016, intended to change the state law "to require that, before youths can be transferred to adult court, they must have a hearing in juvenile court" and to ensure that minors "accused of committing certain severe crimes would no longer automatically be tried in adult court . . . ." (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) analysis of Prop. 57 by the Legis. Analyst, p. 56.)
Welfare and Institutions Code section 707, subdivision (a)(1) requires that an allegation of criminal conduct against any person under 18 years of age must now be commenced in juvenile court. To prosecute the minor under general criminal law, the prosecution must file a motion to transfer the case from juvenile court to adult court. (Welf. & Inst. Code, § 707, subd. (a)(1); People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).)
In Lara the California Supreme Court held that Proposition 57 applies retroactively to pending cases to entitle a minor who was charged directly in adult court to a transfer hearing in juvenile court. (Lara, supra, 4 Cal.5th at pp. 303-304.) The Attorney General acknowledges that Ricky was 16 years old at the time of the charged offenses, was charged in adult court, and is entitled to a transfer hearing.
The appropriate action, as endorsed in Lara, is to conditionally reverse Ricky's convictions and sentence and remand for a juvenile transfer hearing under Welfare and Institutions Code section 707. " 'When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer [Ricky's] cause to a court of criminal jurisdiction. ([Welf. & Inst, Code,] § 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [Ricky] to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then [Ricky's] convictions and sentence are to be reinstated. ([Welf. & Inst. Code,] § 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred [Ricky] to a court of criminal jurisdiction, then it shall treat [Ricky's] convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' [Citation.]" (Lara, supra, 4 Cal.5th at p. 310.)
IX
Section 654Gonzalez and Fredy contend the trial court erred by imposing concurrent terms for second degree murder (count 1) and shooting at an occupied vehicle (count 2) instead of staying punishment for shooting at an occupied vehicle under section 654 because the two counts arose from a single act.
The California Supreme Court described section 654's prohibition on multiple punishment for a single act or omission: "Subdivision (a) of section 654 provides that '[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.' This provision 'protects against multiple punishment, not multiple conviction. [Citation.]' [Citation.] Although it 'literally applies only where such punishment arises out of multiple statutory violations produced by the "same act or omission," ' we have extended its protection 'to cases in which there are several offenses committed during "a course of conduct deemed to be indivisible in time." ' " (People v. Oates (2004) 32 Cal.4th 1048, 1062.)
But our Supreme Court recognized the multiple-victim exception to section 654's prohibition: " '[T]he limitations of section 654 do not apply to crimes of violence against multiple victims.' " (People v. Oates, supra, 32 Cal.4th at p. 1064.) " 'The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.' " (Id. at p. 1063.) " 'This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not ". . . applicable where . . . one act has two results each of which is an act of violence against the person of a separate individual." ' " (Ibid.)
The shooting at an occupied vehicle had multiple victims in this case. Even if there was only one victim shot, all of the occupants of the Hummer were victims. The trial court did not err by imposing a concurrent term for shooting at an occupied vehicle in addition to the term for second degree murder.
X
Ability to Pay
Defendants contend they are entitled to remand for a hearing on their ability to pay the fine and fees imposed by the trial court, citing Dueñas and also arguing the excessive fines clause of the Eighth Amendment to the United States Constitution mandates an ability to pay hearing for those costs. The Attorney General argues defendants forfeited this issue because they did not object in the trial court. He also argues the trial court considered ability to pay these fines and fees and that defendants have not shown they will suffer consequences if unable to pay.
The trial court imposed fines and fees on each of the three defendants. It imposed on each defendant a restitution fine of $10,000 (§ 1202.4, subd. (b)), with an additional fine of $10,000 suspended unless parole is revoked (§ 1202.45). It also imposed other fines and fees totaling $850 for each count on which defendants were convicted. (§§ 672, 1464, 1465.7, 1465.8; Gov. Code, §§ 70372, subd. (a), 70373, 76000, 76104.6, and 76104.7.) The trial court found defendants had no ability to pay for the presentence investigative report or for attorney fees, except that it did not find Gonzalez did not have the ability to pay attorney fees.
First, defendants' "excessive fines" claim is forfeited because they did not raise it below, and the argument could easily have been raised before a recent United States Supreme Court opinion extending that provision to the state courts. (See Timbs v. Indiana (2019) ___ U.S. ___ ; Cal. Const., art. I, § 17 ["Cruel or unusual punishment may not be inflicted or excessive fines imposed," italics added]; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 726-728 [discussing the applicability of both the Eighth Amendment and the California Constitution's "excessive fines" clauses to a California court judgment]; People v. Urbano (2005) 128 Cal.App.4th 396, 406 [considering defendant's claim that a restitution fine was "a constitutionally excessive fine" and referencing both Eighth Amendment case law and the California constitution]; People v. Baker (2018) 20 Cal.App.5th 711, 720 [defendant forfeited his Eighth Amendment claim].)
We agree with defendants that an objection based on the due process argument accepted in Dueñas would be "based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial," and the failure to object on that basis is not forfeiture. (People v. Castellano (2019) 33 Cal.App.5th 485, 489; see contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 .) Here, it does appear ability to pay was raised and considered in the trial court as to at least some of the challenged fines and fees. Thus we decline to find the Dueñas claim forfeited. However, we decline to follow that case.
In Dueñas a panel of the Court of Appeal held that due process prohibits a trial court from imposing court assessments under section 1465.8 and Government Code section 70373, and requires the trial court to stay execution of any restitution fines unless it conducts an ability to pay hearing and ascertains the defendant's ability to pay those assessments and fines. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addressing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant's indigence and inability to pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing costs on indigent defendants "blamelessly" unable to pay them transformed a "funding mechanism for the courts into additional punishment." (Id. at p. 1168.)
People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 rejected the reasoning of Dueñas, under both lines of due process authority. Hicks observed that imposition of fees after a determination of guilt does not deny a criminal defendant's access to the courts and does not interfere with a defendant's right to present a defense or challenge a trial court's rulings on appeal. (Id. at p. 326.) Further, imposition of fees, without more, does not result in incarceration for nonpayment of fines and fees due to indigence; thus, it does not infringe on a fundamental liberty interest. (Ibid.)
Our Supreme Court is now poised to resolve this issue, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373.5. (Kopp, at pp. 95-96, review granted.) In the meantime, we find the reasoning in Hicks sounder and more persuasive than Dueñas. Accordingly, we conclude the imposition of fines, fees, and assessments on an indigent defendant without consideration of ability to pay does not violate due process and there is no requirement the trial court conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.
DISPOSITION
The judgments against Alejandre Gonzalez and Fredy Caudillo are affirmed.
As to Fredy Caudillo, the matter is remanded for a hearing on the issues identified in Franklin and consistent with the procedures specified in that opinion. (Franklin, supra, 63 Cal.4th at pp. 283-284.)
Ricky Caudillo's convictions and sentence are conditionally reversed and remanded to the juvenile court to conduct a transfer hearing in accordance with Lara, supra, 4 Cal.5th 299. If the juvenile court determines at the transfer hearing that it would not have transferred defendant to a court of criminal jurisdiction, Ricky Caudillo's criminal convictions and enhancements shall be deemed to be juvenile adjudications as of that date, and the juvenile court shall conduct a dispositional hearing. If, at the transfer hearing, the juvenile court determines that it would have transferred Ricky Caudillo to a court of criminal jurisdiction, the judgment shall be reinstated as of that date and is affirmed.
/s/_________
DUARTE, J. I concur: /s/_________
Hoch, J. MAURO, Acting P. J., Concurring and Dissenting.
I fully concur in the majority opinion except for part X of the Discussion, pertaining to defendants' ability to pay the imposed fines, fees and assessments.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent.
The appellate record indicates the trial court made certain findings regarding defendants' ability to pay, but there is no indication it considered ability to pay as to all the fines, fees and assessments. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would remand the matter to give the trial court an opportunity to consider defendants' ability to pay the imposed assessments. As for the restitution fine and parole revocation fine imposed by the trial court, however, I would conclude defendants forfeited the challenge to those fines because they were imposed well above the minimum. Defendants had an opportunity to object to the amount of the fines in the trial court and at least request that the fines be imposed at the minimum amount, but they did not.
/s/_________
MAURO, Acting P. J.