Opinion
F067543 F069444
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN HERNANDEZ, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. RICARDO GABRIEL VILLANUEVA, Defendant and Appellant.
A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant Juan Hernandez. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Ricardo Villanueva. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F10905457)
OPINION
APPEALS from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant Juan Hernandez. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Ricardo Villanueva. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Juan Hernandez, Ricardo Villanueva, Edgar Padilla, Manuel Gonzalez, Anthony Gonzalez, and Ramanjit Hundal, all members of the Varrio East Side Reedley (VESR) criminal street gang, were charged with the murder of Juan Negrete and attempted murder of Anselmo Salinas, as well as various street gang and gun use enhancements. Villanueva, Hernandez and Hundal went to trial together, but Hundal's severance motion was granted after Hernandez stabbed him in the neck with a homemade "shank" in front of some 90 potential jurors during voir dire.
The jury panel that witnessed the stabbing was dismissed.
Hernandez and Villanueva (together appellants) were both convicted as charged of first degree murder (Pen. Code, § 187, subd. (a)), attempted murder (§§ 664, 187, subd. (a)), and street terrorism (§ 186.22, subd. (a)). In connection with the murder and attempted murder, it was found true that (1) a principal personally and intentionally discharged a firearm and caused great bodily injury or death (§ 12022.53, subds. (d), (e)(1)), and (2) the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). In connection with the murder, it was also found true that each was an active participant in a street gang and that the murder was committed to further the activities of the gang (§ 190.2, subd. (a)(22)).
All further statutory references are to the Penal Code unless otherwise stated.
Hernandez and Villanueva were both sentenced to life in prison without the possibility of parole for the murder and the term of two years four months for the attempted murder, with an additional 25 years to life gun use enhancement added for both counts. The court imposed and stayed the term for the criminal street gang conviction, pursuant to section 654, for both appellants.
Hernandez's case (F067543) was fully briefed as of June 23, 2014. In July of 2014, this court, on its own motion, ordered Villanueva's case (F069444) consolidated with Hernandez's under case No. F067543.
On appeal, appellants collectively and individually raise 10 issues. Hernandez argues the trial court erred (1) when it denied his motion for new trial based on juror misconduct, and (2) when it failed to suppress his statements to the confidential informant as they were coerced and involuntary. He also contends (3) there is insufficient evidence of accomplice corroboration; and (4) the parole revocation fine is unauthorized.
Villanueva contends (5) the jury was improperly permitted to convict him of first degree murder under a natural and probable consequence theory. He contends instructional error occurred (6) when the court omitted the specific intent to kill requirement for the actual killer in the special circumstance instruction; (7) when it failed to instruct the jury it must unanimously agree on the overt act underlying the factual theory of conspiracy where two distinct conspiracies were supported by the evidence; (8) in giving CALCRIM Nos. 337 and 373, which fundamentally undercut the defense presented; and (9) when it instructed that the state need not prove motive to convict of street gang terrorism. And he contends (10) that counsel was ineffective for failing to object to inflammatory, irrelevant, and cumulative gang testimony. Following the filing of Villanueva's opening brief, Hernandez filed a request to join in Villanueva's arguments 5, 7, 8, 9, and 10.
We have renumbered Villanueva's arguments for clarity.
We find only that the trial court imposed an unauthorized parole revocation fine. In all other respects, we affirm.
STATEMENT OF FACTS
The Shooting
At approximately 9:00 p.m. on September 12, 2010, Jose Estrada Salinas (Jose) was in front of his residence on East Jefferson Avenue in Reedley with his uncle Anselmo Salinas (Anselmo) and friend Juan Negrete, working on cars. Jose heard gunshots and saw two shooters with guns firing towards Negrete and Anselmo. Neither Jose nor Anselmo recognized the shooters.
We at times refer to individuals by their first name to avoid confusion.
Negrete sustained a fatal gunshot wound that entered his body near his right shoulder and exited near a rib on the left side of his back. A second bullet grazed his right front thigh. Anselmo sustained gunshot wounds to his leg and back, but survived.
Griselda Hernandez (no relation to appellant Hernandez) lived nearby on Cedar Avenue and, as she was taking out her trash, saw a dark-colored car drive slowly past her house with its lights off, headed towards East Jefferson. She then saw more than one person and heard gunshots coming from the area of the mailboxes at the corner of East Jefferson and Cedar. She could not identify the shooters.
Martin Ayala Cuadros was watering his front lawn on East Washington Avenue when he heard approximately 10 gunshots from two or three different guns. After the gunshots, he saw two young men run south on Cedar and get into a car on Cedar south of East Washington.
Jose's brother, Jesus Salinas, also known as Lino, a potential suspect in a December 2009 shooting of two Norteño gang members, was present at Jose's residence both during and after the September 2010 shooting. Investigators responding to the scene photographed Sureño-related gang graffiti inside the garage at Jose's. The garage door was open when the shootings took place. Negrete had a Sureño-related gang tattoo on one of his hands.
Investigators found 10 shell casings near the corner of Cedar and Jefferson. A .30-caliber carbine M1 rifle later found in Adrian Mendoza's bedroom was determined to have fired nine of 10 expended shells casings found near the shooting scene. Analysis on the remaining casing and bullet fragments was inconclusive. Testimony of Participant Edgar Padilla
VESR gang member and former codefendant Edgar Padilla entered into a negotiated plea in exchange for his testimony about the September 12, 2010, murder plot. Padilla pled to voluntary manslaughter and two counts of assault, along with arming and gang enhancement allegations, and received a sentence of 24 years in prison in exchange for his testimony.
Padilla had been a member of VESR for five or six years, but dropped out of the gang because he accepted the plea deal in the case. According to Padilla, Hernandez and Villanueva were both members of the VESR gang. Hernandez went by the moniker "Dreamer," and Villanueva by the moniker "Bookworm."
On September 12, 2010, Padilla received phone calls from Hernandez and Joey Baloona, referred to as Luna. Both Luna and Hernandez had influence in the VESR gang. Luna called first and told Padilla to meet him at an abandoned house. Hernandez then called and told Padilla to contact another VESR member, Manuel Gonzalez (Manuel). Padilla did so and he and Manuel drove in a dark blue or black Nissan Altima to the abandoned house, where they met Hernandez. Anthony "Tiger" Gonzalez (Anthony) was also there. Hernandez explained he had two volunteers ready to do something that night. Hernandez told Padilla to meet back at the abandoned house later that night to get everything ready. Hernandez said he was going to get the guns ready.
Padilla and Manuel then met Luna in an alley where Luna said he talked to Hernandez "about that something needed to happen that day and that he was going to let us use the M1, the .30 caliber." Luna said there had been "too much stuff happening ... everybody getting shot at and stabbed and stuff like that," referring to VESR members who were being targeted by Sureños. Padilla understood Luna to mean they were to target Sureños by "either drive-bys, shooting at houses, anything."
Manuel then dropped off Padilla at his house. Around 7:00 or 8:00 p.m., Padilla left for Richard Varela's house to get the M1 rifle. Padilla and Hundal took the M1 and ammunition back to the abandoned house. Villanueva brought a .44-caliber revolver to the house. Manuel and Ryan Ramirez were also at the house. Manuel had said he was going to try to get his father's truck, but when he could not, he arrived at the house in his Nissan Altima.
Hundal went by the moniker "Rico."
While discussing the group's plan, Padilla and Hernandez got into an argument. Hernandez wanted the group to "just find anyone and just kill them." Padilla had thought, from his earlier conversation with Luna, that they were just going to "send out a message" as Luna had not mentioned actually killing anyone. It was Hernandez who first mentioned that the focus of the evening was going to be actually killing someone. Both Padilla and Hernandez shared similar influence in the gang.
Anthony planned to take a truck to the other side of town and cause a distraction and gain police attention by breaking some windows. The group also planned to burn a field or "something" on the other side of town for the same purpose. Hernandez talked to Manuel about being the driver that evening. Hernandez planned to stay at the abandoned house and assist the group by listening to the police scanner. Hernandez told Padilla his role was to "make sure something happened that night."
Before the group left, they chose Villanueva and Hundal "as the shooters" and discussed that the green Honda would pick them up after the shooting. Hernandez was present during this discussion.
Manuel then drove his Nissan Altima with Hundal in the backseat and Padilla in the front passenger seat. Hundal had the .30-caliber M1 rifle. Villanueva, Ramirez, and a "kid" were in the green Honda that followed the Nissan.
The group first drove around town to see if they could find "anything" or see "anybody." They removed the batteries from their cell phones. The initial plan was to drive by "Pedro's" house, a Sureño gang member "always in the mix." The group was also targeting a house in the country where Hundal believed there were Sureños. A fight occurred a few days earlier involving a Sureño and VESR member who got stabbed. When no one was at either of those locations, Hundal mentioned a location on East Jefferson where he thought they could find Sureños.
When the group drove by the house on East Jefferson, they saw a couple of people outside. Hundal wanted to stop and shoot them, but Padilla told Hundal not to. They drove a few blocks away and stopped. Villanueva got out of the Honda and into the Nissan.
The group drove around for a bit before heading back to the house on East Jefferson, where there were still people outside. The Honda got lost while they were driving around and was not there. Manuel drove the Nissan down Cedar and parked between East Jefferson and Washington. Hundal got impatient and said, "forget that plan ... I'm going to do this." He then got out of the car and Villanueva followed.
Padilla then heard gunshots from both the M1 and the .44-caliber. Hundal and Villanueva ran back to the car and the group drove to Hector Trejo's house, where they dropped off the guns. Hundal and Villanueva put "something" on their hands and urinated on them. Manuel paced back and forth and said he was no longer "a punk" because of his participation in the shooting.
The Honda met the Nissan near Trejo's house. Padilla jumped into the Honda and went to VESR member Richard Varela's house. Testimony of Participant Manuel
Former codefendant Manuel also testified pursuant to a negotiated plea agreement.
Early in the morning on September 12, 2010, Manuel gave Padilla a ride in his Nissan to talk to Luna. They then went to the abandoned house, where there were two or three people, including Hernandez, but not Luna. Hernandez told Manuel that he would call him later that day and wanted to use his vehicle later that night.
When Hernandez called later that night, he told Manuel to go to the abandoned house. Once there, Hernandez and the other people there began talking about what they were going to do. Hernandez got into an argument with Padilla because he wanted to "shoot someone" while Padilla just wanted to "shoot up a house." According to Manuel, Hernandez "wanted us to go out and commit a murder, and ... [Padilla] didn't want to kill anybody." Hernandez told Padilla to get in the car with Manuel and make sure "everything goes good."
Right before the shooting, Manuel parked on Cedar and waited for the shooters with the headlights off and the engine running. Hundal had a long gun, while Villanueva had a handgun.
After the shooting, Hundal and Villanueva got back into the car and Manuel drove to Trejo's house, where Hundal and Villanueva left their guns. Manuel left, but later Hernandez asked Manuel to pick up Hundal and Villanueva, who were stranded at Trejo's house. Hernandez went with Manuel to pick them up. Manuel then dropped everyone off at the abandoned house and went home.
Sometime after the shooting, Manuel spoke with Ramirez about committing another shooting for the gang, this time at a quinceañera. Manuel was going to act as the driver.
On October 7, 2010, Manuel and Ramirez had a conversation with Cesar Garcia, whom Manuel had never met before but who had status in the gang. Manuel tried to make himself sound "like a[n] up-and-coming gangster" in that conversation about the quinceañera shooting, but claimed he was "kind of just puffing up."
A VESR leader turned confidential informant.
Hernandez was also present during the conversation, which Manuel did not know was being recorded by Garcia. When Manuel spoke to Garcia, it was his understanding that the quinceañera was being held by someone friendly to or affiliated with the rival Sureños. Garcia encouraged him not to carry out the attack. Testimony of Participant Anthony
Anthony also testified pursuant to a negotiated plea agreement.
According to Anthony, the September 12, 2010, shooting was retaliation for the murder of Anthony's close friend Ralphy Lopez, as well as other attacks on VESR gang members. A couple of months before the September 12, 2010, shooting, Garcia and Pablo Chavez put Hernandez and Padilla in charge of VESR's street operations.
On September 12, 2010, Anthony planned the shooting along with Hernandez and Padilla. Anthony suggested setting a fire to distract the police. He listened to a police scanner at the abandoned house with Hernandez. When they heard news of the fire on the police scanner, Hernandez called Padilla and gave him a "green light" "to go shoot up houses." Anthony and Hernandez subsequently heard reports over the scanner of shots fired. After that, Anthony left the abandoned house and broke windows to create a further distraction.
On September 29, 2010, Anthony spoke with Garcia, who recorded the conversation. Hernandez was also present. Anthony bragged a bit during the conversation, wanting to impress Garcia. He also felt there would be consequences if he did not answer Garcia. Testimony of Participant Perez
Roberto Perez testified that, on the night of the shooting, Ramirez asked him if he could take him somewhere in his Honda. While driving together, Ramirez said there was a "green light" on "scraps" or Sureños. As they drove by houses, there were looking to see if there were any Sureños outside. They parked in a rural area and met with the members of the group in another car, a black Nissan. After that, Ramirez took over driving the Honda because Perez was too scared to drive. But they lost sight of the Nissan and did not see the shooting take place. After the shooting, Perez was afraid that, if he went to the authorities, there would be consequences. Testimony of the Confidential Informant Cesar Garcia
Garcia testified that he became a VESR gang member at the age of 12. VESR was a neighborhood gang that paid taxes and dues to the Nuestra Familia. The VESR had approximately 200 members and a chain of command. Over the years, Garcia put in "work" and committed various crimes for the gang. In 2010, he considered himself a "soldier" for the gang.
Garcia described decisions within VESR about committing crimes as being made by a "council of three," of which he was a member, along with Pablo Chavez and Luna. VESR members were to obtain council approval before committing crimes, but did not always do so.
Hernandez, Villanueva, Padilla, Anthony, and Trejo were all VESR members. Hundal participated in much of the criminal activity, but was not a VESR member because he was Middle Eastern.
After his son was born in 2009, Garcia decided to change his life and, in February 2010, contacted law enforcement to propose becoming an informant. Garcia told Multi-Agency Gang Enforcement Consortium (MAGEC) Detective Kyle Kramer he wanted to take down the entire VESR organization. Garcia was placed in a relocation program and received money for housing and food.
In April of 2010, Garcia began secretly recording conversations with other VESR gang members. In August and September of 2010, Garcia was in custody on driving under the influence charges. When he was released, Garcia told Detective Kramer he knew "all about" the homicide that had occurred on September 12, 2010. Detective Kramer asked Garcia to record conversations about the murder.
On September 21, 2010, Garcia recorded a conversation with Hernandez about the shooting and other gang business. The conversation was played for the jury. In it, Hernandez explained how Sureños were attacking Norteños and discussed some of the roles various people played during the shooting incident.
During the conversation, Garcia mentioned to Hernandez that he "got the [Fresno] Bee over there" and had seen that there had been a shooting on East Jefferson of two men. Hernandez responded that two got hit, one died and the other was still in critical condition. Hernandez then described in detail how he had helped create a distraction with a fire and the others "did that shit right there." When Garcia asked who planned it, Hernandez said he had "called up the homey" because a fellow gang member had been attacked and, although they were supposed to have four guns, it ended up being "just" two. Hernandez also described how he had been listening to the scanner and, because there were cops everywhere, he told Anthony to break some windows as a distraction.
When Garcia asked Hernandez whether it had been a "drive-by," Hernandez described in detail how there were supposed to be four shooters, but ended up with two, so the second car "picked them up and smashed out of town and shit." Garcia asked where Padilla had been and Hernandez described how Padilla was supposed to get a .357 revolver from Luna, but Luna did not have any bullets so Padilla "was just there and shit."
On September 29, 2010, Garcia recorded a conversation with Hernandez and Anthony about the shooting. The recording was played for the jury. During the conversation, Hernandez and Anthony discussed setting fire and breaking windows as distractions. Hernandez and Anthony said they had gotten rid of the "heat" "[r]ight there in the cuttys."
On October 7, 2010, Garcia recorded a conversation between Hernandez, Manuel and Ramirez about a plan involving a quinceañera and the September 12, 2010, shooting. The group came to Garcia, a council member, for permission to go to the quinceañera and "shoot up the whole place." Garcia told them not to do it.
Garcia also recorded two conversations with Villanueva, two days apart because the audio quality of the first was poor. Only the second conversation was played for the jury.
Villanueva told Garcia he purchased the ".44" for "two" but sold it for $140 because it had a "bad kick." Villanueva said the gun had kicked when he and "Rico" "did those dudes ... on [E]ast Jefferson." Villanueva indicated he had spoken to "Tiger," who told him he had broken windows and made other "distractions."
Villanueva told Garcia they got "suited and booted" at an empty house on D Street. Villanueva said he had not been nervous even though he had never shot at people before, and that he "let loose" as soon as Rico did. Villanueva said Rico fired his whole clip, and he had six rounds but only two went off because he had to "pull that shit back every time ...." Villanueva acknowledged he had been aiming at heads and not "at the pad and shit." He did not know who shot the victims. Afterwards at "Hector's," Villanueva threw his pants away and threw some "Ajax" on his hands to get rid of any gun residue. Villanueva again acknowledged he was "aiming" at "those scraps."
On September 24, 2010, Garcia recorded a conversation with Trejo. Garcia then told Detective Kramer that the guns used in the September 12, 2010, shooting were taken to Trejo's home after the shooting. Detective Kramer subsequently discovered the guns had been moved to VESR member Adrian Mendoza's home, where they were recovered by the police.
Detective Kramer explained that Garcia was supposed to record conversations and then deliver the recording to him to download. After the investigation ended, Detective Kramer noticed a gap in the file number sequence on the recording device, which he could not explain. Detective Kramer obtained 54 recording files, of which nine were unusable due to poor audio quality. Gang Evidence
Detective Kramer also testified as the prosecution's gang expert. He testified, inter alia, (1) that the primary activities of VESR were assaults with deadly weapons, shootings, and murders; (2) that several VESR predicate offenses involved other validated members of the gang; (3) that Hernandez, Villanueva, Manuel, Anthony, Padilla, and Hundal were all VESR gang members on September 12, 2010; and (4) after being given a hypothetical mirroring the incidents of September 12, 2010, opined that such a shooting was directed by and committed in association with the VESR gang and enhanced the status of the participants in the gang.
DISCUSSION
I. JUROR MISCONDUCT
Hernandez contends juror misconduct occurred and, as a result, the judgment must either be reversed or remanded for an evidentiary inquiry and reconsideration. We disagree. Procedural Background
The jury returned their verdict the afternoon of November 2, 2012. That morning, the Fresno Bee published an article that reported Hundal was to be tried separately after being stabbed by Hernandez during jury selection in August 2012.
On December 12, 2012, Hernandez filed a new trial motion. In support of the motion, Christina Widner, an associate of the law firm representing Hernandez, submitted a declaration stating that, following the reading of the verdict, she accompanied Hernandez's counsel, Mark Broughton, "to discussions with counsel and the jurors." At that discussion, one of the alternate jurors asked why certain people, specifically Ramanjit 'Rico' Hundal, mentioned throughout the trial, did not testify. In response, Juror No. 6 said, "I guess the Bee answered that question this morning."
On December 28, 2012, the prosecution filed opposition to the motion for new trial. The prosecutor, in opposition, did not dispute Juror No. 6's response, nor the context under which the statement was made, but argued the statement did not amount to misconduct and, in any event, Hernandez suffered no prejudice as a result.
A hearing on the new trial motion was held January 4, 2013. The trial court noted it had reviewed the motion and responses and concluded it was incumbent on the trial court to investigate further and question Juror No. 6. Juror No. 6 was ordered to appear on March 20, 2013, for an evidentiary hearing. The trial court explained it would make initial inquiries of Juror No. 6 and then allow counsel to question her as well.
At the hearing March 20, 2013, Juror No. 6 recalled being in the jury room with counsel, the jury and some alternates after the verdicts were delivered, but did not recall making any statement at all during that meeting. She specifically denied making any statement in reference to any article in the Fresno Bee. When asked if she had any recollection of the Fresno Bee article, she said that, while it was her practice to read the Bee, she read no articles regarding the trial and did not have time to read the paper in the mornings, but instead read it when she got home.
The trial court asked Juror No. 6 about an incident that occurred earlier during trial when Juror No. 6 brought to the court's attention a business card left on her windshield by someone. Juror No. 6 stated she recalled the admonitions the trial court gave in response and that she would have brought anything that occurred contrary to the court's admonitions to the court's attention.
After a sidebar with counsel, the trial court asked Juror No. 6 if she recalled an alternate juror asking her about "Rico." She said no, and also said she did not recall overhearing anyone ask any question of the lawyers about Rico.
Argument on the new trial motion was then heard. The prosecutor argued that it was "pretty clear" Juror No. 6 had no recollection of the purported event, and noted she had even reported the inconsequential business card to the court. The prosecutor added that, even if the court found misconduct, the evidence was overwhelming and could not have affected the jury's verdicts.
Villanueva's counsel argued that, while he agreed with much of what the prosecutor said, all three counsel had been in the jury deliberation room and "one of the jurors, whether it was Number 6 or someone else ... clearly made a comment that all three of us picked up on and noted, even though we didn't go back to that specific juror at the time, and somebody had said something that indicated ... that they had an article somewhere that explained the absence of another individual in this case." Counsel was not convinced Juror No. 6 was the individual who made the statement, but the trial court reiterated that Widner had declared under penalty of perjury that she had heard Juror No. 6 make the statement.
Hernandez's counsel then argued that Juror No. 6 had been clear only that she did not recall making the statement, not that it had not been made. The trial court disagreed, stating the only thing Juror No. 6 did not recall was the article, but that she was "pretty clear about not making any of those statements." Counsel stated he thought the trial court was contemplating bringing the jury foreperson in for questioning. The trial court stated that had been discussed as a possibility, depending on the answer given by Juror No. 6, "especially if any comments were made by this juror to the other jurors."
The matter was taken under submission and a written ruling denying the motion issued on April 16, 2013. In its ruling, the trial court stated it spent "a considerable amount of time in considering the procedure for conducting the evidentiary hearing" and that counsel had submitted the intended question to the court before the hearing, which complied with Evidence Code section 1150, subdivision (a). After summarizing the procedural background of the evidence received in connection with the motion, the trial court ruled as follows:
"The Court must first determine whether credible evidence substantiates the misconduct allegation regarding the newspaper article. After a careful examination of the record and all the evidence submitted, the Court finds that there is no credible evidence to substantiate the misconduct allegation that juror #6 read the article about the case published on November 2, 2012 prior [to] the verdict being rendered. There is no evidence that juror #6 read the article and there is no evidence that ... juror #6 discussed the article with other jurors. The court finds that in weighing the credibility of the testimony there is simply no credible evidence to support the allegation of juror misconduct to wit the reading and possible discussion of the article about the case. Defense has not met its burden of showing misconduct. Thus the burden never shifts to the prosecution and the motion for new trial based on juror misconduct regarding the article is denied."Applicable Law and Analysis
"A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors." (People v. Nesler (1997) 16 Cal.4th 561, 578.) Due process requires that the jury be "'capable and willing to decide the case solely on the evidence before it ....'" (Ibid., italics omitted, citing Smith v. Phillips (1982) 455 U.S. 209, 217.) A juror is not impartial if that juror cannot "'lay aside his impression or opinion and render a verdict based on the evidence presented in court.'" (Nesler, supra, at pp. 580-581, italics omitted, quoting Irvin v. Dowd (1961) 366 U.S. 717, 722-723.)
Prejudicial jury misconduct is grounds for a new trial. (§ 1181.) "When a party seeks a new trial based on juror misconduct, the trial court must determine from admissible evidence whether misconduct occurred and, if it did, whether the misconduct was prejudicial. [Citation.] Prejudice is presumed where there is misconduct. This presumption can be rebutted by a showing no prejudice actually occurred or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party. [Citation.]" (People v. Loot (1998) 63 Cal.App.4th 694, 697.) "The moving party bears the burden of establishing juror misconduct. [Citations.]" (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.)
"We review independently the trial court's denial of a new trial motion based on alleged juror misconduct. [Citation.] However, we will '"accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence."'" (People v. Gamache (2010) 48 Cal.4th 347, 396.)
Hernandez argues that, because there was conflicting evidence on whether Juror No. 6 made the comment reported by Widner, the trial court's credibility finding is not supported by substantial evidence and a further evidentiary inquiry was necessary. Hernandez argues further that the misconduct was prejudicial.
We disagree. No evidence of actual bias has been demonstrated in this case. Under oath, Juror No. 6 testified she did not make the statement in question, she did not recall making any statement in the jury room to anyone present, she did not recall making any statement in reference to the article in the Fresno Bee, she did not read any articles about the trial, she did not have time to read the Fresno Bee the morning of the verdict, and she did not recall an alternate juror asking her any question about Hundal. Substantial evidence supported the trial court's conclusion that there was "no credible evidence to support the allegation of juror misconduct."
Nonetheless, Hernandez contends that the trial court should have "conduct[ed] a more thorough factual inquiry of additional jurors and alternate jurors." After Juror No. 6 testified, Hernandez's counsel mentioned the court was "contemplating bringing in the foreman on this issue." The court explained that while that had been discussed, the possibility "depend[ed] on the answer we got from [Juror No. 6], then we should proceed to the jury foreperson and possibly even that other alternate, especially if any comments were made by [Juror No. 6] to the other jurors." However, Juror No. 6 denied reading any news article about the case and denied making any statement at all to any of those present after the verdict.
When a trial court is aware of possible juror misconduct, it must make whatever inquiry is reasonably necessary. (People v. Carter (2003) 30 Cal.4th 1166, 1216.) Here, the trial court's inquiry was adequate. Based on Juror No. 6's responses to the trial court's questions, the trial court was well within its discretion in concluding there was no need to call the foreperson or alternate jurors to testify, as Juror No. 6 denied the misconduct allegation and did so credibly. This is particularly true in light of the fact that the trial court allowed counsel to submit proposed questions in advance of the hearing. And, at the hearing, counsel was asked whether there were any other questions for Juror No. 6. A sidebar with counsel was conducted, but no further questions were posed by counsel. Furthermore, the trial court explained why the foreperson or the other alternate juror was not called for questioning. In response to the trial court's explanation, counsel did not request further inquiry.
In any event, even assuming arguendo that misconduct occurred, Hernandez cannot establish that the misconduct was prejudicial. In determining actual bias, we consider "the nature of the juror's conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant." (In re Carpenter (1995) 9 Cal.4th 634, 654.) "[T]he stronger the evidence, the less likely it is that the extraneous information itself influenced the verdict." (Ibid.)
The evidence against Hernandez was overwhelming, both from the evidence and testimony of others, as well as from Hernandez himself, who told Garcia he "basically" "orchestrated everything." Even assuming Juror No. 6 read the news article on the morning the verdict was rendered, the impact of reading the article would have been minimal in light of the overwhelming evidence Juror No. 6 had already heard showing Hernandez orchestrated a plot to murder rival gang members. There is no substantial likelihood the extraneous material caused Juror No. 6 to actually be biased against Hernandez.
Finally, we note the trial court instructed the jurors pursuant to CALCRIM No. 200 that they must decide the case based only on the evidence presented and not let bias or prejudice influence their decision. We presume the jurors understood and followed the court's instructions. (People v. Harris (1994) 9 Cal.4th 407, 426; People v. Houston (2005) 130 Cal.App.4th 279, 312.)
In summary, the record does not support Hernandez's claim that the jury was actually biased against him, or that the misconduct in this case was inherently and substantially likely to have influenced the jurors. Accordingly, the trial court did not abuse its discretion in denying Hernandez's motion for new trial.
II. STATEMENTS TO CONFIDENTIAL INFORMANT
Hernandez contends the trial court committed reversible error in denying his motion to suppress his recorded statements to the confidential informant, Garcia, because Garcia "acting as an interrogator in the place of law enforcement, used his superior gang status to summon [Hernandez], to require [Hernandez] submit to interrogation, and to coerce [Hernandez] into self-incrimination." We find no merit to his claim. Background
Prior to trial, Hernandez filed a motion to exclude involuntary statements. The motion argued, inter alia, that his statement to Garcia, a fellow VESR gang member who had been working for the police as a confidential informant, should have been excluded as involuntary because the "police used Cesar Garcia and his status within VESR to coerce statements from Juan Hernandez." (Some capitalization and underlining omitted.) The People opposed the motion, arguing Hernandez's claim that "he was compelled to answer the questions posed to him or suffer potentially severe consequences" was totally without support.
At a hearing on the motion, Hernandez's counsel argued Hernandez's statements to Garcia were involuntary because Hernandez was "placed in a position where he would put himself in peril ... should he not respond to a superior." The prosecutor argued the evidence was contrary to Hernandez's assertion he was "overpowered" by Garcia, as it was Hernandez who "orchestrated this murder" and Garcia who was "not in the picture at the time" and "stuck at his house with an ankle monitor on." The trial court denied the motion. Applicable Law and Analysis
"An involuntary confession may not be introduced into evidence at trial. [Citation.] The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made. [Citations.] In determining whether a confession was voluntary, '"[t]he question is whether defendant's choice to confess was not 'essentially free' because his [or her] will was overborne."' [Citation.] Whether the confession was voluntary depends upon the totality of the circumstances. [Citations.] '"On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review."' [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 169.)
Hernandez argues his statements to Garcia were obtained by coercion and deception because Garcia held "superior status and rank" (capitalization omitted) in the gang and law enforcement manipulated Hernandez's relationship with Garcia in order to compel him to confess.
A review of the September 21, 2010, conversation between Garcia and Hernandez reveals the two bantering back and forth and Garcia then mentioning that he had seen a report of a shooting of two men. Hernandez said he thought "two ... got hit, one of them died," and that "we did a distraction on the river side and shit—just started a little fire. And they did that shit right there." When Garcia asked "[w]ho planned it out," Hernandez responded that he had "called up the homey" because it was "the day after cuz they got the little homey Robert and shit." Without being asked, Hernandez then described how he "rounded up a few homies," "listen[ed] to the scanner," and "there were cops everywhere," so he told "Tiger" to go "break some windows and shit" for a distraction.
Garcia and Hernandez then discussed more details of the shooting. When he was asked if the shooting had been a "drive-by," Hernandez described how there were supposed to be four shooters, but they ended up with only two, so the second car "picked them up and smashed out of town." Hernandez described how Padilla was supposed to get a .357 revolver from Luna, but Luna did not have any bullets. After Garcia commented that he had heard "southsiders" had been shooting "all kinds of homies," Hernandez mentioned how southsiders had "sliced another homie" named "Little Dreamer." Garcia responded, "So you planned that shit out good huh?" Hernandez replied he was hoping to find "a scrap that live[d] ... by the rich houses." At no point during the September 21, 2010 conversation did Garcia threaten or coerce Hernandez into confessing.
Likewise, the recordings of the September 29, 2010, and October 7, 2010, conversations between Garcia, Hernandez and Anthony consist of banter and questions about a variety of topics. Before discussing the circumstances of Hundal's arrest, the three discussed topics not related to the instant case. When Garcia asked Hernandez and Anthony who was listening to the police scanner, the two responded by discussing the fire and the breaking of windows to distract the police. When asked about an upcoming quinceañera, Hernandez proposed that they "just fuckin' throw a grenade right there where there's just hella scraps, just mix in with the crowd or something ...."
We are not persuaded these matters in any way amount to coercive tactics rendering Hernandez's statements involuntary, and we reject his claim to the contrary.
III. EVIDENCE OF ACCOMPLICE CORROBORATION
Hernandez contends the "judgment should be reversed for insufficient accomplice corroboration." (Capitalization and boldface omitted.) We disagree. Applicable Law and Analysis
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense[.]" (§ 1111.) The accomplice's testimony or that of another accomplice cannot supply the requisite corroboration. (People v. Whalen (2013) 56 Cal.4th 1, 55, disapproved of on other grounds by People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) "Corroborating evidence may be slight, entirely circumstantial, and entitled to little consideration when standing alone. [Citations.]" (People v. Manibusan (2013) 58 Cal.4th 40, 95.) The corroborating evidence need not establish every element of the offense nor corroborate "every fact to which the accomplice testifies." (Whalen, supra, at p. 55.) "'"It is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." [Citation.]'" (Manibusan, supra, at p. 95.)
In contrast, "[i]ndependent evidence that corroborates portions of the accomplice's testimony, but which does not tend to connect the defendant to the crime, is not enough by itself to constitute sufficient corroboration." (People v. Pedroza (2014) 231 Cal.App.4th 635, 656.) Nonetheless, evidence corroborating details of the crime "may form part of a picture [from which] the jury may be satisfied that the accomplice is telling the truth" when viewed "in addition to other evidence tending to connect the defendant to the crime." (Id. at pp. 657, 659.)
It is undisputed that Padilla, Perez, Manuel, Anthony, and codefendant Villanueva were all accomplices to the identical offenses charged against Hernandez. (§ 1111.) However, "'[a] defendant's own conduct, declarations and testimony may furnish adequate corroboration for the testimony of an accomplice.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 680; accord, People v. Avila (2006) 38 Cal.4th 491, 563.)
Hernandez's argument is premised on the notion that his incriminating statements to Garcia should have been excluded as involuntary and, aside from those statements, there is no evidence independent of accomplice statement and testimony to corroborate the accomplice testimony of Padilla, Manuel, Anthony, and Perez. However, as we discussed in part II, ante, Hernandez's statements were voluntarily made and properly admitted during trial. And those statements provided ample corroboration for the accomplice testimony. Hernandez admitted to Garcia that he had called up "the homey" to plan the murder plot, how he tried to round up four guns but ended up with just two, that they started a fire to create a distraction, and that he told Anthony to create a further distraction after he listened on the scanner and heard there were police officers everywhere.
Other evidence at trial also corroborated the accomplice testimony. Griselda Hernandez saw a dark-colored car drive past her house right before the shooting, corroborating accomplice testimony that the shooters were taken to the scene in Manuel's black Nissan Altima. Martin Ayala Cuadros testified that, after hearing approximately 10 gunshots from two different guns, he saw two young men run south on Cedar and get into a vehicle parked on Cedar south of Washington Street. This testimony corroborated the accomplice testimony that two different guns were used during the shooting and that Manuel parked his car on Cedar, with the headlights off and the engine running, waiting for the shooters. In addition, police recovered a .30-caliber rifle from a VESR member's house after determining it had been moved from Trejo's house, corroborating the accomplice testimony that the group dropped off the .30-caliber rifle at Trejo's house after the shooting. And there was a host of evidence that established Hernandez was a VESR gang member and associated with the accomplices and other gang members.
The corroborating evidence directly connected Hernandez to the plot to murder rival gang members and amply corroborated the accomplice testimony of Padilla, Manuel, Anthony, and Perez. We reject Hernandez's claim to the contrary.
IV. PAROLE REVOCATION FINE
Hernandez contends the trial court erred in imposing a $10,000 fine pursuant to section 1202.45, which was stayed pending successful completion of parole. Respondent concedes the issue, and we agree.
Such a fine is not applicable in cases where the defendant's sentence includes a term of life without parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185.) The fine should not have been imposed because Hernandez was sentenced to life without the possibility of parole. We will order his abstract of judgment corrected. (People v. Scott, supra, 9 Cal.4th at pp. 354-355 [an unauthorized sentence may be corrected at any time].)
Villanueva does not make this argument, but an unauthorized section 1202.45 parole revocation fine was imposed and stayed for him as well. We will ordered his abstract of judgment corrected. (People v. Scott (1994) 9 Cal.4th 331, 354-355.)
V. NATURAL AND PROBABLE CONSEQUENCE DOCTRINE
Hernandez and Villanueva were both convicted of first degree willful, deliberate and premeditated murder (premeditated murder). At trial, the evidence was that Villanueva was armed and present at the site of the shooting and, although he fired several shots, it was not certain whether the shots caused Negrete's death. The evidence was that Hernandez was not at the scene of the shootings, but orchestrated and directed the shootings from the abandoned house.
The prosecutor advanced two main theories of accomplice culpability: conspiracy and aiding and abetting. Relying on People v. Chiu (2014) 59 Cal.4th 155 (Chiu), appellants contends the trial court erred when it instructed the jury on uncharged conspiracy and the natural and probable consequence doctrine. Appellants contend the instruction permitted the jury to convict them of first degree premeditated murder based on an improper legal theory. We find no prejudicial error. The record shows beyond a reasonable doubt that appellants' convictions stood on either a direct perpetrator theory or on the alternate theory of direct aiding and abetting principles, both legally valid theories. Applicable Law and Analysis
There are two distinct forms of culpability for aiders and abettors. "First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.'" (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) In Chiu, our Supreme Court held that an aider and abettor may be convicted of first degree premeditated murder based on direct aiding and abetting principles, but "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at pp. 158-159, 166.) The court explained that although first degree and second degree murder share the common element of an "unlawful killing of a human being with malice aforethought, ... [first degree murder] ... has the additional elements of willfulness, premeditation, and deliberation, which trigger a heightened penalty," and "[t]hat mental state is uniquely subjective and personal," as it requires "more than a showing of intent to kill, but the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death." (Id. at p. 166.) As such, "the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine." (Ibid.)
Appellants were convicted in November of 2012; Chiu was decided thereafter in June of 2014.
Because a defendant cannot be convicted of first degree premediated murder under the natural and probable consequence doctrine, the question in Chiu was whether giving the instructions on that doctrine was harmless. "When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." (Chiu, supra, 59 Cal.4th at p. 167.) In Chiu, the court found no such valid ground. Instead, it found from jurors' questions and comments that the jury "may have been focusing on the natural and probable consequence theory of aiding and abetting." (Id. at p. 168.)
Here, the jury was instructed on both aiding and abetting and uncharged conspiracy. Unlike in Chiu, however, the jury was not instructed on the natural and probable consequences doctrine in connection with aider and abettor liability, although the prosecutor argued such at times in a somewhat rambling fashion. However, the jury was instructed on the natural and probable consequence doctrine in connection with conspiracy liability. The reasoning of Chiu was found to apply to the natural and probable consequence doctrine in connection with conspiracy liability as well. (People v. Rivera (2015) 234 Cal.App.4th 1350, 1356.)
The prosecutor's closing argument was long, rambling, and often confusing, consisting of over 110 pages of the Reporter's Transcript. The prosecutor's basic argument was that Hernandez planned the shooting and Villanueva was involved in the shootings, although it was not certain whose gun killed Negrete. At some point, the prosecutor attempted to explain the "three ways" a person is criminally liable for a charge, stating "the last one, natural and probable consequences is sort of a by-product of two other ones." The prosecutor explained a person could be the actual perpetrator of the crime, an aider and abettor, and, if there is an act in furtherance, a conspirator. The prosecutor argued, "all of the people that you've heard that were involved in this plan are guilty under an aiding and abetting theory." The prosecutor continued, stating, "basically what the law says is that if I go out and commit a crime with some of my pals and we intend to commit one crime and I intend to aid and abet that crime, but somebody else commits another crime as part of that crime and that was a natural and probable consequence, for example, a gang drive-by shooting at houses and somebody is killed, if that's a natural and probable consequence, we're liable for that, as well, under a natural and probable consequences theory." The prosecutor repeated this example a number of other times during closing, emphasizing at one point that Manuel Gonzalez (the driver of the Nissan, who was not on trial) might be guilty under this scenario. The prosecutor then argued that the natural and probable consequence doctrine also applied in the context of the uncharged conspiracy theory. The prosecutor argued Villanueva and Hernandez were guilty under the aiding and abetting theory, "either under an intent to kill murder theory or natural and probable consequences of the crime they intended to aid and abet ...." Interspersed with arguments of the natural and probable consequence of an act, the prosecutor argued, "I submit to you that we have nothing but an express intent to kill in this case both by defendant Juan Hernandez sending these guys out on their mission and by defendant Ricardo Villanueva, as he's pointing the gun at the head of some man who just happened to be outside of his house." In discussing whether the murder was willful, deliberate, and premeditated, the prosecutor argued Hernandez "sent them out there on a mission to do exactly what they did," while Villanueva "participated in that directly by pulling the trigger." The prosecutor described the crime as "classic first degree willful, deliberate, and premeditated murder."
In any event, however, we find any instructional error harmless in light of the jury's true findings on the special circumstance allegation that the murder was committed for the benefit of a criminal street gang (§ 190.2, subd. (a)(22)), which requires an intent to kill.
Section 190.2, subdivision (a)(22) defines as a special circumstance, "[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." Thus, intent to kill the victim is an element of the gang-killing special circumstance.
The jury was instructed that, if it found appellants guilty of first degree murder, it must then decide whether the special circumstance allegation was true. Specifically, as to the special circumstance allegation, it was instructed that:
"If you decide that the defendants are guilty of first degree murder, but were not the actual killer, then when you consider the special circumstances under Penal Code section 190.2 sub (a) sub (22), you must also decide whether the defendant acted with the intent to kill. [¶] In order to prove these special circumstances for defendants who are not the actual killer, but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the People must prove the defendant acted with the intent to kill. [¶] The People do not have to prove that the actual killer acted with the intent to kill in order for these special circumstances to be true. If you decide that the defendants are guilty of first degree murder, but you cannot agree whether the defendants were the actual killer, then in order to find the special circumstances true, you must find that the defendants acted with the intent to kill. [¶] If the defendants were not the actual killer, then the People have the burden of proving beyond a reasonable doubt that they acted with the intent to kill for the special circumstances under Penal Code section 190.2 sub (a) sub (22) to be true. If the People have not met this burden, you must find the special circumstances have not been proved true for the defendants. [¶] ... [¶] In order to prove the special circumstances of Penal Code Section 190.2 sub (a) sub (22), the People must prove not only that the defendants did the act charged, but also that they acted with a particular intent or mental state. The instruction for the special circumstance explains the intent or mental state required." (CALCRIM No. 702.)
Appellants argue that a portion of the special circumstance instruction told the jurors they did not have to find an intent to kill if they found either appellant was the actual killer. As such, they argue, the special circumstance verdict in and of itself "cannot possibly show that even a single juror decided whether [appellants] harbored an intent to kill."
Respondent counters that, in the situation where the jury decided either appellant was the actual killer—and the special circumstance verdict would not therefore itself resolve the intent to kill issue—the jury's separate first degree murder conviction would have required a finding of a premeditated intent to kill. However, as argued by appellants, the prosecutor argued that, even if appellants only intended to shoot at houses, the jury could convict them of murder by finding that the murder was a natural and probable consequence of that action. As such, according to appellants, a jury finding that either appellant was the actual shooter does not mean, and does not show beyond a reasonable doubt, that the jury elected not to convict of murder on a natural and probable consequence theory.
Appellants are correct. However, in addition to the special circumstance instruction quoted above, the jury was also instructed in pertinent part, pursuant to CALCRIM No. 736, that, in order to find true the allegation that appellants were members of a criminal street gang in violation of section 190.2, subdivision (a)(22), "the People must prove that: [¶] 1. The defendants intentionally killed Juan Manuel Negrete." (Italics added.) Thus, the trial court informed the jury it could find the gang-killing special circumstance true only if appellants "intentionally killed" Negrete. The same language is in the verdict form, which states the jury found the "murder was intentional."
Furthermore, while the prosecutor had argued, in closing, the natural and probable consequence doctrine when it came to the murder charge, the prosecutor made no such claim as to the special circumstance finding. Instead the prosecutor argued that, to find the special circumstance true, the jury had to find "[t]he defendant intentionally killed the victim, in this case Juan Negrete, is the first element. This wasn't an accident[], this wasn't implied malice. Here, it has to be express. They intended to kill."
Appellants assume the jury would disregard the language of the instructions and verdict form to find both guilty without necessarily concluding either had the intent to kill Negrete. Nothing in the record supports this assumption. We presume that jurors are intelligent and capable of understanding, correlating, and applying the court's instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) Viewing the instructions as a whole in the context of this case, we conclude there is no reasonable probability the jury misunderstood the instruction on accomplice and conspiracy liability as to the gang- related murder special circumstance to permit a true finding without finding that appellants had the required intent to kill, whether as the direct perpetrator or as an aider and abettor. (Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) We reject appellants' claim to the contrary.
VI. SPECIFIC INTENT INSTRUCTION
We also reject Villanueva's related claim (Hernandez does not join) that the gang special circumstance must be reversed because the trial court erroneously instructed the jury that "'[t]he People do not have to prove that the actual killer acted with the intent to kill in order for these special circumstances to be true.'" Villanueva argues that "[b]ecause it is impossible to determine whether the jury found that [Villanueva] was the actual killer or an accomplice, the jury may have relied on this instruction to find the gang special circumstance true without ever finding he intended to kill."
We disagree. As set forth in part V, ante, in addition to the special circumstance instruction of which Villanueva complains (CALCRIM No. 702), the jury was also instructed in pertinent part, pursuant to CALCRIM No. 736 that in order to find true the allegation that he was a member of a criminal street gang in violation of section 190.2, subdivision (a)(22), "the People must prove that: [¶] The defendants intentionally killed Juan Manuel Negrete." (Italics added.) We find no error.
VII. UNANIMITY INSTRUCTION
Appellants contend the trial court erred in failing to give a unanimity instruction with regard to the prosecution's theories of culpability. We disagree.
As discussed above, Villanueva and Hernandez were both prosecuted for the murder of Negrete and the attempted murder of Salinas. The jury was instructed on three basic theories of liability: direct perpetrator, aiding and abetting, and conspiracy. As to the conspiracy theory, the prosecutor explained that "from the prosecution's perspective, the most straightforward liability that everyone has in this case falls under conspiracy theory." The state put forth two factual scenarios to support the conspiracy theory: that appellants conspired and intended to kill, or that appellants did not conspire to kill, but conspired instead to shoot at houses, a crime from which murder and attempted murder were foreseeable under the natural and probable consequence doctrine.
"In a criminal case, a jury verdict must be unanimous .... Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.)On the other hand, when "the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Ibid.) In other words, "Where ... the evidence suggests that a defendant committed only one discrete criminal action—but may have done so in one of several different ways—no unanimity instruction is required. [Citations.] Unanimity is not required in this situation even if the jurors might conclude that the defendant is guilty based on different facts, or on different findings about the acts the defendant committed or his mental state. [Citations.] That is because, in this situation, the jury's guilty verdict will still reflect unanimous agreement that the defendant committed a single crime." (People v. Quiroz (2013) 215 Cal.App.4th 65, 73-74.)
"The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2)
the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (People v. Russo, supra, 25 Cal.4th at pp. 1134-1135.)
Thus, when, as here, conspiracy is not charged as a separate crime but is merely offered "as an alternative theory of liability for the charged, substantive crime of murder," the jury is not required to agree on the theory of guilt. (People v. Valdez (2012) 55 Cal.4th 82, 154.) Even though the prosecution relied on the natural and probable consequences doctrine in this case, there was only one distinct criminal event—the shooting of Negrete and Salinas, and that is the key to deciding whether the unanimity instruction must be given. (People v. Russo, supra, 25 Cal.4th at pp. 1134-1135.) Unlike a situation in which a unanimity instruction is required, e.g., when the defendant is charged with a single count of bribery, but the evidence shows two discrete bribes (People v. Diedrich (1982) 31 Cal.3d 263, 280), the discrepancies between the factual details on how appellants killed Negrete and attempted to kill Salinas did not warrant a unanimity instruction. (People v. Taylor (2010) 48 Cal.4th 574, 626-628 [juror unanimity not required in relation to felony murder charge as to whether defendant committed burglary with the requisite felonious intent when he entered the home or when he entered a bedroom inside the home; jurors need not agree as to the exact way defendant is guilty of a single discrete burglary].)
Appellants rely on People v. Dellinger (1984) 163 Cal.App.3d 284, 301, in which the appellate court concluded that one basis, among several, to reverse a judgment of conviction on second degree murder was the trial court's failure to give a unanimity instruction. The appellant court recognized that "[m]ost of the reported cases involving multiple criminal acts by a defendant [in which courts have held a unanimity instruction was required] also involve potential multiple offenses. [Citation.]" (Ibid.) Nevertheless, without citing authority, the appellate court held a unanimity instruction was required even though "there was only one offense and one victim but there were several hypotheses as to which act or acts caused [the victim's] death[, either blunt force trauma to the head or forced ingestion of cocaine]. As long as there are multiple acts presented to the jury which could constitute the charge offense, a defendant is entitled to an instruction on unanimity." (Ibid.). Although Dellinger supports appellants' position, given that it conflicts with more recent Supreme Court authority (e.g., People v. Taylor, supra, 48 Cal.4th at p. 628; People v. Russo, supra, 25 Cal.4th at p. 1132) and that it failed to cite any authority for its holding, we will not follow it.
VIII. CALCRIM NOS. 337 AND 373
Appellants next contends the trial court prejudicially erred when it instructed the jury based on CALCRIM Nos. 337 and 373 because the instructions "fundamentally undercut" the defense. We find no prejudicial error.
Before we address the merits of appellants' argument, we note the record suggests appellants requested the complained-of instructions be given. Under the invited error doctrine, a defendant cannot complain the court erred in giving an instruction he or she requested. (People v. DeHoyos (2013) 57 Cal.4th 79, 138.) The invited error doctrine applies when the defense has made a "'"'conscious and deliberate tactical choice'"'" in asking for the instruction in question. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) Even assuming the error was not invited, we find no merit to appellants' claim involving the giving of CALCRIM Nos. 337 and 373.
The trial court instructed, pursuant to CALCRIM No. 337:
"When Edgar Padilla, Manuel Gonzalez, and Anthony Gonzalez testified, they were physically restrained and in custody. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations. Evaluate the witness' testimony according to the instructions I have given you."The court then followed with CALCRIM No. 373:
"The evidence shows that other persons may have been involved in the commission of the crimes charged against the defendants. There may be many reasons why someone who appears to have been involved might not be a co-defendant in this particular trial. You must not speculate about
whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendants on trial here committed the crimes charged."
"In assessing a claim of instructional error, 'we must view a challenged portion "in the context of the instructions as a whole and the trial record" to determine "'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution."' [Citations.]" (People v. Jablonski (2006) 37 Cal.4th 774, 831.) In other words, we cannot—as appellants have done—view a single instruction "in 'artificial isolation'; instead, it must be evaluated 'in the context of the overall charge.' [Citations.]" (People v. Espinoza (1992) 3 Cal.4th 806, 823-824.) We also consider counsel's arguments in assessing the probable impact of the instructions on the jury (People v. Young (2005) 34 Cal.4th 1149, 1202), and we assume jurors are intelligent persons capable of understanding and correlating all of the instructions given (People v. Mills (1991) 1 Cal.App.4th 898, 918).
Appellants contend these instructions "precluded the jury from properly assessing the credibility" of Padilla, Manuel and Anthony, as well as "the central defense that they were not credible." Appellants argue that these witnesses were restrained by the state, but were not prosecuted, giving them "a strong motive to shade their testimony in the state's favor," and the instructions "interfered with the jury's ability to consider the motivation of these key state witnesses." We conclude, even assuming for purpose of argument that the instructions were erroneous under these circumstances, there was no prejudice.
Appellants argue that, because they allege a violation of the Sixth Amendment, they must apply the harmless error standard stated in Chapman v. California (1967) 386 U.S. 18, 24. Again, assuming error only for the purpose of argument, we apply that standard and ask whether the error was harmless beyond a reasonable doubt. (Ibid.)
The asserted error in instructing the jury here had no effect on the jury's verdict because the jury was allowed to fully evaluate the credibility of the witnesses. While the instructions told the jury not to draw a conclusion concerning the credibility of Padilla, Manuel, and Anthony based on their "in custody" status, nor to speculate why they were not prosecuted at trial, the reason for their custodial status was revealed to the jury when each testified he had entered into a plea agreement on the same charges. Nothing in the instructions prevented the jury from considering their custodial status because the reason for their custodial status was given. In other words, the evidence showed more than custodial status, by itself. In addition, there was no limitation on the defense's introduction and the jury's consideration of other evidence potentially bearing on the credibility of Padilla, Manuel, and Anthony. Thus, their credibility was fully and fairly presented for determination by the jury.
Furthermore, the remaining instructions also rendered harmless any possible error in giving CALCRIM Nos. 337 and 373 in this case. (People v. Mackey (2015) 233 Cal.App.4th 32, 116 [jury charge considered as a whole].) The inferences appellants wanted the jury to draw were expressly described and permitted by CALCRIM No. 226, which was given and provided, in pertinent part:
"You alone must ju[dge] the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness' testimony. Consider the testimony of each witness and decide how much you believe. [¶] In evaluating a witness' testimony you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] ... [¶] Was the witness' testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [¶] ... [¶] Was the witness promised immunity or leniency in exchange for his or her testimony?"
In addition, CALCRIM No. 316 instructed that the jury could consider the witnesses' prior crimes or misconduct in evaluating credibility. And CALCRIM No. 335 instructed that Padilla, Manuel, and Anthony were accomplices to the charged crimes and their testimony was to be viewed with caution.
No reasonable juror would have misconstrued the complained-of instructions as prohibiting or discouraging an inference that Padilla, Manuel, or Anthony's custodial status provided them with a reason to testify falsely in favor of the prosecution. We reject appellants' claim to the contrary.
IX. CALCRIM No. 370
The trial court instructed the jury with CALCRIM No. 370, as follows:
"The People are not required to prove that the defendants had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendants had a motive. Having a motive may be a factor tending to show that the defendants are guilty. Not having a motive may be a factor tending to show the defendants are not guilty."
Appellants contend this instruction was given in error. As argued by appellants, in order to find appellants guilty of the section 186.22, subdivision (a) substantive offense, the jury had to decide if appellants' motive was to benefit the gang when they shot at Negrete and Salinas. The instruction on the section 186.22 gang substantive offense states, in pertinent part:
"To prove that the defendants are guilty of this crime, the People must prove that, one, the defendants actively participated in a criminal street gang, two, when the defendants participated in the gang, they knew that members of the gang engaged in or have engaged in a pattern of criminal activity, and three, the defendants willfully assisted, furthered, or promoted felonious criminal conduct by the members of the gang ...."
Appellants argue the "instruction telling the jury the state did not need to prove motive fundamentally undercut the state's burden of proof beyond a reasonable doubt." (Capitalization omitted.) We disagree.
As an initial matter, appellants did not request modification of CALCRIM No. 370 in the trial court and have therefore forfeited any objection on appeal. "Failure to object below to an instruction correct in law forfeits the claim on appeal." (People v. Fernandez (2013) 216 Cal.App.4th 540, 559; People v. Virgil (2011) 51 Cal.4th 1210, 1260.) But the claim also fails on the merits.
Motive, intent and malice are separate and disparate mental states. (People v. Hillhouse (2002) 27 Cal.4th 469, 504; People v. Snead (1993) 20 Cal.App.4th 1088, 1098, overruled on other grounds in People v. Letner and Tobin (2010) 50 Cal.4th 99, 181.) "Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a mental state such as intent or malice." (People v. Hillhouse, supra, at p. 504.)
As appellants acknowledge, a similar argument was rejected by this court in People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes). In Fuentes, the People alleged a section 186.22, subdivision (b) gang enhancement allegation and a special circumstance under section 190.2, subdivision (a)(22), which required the jury to find the charged murder was carried out to further the activity of a criminal street gang. (Fuentes, supra, at p. 1139.) We rejected the defendant's argument that these findings required the jury to also make a finding of motive. As we explained:
"An intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that [the defendant] intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. [The defendant] claims the intent to further criminal gang activity should be deemed a motive, but he cites no authority for this position. There was no error." (Id. at pp. 1139-1140.)
Similarly, in People v. Snow (2003) 30 Cal.4th 43 (Snow), the defendant argued an instruction that motive was not an element of the crime charged and need not be shown conflicted with another special circumstance instruction requiring the jury to find "'the witness was intentionally killed for the purpose of preventing his testimony in a criminal proceeding' ...." (Id. at p. 98.) Our Supreme Court rejected the argument, explaining the instruction on motive referred to the "crime charged" and not the special circumstance allegation. The court further reasoned: "Even allowing for misunderstanding on that particular point, it was not reasonably likely [citation] that the jurors would have been misled in the manner defendant suggests, as they were repeatedly and expressly instructed to find the special circumstance allegation true only if each element, including the purpose of preventing the victim's testimony, was proved beyond a reasonable doubt. The instructions, taken as a whole, did not deprive defendant of a fair trial or a reliable penalty determination." (Ibid.)
Appellants attempt to distinguish Snow and Fuentes, pointing out that the substantive crime of active gang participation (§ 186.22, subd. (a)), was the "crime charged" and not an enhancement (such as, e.g., § 186.22, subd. (b)). As such, they argue, CALCRIM No. 370 incorrectly told the jury it need not prove motive for the "crime charged," confusing and undercutting the need to prove the intent requirement.
We disagree. As we acknowledged in Fuentes, a "common sense concept" of motive might support the idea that an intent to further gang activity is a "motive" for committing a murder. "A wish to kill the victim was a reason for the shooting, and a wish to further gang activity stood behind that reason." (Fuentes, supra, 171 Cal.App.4th at p. 1140.) But, as we explained, jury instructions "were well adapted to cope with the situation. By listing the various 'intents' the prosecution was require to prove (the intent to kill, the intent to further gang activity), while also saying the prosecution did not have to prove a motive, the instructions told the jury where to cut off the chain of reasons. This was done without saying anything that would confuse a reasonable juror." (Ibid.) Here, the jury was also instructed that section 186.22, subdivision (a) required a specific intent or mental state. (CALCRIM No. 251.)
We agree with respondent that, while the People did not have to prove motive, appellants suffered no prejudice as the jury was required to find beyond a reasonable doubt the appellants acted with the necessary mental state before it could find them guilty of the substantive offense. (People v. Musslewhite (1998) 17 Cal.4th 1216, 1248 [correctness of jury instructions determined from entire charge to jury].) We reject appellants' claim to the contrary.
X. GANG EVIDENCE
Finally, appellants assert trial counsel rendered ineffective assistance by failing to object to irrelevant, cumulative, and inflammatory gang testimony. We find no prejudicial error.
Appellants were both charged with a gang special-circumstance allegation (§ 190.2, subd. (a)(22)) and a gang enhancement (§ 186.22, subd. (b)(4)) in connection with the murder charge; a gang enhancement (§ 186.22, subd. (b)(4)) in connection with the attempted murder charge; and a substantive gang offense (§ 186.22, subd. (a)). The state's theory was that the shootings were gang related and done in retaliation for recent shootings by a rival gang.
The section 190.2 gang special-circumstance allegation required the prosecutor to prove beyond a reasonable doubt defendant (1) intentionally killed the victim, (2) at the time of the killing, was an active member of a criminal street gang, (3) had knowledge of the gang's pattern of criminal activity, and (4) the murder was carried out to further the activities of the criminal street gang. (§ 190.2, subd. (a)(22).) The section 186.22, subdivision (b) allegation required the prosecutor to prove defendant committed this crime (1) for the benefit of, at the direction of, or in association with the criminal street gang and (2) intended to assist, further, or promote criminal conduct by gang members. (§ 186.22, subd. (b)(1).) And the substantive offense of street terrorism in violation of section 186.22, subdivision (a) required the prosecutor to prove defendant (1) actively participated in a criminal street gang, (2) knew the gang's pattern of criminal activity, and (3) willfully assisted, furthered, or promoted felonious criminal conduct by the gang by directly or actively committing or aiding and abetting a felony offense. (§ 186.22, subd. (a).)
Each of these gang-related offenses share a common element connecting defendant to "a pattern of criminal activity." (See CALCRIM No. 1401.) This requires the state to prove defendant's gang engaged in a pattern of criminal activity where members (1) committed one of various felonies, (2) "at least one of those crimes was committed after September 26, 1988," (3) "the most recent crime occurred within three years of one of the earlier crimes," and (4) "the crimes were committed on separate occasions, or by two or more persons." In order to show a pattern of criminal activity, the state may properly introduce evidence of predicate offenses by members of the defendant's gang. (§ 186.22, subd. (e).)
A gang expert may testify about the "culture and habits" of gangs. (People v. Ochoa (2001) 26 Cal.4th 398, 438, abrogated on another ground in People v. Prieto (2003) 30 Cal.4th 226; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512; People v. Valdez (1997) 58 Cal.App.4th 494, 507.) This general rule permits testimony "about the size, composition or existence of a gang [citations], ... an individual defendant's membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations] ...." (People v. Killibrew (2002) 103 Cal.App.4th 644, 657, fn. omitted, disapproved on other grounds in People v. Vang (2011) 52 Cal.4th 1038, 1047.) And when a gang expert offers a relevant opinion, that opinion may be based on information typically relied on in the profession. (People v. Gardeley (1996) 14 Cal.4th 605, 618-619; People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.) But gang expert testimony must be relevant to the charged offenses and not overly inflammatory. (People v. Albarran (2007) 149 Cal.App.4th 214, 224.)
In People v. Sanchez (2016) 63 Cal.4th 665, 686, footnote 13, the court disapproved People v. Gardeley, supra, 14 Cal.4th 605 "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules."
To prove these charges, the state called expert Kyle Kramer, who explained he was on a local gang task force, had been active in implementing a recent gang injunction, and was familiar with the VESR gang. Kramer gave basic background on VESR: it had about 200 members, with "turf" on the southeast side of town, and was associated with the Norteños. According to Kramer, the VESR's rivals would be any street gang associated with the Sureños. And Kramer listed five predicate offenses committed by other VESR members to prove the VESR's pattern of criminal activity. Based on various gang indicia, Kramer opined both Villanueva and Hernandez were VESR members.
Appellants do not contest Kramer's testimony, but object to the additional testimony of confidential informant Cesar Garcia, who testified over the course of five days. Garcia, a long-time VESR member, had been working with law enforcement on a sting operation. For about seven months before this offense and for a month afterwards, Garcia surreptitiously recorded conversations with fellow gang members and shared them with local law enforcement. These recording eventually led to the arrest of suspects in three different local homicides.
Appellants note it was proper for Garcia to lay the foundation for the tape recording, to describe his role in acting for law enforcement and his agreement to testify, and, for background purposes, to describe his role and status in VESR. However, appellants argue "Garcia went well beyond what was admissible under state law" when he "offered extensive irrelevant, cumulative and inflammatory testimony to which defense counsel failed to object."
In his testimony, Garcia explained at length about his long-time association with the gang since the age of 12, how the VESR was under the umbrella of the Nuestra Familia gang, the history of the Nuestra Familia gang, his role in the VESR, and how the Nuestra Familia ran like "a well oiled machine." Garcia explained a complex and regimented structure of the Nuestra Familia criminal enterprise. Garcia identified both Villanueva and Hernandez as VESR members. Garcia also testified that he helped Detective Kramer by contacting various individuals involved in crimes not at issue here.
Appellants contend Garcia's testimony on the hierarchy of VESR, the history of California prison gangs and Nuestra Familia, as well as evidence of "other crimes" was inflammatory and irrelevant, and posed a substantial risk to appellants' rights to due process and a fair trial. Appellants contend there could be no tactical reason for trial counsel's failure to object to and strike such evidence and, as a result, they received prejudicial ineffective assistance of counsel. We disagree.
The standard of review for an ineffective assistance of counsel claim is well settled. To prevail, a defendant must show that counsel's performance fell below prevailing professional standards and was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-694.) To prove prejudice, the defendant must demonstrate a "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) "'"'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" [Citation.]' [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925.)
In arguing Garcia's testimony was unduly prejudicial, appellants cite People v. Albarran, supra, 149 Cal.App.4th 214. In Albarran, the defendant was convicted of a number of offenses, with gang allegations found true as to each offense, but the trial court found that insufficient evidence supported the gang allegations and granted his motion for a new trial as to those allegations. On appeal, the defendant argued the trial court also should have granted him a new trial on the substantive offenses because, without the gang allegations, the gang evidence was "irrelevant and unduly prejudicial." (Id. at p. 223.) The Court of Appeal agreed, finding that much of the gang evidence, including "threats to kill police officers [made by the defendant's gang], descriptions of the criminal activities of other gang members, and reference to the Mexican Mafia," was irrelevant and presented a substantial risk of undue prejudice. (Id. at p. 228.) This case does not involve a motion for a new trial and there is no dispute the gang allegations were supported by substantial evidence. Thus, Albarran is distinguishable.
Garcia's testimony about the structure and inner workings of the VESR gang was highly relevant to proving the substantive gang offense, gang enhancement, and gang special circumstance. In addition, Garcia's testimony also contained background information relevant to establishing the basis for other parts of his testimony. To the extent appellants argue ineffective assistance of counsel for failing to object, we conclude appellants have failed to establish a reasonable probability of a more favorable result had an objection been made. We do not doubt the trial court would have acted within its discretion had it excluded some of the evidence, but it simply cannot be established that any evidence that might have been excluded would have made any difference in this trial, given that a substantial amount of gang evidence was necessarily relevant and admissible, for the reasons discussed.
DISPOSITION
The matter is remanded with directions to prepare supplemental sentencing minute orders showing that no parole revocation fines (§ 1202.45) were imposed on appellant Hernandez or appellant Villanueva, and to prepare amended abstracts of judgment, also showing that no parole revocation fines were imposed. Copies of the amended abstracts are to be forwarded to the Department of Corrections and Rehabilitation. The judgments are affirmed in all other respects.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.