Opinion
F075861
12-03-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANIBAL MEDRANO, Defendant and Appellant.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Melissa Lipon, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF165425B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jose Anibal Medrano and an accomplice were jointly charged with a gang-related, drive-by murder. The accomplice settled his case before trial to avoid the death penalty and life in prison without the possibility of parole. He was sentenced to nine years in prison, with the understanding he would be released from prison when he was 25 years old. The accomplice admitted he would lie to protect himself and avoid life in prison.
At Medrano's trial, the accomplice testified he was the driver and Medrano was the shooter in the crime. No other eyewitnesses to the crime testified, and no forensic or physical evidence linked Medrano to the crime. The jury convicted Medrano as charged. He was sentenced to life in prison without the possibility of parole.
On appeal, Medrano raises two claims. First, he argues his conviction is insufficiently supported by evidence because it is based on the uncorroborated testimony of an accomplice. Second, he argues a gang expert witness violated his Sixth Amendment right to confrontation.
We agree Medrano's convictions are insufficiently supported by evidence because the accomplice testimony lacked sufficient corroboration. Our conclusion renders the confrontation issue moot. The judgment is reversed, and double jeopardy principles bar a retrial. Medrano is entitled to a judgment of acquittal on each charge.
BACKGROUND
Trial Evidence
A Sureño gang member was killed after the car he was driving crashed in broad daylight. Subsequent investigation revealed the man, a sole occupant, suffered a gunshot wound prior to his death. A nearby surveillance camera recorded the crime.
The surveillance video revealed the victim's vehicle aggressively driving side by side with a red Nissan. Within seconds, the front passenger in the Nissan fired two gunshots towards the victim's vehicle.
Law enforcement identified the Nissan's owner. They arrested the owner's son, the accomplice, for murder. During his initial interview, the accomplice repeatedly denied involvement in the crime. After hearing the crime was captured on video, he said, "If I can get some type of deal, I'll work with you guys and I'll tell you like that." At the time, he was unaware of the video's quality.
Shortly thereafter, the accomplice admitted he was driving the Nissan and said Medrano was the front passenger. Medrano was subsequently arrested, and he and the accomplice were jointly charged with murder while actively participating in a criminal street gang.
Before Medrano's trial, the accomplice settled his charges for nine years in prison, knowing that he would serve only half that time, and would be released when he was 25 years old. At the trial, he testified Medrano was the front passenger. The accomplice admitted he was terrified of serving life in prison, was aware he was subject to the death penalty, and admitted he would lie to avoid a life sentence.
An independent witness testified he saw the same Nissan while riding his bicycle on the sidewalk a day or two before the crime. The Nissan approached and stopped him on the sidewalk. The front passenger asked him if he was a "scrap," a derogatory term for Sureño gang members. The front passenger then asked him to say "fuck scraps." After the witness complied, the Nissan drove away. The witness did not see any weapons.
No explanation was offered as to how the witness was aware the Nissan was involved in a crime one or two days later, nor who initiated the interviews.
The witness participated in two separate photographic lineups attempting to identify the Nissan's occupants. At the first lineup he identified the accomplice as the driver, and Jose Hinojosa as the front passenger. He instead identified Medrano as the front passenger at the second lineup.
At trial, the witness testified the front passenger was not present in the courtroom. He testified the person he saw was instead "fat," "heavy set," had "dark skin," and was "about 17 years old." He was not certain Medrano was the front passenger he saw a day or two before the crime. Medrano was 22 years old at the time.
The witness also admitted he had been convicted of four prior theft-related felony convictions and was currently serving a county prison sentence.
The accomplice testified the witness was "lying" because the encounter the witness described on the bicycle "never even occurred." Neither Medrano's DNA nor his fingerprints were linked to the Nissan.
A gang expert witness testified Medrano was a Norteño gang member and the crime in this case was gang-related. He further testified the Norteños and Sureños were rivals and were actively engaged in criminal activity against one another.
To prove a "pattern of criminal gang activity," the expert testified to seven predicate offenses. (Pen. Code, § 186.22, subd. (e).) In four of those predicates, the expert related case-specific facts which were not elsewhere admitted into evidence. Those four predicates did not involve Medrano.
All statutory references are to the Penal Code.
Verdicts and Sentence
The jury convicted Medrano as charged. He was sentenced to serve a mandatory sentence of life in prison without the possibility of parole. This appeal timely followed.
The full convictions follow:
Count 1 - murder (Pen. Code, § 187, subd. (a));
True Findings - willful, deliberate, and premeditated murder (§ 189); intentionally discharging a firearm from a motor vehicle with intent to kill person outside the vehicle (§ 189); intentional murder committed while actively participating in a criminal street gang (§ 190.2, subd. (a)(22); murder committed with specific intent to benefit criminal street gang (§ 186.22, subd. (b)(1)); murder committed by intentionally and personally discharging a firearm and proximately causing death (§ 12022.53, subd. (d)); murder committed by active gang members, one of whom committed murder by intentionally and personally discharging a firearm and proximately causing death (§ 12022.53, subd. (e)(1));
Count 2 - shooting at an occupied motor vehicle (§ 246);
True Findings - murder committed with specific intent to benefit criminal street gang (§ 186.22, subd. (b)(1)); murder committed by intentionally and personally discharging a firearm and proximately causing death (§ 12022.53, subd. (d)); murder committed by active gang members, one of whom committed murder by intentionally and personally discharging a firearm and proximately causing death (§ 12022.53, subd. (e)(1);
Count 3 - actively participating in a criminal street gang (§ 186.22, subd. (a));
True Findings - personally using a firearm while actively participating in a criminal street gang (§ 12022.5, subd. (a));
Count 4 - carrying a loaded firearm in public while a criminal street gang member (§ 25850, subd. (c)(3)).
DISCUSSION
Medrano presents two issues on appeal. First, he argues insufficient evidence supports his convictions because the accomplice testimony was not corroborated within the meaning of section 1111. Second, he argues the gang expert's testimony violated his Sixth Amendment confrontation rights.
The People agree that Medrano's codefendant was an accomplice, but argue the corroborating evidence satisfied section 1111. They also dispute the confrontation error, but otherwise argue any error was harmless.
The issue is close, but we agree the accomplice testimony was insufficiently corroborated to satisfy section 1111's requirements. Accordingly, we reverse Medrano's convictions. Because double jeopardy principles bar a retrial, we will remand to the superior court to enter a judgment of acquittal on each count. Our conclusion renders the confrontation issue moot. I. The Evidence Is Insufficient To Satisfy Section 1111's Corroboration Requirements
Section 1111 states: "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; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."
" ' "[T]he corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice's testimony, tend to connect the defendant with the crime." ' " (People v. Gomez (2018) 6 Cal.5th 243, 307-308 (Gomez).)
"[A]n accomplice's testimony is not corroborated by the circumstance that the testimony is consistent with the victim's description of the crime or physical evidence from the crime scene. Such consistency and knowledge of the details of the crime simply proves the accomplice was at the crime scene, something the accomplice by definition admits. Rather, under section 1111, the corroboration must connect the defendant to the crime independent of the accomplice's testimony." (People v. Romero and Self (2015) 62 Cal.4th 1, 36 (Romero and Self).)
Corroborating "evidence is insufficient where it merely casts a grave suspicion upon the accused." (People v. Robinson (1964) 61 Cal.2d 373, 399 (Robinson); People v. Szeto (1981) 29 Cal.3d 20, 27 (Szeto); People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.) "[P]roof of mere presence at the scene and an opportunity to commit the offense are not sufficient to satisfy section 1111." (People v. Lloyd (1967) 253 Cal.App.2d 236, 241 (Lloyd); see People v. Abilez (2007) 41 Cal.4th 472, 506 (Abilez).)
" ' "[I]t is insufficient corroboration merely to connect a defendant with the accomplice or other persons participating in the crime .... [E]vidence independent of the testimony of the accomplice must tend to connect a defendant with the crime itself, and not simply with its perpetrators." ' " (People v. Pedroza (2014) 231 Cal.App.4th 635, 651 (Pedroza).)
We determine whether accomplice testimony is sufficiently corroborated "without weighing the evidence and viewing the evidence in the light most favorable to the judgment ...." (Pedroza, supra, 231 Cal.App.4th at p. 650.) " '[T]he trier of fact's determination on the issue of corroboration' is not binding on the reviewing court if the 'corroborating evidence ... does not reasonably tend to connect the defendant with the commission of the crime.' " (People v. Dalton (2019) 7 Cal.5th 166, 245.)
In this case, the accomplice testified Medrano was the shooter in a drive-by, vehicle to vehicle, gang-related murder. To corroborate the accomplice testimony at trial, the People introduced four categories of evidence: 1) the witness's testimony; 2) the surveillance video capturing the crime; 3) the gang expert witness's testimony; and 4) Medrano's prior police contacts.
The People specifically contend the following evidence proved sufficient corroboration: "The video recording corroborating [the accomplice]'s statement to the police tended to connect [Medrano] to the crime"; "[surveillance] video recording, depicting a man with a stocky build wearing a white shirt, and [Medrano]'s appearance on the day he was arrested"; "[the accomplice] and [Medrano] belonged to the same criminal street gang"; "[the accomplice] ...testified ... [Medrano] told him to follow the [victim] because he thought the [victim] was a "Scrap"; and "an independent witness identified [the accomplice] as the driver of the Nissan and [Medrano] as the front seat passenger in a gang banging incident a day [prior to the crime]."
After examining the record closely, and applying the proper legal standards, we conclude the corroborating evidence was insufficient to "connect [Medrano] to the crime independent of the accomplice's testimony." (Romero and Self, supra, 62 Cal.4th at p. 36.)
A. The Witness Did Not Connect Medrano To The Crime
The witness established the following: he encountered the Nissan involved in the crime one or two days earlier. He assumed the accomplice was driving because he was familiar with the vehicle. The front passenger inquired whether the witness was a "scrap." The Nissan then drove away after the witness proved he was not a "scrap."
The witness described the front passenger as "fat," "heavy set," with "dark skin," and "around 17 years old." On different dates, he identified two separate people as the front passenger: Hinojosa and Medrano. At trial, the witness did not identify Medrano as the front passenger. Ultimately, he was not "certain" Medrano was the front passenger.
Other evidence definitively established Hinojosa was not the front passenger.
Viewing the evidence in the light most favorable to the judgment, we glean the following: one day before the crime, Medrano was the front passenger in the same Nissan involved in the crime. And at that time, Medrano asked the witness whether he was a "scrap" as a precursor to a physical, gang-related assault.
We also assume, during this encounter, Medrano was an active Norteño gang member. As further discussed below, the gang expert witness testified to Medrano's gang membership.
The People argue this evidence satisfies section 1111 because "an independent witness identified [the accomplice] as the driver of the Nissan and [Medrano] as the front seat passenger in a gang banging incident a day [prior to the crime] tended to corroborate [the accomplice]'s statement." They also claim the similarity between crimes and "the entire conduct of the parties, their relationship, and their acts during and after the crime" sufficiently corroborate the accomplice testimony. We disagree because, as we will explain, this evidence does not "connect [Medrano] to the crime independent of the accomplice's testimony." (Romero and Self, supra, 62 Cal.4th at p. 36.)
1. The Encounter One Day Before the Crime is Insufficient Corroboration
The People first argue the accomplice testimony is sufficiently corroborated by the witness's statements that he saw Medrano in the Nissan's passenger seat the day before the crime. That Medrano was the passenger on one day does not connect him to a crime the next day. At best, it connects Medrano to the vehicle.
It is pure conjecture to assume Medrano was the passenger during the crime simply because he was the passenger one day prior. " ' "[C]orroborating evidence" ' " must raise more than " ' "conjecture or suspicion of guilt ...." ' " (Szeto, supra, 29 Cal.3d at p. 27.) The witness's identification did little more than connect Medrano to the vehicle on a different day. A connection to the perpetrators or a vehicle involved in a crime is insufficient to corroborate accomplice testimony. Two cases illustrate the point well.
First, in Robinson, supra, 61 Cal.2d 373, an evidentiary connection to a vehicle was insufficient to corroborate accomplice testimony. There, four men, including defendant Drivers, were tried together for a murder committed during a robbery at a country club. Nonaccomplice evidence established one codefendant (but not Drivers) was an employee at the country club. The murderers drove a "Ford automobile" to the crime scene and parked in the parking lot. The employee-accomplice exited the club and told the men in the Ford when to commence the robbery. Then, "three men," other than the employee, entered the club and committed the murder. They fled the scene, leaving the Ford behind at the club. "Drivers' fingerprints were found in and around the [Ford's] right-hand front passenger seat and the door." (Id. at pp. 378-379.)
The three accomplices each testified Drivers participated in the murder. The accomplice testimony established Drivers and two accomplices planned the robbery several weeks in advance. (Robinson, supra, 61 Cal.2d at p. 381.) On the way to rob the club, Drivers convinced the fourth accomplice to join the conspiracy. (Id. at pp. 381-382.) Drivers then participated in the crime with the three accomplices. (Id. at pp. 380-382.)
The Supreme Court found the accomplice testimony was insufficiently corroborated. Because "[t]he fingerprints showed no more than that Drivers had been present in or about the Ford on some recent date," "[t]his merely prove[d] association." (Robinson, supra, 61 Cal.2d at pp. 398, 400.) "[E]vidence independent of the testimony of the accomplice must tend to connect a defendant with the crime itself, and not simply with its perpetrators. It is not with the thief that the connection must be had but with the commission of the crime itself." (Ibid, fn. omitted.) The court concluded that "[e]ven if the ... fingerprints ... cast ... grave suspicion[] on Drivers, [it] is insufficient [corroboration]." (Id. at p. 399.)
Similarly, in Pedroza, supra, the accomplice testified the defendant was the shooter in a gang-related murder. (Pedroza, supra, 231 Cal.App.4th at p. 640.) Nonaccomplice evidence established the accomplice was with the defendant three hours after the shooting, and necessarily within three hours of the crime scene. (Id. at p. 639.) "This evidence failed to tend to connect" the defendant with the murder because " ' "it is insufficient corroboration merely to connect a defendant with the accomplice or other persons participating in the crime ...." ' " (Id. at p. 651.) The evidence showed only that the defendant "was with at least one admitted perpetrator, hours after the crime." (Ibid.)
Like Pedroza and Robinson, the witness's identification of Medrano one day before the crime does not connect Medrano to the crime. Medrano's connection to the vehicle "merely prove[d] association." (Robinson, supra, 61 Cal.2d at p. 400.) Association with the accomplice is insufficient corroboration. (Id. at p. 399.) Indeed, Medrano's association with the accomplice one day prior to the crime is far more attenuated than the defendant's association with the accomplice three hours after the crime in Pedroza. If proof of association three hours after the crime is insufficient " ' "to satisfy the jury that the accomplice is telling the truth," ' " so too is proof of association one day before the crime. (See Pedroza, supra, 231 Cal.App.4th at p. 651; People v. Williams (2013) 56 Cal.4th 630, 679 (Williams).) We perceive no meaningful distinction to warrant a different conclusion in this case.
The lone significant difference between this case and Pedroza is that here, Medrano was with the accomplice one day before the crime and participated in the precursor to a gang-related physical assault. To assume Medrano was the passenger the next day is conjecture, because it implicitly assumes the accomplice was driving on both days. However, there is no "evidence independent of the accomplice's testimony" to prove the accomplice was the driver and not the shooter during the crime. (Romero and Self, supra, 62 Cal.4th at p. 36.) The inherent risk that the accomplice was the actual shooter and is lying is the entire reason section 1111 exists. Section 1111 mitigates against this risk by prohibiting a conviction upon an accomplice's uncorroborated testimony.
"[Accomplice] testimony has been legislatively determined never to be sufficiently trustworthy to establish guilt beyond a reasonable doubt unless corroborated." (People v. Tewksbury (1976) 15 Cal.3d 953, 967.) "Accomplice testimony is suspect because, like hearsay, it too may be unreliable. '[E]xperience has shown that the evidence of an accomplice should be viewed with care, caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity.' [Citations.] In addition to being derived from a suspect source accomplice testimony is frequently cloaked with a plausibility which may interfere with the jury's ability to evaluate its credibility. ' "[A]n accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth." ' " (Ibid.) "[A]n accomplice has a strong motive to fabricate testimony which incriminates innocent persons or minimizes his participation in the offense and transfers responsibility for the crime to others." (In re Miguel L. (1982) 32 Cal.3d 100, 108.)
It is reasonably possible, on this record, the accomplice was the actual shooter. After believing the crime was recorded on video, and knowing law enforcement wanted the front passenger's identity, he may have chosen to move himself from the passenger's seat to the driver's seat. The accomplice also had a motive to commit the crime. He testified he believed a rival gang member shot at him in a drive-by shooting only a month or two before this crime. He further testified retaliation is important to gangs, and "[i]f somebody shoots at you, you don't call 911 ... [y]ou handle it yourself." When law enforcement searched his home, they found two firearms and various ammunition.
Importantly, the accomplice admitted he would lie to "get some type of deal." The evidence that Medrano was in the front passenger seat one day before the crime, by itself, fails to abate the risk inherent in accomplice testimony.
2. The Events on Two Separate Days are Insufficiently Similar to Corroborate the Accomplice Testimony
The People next contend the witness's identification of "a gang banging incident a day" before the crime "tended to corroborate [the accomplice's] statement" because similarly committed crimes may corroborate accomplice testimony. (See Romero and Self, supra, 62 Cal.4th at pp. 34-35.) Cases finding similar crimes evidence sufficient to corroborate accomplice testimony include Romero and Self, supra, People v. Washington (1969) 71 Cal.2d 1061 (Washington), and People v. Barillas (1996) 49 Cal.App.4th 1012 (Barillas). We find these cases distinguishable.
In Romero and Self, supra, "in both ... attack[s] ... the victims were driving in isolated areas late at night when a car suddenly appeared and drove beside them before the shotgun attack." (62 Cal.4th at pp. 34-35.) The same gauge ammunition was used in each shooting, and the defendant admitted to one of the shootings. (Id. at pp. 33-35.)
In Washington, supra, "[n]umerous witnesses identified [the] defendant ... in similarly perpetrated robberies on the same night as the [alleged uncorroborated] robbery and in the same vicinity." (Id., 71 Cal.2d at p. 1093.) In Barillas, supra, one of nine factors corroborating the accomplice testimony was "proof appellant committed three robberies or attempted robberies earlier that same evening using the same white pickup and having the same coperpetrator ...." (Id., 49 Cal.App.4th at p. 1021.)
Each case is distinguishable from the facts in this case in several respects. First, Medrano asking the witness if he was a "scrap" is not a crime. To the extent "similarity in the commission of crimes," (see People v. Blackwell (1967) 257 Cal.App.2d 313, 320-321), does not hinge on the technicality of committing a "crime," the following distinctions between the events are critical: There was no violence or weapon involved in the encounter with the witness; no evidence regarding any geographic relationship between the encounter with the witness and the crime scene; and, most importantly, the events occurred on different dates.
The major fault with the similar crimes argument is that it suffers from the same defective assumption, described above, that the accomplice was driving the car on both days. Notably, the encounter one day prior to the crime involved no weapons or violence. It is pure conjecture to assume both that the passenger was the same person each day, and to assume, without more, that a person willing to engage in a physical assault one day would choose to shoot and kill someone the next day.
The People's argument suggests a specific plan to commit crimes where Medrano is the passenger and the accomplice is the driver. But no "evidence independent of the accomplice's testimony" supports the contention. (Romero and Self, supra, 62 Cal.4th at p. 36.) Absent independent evidence the accomplice was driving during the crime, the events are not sufficiently similar to corroborate the accomplice testimony.
3. The Conduct, Relationship, and Acts of the Parties Do Not Corroborate the Accomplice Testimony
The People further argue "the entire conduct of the parties, their relationship, and their acts during and after the crime may be taken into consideration by the jury in determining the sufficiency of the corroboration of an accomplice's testimony." (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1305.) We agree, but we cannot find that the "conduct of the parties, their relationship, and their acts during and after the crime" provide sufficient corroboration in this case.
For example, in People v. Henderson (1949) 34 Cal.2d 340 (Henderson), accomplice testimony was corroborated in part by evidence the defendant and accomplice "were together most of the day preceding the attempted robbery" and "about three hours before the crime was committed." (Id. at pp. 345-346.) There was also nonaccomplice evidence the defendant purchased, one day before the crime, the specific caliber firearm used in the attempted robbery.
Here, there was evidence Medrano was with the accomplice in the same vehicle involved in the crime one day prior, and his conduct was consistent with a Norteño gang member. In contrast to Henderson, supra, there was no evidence Medrano and the accomplice were ever together at any other time, let alone "three hours before the crime was committed." Neither was there any evidence relating to Medrano's conduct during or after the crime, nor any evidence linking Medrano to the firearm used in this crime. (Cf. Henderson, supra, 34 Cal.2d at p. 346 [defendant purchased same caliber firearm used in crime one day before crime]; People v. Manibusan (2013) 58 Cal.4th 40, 95-96 [defendant possessed "same type of gun ... identified as the murder weapon"]; People v. Valdez (2012) 55 Cal.4th 82, 148 ["ballistics evidence connected defendant to the crimes"]; Romero and Self, supra, 62 Cal.4th at pp. 33-35 [defendant possessed same caliber firearm used in crime].)
Despite possessing and searching Medrano's phone, no evidence was introduced linking him to the accomplice or the crime scene. Neither Medrano's DNA nor his fingerprints were linked to the vehicle, there was no evidence Medrano possessed or owned any firearms or ammunition at any time, and no other physical or forensic evidence connects Medrano to the crime in any way. (Cf. People v. Fauber (1992) 2 Cal.4th 792, 835 [defendant possessed victim's property].)
The only evidence introduced from the phone "extraction" were photographs and a Facebook posting. The photographs depicted Medrano with Norteño gang members other than the accomplice. The Facebook post was from "Homeboy Nation / Northern Cali Rap" and read "REST IN PEACE TO ALL THE FALLEN SOLDIERS." It then provides a link "To Listen to All Music posted on HBN," and includes a picture of a man discussed in more detail below. There was no evidence revealing phone calls or text messages between Medrano and the accomplice, no evidence that the accomplice was a contact in Medrano's phone, no evidence relating to any criminal activity, and no evidence regarding Medrano's whereabouts during the crime.
Most curiously, the accomplice denied the encounter with the witness ever occurred. The accomplice testified he had instead last seen Medrano at least two weeks prior to the crime and the witness was "lying" about the encounter one day before the crime. It strains credulity to suggest "the accomplice is telling the truth" when he himself denies the precise witness evidence offered to support his credibility. (Williams, supra, 56 Cal.4th at p. 679.) For all these reasons, the witness's identification fails to connect Medrano to the crime.
B. The Surveillance Video Does Not Connect Medrano to the Crime
The People next argue the surveillance video shows the front passenger in the Nissan shot the victim. We agree. The People's argument goes too far, however, by concluding the video showing "a man with a stocky build ..." corroborates the accomplice testimony.
We have independently reviewed the exhibits in this case, including video and photographs. The video merely shows the front passenger was wearing a white shirt. The video reveals nothing about the person's weight or build, let alone the person's gender. No witness was asked to identify, in any way, the passenger depicted in videos or photographs. The witness was not asked if the passenger in the video or photographs had a build or skin tone similar to the passenger he encountered one day earlier.
In fairness, the People also point out Medrano was arrested more than a week later while wearing a white shirt. We do not believe sufficient corroboration is established because a person possesses a generic white shirt.
The video does, on the other hand, corroborate the accomplice's testimony that the passenger was the shooter. But "an accomplice's testimony is not corroborated by the circumstance that the testimony is consistent with the victim's description of the crime or physical evidence from the crime scene. Such consistency and knowledge of the details of the crime simply proves the accomplice was at the crime scene, something the accomplice by definition admits." (Romero and Self, supra, 62 Cal.4th at p. 36; accord People v. Rodriguez (2018) 4 Cal.5th 1123, 1128-1129 (Rodriguez).) In this case, the video is no different than a "victim's description of the crime or physical evidence from the crime scene." It fits precisely into this category of insufficient corroboration.
The video proves no more than the front passenger in the Nissan was the shooter. It "simply proves the accomplice was at the crime scene" because he knew the passenger was the shooter. Without more, it does not connect Medrano to the crime.
C. The Gang Evidence Failed to Connect Medrano to the Crime
During trial, the evidence focused heavily on gangs. The gang expert witness testified Medrano was an active Norteño gang member and the crime in this case was gang-related. The accomplice was also an active Norteño gang member. The expert further testified the Norteños and Sureños were actively engaged in criminal activity against one another. This evidence failed to personally connect Medrano to the crime.
The People cite Szeto, supra, 29 Cal.3d 20 to argue "gang evidence can establish motive." They argue because the accomplice "testified that [Medrano] told him to follow the [victim's vehicle] because [Medrano] thought that the driver was a "[s]crap ... the jury could reasonably conclude that [Medrano] shot [the victim] because he was a" rival gang member. The argument fails for two reasons. One, it relies directly on the accomplice's testimony. Two, there is no "evidence independent of the accomplice's testimony" that Medrano knew the victim, let alone knew the victim was a rival gang member.
The evidence offered at trial stated the victim was "well-known" without further explanation, and had two gang-related "dots" tattoos on his elbows. There is no evidence these tattoos were visible to the Nissan's occupants during the crime.
As previously explained, the People cannot rely on the accomplice's testimony to corroborate the accomplice's testimony. They can, of course, rely on expert testimony to explain a general motive for the crime. They may also seek to establish a personal motive for the crime.
For example, in Szeto, supra, the defendant's fellow gang member was killed in a shootout between two gangs. (Id., 29 Cal.3d at p. 28.) The defendant attended the fellow gang member's funeral. Less than two months later, the defendant's gang committed a revenge shooting against the other gang. An accomplice testified that after the shooting, the defendant discarded various firearms used in the revenge shooting in the San Francisco Bay. (Ibid.) The defendant was convicted of accessory after the fact and possessing "a sawed-off shotgun." (Id. at p. 25.)
The court found sufficient corroboration because the defendant had a personal motive to aid the shooters and had the opportunity to commit the crimes. His motive to aid the shooters was established because he attended the funeral less than two months before the revenge shooting. (Szeto, supra, 29 Cal.3d at pp. 28-29.) Other evidence established the defendant's presence and opportunity to commit the crime. (Ibid.)
In People v. Vu (2006) 143 Cal.App.4th 1009 (Vu), the defendant was convicted of a gang-related murder. (Id. at pp. 1012-1013.) The court found sufficient corroboration because nonaccomplice evidence "connected [the defendant] to the crime by establishing motive and opportunity and by discrediting [his] alibi." (Id. at p. 1022.) His motive was shown by evidence that 18 months before the crime, the defendant and his "closest friend" were stabbed by rival gang members. His friend was killed. (Ibid.)
The defendant's opportunity to commit the murder was established with evidence proving the defendant was in close proximity to a stolen vehicle involved in the shooting less than two hours before the shooting. (Vu, supra, 143 Cal.App.4th at p. 1022.) His alibi was discredited both by his link to the stolen vehicle and by forensic phone evidence proving his actual location prior to the murder. (Id. at pp. 1022-1023.)
In contrast to Szeto and Vu, the evidence here establishes neither Medrano's personal motive nor opportunity to commit the crime. The closest evidence to prove a personal motive in this case was that three men had been killed in Sureño territory. Medrano carried a photo of one of those deceased men in his vehicle. The photo was from a Facebook post that did not reference Medrano's name.
The accomplice testified he "hear[d]" "about [those] homicide[s]" "[a] couple of years - or within the last year or two" prior to his testimony. He also testified the deceased men were Norteño gang members. While nonaccomplice evidence " ' "may be circumstantial or slight," ' " " ' "it must, without aid from the accomplice's testimony, tend to connect the defendant with the crime." ' " (Gomez, supra, 6 Cal.5th at pp. 307-30.) Attaching significance to the photograph in Medrano's car requires "aid from the accomplice's testimony." Consequently, the photograph is insufficient to establish Medrano had a personal motive to participate in this crime.
No "evidence independent of the accomplice's testimony" established the men's deaths were gang-related, or that the men were gang members. (Romero and Self, supra, 62 Cal.4th at p. 36.) Nor was there any nonaccomplice evidence regarding the timeframe in which the men were killed, or what Medrano's relationship was, if any, with the men.
Even were we to consider the accomplice's testimony to interpret the photograph's significance, it would still not prove a personal motive to commit this crime. There was no evidence Medrano knew the victim; no evidence Medrano has engaged in prior crimes against rival gang members; no evidence Medrano was the victim of prior gang-related crimes; no evidence these men were killed by rival gang members or that Medrano believed rival gang members were responsible for their deaths; and no evidence regarding Medrano's relationship with the deceased man in the photograph. (See Rodriguez, supra, 4 Cal.5th at p. 1129 [finding insufficient corroboration in part with similar missing evidence].)
Nor was there any evidence to establish Medrano's opportunity to commit the crime. The closest evidence was that Medrano was in the Nissan the day before the crime. We have already explained why this evidence did not connect Medrano to the crime. Connecting Medrano to the vehicle on a day other than the crime fails to prove presence and opportunity to commit the crime. Even were we to conclude his presence and opportunity were established, presence and opportunity alone are insufficient corroboration. (Robinson, supra, 61 Cal.2d at p. 400, Lloyd, supra, 253 Cal.App.2d at p. 241; see Abilez, supra, 41 Cal.4th at p. 506.)
In Pedroza, supra, 231 Cal.App.4th 653, the court, under circumstances analogous to this case, rejected arguments offered to prove motive and opportunity. The court held "there was no evidence whatsoever regarding any relationship between [the] defendant and [the victim]. Similarly, there was no independent evidence regarding defendant's whereabouts before or during the time of the shooting that would indicate he had the opportunity to commit the murder ...." (Id. at p. 654.) This case is no different.
D. Medrano's Prior Law Enforcement Contacts Do Not Connect Him to the Crime
Throughout the trial, the People introduced various incidents where Medrano was contacted by the police. He was never contacted with the accomplice, the Nissan, or while possessing a firearm or ammunition. He was never arrested or charged with a crime of violence or any crime committed against a rival gang member. (See Rodriguez, supra, 4 Cal.5th at p. 1129 [finding insufficient corroboration in part where "no evidence [defendant] had been involved in any of the prior acts of violence committed by the Norteños against the Sureños that preceded the charged crimes. And other than fights at school, the evidence did not show [defendant] had committed acts of violence against [rival gang members] similar to the shooting at the park."].) The contacts here did not connect Medrano to the crime in any way.
In a contact nearly three years before this crime, a passenger was arrested for possessing .45 caliber ammunition in a vehicle Medrano was driving. No evidence linked that specific ammunition or its caliber to the crime in this case. Apparently, Medrano was contacted again the following day while driving a vehicle. This time, a passenger was arrested for possessing a loaded .38 caliber firearm. No evidence connected that firearm or its caliber to the crime in this case.
In sum, (1) the witness did not connect Medrano to the crime; (2) the surveillance video depicting the crime did not connect Medrano to the crime; (3) the gang evidence did not connect Medrano to the crime; and (4) prior conduct did not connect Medrano to the crime. Collectively, the corroborating evidence failed to "connect [Medrano] to the crime independent of the accomplice's testimony." (Romero and Self, supra, 62 Cal.4th at p. 36.) Because his convictions were based on legally insufficient evidence, we must reverse the convictions. II. Double Jeopardy Bars A Retrial
Medrano also argues "retrial [in this case] is prohibited by the Double Jeopardy Clause of the United States and California Constitutions." He is correct.
"Because reversal of [Medrano's] convictions is based on insufficiency of the evidence, the double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution mandate that [Medrano] be acquitted of the charges. (Monge v. California (1998) 524 U.S. 721, 729 ['We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial.']; People v. Seel (2004) 34 Cal.4th 535, 542, citing Monge, 524 U.S. at p. 729 [same rule under the double jeopardy clause of the California Constitution]; People v. Belton (1979) 23 Cal.3d 516, 526-527 [defendant was entitled to judgment of acquittal where prosecution's case failed to satisfy section 1111]; People v. Pedroza (2014) 231 Cal.App.4th 635 [trial court's determination that prosecution's case failed to satisfy section 1111 was a finding of insufficient evidence to sustain conviction].) Accordingly, we remand [Medrano]'s case to the [superior court] to enter a judgment of acquittal on the charges against him." (Rodriguez, supra, 4 Cal.5th at pp. 1129-1130.) Our conclusion renders the confrontation clause issue moot.
CONCLUSION
The Supreme Court recently reached the same conclusion on similar facts in Rodriguez, supra, 4 Cal.5th 1123. There, "[w]itnesses saw a white Chevrolet Blazer ... drive slowly around [a] park" "known as a hangout for [Norteños]." Before shots were fired from the Chevrolet, its "occupants ... made gang signs and yelled a cry for ... the Sureños." (Id. at p. 1126.)
"Officers arrived at the scene," gathered information leading them to suspects at a specific house, and ultimately there detained several individuals together, including the defendant and at least two accomplices. At trial, one accomplice "testified that as the Blazer approached the [park], [the defendant] shouted 'puro Sur' and fired multiple shots." The defendant was convicted as charged and sentenced to serve 50 years to life in prison. (Rodriguez, supra, 4 Cal.5th at pp. 1127-1128.)
On appeal, the court held the corroborating evidence "did not tend to connect [the defendant] to the accomplice, his codefendant, or the victims. Nor did it tend to connect [the defendant] to the [vehicle] used during the shooting, the murder weapon, or any of the bullets and [shell] casings that were recovered. There was no evidence tending to connect [the defendant] to [the crime scene] ... or any of the locations where relevant evidence was found. There was also no evidence that [the defendant] had been involved in any of the prior acts of violence committed by the Norteños against the Sureños that preceded the charged crimes. And other than fights at school, the evidence did not show that [the defendant] had committed acts of violence against [rival gang members] similar to the shooting at the park. Unlike in [People v. Szeto (1981) 29 Cal.3d 20], there was no evidence establishing a personal motive or opportunity to commit the charged crimes." (Rodriguez, supra, 4 Cal.5th at p. 1129.)
Other than the insufficient association with the vehicle involved in the crime, this case is no different than Rodriguez, supra, 4 Cal.5th 1123. We conclude the evidence presented in this case did not satisfy section 1111's corroboration requirements. "The corroborating evidence that was presented could do no more than establish the crimes occurred and raise a suspicion against every [Norteño] gang member ...." (Id. at p. 1129.)
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court. The trial court is directed to enter a judgment of acquittal on all charges.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.