The opinion
Filed 5/8/25 P. v. Carrera CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B332330
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA092084-01)
v.
NESTOR DANIEL CARRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Thomas Rubinson, Judge. Affirmed.
Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General,
for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Nestor Carrera appeals from his judgment of conviction of
murder (Pen. Code,1 § 187, subd. (a)), attempted murder (§§ 187,
subd. (a), 664), shooting at an occupied vehicle (§ 246), shooting
from a motor vehicle (§ 26100, subd. (c)), and unlawful possession
of a firearm (§ 29800, subd. (a)(1)), with true findings on firearm
enhancements (§ 12022.53). On appeal, Carrera argues the trial
court erred in admitting: (1) the prior testimony of a witness
based on his unavailability at trial; (2) text messages between
Carrera and his girlfriend following the crimes; (3) photographs
of a firearm that were posted on Carrera’s social media account;
and (4) evidence that Carrera’s girlfriend pled no contest to an
accessory charge in this case. He also asserts the trial court
erred in sentencing him on three of the firearm enhancements.
We conclude Carrera has failed to demonstrate error in his
convictions or sentence, and accordingly affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Charges
In an information, Carrera was charged with the first
degree murder of Yoceline Zuniga (§ 187, subd. (a); count 1), the
attempted willful, deliberate, and premeditated murder of Angel
Palomares (§§ 187, subd. (a), 664; count 2), shooting at an
occupied vehicle (§ 246; count 3), shooting from a motor vehicle
(§ 26100, subd. (c); count 4), and possession of a firearm by a
felon (§ 29800, subd. (a)(1); count 5). As to counts 1 through 4, it
was alleged that Carrera personally and intentionally discharged
1 Unless otherwise stated, all further undesignated statutory
references are to the Penal Code.
2
a firearm within the meaning of section 12022.53, subdivisions
(b), (c), and (d).
2. Evidence at trial
2.1 Events surrounding the drive-by shooting
On the night of December 14, 2019, a gray sedan pulled up
next to a white BMW on a street in Van Nuys, California.
Palomares had been driving the BMW, which was stolen, and his
girlfriend, Zuniga, was in the front passenger seat. A person in
the gray car fired a shot into the passenger window of the BMW,
striking Zuniga in her right temple. When Palomares saw that
Zuniga was shot, he drove the BMW to his parents’ home, and his
parents called 911. Zuniga died from a single gunshot wound to
her head.
At the time of the shooting, Palomares was a member of the
MS-13 gang, and Carrera was a member of the rival North
Hollywood Locos gang. The shooting occurred in an area claimed
by the North Hollywood Locos. A parking lot near the shooting
contained North Hollywood Locos graffiti and crossed-out MS-13
graffiti. Inside the BMW, the police found a can of blue spray
paint and notebooks with gang names crossed out. MS-13 gang
members were known to use blue spray paint for their graffiti,
and to make drafts of their intended graffiti in notebooks.
A few weeks before the shooting, Palomares was walking
along a street when a gray car pulled up next to him. A man
inside the car asked Palomares, “Where you from?” Palomares
replied, “I don’t bang.” After the shooting, Palomares told the
police that the man from this prior incident looked like the
person who shot Zuniga and was driving the same gray car.
During this incident, the man also said, “Fuck Mierdas,”
a derogatory reference to the MS-13 gang.
3
Two days before the shooting, David Rojas, a North
Hollywood Locos member, was captured on surveillance video
near the scene of shooting. The video showed a gray sedan
stopping in an alley. Both Rojas and the driver exited the car,
and began spray-painting North Hollywood Locos graffiti over
MS-13 graffiti on the nearby walls. At trial, Rojas denied
knowing the person who was with him during the spray-painting
incident. But in a prior interview with the police, Rojas identified
that person as a “shot caller” in the gang known as “Klown” or
“K,” and the gray car as a Chrysler belonging to Klown. Rojas
also stated that he was with Klown in the Chrysler the day after
the shooting. At that time, Klown told Rojas a “conflict” or
“incident” happened, but he did not provide details and later left
to North Carolina. Rojas further stated that, around the time of
the shooting, he saw Klown with a .357 chrome revolver that was
not a “snub nose” gun. During the interview, the detective told
Rojas, “You knew what was going on. You knew that he had done
it.” In response, Rojas stated, “Yeah.”
In late 2019, Carrera was living with his girlfriend,
Julianna Hurtado, about a half mile from the scene of the
shooting. A few weeks after the shooting, Carrera and Hurtado
drove to her cousin’s home in North Carolina. According to
Hurtado, she later returned to California for her job, while
Carrera remained in North Carolina to find work. While Carrera
was staying in North Carolina, Hurtado provided him with
financial support. She also communicated with Carrera on a cell
phone that she began using at the end of December 2019.
Hurtado later pleaded no contest to a charge of being an
accessory after the fact.
4
2.2 Police investigation
Following the shooting, Palomares participated in several
police interviews during which he gave conflicting accounts of the
incident. When Palomares first spoke with the police outside his
parents’ home, he said the shooter’s car was a gray Chrysler or
Dodge. Palomares claimed that Zuniga’s friend was driving the
car they were in, and that he was in the backseat. When
Palomares was taken to the scene of the shooting, he told the
police that he purchased chips from a vendor in a nearby
apartment complex. He was walking back to the BMW when a
car pulled up and the driver fired a shot. He described the
shooter’s car as a dark gray Chrysler or Dodge, and said he had
seen the car before, but he did not recognize the shooter. The
officer who interviewed Palomares at the scene thought that his
description of where the cars were positioned during the shooting
was not consistent with the angle of the shot. The officer also did
not believe that a MS-13 gang member would go into a rival
gang’s territory to buy a bag of chips.
An investigating detective assigned to the case testified
that, during an unrecorded interview, Palomares described a “car
to car” shooting. Palomares recounted that he was driving with
Zuniga when a gray Chrysler sedan pulled up next to them, and
he heard a gunshot. Palomares also said that he recognized the
Chrysler from a prior “hit up,” and described the person involved
in that incident as a heavyset Hispanic man. In a later recorded
interview, Palomares told the lead detective that, while the
shooter looked familiar, he “didn’t see him like, good.” He also
said the shooter’s car “looked like” a Chrysler 200, but when he
was shown a photo of that make and model, he denied it was the
type of car involved in the shooting or prior hit up. He said that,
5
while the shooter’s car “looked like” the one from the prior
incident, “it was not the same guy, same car.”
The police did not find any bullet casings or other physical
evidence at the scene of the shooting. The police did retrieve
surveillance video of the area around the time that the shooting
occurred. The video showed a gray car stopping along the
passenger side of a white car, and then both vehicles taking off in
the same direction. When shown the video at trial, Palomares
confirmed that he was driving the white car, and that the gray
car was the one involved in the shooting.
The police obtained records from two Facebook accounts
belonging to Carrera. The owner of the accounts was listed as
“Junior Lokks,” and messages sent to one of the accounts referred
to him as “klowner” or “clowner.” The records showed that, in
2019, Carrera planned to meet with the seller of a Chrysler 200
sedan, and that he later posted messages inquiring about car
maintenance and parts for a 2011 Chrysler 200. The records also
showed that, in June 2019, Carrera and another user discussed
MS-13 graffiti that they found disrespectful and a plan to take
action while being armed. On November 30, 2019, a few weeks
before the shooting, Carrera posted the message, “Ola loko fuck
mierdas.” That same day, he also sent two photographs of a
black handgun to another user. Two days later, that user asked,
“Sup the toy papa,” to which Carrera replied, “I kept it.”
The police also obtained records for two cell phones
associated with Carrera. On December 14, 2019, there was no
activity on Carrera’s cell phone around the time of the shooting,
but the device appeared to be within 300 meters of the area
where the shooting occurred. That phone was last used on
December 27, 2019, and then moved from Los Angeles to
6
North Carolina over the next few days. In January 2020, Carrera
and Hurtado began communicating with one another on new cell
phones. In text messages to Carrera, Hurtado complained about
driving for three days with no sleep, paying his debts, and
borrowing money to support him. She also threatened Carrera
that if he did not pay her back, she would tell everyone the truth
about why he left California, including a friend who was dating a
deputy sheriff. Some of Hurtado’s messages to Carrera included
statements such as “[i]f you can’t do the time, don’t do the crime,”
and “[i]f u didn’t do what u did, u wouldn’t be there right now.”
In late January 2020, Hurtado texted Carrera that his “secret is
safe,” and she warned him that he should not talk “about
anything illegal you do.”
On January 30, 2020, officers in North Carolina arrested
Carrera as he attempted to flee through the rear window of a
residence. At trial, the parties stipulated that Carrera was a
person prohibited from carrying a firearm under section 29800.
2.3 Gang expert testimony
Both the prosecution and the defense called gang experts to
testify at trial. The prosecution’s gang expert, Los Angeles Police
Officer Claudia Guillen, described the various signs, symbols, and
geographical areas claimed by the MS-13 and North Hollywood
Locos gangs. She opined that Palomares was a MS-13 gang
member, and Carrera was affiliated with the North Hollywood
Locos. The location of the shooting in this case was considered a
stronghold of the North Hollywood Locos. The presence of MS-13
graffiti in that area would be seen as disrespectful to the North
Hollywood Locos, and would likely lead to an act of retaliation.
The defense expert, Martin Flores, testified that there were
several gangs in the area near the shooting that used the name
7
“locos,” and that the North Hollywood Locos gang had a heavy
presence in that area. Flores also opined that Palomares was a
member of the MS-13 gang, and that Carrera was a member of
the North Hollywood Locos. Based on photographs of Palomares
that were posted on his Instagram account, Flores noted that
Palomares appeared as “banged out as you can get,” and that
anyone in that area would recognize him as a MS-13 member.
On cross-examination, Flores testified that if a MS-13 gang
member carrying a spray can went into North Hollywood Locos
territory alone and unarmed, “that’s a death sentence.”
3. Jury verdict and sentencing
At the conclusion of the trial, the jury found Carrera guilty
of the first degree murder of Zuniga (count 1), the attempted
willful, deliberate, and premeditated murder of Palomares
(count 2), shooting at an occupied vehicle (count 3), shooting from
a motor vehicle (count 4), and possession of a firearm by a felon
(count 5). On count 1, the jury found that Carrera personally and
intentionally discharged a firearm causing death or great bodily
injury under section 12022.53, subdivision (d). On counts 2
through 4, the jury found that Carrera personally and
intentionally discharged a firearm under section 12022.53,
subdivision (c).
The trial court sentenced Carrera to an aggregate state
prison term of 100 years to life. On count 1, the court imposed a
term of 25 years to life for the murder of Zuniga, plus 25 years for
the firearm enhancement. On count 2, the court imposed a
consecutive life sentence for the attempted murder of Palomares,
plus 25 years for the firearm enhancement. The court stayed the
sentences imposed on the remaining counts under section 654.
Carrera filed a timely appeal.
8
DISCUSSION
1. Admission of Palomares’s prior testimony
Carrera contends the trial court violated his Sixth
Amendment right to confront witnesses against him when it
admitted Palomares’s preliminary hearing testimony at trial.
Carrera specifically claims Palomares was not an unavailable
witness within the meaning of Evidence Code sections 1291 and
240, because the prosecution failed to take reasonable steps to
secure his presence at trial. We conclude the trial court did not
err in admitting Palomares’s preliminary hearing testimony.
1.1 Relevant background
The preliminary hearing was held on December 28, 2022.
At the start of the hearing, the trial court noted that attorney
Tom McClarnon “was appointed by the court to advise
Mr. Palomares relating to possible Fifth Amendment privilege
issues.” Palomares then testified at the hearing under an
agreement that his testimony would not serve as the basis for a
prosecution by the district attorney’s office. The only other
witness to testify at the hearing was a detective assigned to
investigate the case.
On June 30, 2023, trial was set for a stipulated date of
July 6, 2023. Trial was then continued to another stipulated date
of July 12, 2023, when jury selection commenced. On that date,
the prosecution filed a trial brief in which it requested that
Palomares’s preliminary hearing testimony be read to the jury
because he was unavailable for trial. The prosecution
represented that its investigator had been diligent in his efforts
to locate Palomares, and believed that Palomares was actively
avoiding contact. In response to the prosecution’s request, the
trial court set a due diligence hearing.
9
At a hearing held on July 17, 2003, District Attorney
Investigator John Williams testified about his prior contact with
Palomares and attempts to subpoena him to appear for trial. On
November 22, 2022, Williams successfully served Palomares with
a subpoena to appear at the preliminary hearing. Palomares was
cooperative at that time. Following the preliminary hearing,
Williams had a telephone conversation with Palomares on
June 27, 2023 in an effort to secure his trial attendance.
Palomares said he was “homeless and bouncing from different
places.” He also said he “testified already and did not want to
return to court.” Williams believed he was able to convince
Palomares to meet with him at a fast food restaurant the
following day. But a few minutes later, Palomares texted
Williams that they could not meet after all because he did not
have a car.
Williams then began trying to locate Palomares by visiting
places where he might be found and speaking with his family
members. Williams went to Palomares’s family home where he
previously was served, but Palomares was not there and his
family denied knowing his whereabouts. Palomares’s mother
said that she had not spoken to him in three months and believed
he was using narcotics. His cousin reported that Palomares
moved out of the family home a few years ago, and rarely
returned to visit. His uncle likewise confirmed that Palomares
no longer lived there. Williams also visited the residence of a
woman who recently had a child with Palomares. She said that
she had not heard from Palomares since they ended their
relationship a couple of months earlier.
Williams spoke to Palomares’s last known employer who
reported that Palomares was laid off four or five months earlier
10
due to a substance abuse issue. Because his family thought
Palomares might have checked into a rehabilitation facility,
Williams contacted some nearby facilities, but did not locate him.
Williams also went to the fast food restaurant where he and
Palomares initially planned to meet, and showed Palomares’s
photo to the employees there, but they did not recognize him.
In addition, Williams contacted four local hospitals, none of
which had Palomares registered as a patient.
On July 11, 2023, Williams searched for Palomares in the
death records of the Los Angeles County Coroner’s Office, and the
custody records for Los Angeles, Ventura, Riverside, and Orange
counties. On July 17, 2023, Williams again checked the custody
records for Los Angeles County. Palomares’s name was not found
in any of these records. Since June 27, 2023, Williams had been
calling and texting Palomares on a regular basis, but received no
response.
On cross-examination, Williams testified that he was not
aware that Palomares was represented by an attorney at the
preliminary hearing, and had not contacted that attorney. He
also acknowledged that he had not checked with any homeless
shelters.
The trial court found that the prosecution exercised due
diligence in attempting to secure Palomares’s testimony at trial,
and that Palomares was an unavailable witness within the
meaning of Evidence Code section 240. In making its ruling, the
court stated: “[It] seems to me that Mr. Williams made an effort
of a substantial character. He began several weeks before the
trial was due to start. This is a very important witness, and
I believe that he had explored the leads that he had in a
competent and comprehensive manner. There’s just nothing
11
there on Mr. Palomares.” The court permitted the prosecution to
read Palomares’s preliminary hearing testimony to the jury.
1.2 Governing law
A criminal defendant has a right under both the federal
and state Constitutions to confront witnesses. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 15.) “Although the constitutional
right of confrontation is important, it is not absolute. [Citation.]
If a witness is unavailable but had previously testified against
the defendant and was subject to cross-examination at that time,
that prior testimony may be admitted.” (People v. Wilson (2021)
11 Cal.5th 259, 290.) In Crawford v. Washington (2004) 541 U.S.
36, the United States Supreme Court recognized that, under the
Sixth Amendment, the “[t]estimonial statements of witnesses
absent from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” (Id. at p. 59.)
In California, Evidence Code section 1291 codifies this
traditional exception to the right of confrontation. (People v.
Wilson, supra, 11 Cal.5th at p. 290.) It provides, in relevant part,
that “[e]vidence of former testimony is not made inadmissible by
the hearsay rule if the declarant is unavailable as a witness,” and
“[t]he party against whom the former testimony is offered was a
party to the action or proceeding in which the testimony was
given and had the right and opportunity to cross-examine the
declarant with an interest and motive similar to that which he
has at the hearing.” (Evid. Code, § 1291, subd. (a).) Our
Supreme Court has recognized that “[t]he constitutional and
statutory requirements are ‘in harmony.’ ” (People v. Smith
(2003) 30 Cal.4th 581, 609.) “Thus, when the requirements of
[Evidence Code] section 1291 are met, the admission of former
12
testimony in evidence does not violate [the] constitutional right of
confrontation.” (People v. Herrera (2010) 49 Cal.4th 613, 621.)
Under Evidence Code section 240, a declarant is
“unavailable as a witness” if he or she is “[a]bsent from the
hearing and the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure his or her
attendance by the court’s process.” (Id., subd. (a)(5).) “The term
‘[r]easonable diligence, often called “due diligence” in case law,
“ ‘connotes persevering application, untiring efforts in good
earnest, efforts of a substantial character.’ ” ’ [Citation.]
Considerations relevant to the due diligence inquiry ‘include the
timeliness of the search, the importance of the proffered
testimony, and whether leads of the witness’s possible location
were competently explored.’ ” (People v. Herrera, supra,
49 Cal.4th at p. 622.) “[T]o establish unavailability, the
prosecution must show that its efforts to locate and produce a
witness for trial were reasonable under the circumstances
presented.” (Id. at p. 623.) Where the relevant facts are
undisputed, we independently review a trial court’s
determination of due diligence. (People v. Fuiava (2012)
53 Cal.4th 622, 675.)
1.3 The trial court did not err in admitting
Palomares’s preliminary hearing testimony
Carrera argues Palomares was not an unavailable witness
because the prosecution failed to establish that it made a timely
and reasonable effort to procure his attendance at trial. Based on
our independent review of the record, however, we conclude the
prosecution satisfied its burden of showing due diligence.
The record reflects that the prosecution began trying to
secure Palomares’s presence for trial on June 27, 2023, which
13
was nine days before the anticipated trial date. At that time,
the district attorney’s investigator, Williams, did not have any
difficulty reaching Palomares on his cell phone, but he learned
then that Palomares was no longer willing to testify. Williams
began making multiple attempts to locate Palomares. He visited
Palomares’s last known residence as well as the residence of his
former girlfriend, and spoke with three members of his family,
each of whom denied knowledge of Palomares’s whereabouts.
Williams also spoke with Palomares’s last known employer,
contacted nearby rehabilitation facilities based on reports that
Palomares might have a substance abuse problem, and showed
Palomares’s photo to staff at the fast food restaurant where they
planned to meet. In addition, Williams consulted local hospitals
and the county coroner’s office, and checked custody records for
Los Angeles and the surrounding counties. Meanwhile, Williams
continued to regularly call and text Palomares on his cell phone
from his June 27, 2023 disappearance through the July 17, 2023
due diligence hearing. These efforts to locate Palomares,
although not exhaustive, demonstrated reasonable diligence.
Carrera asserts that Williams should have reestablished
contact with Palomares earlier in the proceedings because his
testimony was critical to the prosecution’s case. As our Supreme
Court has observed, “we consider the import of [the witness’s]
testimony in evaluating the reasonableness of the prosecution’s
efforts.” (People v. Wilson, supra, 11 Cal.5th at p. 293.) While
the prosecution must exercise due diligence, it is “not required
‘to keep “periodic tabs” on every material witness in a criminal
case,’ ” and “is not required, absent knowledge of a ‘substantial
risk that this important witness would flee,’ to ‘take adequate
preventative measures’ to stop the witness from disappearing.”
14
(People v. Wilson (2005) 36 Cal.4th 309, 342.) Here, Palomares
may have been a material witness, but Williams had no trouble
securing his presence at the preliminary hearing, and Palomares
testified at that hearing under an agreement that granted him
immunity from prosecution. Given that the immunity agreement
also required Palomares to testify at trial, the prosecution had no
reason to suspect he would flee and risk facing criminal charges.
Under these circumstances, the prosecution’s efforts to secure
Palomares’s presence at trial were not dilatory.
Carrera also claims the prosecution should have taken
additional steps to locate Palomares, such as checking homeless
shelters or encampments, and contacting the attorney who was
appointed to represent Palomares at the preliminary hearing.
However, as the trial court noted, while “[i]t would have been
better had [Williams] checked homeless shelters knowing that
the witness was homeless,” the efforts that he did make to find
Palomares were “more than reasonable.” Further, there is
nothing in the record to suggest that Palomares’s court-appointed
attorney for purposes of the preliminary hearing continued to
represent him in any capacity after that hearing concluded.
In any event, where, as here, the record shows the prosecution
exercised reasonable diligence to secure a witness’s presence at
trial, “the circumstance that ‘additional efforts might have been
made or other lines of inquiry pursued does not affect this
conclusion. [Citation.] It is enough that the People used
reasonable efforts to locate the witness.’ ” (People v. Fuiava,
supra, 53 Cal.4th at p. 677.) Because the prosecution exercised
reasonable diligence in attempting to locate Palomares, the trial
court did not err in finding that Palomares was an unavailable
witness and admitting his preliminary hearing testimony.
15
2. Admission of text message exchanges between
Carrera and Hurtado
Carrera argues the trial court erred in admitting certain
text messages he exchanged with his girlfriend, Hurtado, under
the adoptive admission exception to the hearsay rule. He also
asserts that, because these text messages were not admissible,
the trial court erred in giving the standard jury instruction on
adoptive admissions. We conclude there was no error in the
admission of the text messages or instruction to the jury.
2.1 Governing law
A trial court has broad discretion in ruling on the
admissibility of evidence. (People v. Fayed (2020) 9 Cal.5th 147,
189.) “ ‘We review a trial court’s decision to admit or exclude
evidence “for abuse of discretion, and [the ruling] will not be
disturbed unless there is a showing that the trial court acted in
an arbitrary, capricious, or absurd manner resulting in a
miscarriage of justice.” ’ ” (People v. Young (2019) 7 Cal.5th 905,
931; accord, People v. Caro (2019) 7 Cal.5th 463, 503.)
Hearsay is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid. Code,
§ 1200, subd. (a).) Unless subject to an exception, hearsay
evidence is inadmissible. (Id., subd. (b).) Evidence Code
section 1221 sets forth an exception to the hearsay rule for
adoptive admissions. Under this exception, “[e]vidence of a
statement offered against a party is not made inadmissible by the
hearsay rule if the statement is one of which the party, with
knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.” (Ibid.)
16
“ ‘In determining whether a statement is admissible as an
adoptive admission, a trial court must first decide whether there
is evidence sufficient to sustain a finding that: (a) the defendant
heard and understood the statement under circumstances that
normally would call for a response; and (b) by words or conduct,
the defendant adopted the statement as true.’ [Citation.] If so,
the jury then determines whether these preliminary facts
actually occurred.” (People v. Dalton (2019) 7 Cal.5th 166, 229.)
“ ‘For the adoptive admission exception to the hearsay rule to
apply, no “direct accusation in so many words” is necessary.
[Citation.] Rather, it is enough that the evidence showed that the
defendant participated in a private conversation in which the
crime was discussed and the circumstances offered him the
opportunity to deny responsibility or otherwise dissociate himself
from the crime, but that he did not do so.’ ” (People v. Charles
(2015) 61 Cal.4th 308, 323.)
2.2 The trial court did not err in admitting the
challenged text messages and instructing the
jury on adoptive admissions
Carrera challenges the admission of three sets of text
messages that he exchanged with Hurtado in the weeks after the
shooting while he was in North Carolina. The first set of texts
occurred over a seven-minute period on January 27, 2020.
Hurtado told Carrera, “Don’t talk about why you left [¶]
California,” and “Don’t talk about anything illegal you do.” She
also told him to say that “work in California slowed down all of
[the] sudden,” he “started having problems” with her and his
friends, and he “came here to work and it’s been slow.” Carrera’s
only response to these texts was the letter “K,” which he repeated
three times.
17
The second set of texts messages were sent on January 20,
2020. Over a four-minute period, Hurtado told Carrera, “Control
your anger . . . your [sic] in the position your [sic] in because you
can’t control your anger,” to which Carrera replied, “Kus a stupid
bitch like u pushed me [in] that direction.” Hurtado then wrote,
“No your anger put you in that position,” “If u didn’t do what u
did u wouldn’t be there right now,” “Take responsibility for
WHAT YOU DID,” and “Only you no one else[].” In response,
Carrera stated, “Stop texting me. [¶] Before I block u.”
The third series of text messages were sent on January 12,
2020, during an argument about Hurtado’s financial support of
Carrera and his failure to repay her. At one point, Hurtado
stated, “Send me my money by tonight or I’m going to tell
everything,” to which Carrera replied, “Go ahead u already done
that.” Hurtado also told Carrera, “You fucked over yourself,”
“You did what u did I [didn’t] help u,” and “If you can’t do the
time don’t do the crime.” In response, Carrera stated, “Yeah
that’s y I’m going back tomorrow.” When Hurtado then accused
Carrera of “crying like a bitch because u [didn’t] want to go to
jail,” he responded that he “never cried over jail.” Later in the
exchange, Hurtado threatened that, if Carrera did not answer his
phone, she would tell her relative the truth about why he had to
leave California, which would cause her relative to “kick [him]
out.” Carrera replied, “I’m leaving I’ll give u ur lame ass ur
money when I see western union.” These texts were sent over an
approximately 10-minute period.
On appeal, Carrera contends Hurtado’s statements in these
text exchanges should have been excluded because they did not
qualify as adoptive admissions. In particular, Carrera claims the
statements were too vague and ambiguous to warrant a response,
18
and even if they could be considered accusations of a crime, he
either denied them outright or refuted their implications. As our
Supreme Court has explained, however, the adoptive admissions
exception can apply even where a “direct accusation in so many
words” is not made. (People v. Fauber (1992) 2 Cal.4th 792, 852.)
“ ‘To warrant admissibility, it is sufficient that the evidence
supports a reasonable inference that an accusatory statement
was made under circumstances affording a fair opportunity to
deny the accusation; whether defendant’s conduct actually
constituted an adoptive admission becomes a question for the
jury to decide.’ ” (People v. Geier (2007) 41 Cal.4th 555, 590.)
Here, the text exchanges between Hurtado and Carrera
supported a reasonable inference that Hurtado accused him of
leaving California because he committed a crime that would have
led to his incarceration if he stayed, and that Carrera did not
deny those accusations because he knew them to be true. For
instance, the January 27, 2022 messages reasonably could be
read as Hurtado advising Carrera not to tell anyone that he left
California because of his criminal activity there, and suggesting a
cover story for why he left. While Carrera’s repeated response of
“K” may not have been an express agreement with Hurtado’s
advice, it was equivocal enough to be considered a tacit admission
that he left California in order to evade arrest. Likewise,
Hurtado’s January 20, 2020 messages reasonably supported an
inference that she was accusing Carrera of needing to stay in
North Carolina because he committed a crime out of anger and
did not want to accept responsibility for it. Rather than deny
that accusation, Carrera’s response was to blame Hurtado for
“push[ing] him [in] that direction,” and then tell her to stop
texting him. Similarly, in her January 12, 2020 messages,
19
Hurtado threatened to tell others the truth about why Carrera
had to leave California if he did not repay her, and implied that
he committed a crime for which he would be incarcerated if he
returned. Carrera again did not deny Hurtado’s assertions and
instead agreed to send her money. Accordingly, when these text
exchanges are considered in context, the trial court reasonably
could find that Hurtado’s statements were admissible, and that it
was for the jury to decide whether Carrera’s responses, or lack
thereof, actually constituted adoptive admissions.
Citing People v. McDaniel (2019) 38 Cal.App.5th 986
(McDaniel), Carrera asserts the evidence was insufficient to
establish that he adopted any of Hurtado’s accusatory text
messages by failing to respond to them since he could have done
so through other means of communication. In McDaniel, the
defendant and his mother engaged in a heated text exchange that
began with the defendant telling her to “ ‘Stop telling lies!!!’ ” and
ended with his mother accusing him of robbery. (Id. at pp. 996–
997.) In finding that the mother’s accusation was not admissible
as an adoptive admission, the Court of Appeal explained that “in
light of the distinctive nature of text messaging, the receipt of a
text message does not automatically signify prompt knowledge of
its contents by the recipient, and furthermore, the lack of a text
response by the recipient does not preclude the possibility that
the recipient responded by other means, such as a phone call.”
(Id. at p. 999.) The Court further noted that the text exchange at
issue “was not instantaneous but rather unfolded over a 20-
minute period,” “[t]here was no evidence as to whether and when
[the defendant] read the text message in which his mother
suggested he had robbed multiple local stores,” and the defendant
“emphatically texted his mother, ‘Stop telling lies!!!’ ” (Ibid.)
20
In this case, by contrast, the text exchanges at issue did not
end with Hurtado making an accusatory statement and Carrera
failing to respond. Rather, Carrera responded to Hurtado’s text
messages within minutes or even seconds. Although Carrera’s
responses did not directly address each of Hurtado’s accusatory
statements, they reasonably supported an inference that he read
the entirety of Hurtado’s text messages in real time, and thus,
had knowledge of their contents. Moreover, while Carrera ended
one of their text exchanges by telling Hurtado to stop texting
him, he never denied her indirect accusations that he committed
a crime and decided to flee. On this record, trial court reasonably
could find that Hurtado sent the accusatory text messages
“ ‘ “under circumstances that would normally call for a response if
the statement were untrue” ’ ” and that Carrera responded with
“ ‘ “silence, evasion, or equivocation.” ’ ” (People v. Jennings
(2010) 50 Cal.4th 616, 661.)
Accordingly, we conclude the trial court did not abuse its
discretion when it admitted the challenged evidence under the
exception for adoptive admissions. We also reject Carrera’s
related claim that the admission of the evidence violated his
constitutional right to due process. As the Supreme Court has
made clear, “ ‘ “[t]he ‘routine application of state evidentiary law
does not implicate [a] defendant’s constitutional rights.’ ” ’ ”
(People v. Thompson (2016) 1 Cal.5th 1043, 1116.) For these
reasons, Carrera’s claim of instructional error likewise fails.
Because the trial court properly concluded that the messages
were admissible, it did not err in giving the jury the standard
CALCRIM instruction on adoptive admissions.
21
3. Admission of firearm photographs from Carrera’s
Facebook account
Carrera next challenges the trial court’s admission of two
photographs of a firearm that were posted on Carrera’s Facebook
account. He claims the photographs were irrelevant and unduly
prejudicial because there was no evidence linking that firearm to
the one used in the shooting in this case. Carrera also contends
the admission of the evidence deprived him of his constitutional
right to due process. We conclude the trial court did not abuse its
discretion or violate due process in admitting the photographs.
3.1 Governing law
“ ‘ “The rules pertaining to the admissibility of
photographic evidence are well-settled. Only relevant evidence is
admissible [citations], and all relevant evidence is admissible
unless excluded under the federal or California Constitution or by
statute. [Citations.] Relevant evidence is defined in Evidence
Code section 210 as evidence ‘having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.’ The test of relevance is whether the
evidence tends ‘ “logically, naturally, and by reasonable
inference” to establish material facts such as identity, intent, or
motive.’ ” ’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1166.)
Under Evidence Code section 352, evidence is unduly prejudicial
if it “ ‘ “uniquely tends to evoke an emotional bias against a party
as an individual, while having only slight probative value with
regard to the issues.” ’ ” (People v. Carter, at p. 1168.)
In general, “[w]hen the prosecution relies on evidence
regarding a specific type of weapon, it is error to admit evidence
that other weapons were found in the defendant’s possession, for
such evidence tends to show not that he committed the crime, but
22
only that he is the sort of person who carries deadly weapons.”
(People v. Barnwell (2007) 41 Cal.4th 1038, 1056; see People v.
Riser (1956) 47 Cal.2d 566, 577 [trial court erred in admitting
evidence of Colt revolver found in defendant’s possession after
murders where evidence showed weapon actually used was Smith
and Wesson revolver], overruled on other grounds in People v.
Morse (1964) 60 Cal.2d 631, 648.) On the other hand, “[e]vidence
that shortly before the murders defendant possessed a firearm
that could have been the murder weapon” may be “relevant and
admissible as circumstantial evidence that he committed the
murders.” (People v. Sanchez (2019) 7 Cal.5th 14, 56 [no error in
admitting evidence that defendant possessed firearm around
time of murders where firearm described by witnesses could have
been the one used in murders]; see People v. Carpenter (1999)
21 Cal.4th 1016, 1052 [no error in allowing testimony that
defendant kept a gun even though witnesses did not establish
gun necessarily was the murder weapon because it might have
been].) Moreover, “evidence of weapons unconnected to the crime
may be relevant for other purposes.” (People v. Merriman (2014)
60 Cal.4th 1, 81.) For instance, evidence of firearms that were
connected to the defendant but not to any of the charged crimes
could be relevant to proving that “he was a gang member at war
with a rival gang,” and thus, had a gang-related motive for the
crimes. (People v. Nguyen (2015) 61 Cal.4th 1015, 1073.)
3.2 The trial court did not err in admitting the
challenged photographs
We first address the People’s argument that Carrera
forfeited his challenge to the photographic evidence by failing to
renew his objection to it during trial. Although Carrera filed a
pretrial motion in limine to exclude any images of firearms and
23
related testimony taken from his Facebook posts, the record does
not show whether the trial court ever ruled on such motion.
Instead, the record shows that, at a hearing held prior to start of
the People’s case-in-chief, the court indicated that it needed to
see the photographs before making its ruling. Without objection,
the court later admitted the evidence during the prosecution’s
direct examination of the investigating detective, who testified
that the photographs were posted on Carrera’s Facebook account
on November 30, 2019, which was 12 days before the shooting in
this case. Because there is no indication in the record that
Carrera ever renewed his objection to this evidence, we agree
with the People that he forfeited his claim on appeal. (People v.
Ramos (1997) 15 Cal.4th 1133, 1171 [while a properly directed
motion in limine may preserve a claim for appeal, “the proponent
must secure an express ruling from the court”].) In any event,
even if the claim was not forfeited, it fails on the merits.
Here, neither the murder weapon nor any bullet casings
were ever found. On cross-examination, the detective was asked
whether the police were able to determine the type or caliber of
firearm that was used in the shooting. In response, he indicated
that they may have tried to obtain that information, but he could
not recall. When asked whether the firearm depicted in the
photographs had anything to do with the charged crimes, the
detective responded that Carrera possessed that gun two weeks
before the murder, but he did not know if it was the same one
used in the shooting.
Thus, this was not a case where the prosecution relied on
evidence that a specific type of firearm was used in the charged
offense, and then sought to introduce evidence of other firearms
possessed by the defendant. Rather, the detective acknowledged
24
that he did not know what type or caliber of firearm was used in
the murder. As a result, he could not rule out the possibility that
it was the same one depicted in Carrera’s Facebook photographs.
The detective also testified that the firearm in the photographs
could be a .357, which was the same caliber of gun that Rojas saw
in Carrera’s possession near the time of the shooting. While
Rojas described that gun as a chrome revolver, the photographs
of the black gun posted on Carrera’s Facebook account supported
an inference that he had access to firearms two weeks before the
shooting, which corroborated Rojas’s statement to the police that
Carrera was armed around the time the murder occurred. In
addition, on the same day that Carrera posted the photographs,
he also posted a derogatory statement about the MS-13 gang,
which supported the inference that Carrera remained active in
the North Hollywood Locos, and that the use of guns was part of
the ongoing rivalry between his gang and the MS-13 gang.
Under these circumstances, the trial court reasonably could have
found that the photographs of the firearm were relevant and
admissible.
Furthermore, the admission of the evidence was not unduly
prejudicial. The photographs and related testimony were a small
portion of the evidence presented at trial and were not uniquely
likely to evoke an emotional bias. The jury heard other evidence
tending to establish that Carrera was in possession of a firearm
at the time of the murder, and that he had a gang-related motive
for firing into a car occupied by Palomares and his girlfriend. In
his cross-examination of the detective, Carrera’s attorney elicited
testimony that it was common for gang members to post pictures
of themselves with firearms on their social media accounts, and
that Palomares also had done so around the time of the shooting.
25
On this record, the trial court reasonably could have found that
the probative value of the evidence was not substantially
outweighed by any potential for prejudice.
Carrera’s claim that the admission of the photographs
violated his constitutional right to due process also fails. “ ‘The
admission of relevant evidence will not offend due process unless
the evidence is so prejudicial as to render the defendant’s trial
fundamentally unfair.’ ” (People v. Jones (2013) 57 Cal.4th 899,
949.) Because the proffered evidence was both relevant and not
unduly prejudicial, there was no abuse of discretion or violation
of due process in its admission.
4. Admission of evidence of Hurtado’s no contest plea
Carrera argues the trial court erred in admitting evidence
of Hurtado’s no contest plea to being an accessory after the fact.
He asserts the evidence should have been excluded because it
was irrelevant and unduly prejudicial, and its admission violated
his constitutional rights to freedom of association and a fair trial.
We conclude the trial court did not err in admitting the evidence
related to Hurtado’s plea.
4.1 Relevant background
Prior to trial, Carrera filed a motion in limine to exclude
any testimony concerning Hurtado’s no contest plea in this case
on the ground that it could not be “considered as evidence of the
guilt of any other person, and is therefore irrelevant.” At the
hearing on the motions in limine, the prosecution argued that the
factual basis for the plea was relevant to showing that Hurtado
assisted Carrera in fleeing California shortly after the shooting.
The prosecutor asserted that if Hurtado refused to admit those
underlying facts in her testimony at trial, then the statements
contained in the factual basis for her plea would be admissible.
26
The trial court agreed with the prosecution the Hurtado could be
impeached with her plea admissions in the event that she denied
engaging in the acts described in the factual basis for her plea.
At trial, Hurtado was asked about two cell phone numbers
that were used to communicate with Carrera around the time of
the shooting. She testified that she could not recall whether she
had one of those numbers because her memory was “really fuzzy”
due to mental stress and medication. Even after the prosecution
attempted to refresh her recollection with the transcript of her
plea admissions, Hurtado continued to testify that she could not
remember if that number belonged to her. At that point, with the
court’s permission, the prosecution read back Hurtado’s plea
admission that she was in possession of cell phones with those
two numbers between November 2019 and January 2020. When
Hurtado was asked whether she provided financial assistance to
Carrera following the shooting, she again testified that she could
not recall and that reviewing the transcript of her plea would not
help refresh her recollection. The court then allowed the
prosecution to read back Hurtado’s plea admission that she
provided financial assistance to Carrera between December 31,
2019, and January 31, 2020.
On cross-examination, Hurtado testified that she last spoke
with Carrera “[r]ight before [she] was charged.” When asked
whether she received any information about a crime that
occurred in December 2019 in which Carrera was involved,
Hurtado replied, “I don’t know anything about any crime.”
On redirect, the prosecution asked Hurtado whether she was
claiming that she pled no contest to an accessary charge “in a
case [you] know nothing about.” Hurtado testified that her
attorney advised her to take the plea deal, but did not tell her
27
what the murder in this case was about and only said she was
being charged as an accessory. She also testified that she “had no
idea what [she] was pleading to,” and that she accepted the deal
because she “just wanted it to be over.” When asked what she
actually knew about the case, Hurtado stated that she only knew
that Carrera was charged with a murder and she was accused of
being an accessory for helping him.
4.2 The trial court did not err in admitting the
evidence related to Hurtado’s plea
As a general rule, “evidence regarding the guilty plea or
conviction of a coparticipant in a crime is not admissible to prove
guilt of a defendant.” (People v. Neely (2009) 176 Cal.App.4th
787, 795; see People v. Leonard (1983) 34 Cal.3d 183, 188–189.)
“The rationale for the rule is that a guilty plea or conviction of a
participant is irrelevant to whether another person was positively
and correctly identified as a coparticipant, and merely invites the
inference of guilt by association.” (People v. Neely, at p. 795.)
Similarly, evidence of a coparticipant’s guilty plea “which is more
prejudicial than probative when offered to raise an inference of
the defendant’s guilt is per se more prejudicial than probative
when offered simply to bolster the credibility of another witness.”
(People v. Cummings (1993) 4 Cal.4th 1233, 1322.)
Carrera argues the trial court erred in admitting evidence
of Hurtado’s no contest plea because it permitted an improper
inference of his guilt by association. In particular, he asserts the
evidence allowed the jury to infer that he must have committed
the charged crimes because his girlfriend admitted to helping
him avoid prosecution for those crimes. However, the evidence
concerning Hurtado’s plea was not offered to prove that Carrera
was the person who committed the drive-by shooting, nor was it
28
offered to bolster the credibility of any witness. Rather, it was
introduced for the purpose of impeaching Hurtado with her plea
admissions after she testified that she could not recall engaging
in the actions that formed the factual basis for her plea. The
prosecution also asked a limited number of questions about the
plea on redirect after Hurtado testified that she knew nothing
about the crimes at issue in this case.
Under Evidence Code section 1235, “[e]vidence of a
statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with his testimony
at the hearing and is offered in compliance with Section 770.”
(Ibid.) Evidence Code section 770 allows the admission of a prior
inconsistent statement provided that the “witness was so
examined while testifying as to give him an opportunity to
explain or to deny the statement.” (Id., subd. (a).) Our Supreme
Court has explained that “ ‘ “ ‘[i]nconsistency in effect, rather
than contradiction in express terms, is the test for admitting a
witness’[s] prior statement.’ ” ’ ” (People v. Homick (2012)
55 Cal.4th 816, 859.) Thus, “ ‘ “[w]hen a witness’s claim of lack of
memory amounts to deliberate evasion, inconsistency is implied.
[Citation.] As long as there is a reasonable basis in the record for
concluding that the witness’s ‘I don’t remember’ statements are
evasive and untruthful, admission of his or her prior statements
is proper.” ’ ” (Ibid.)
In this case, Hurtado testified that she could not recall
whether she possessed the cell phone numbers that were used to
communicate with Carrera in the month following the shooting
and whether she financially supported Carrera during that time.
Even after she was given an opportunity to review the transcript
of her plea admissions, Hurtado maintained that she could not
29
remember engaging in these particular acts. Because there was
a reasonable basis for concluding that Hurtado’s claimed lack of
memory was untruthful, the trial court properly allowed the
prosecution to impeach Hurtado with the prior inconsistent
statements that were contained in the factual basis for her plea.
Later in her testimony, Hurtado also denied knowing anything
about the crimes that were charged in this case. The prosecution
then sought to impeach Hurtado’s credibility on this issue by
asking why she would agree to a plea in a case that she knew
nothing about. The plea agreement itself was not offered into
evidence, and neither the prosecution nor the defense made any
reference to Hurtado’s plea during their closing arguments.
“ ‘Admissibility of the plea turns on the purpose for which it
is offered. When that purpose is to further the jury’s difficult
task of evaluating credibility, it is relevant and admissible
without reference to the identity of the offering party.’ ” (People
v. Mackey (2015) 233 Cal.App.4th 32, 119 [evidence of
coparticipant’s guilty plea was relevant to jury’s credibility
assessment of his trial testimony].) Here, the trial court did not
abuse its discretion when it admitted the evidence related to
Hurtado’s no contest plea over Carrera’s relevance objection in
his motion in limine. The testimony regarding the plea was
narrow in scope and tailored toward impeaching Hurtado’s
credibility based on her refusal to admit the acts underlying the
factual basis for her plea, and any knowledge of the charges in
this case. Carrera also had an opportunity to fully cross-examine
Hurtado about this evidence and whether her claimed lack of
memory and knowledge of the case were credible. Because the
evidence was relevant and not unduly prejudicial, Carrera’s
constitutional claim likewise lacks merit.
30
5. Cumulative error
Carrera asserts the cumulative effect of the claimed errors
deprived him of due process of law and a fair trial. “Cumulative
error is present when the combined effect of the trial court’s
errors is prejudicial or harmful to the defendant. [Citations.]
Although a defendant is entitled to a fair trial, he or she is not
entitled to ‘a perfect one.’ ” (People v. Capers (2019) 7 Cal.5th
989, 1017.) Here, Carrera received a fair trial and has failed to
show any cumulative error requiring reversal of his convictions.
6. Firearm enhancements in counts 2 through 4
Carrera raises two arguments regarding the jury’s findings
on the firearm enhancement allegations in counts 2 through 4.
In the verdict form for each of these counts, the jury found true
the allegation that, in the commission of the charged offense,
Carrera personally and intentionally discharged a firearm within
the meaning of section 12022.53, subdivision (c). As to count 2,
Carrera asserts that his sentence must be corrected because the
trial court erroneously imposed a 25-year term for the firearm
enhancement under section 12022.53, subdivision (d), rather
than the 20-year term required under subdivision (c). As to
counts 3 and 4, Carrera argues that the jury’s true findings on
the firearm enhancements must be stricken because the offenses
charged in those counts do not qualify for an enhancement under
section 12022.53, subdivision (c). The People contend that the
judgment need not be modified because the reference to
section 12022.53, subdivision (c), in the verdict forms was a
clerical error, and thus, the trial court properly imposed the
enhancements under subdivision (d) of the statute. We agree
with the People.
31
“ ‘ “ ‘A verdict is to be given a reasonable intendment and be
construed in light of the issues submitted to the jury and the
instructions of the court.’ [Citations.]” [ Citations.] “The form of
a verdict is immaterial provided the intention to convict of the
crime charged is unmistakably expressed.” ’ ” (People v. Jones
(2014) 230 Cal.App.4th 373, 378–379.) “[T]echnical defects in a
verdict may be disregarded if the jury’s intent to convict of a
specified offense within the charges is unmistakably clear, and
the accused’s substantial rights suffered no prejudice.” (People v.
Webster (1991) 54 Cal.3d 411, 447.) “Where the error is in the
recording of the judgment, as opposed to in the rendering of
the judgment, it is clerical error which may be disregarded or
corrected.” (People v. Camacho (2009) 171 Cal.App.4th 1269,
1273, citing People v. Trotter (1992) 7 Cal.App.4th 363, 370.)
Section 12022.53 establishes a tiered system of sentencing
enhancements for certain felonies involving firearms. (People v.
Tirado (2022) 12 Cal.5th 688, 693.) Subdivision (b) of the statute
mandates the imposition of a 10-year enhancement for the
personal use of a firearm in the commission of one of those
felonies; subdivision (c) requires the imposition of a 20-year
enhancement for the personal and intentional discharge of a
firearm; and subdivision (d) provides for a 25-year-to-life
enhancement for the personal and intentional discharge of a
firearm causing great bodily injury or death to a person other
than an accomplice. (§ 12022.53, subds. (b)–(d).) Attempted
murder is among the felonies that are subject to an enhancement
under subdivisions (b), (c), and (d) of the statute. (Id.,
subds. (a)(1), (a)(18), (b)–(d).) While shooting at an occupied
vehicle and shooting from a motor vehicle are also subject to an
enhancement under section 12022.53, subdivision (d), they are
32
not among the felonies that qualify for an enhancement under
subdivision (b) or (c). (Id., subds. (c)–(d).)
In this case, the charging information alleged firearm
enhancements in counts 1 through 4. As to each of those counts,
the enhancements were alleged under section 12022.53,
subdivisions (b), (c), and (d). At trial, however, the court did not
instruct the jury on any enhancements alleged under either
subdivision (b) or (c) of the statute. Rather, the court solely
instructed the jury on the firearm enhancements with CALCRIM
3149, which governs the enhancement for the personal discharge
of a firearm causing death or great bodily injury under section
12022.53, subdivision (d). As instructed by the court, the jury
was told that, to prove the firearm enhancement allegations in
counts 1 through 4, the People had to prove that (1) the
defendant personally discharged a firearm during the commission
of that crime, (2) the defendant intended to discharge the
firearm, and (3) the defendant’s act caused the death of a person.
In the verdict form for count 1, the murder charge, the jury
was asked whether, in the commission of the offense, Carrera
“personally and intentionally discharged a firearm, to wit, a
handgun, which caused great bodily injury and death to the
victim, within the meaning of Penal Code Section 12022.53(d).”
The jury found the section 12022.53, subdivision (d) allegation in
count 1 to be true. The verdict forms for counts 2, 3, and 4 asked
the jury whether, in the commission of the offense, Carrera
“personally and intentionally discharged a firearm, to wit, a
handgun, within the meaning of Penal Code Section 12022.53(c).”
For each of those counts, the jury found the section 12022.53,
subdivision (c) allegation to be true. Neither party raised any
objections to the verdict forms, or brought the apparent error in
33
the verdict forms for counts 2 through 4 to the trial court’s
attention.
At sentencing, the trial court imposed a 25-year firearm
enhancement under section 12022.53, subdivision (d), on count 1.
The court also imposed a 25-year firearm enhancement under
section 12022.53, subdivision (d), on count 2. The court stayed
the three-year terms imposed on counts 3 and 4 under
section 654, but did so without imposing a firearm enhancement
on either count. There was no objection to the imposition of the
section 12022.53, subdivision (d) enhancement on count 2.
Based on the totality of the record, it is clear the jury
intended to find that, as to each count for which a firearm
enhancement was alleged, Carrera personally and intentionally
discharged a firearm causing Zuniga’s death within the meaning
of section 12022.53, subdivision (d). There can be no dispute that
Carrera had notice of the applicable firearm enhancements for
counts 1 through 4. The information specifically alleged a
section 12022.53, subdivision (d) firearm enhancement for each of
those counts. Furthermore, the jury was properly instructed on
the elements of a section 12022.53, subdivision (d) enhancement,
and was not given any instructions for an enhancement under
subdivision (b) or (c). Although neither the prosecution nor the
defense discussed the firearm enhancements in their closing
arguments to the jury, the People’s theory of the case throughout
the trial was that Carrera was guilty on each count because he
fired a single shot from his car into the car occupied by Zuniga
and Palomares, killing Zuniga. Thus, when the jury was asked in
the verdict form for count 1 whether Carrera “personally and
intentionally discharged a firearm . . . which caused great bodily
34
injury and death to the victim, within the meaning of Penal Code
Section 12022.53(d),” the jury answered “True.”
Moreover, as our Supreme Court has recognized, multiple
firearm enhancements may be imposed under section 12022.53,
subdivision (d), based on the death or great bodily injury of a
single victim who is shot during the simultaneous commission of
different qualifying offenses. (People v. Palacios (2007)
41 Cal.4th 720, 726–727; People v. Oates (2004) 32 Cal.4th 1048,
1055.) Here, once the jury found that, as to count 1, Carrera
personally and intentionally discharged a firearm causing
Zuniga’s death, it also made the necessary factual findings for a
section 12022.53, subdivision (d) enhancement as to counts 2, 3,
and 4, since Carrera simultaneously committed the offenses in
those counts when he fired the single shot that killed Zuniga.
Under these circumstances, the jury’s intent to impose a
section 12022.53, subdivision (d) firearm enhancement on counts
2 through 4 is “unmistakably clear,” and Carrera’s “substantial
rights suffered no prejudice.” (People v. Webster, supra, 54 Cal.3d
at p. 447; accord, People v. Camacho, supra, 171 Cal.App.4th at
p. 1272.) Accordingly, the trial court properly disregarded the
error in the verdict forms for counts 2 through 4 in sentencing
Carrera, and no modification of the judgment is required.
35
DISPOSITION
The judgment is affirmed.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
GRIMES, J.
36