People v. Vega-Robles

Filed 3/7/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A137121

v.

JOSE VEGA-ROBLES, (Contra Costa County

Super. Ct. No. 05-080176-1)

Defendant and Appellant.

INTRODUCTION

A jury convicted Jose Vega-Robles of conspiracy to sell controlled substances,

attempted robbery, and two first degree murders, and found true gang and firearm

enhancements. He appealed, raising numerous issues, including a challenge to the gang

experts’ testimony on hearsay and confrontation clause grounds. In an opinion certified

for partial publication filed on May 5, 2015, we reversed the conviction for the murder of

Darrell Grockett for instructional error per People v. Chiu (2014) 59 Cal.4th 155 (Chiu).

We ordered that on remand, the People had the option of accepting a reduction of

defendant’s conviction to second degree murder or retrying the first degree murder

charge under theories other than natural and probable consequences. (Id. at p. 168.) We

rejected defendant’s other appellate challenges to the judgment.

On July 29, 2015, the Supreme Court granted defendant’s petition for review and

deferred further action pending consideration of People v. Sanchez (review granted

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is

certified for publication with the exception of parts V, VII, XI, XII, XIII, XIV, and XV of

the Discussion section.

Sept. 5, 2014, S216681). (People v. Vega-Robles, review granted July 29, 2015,

S226913.) On September 21, 2016, the Supreme Court transferred the cause to this court

for reconsideration in light of the decision in People v. Sanchez (2016) 63 Cal.4th 665

(Sanchez). Thereafter, we requested and received supplemental briefing from the parties

on the application of Sanchez to this case. Having considered the supplemental briefs, we

conclude the testimony of gang experts Todd Tribble and Robert Brady, and the

instructions on expert testimony, violated Sanchez in certain respects, but the errors were

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18). We

therefore reinstate our original judgment reversing in part and affirming in part, and

remanding with instructions.

STATEMENT OF THE CASE

In 2008, the Contra Costa County District Attorney filed an indictment

charging defendant and four others with conspiracy to sell narcotic and non-narcotic

controlled substances in violation of Health and Safety Code sections 11352 and

11378, from January 1, 2004, until November 30, 2005. (Pen. Code, § 182,

subd. (a)(1)); count 1.)1 The indictment alleged 19 overt acts under count 1. Overt act

Nos. 1 and 2 alleged the sale of methamphetamine by defendants to Robert Lott and

by Lott to Tara Sander in 2004. Overt act Nos. 3, 4, 5, and 6 alleged a plan between

defendants and Coby Phillips to kill Darrell Grockett on October 7, 2004. Overt act

Nos. 7 through 15 alleged a plan between defendants and Ricardo Ruiz to kill

Marcelino Guzman-Mercado on December 3, 2004. Overt act No. 16 alleged the

burglary of Guzman-Mercado’s residence by defendant and two other codefendants.

Overt acts 17 through 19 involved defendant’s nonfatal shooting of Jose Hernandez on

February 21, 2005, with the assistance of Thomas Covey.

1

All further unspecified statutory references are to the Penal Code.

2

The indictment also alleged the conspiracy described in count 1 was committed

to benefit two criminal street gangs, Family Affiliated Irish Mafia (FAIM) and

Sureños. (§ 186.22, subd. (b)(1).)

In addition, the indictment alleged two counts of murder (§ 187, subd. (a);

counts 2 [Grockett] & 3 [Guzman-Mercado]), attempted robbery (§§ 211/212.5/664;

count 4), residential burglary (§ 459; count 5), grand theft (§ 487, subd. (a); count 6),

and attempted first degree murder (§§ 187, subd.(a)/664; count 7 [Hernandez]). The

indictment alleged counts 2 through 6 were committed to benefit the FAIM and

Sureños criminal street gangs. (§ 186.22, subd. (b)(1).) And, in connection with

counts 2, 3, and 7, it alleged a principal intentionally used and discharged a firearm,

causing death or great bodily injury, for the benefit of the Sureños and FAIM street

gangs. (§ 12022.53, subds. (b), (c), (d) & (e)(1)).

On March 26, 2012, the court granted defendant’s motion to sever count 7, the

attempted murder charge. The overt acts related to that count were not severed.

On June 8, 2012, the jury convicted defendant of counts 1 through 4

(conspiracy, murders of Grockett and Guzman-Mercado, and attempted robbery of

Guzman-Mercado), and found both murders to be of the first degree. The jury found

true the allegations that defendant committed (1) the conspiracy for the benefit of the

Sureños and FAIM gangs, (2) the Grockett murder for the benefit of the FAIM gang,

and (3) the robbery and murder of Guzman-Mercado for the benefit of the Sureños

gang.

With respect to the firearm allegations, the jury found true that a principal

party intentionally discharged a firearm during the Grockett murder and that the

offense was committed for the benefit of the FAIM gang. The jury found the cognate

allegation not true with respect to the Guzman-Mercado murder and the Sureños

gang, but did find true the allegation a principal party used a firearm and committed

the offense for the benefit of an unspecified criminal street gang.

3

The jury acquitted defendant of counts 5 and 6, residential burglary and grand

theft, respectively.

The court sentenced defendant to an indeterminate prison term of 85 years to

life. Defendant filed a timely notice of appeal.

STATEMENT OF FACTS

I. Prosecution Evidence.

A. Defendant’s drug trafficking operations.

In 2004, Ricardo Ruiz lived in the Richmond/San Pablo area and knew Juan

Delatorre, defendant’s cousin, Primo, his brother, Sergio, and the brothers Rudolfo and

Alejandro Figueroa. Before and during 2004, Ruiz was affiliated with Richmond Sur

Trece (RST), a Sureño gang. Delatorre was also involved in RST, and Rudolfo Figueroa

was affiliated with it to the same extent Ruiz was. Ruiz believed Alejandro and Rudolfo

Figueroa were also affiliated with the Sureños.

Ruiz met Sergio Robles before he became acquainted with defendant or Primo.

Ruiz’s primary relationship was with Sergio. Sergio was involved in selling “crystal”

and “coke,” which he obtained in Los Angeles. Defendant was involved in drug sales

with Sergio. Defendant’s job was “selling dope.” Ruiz knew this because “they used to

come to my house all of the time and did their business there and I seen it.” Also,

defendant had all kinds of cars: “Mercedes, Jaguars, Beamers, . . . Escalades.”

Ruiz worked for both Sergio and defendant. He assisted them in their drug sales

by picking up and delivering the drugs. He facilitated a drug sale from Sergio to Coby

Philips. However, he did not deal drugs with or buy drugs from Coby Philips. Both

Sergio and defendant asked Ruiz to transport drugs from Southern California to the north,

but Ruiz declined to do so.

Ruiz also acquired methamphetamine from defendant, Sergio and others, which he

resold in small quantities. Defendant and Sergio did not share their drug profits with

Ruiz. Ruiz did not share his profits from these sales with anybody. Primo was also

4

involved in the drug sales. RST members were involved in selling crystal

methamphetamine and marijuana.

Defendant was not in RST. He worked with his brother and “was higher on the

food chain than a street dealer.” In 2003 and 2004, defendant and his brother dealt in

pound quantities. According to Ruiz, Delatorre was using and selling drugs at the same

time. Initially, he got drugs from Ruiz, but eventually he got them directly from

defendant and Sergio and became part of the distribution ring.

Ruiz knew who Coby Phillips was because Phillips’s father and grandparents lived

on the same street in San Pablo as Ruiz. However, he did not associate with Philips

because Hispanic and White groups do not associate. Phillips had a leprechaun or a

shamrock tattooed on his face near his eye. Ruiz was present when Sergio talked to

Phillips about a drug transaction. Ruiz went with defendant and Sergio a couple times to

Phillips’s house in Vallejo to drop off drugs. Ruiz also went with Primo to sell drugs at

different places. On one occasion, Ruiz guarded a car containing drugs on Bush Street in

San Pablo at the request of defendant and Sergio. Ruiz went with defendant a couple

times to collect a debt Delatorre owed for a pound of methamphetamine.

Stacey Taylor married Coby Phillips in November 2003. She had known him

since she was 13. She knew defendant as Phillips’s friend “Carlos,” who supplied him

with methamphetamine, which Phillips resold to other drug dealers. Phillips was a

member of the FAIM gang, as were Thomas Covey, Matt Donohue, Jason Donohue,

and about 100 others. Phillips had shamrock tattoos on his face and shaved head. The

large shamrock on the back of his head had the letters FAIM in the middle of it, and he

had a swastika tattooed on the top of his head. Taylor concluded drug dealing was the

primary activity of the gang. Taylor knew Phillips obtained methamphetamine from

defendant and Sergio (as well as a couple of others) in 2004 because she was with

Phillips and a lot of the time it was at their house. Phillips bought varying amounts of

product from defendant, sometimes as much as 10 pounds. She did not directly know

5

where defendant got the methamphetamine, but she knew it came from Mexico.

Phillips resold “sales quantities” (as opposed to “street level quantities”) of the drugs,

typically to other FAIM members.

Taylor sometimes counted the drug money for Phillips. Between 2003 and

2005, the most cash Taylor had ever seen Phillips with in connection with drug sales

was about $100,000. Taylor knew Phillips also received guns as payment for drugs

because she was present when Phillips discussed drugs for guns with defendant and

Sergio. Taylor knew that her brother, Clayton Cates, transported drugs because she

was there when he left and when he returned. She also went with Phillips a few times

to drop off or pick up a pound of drugs.

Taylor understood she was testifying under a grant of immunity stemming from

a murder prosecution in Solano County.2 She had lied to the police when she provided

Phillips with an alibi for the Grockett murder. She had previously committed perjury

in one jury trial to exonerate Phillips from domestic violence charges and at another

jury trial in Solano County. She lied at the Solano County trial because she was afraid

of retaliation if she testified truthfully. She felt safe after relocation and did not need

to worry about something happening because of her testimony in the current case. She

received $1,500 a month for rent and other incidentals for herself, her four children,

and Tim Covey, with whom she still lived, from the state’s witness relocation fund.

Her brother, Clayton Cates, pleaded guilty to voluntary manslaughter and received a

one-year jail sentence in the Solano County case. Cates also receives relocation

money.

2

In 2009, 2011, and 2012, Taylor testified in three Solano County murder trials

concerning “the Verducci shooting.” She entered into an immunity agreement after the

first trial in 2009. The agreement involved relocation for her and Tim Covey if she

agreed to tell the truth. She was “not sure” if the Solano County agreement “carrie[d]

over” to Contra Costa County because she “never was told that,” but she did not think she

was saying anything she could “get prosecuted for.”

6

Taylor began a romantic relationship with Tim Covey a couple of months after

Phillips went to jail on the current charges. Taylor and Phillips got back together after

Phillips was released from jail for lack of evidence, but then separated for good in early

2007 after the domestic violence incident on New Year’s Eve in 2006. At that point,

she and Tim Covey moved away and stopped associating with defendant and the rest of

the group because everyone was upset about her relationship with Covey. However,

she remained on friendly terms with Jamie Beckwith, defendant’s girlfriend.

Cates testified that from 2004 to 2007, Phillips made money by selling

methamphetamine, and Cates was “involved in some way with it.” Cates participated in

Phillips’s drug trafficking activities. According to Cates, Phillips obtained his

methamphetamine from defendant and Sergio. Cates met defendant and his brother

through Phillips. On three or four occasions, Cates transported drugs from Los Angeles

to the Bay Area for Sergio. Sergio provided Cates with the car he drove to Los Angeles.

Cates would leave the car at a predetermined spot in Los Angeles and pick up the car

later that day. He then drove it to Sergio’s house in Benicia. Cates saw people take drugs

from the panels inside the car. Cates was paid about $3,000 per trip. Cates knew Phillips

got his drugs from Sergio because Cates heard Phillips talking about it. Cates got drugs

from Phillips and delivered them to Stephen Buchanan, whom he knew through Phillips.

Cates knew Phillips and the Covey brothers were in the FAIM gang because of

their tattoos. Phillips had shamrocks tattooed on his face and head. Thomas (Bubba) and

Timothy Covey had FAIM tattooed on their arms. Buchanan was also a gang member

and had gang-related tattoos. Cates denied he was ever a member of FAIM. He did not

have any tattoos. In 2008, Cates was arrested on drug-related charges involving Cates’s

delivery of drugs to Buchanan. He was also “in trouble” on a 2007 murder charged out

of Vallejo that also involved his sister. Cates pleaded guilty to drug trafficking in the

Buchanan matter, received a suspended sentence of 11 years, and was placed on

7

probation. He was given immunity to testify in the Vallejo matter. He was also in

witness relocation.

Timothy Covey was a member of the FAIM gang, which his brother Tom

cofounded. Covey had several tattoos on his body, including one on his arm that said

FAIM and one on his shoulder that said FAIMLY. The gang recruited members

through the prison system. Belonging to the gang made “things a lot easier” for Covey

when he was in Contra Costa County jail. In late 2004 to early 2005, Covey personally

knew about 30 FAIM gang members.

The purpose of forming the gang was to use “muscle” to “help our drug trade.”

Covey knew that Phillips purchased drugs from defendant when he was not in jail

because he witnessed the transactions. Covey started purchasing methamphetamine

directly from defendant after Phillips went to jail. Defendant would “front” Covey a

pound or two of methamphetamine at a time which Covey would then resell to

“[m]ostly sellers,” and then pay defendant out of the sales proceeds. At the time,

Covey considered defendant “family.” By the time of trial, Covey no longer

considered him a friend. Covey still owed defendant money for drugs, but he had made

no effort to pay him back. Covey testified that if defendant were released, “we’d have

to deal with it[,] obviously.”

Covey had a falling out with some members of FAIM after he became

romantically involved with Stacey Taylor, Phillips’s wife.

In the same Solano County case in which Stacey Taylor testified, Covey refused

to testify against a FAIM member. He made no deal for immunity from prosecution in

Contra Costa County. “I’m just telling the truth.” The United States government

relocated him and his family to a different state after he began to receive threats. His

rent and incidental expenses were paid by Solano County. He felt he needed to relocate

before he could testify.

8

Jamie Beckwith was defendant’s girlfriend from 2003 to 2007, and she had two

daughters with him. At that time, defendant did not have a job; he sold drugs which he

told her, and she believed, he obtained from Mexico. He was known as Carlos or by

the street name Calacas. She knew his brother, Sergio, was also involved in selling

drugs from being around them all of the time and overhearing conversations. Carlos

and Sergio worked together, but defendant was “more of the leader.” Sergio sold more

cocaine, whereas defendant sold crystal methamphetamine by the pound. Their cousin,

Primo or Josue, worked for defendant in the drug business, delivering and picking up

“money and stuff like that.” The largest quantity of methamphetamine Beckwith heard

defendant discuss was 30 pounds, and the greatest amount of money was around

$400,000.

Beckwith also knew Coby Phillips, who bought drugs from defendant. Phillips

did not hang out with people who were not White or Irish, except defendant. Timothy

Covey associated with Phillips. After Phillips went to jail in late 2004 or early 2005,

Phillips had Covey “take care of [Phillips’s] business and take care of his household

duties,” and Covey started doing drug transactions with defendant. Beckwith knew

Ricardo Ruiz “through [defendant’s] people that he knew and met up with.” Beckwith

socialized with Phillips’s wife, Stacey. Both Tim Covey and Stacey were around when

drugs were being discussed.

Beckwith saw defendant, Sergio, Primo, and Tim Covey carrying guns. In 2004

and 2005, defendant “always” carried a gun, which he kept in the center console of his

vehicle.

Beckwith knew, by “talking to everybody,” that Cates picked up drugs

somewhere in Los Angeles for both defendant and Sergio.

In 2005, defendant told Beckwith there was a warrant for his arrest, and he left

for Mexico. Covey later drove Beckwith to Mexico to see him. Defendant was

9

arrested in 2007 when he returned to the United States. Taylor and Covey took

Beckwith to see him in jail in Petaluma.

B. Murder of David Grockett—October 7, 2004.

On October 7, 2004, then Contra Costa County Sheriff’s Detective 3 Shawn

Pate noticed a Chevrolet pickup truck parked at a pullout along Crockett Boulevard.

The truck was locked; the keys were inside the truck. Darrell Grockett’s body was

lying face up on the ground behind it. Grockett had tattoos on his forehead and upper

torso. He had $2,000 in his left front jacket pocket. He had gunshot wounds to the

mouth, finger, and left torso. Eleven cartridge casings and six bullets were recovered

from the scene. Some of the rounds had passed through the front of the body into the

dirt beneath. Eleven cartridge cases, 10 bullets, and one bullet fragment were

submitted to the crime lab for ballistics analysis. The analysis established three rounds

were fired from a .38 or .357 caliber firearm and seven rounds were fired from a 9-by-

19 millimeter gun. From the blood stains at the scene, it appeared that Grockett first

was shot while standing and then shot additional times while lying on the ground.

i. Events Leading Up to the Murder.

Stacey Taylor testified Darrell Grockett was a friend of Phillips who had

attended their wedding. Grockett had shamrock tattoos and was gang-affiliated with

the Aryan Brotherhood. Taylor witnessed drug deals between Phillips and Grockett.

Grockett would come to their house and hand Phillips money and receive drugs in

return. In October 2004, both Grockett and Phillips were out of custody. Phillips told

Taylor they had a disagreement over drugs because Grockett did not want to pay what

Phillips was asking.

Around 7:00 or 8:00 p.m. on October 7, 2004, Taylor and Phillips went to a

restaurant overlooking the Carquinez Bridge known as The Dead Fish. Before they left

for the restaurant, Phillips told Taylor he was going to meet with Grockett. Phillips said

3

At the time of trial, Pate was an inspector with the district attorney’s office.

10

that he and the other people he was meeting at the restaurant were going to go shoot

Grockett. According to Taylor, when she and Phillips arrived, defendant was there with

his wife Jamie Beckwith, Sergio, and Primo.4 Phillips, defendant, Sergio, and Primo left

the restaurant a short time later. According to Taylor, she and Beckwith remained at the

restaurant.

ii. Events After the Murder.

About 45 minutes to an hour later, Phillips, defendant, and the others returned

to the restaurant. Taylor and Phillips went to a house in Rodeo, where Phillips

wrapped some things in rags and gave them to a woman named Amy Abeyta. Taylor

knew the items were the guns used to shoot Grockett because Phillips told her he had

to get rid of them. They did not stay at their home in Vallejo that night but, instead,

went to a hotel in Vacaville. The next day they went to Taylor’s parents’ house in

Shingletown in Northern California, where they had sent their children a few days

earlier.

Phillips later asked Taylor to attend Grockett’s funeral to avoid suspicion. They

subsequently moved to a house in Cordelia, which Phillips rented from Sergio, who

supplied Phillips with drugs. Phillips put bulletproof glass over the sliding glass door

and windows. Defendant and Sergio both visited the Cordelia house.

In 2004, Sally Sinclair and Darrell Grockett came up with a plan to sell

methamphetamine together. Grockett had a connection with someone for getting

methamphetamine, and Sinclair was going to buy five pounds of methamphetamine

from him for $35,000. In late September or early October 2004, she gave him a

$16,000 advance, but the deal was postponed.

4

Beckwith recalled it slightly differently. She testified that once, on a date she

did not recall, defendant dropped her off at The Dead Fish restaurant, and Coby Phillips

dropped Taylor off. The two men then left together. She told Pate that in the days

leading up to her meeting with Taylor at The Dead Fish, she heard Coby and defendant

having a conversation about a drug deal that was less casual and more serious than

most of their conversations about drug deals.

11

A few days later, Grockett came to her house with his girlfriend, Tara. Sinclair

gave him another $13,000. Around 8:00 p.m., Grockett’s cell phone rang and he

stepped outside to take the call. Shortly thereafter, he came back inside and said he

would be right back. He left without Tara, without the money, and without saying

where he was going. Sinclair and Tara waited for him for hours at a local bar. Tara

tried to call Grockett numerous times without success. At some point, Sinclair spoke

to Grockett’s roommate, Matt Baker, on the telephone. Baker said Grockett was

dead.

Sometime in October 2004, Ruiz had a conversation with Primo in front of

Ruiz’s house on Bush Street in San Pablo about a shooting Primo witnessed the night

before. Primo was scared and shaken up about what he saw. He said his cousin

Calacas and Coby shot a man near Rodeo on Highway 4. Primo said the man they shot

had tattoos on his face. At the time Primo was telling Ruiz about the shooting,

defendant and Coby were standing across the street. After the conversation, Ruiz left

and Primo rejoined defendant and Cody.

Timothy Covey testified he heard defendant and Primo joking in Spanish about

Grockett’s death after it happened. They were talking “about the guy with tattoos all

over his face and making gestures. Like, bang, bang, bang.” They made shooting

gestures with their hands. Covey knew that Grockett had tattoos all over his face.

According to Covey, the day after the Grockett shooting, defendant’s and Phillips’s

families left town for Stacey Taylor’s grandmother’s house. When defendant and

Phillips returned after the Grockett killing, “everybody was pretty much let known that

we needed to start carrying guns and we were all hanging around Coby’s house in

Vallejo.” By “we,” Covey meant a close-knit group of FAIM members who were

Phillips’s associates. Shortly thereafter, Phillips moved to a house in Cordelia and put

thick Plexiglas on all the sliding glass doors.

12

C. Murder of Marcelino Guzman-Mercado—December 3, 2004.

In response to a call at 9:40 p.m. on December 3, 2004, Contra Costa County

Sheriff’s Deputy Xavier Shabazz was dispatched to 5955 North Arlington Boulevard in

San Pablo, where he located Guzman-Mercado’s body. The victim’s shirt and jacket were

pulled up, exposing his torso. He had a gunshot wound in his left side under his armpit.

There were also abrasions on the victim’s back and he was missing a shoe. The deputy

located a matching shoe in the middle of the street about a half mile south of the body.

Guzman-Mercado died of a single gunshot wound to the chest, which entered his

chest and exited his back. He had bruises and abrasions on his torso, face, and chest

consistent with impact on a rough, stony, or gravel surface. He had $680 and his house

keys on his person, as well as a phone number with a 650 area code on his belt. The

phone number led to a relative and the eventual discovery of Guzman-Mercado’s address.

Guzman-Mercado lived in an apartment complex at 2389 Aberdean Way,

Richmond. Police used the house key found on Guzman-Mercado’s body to enter the

apartment. The exterior door frame appeared to have been recently repaired and freshly

painted. A crowbar or tire iron was on a countertop inside.

i. Events Leading Up to the Murder.

Sometime in December 2004, defendant was at Taylor’s house in Fairfield when

he said he needed to get some money for Christmas and that he was going to rob

someone of drugs. Defendant’s girlfriend, Jamie Beckwith, and possibly Tim Covey,

were present during the conversation. According to Taylor, defendant said “he knew

somebody that had . . . either some money or some drugs that he could take [rob] from

them.”

On December 3, 2004, Ruiz was at home drinking beer with Rodolfo Figueroa

when Delatorre and Primo pulled up in a gold Lexus. The car was registered to Ruiz,

13

although he did not own it. He drove it only for drug trafficking business when directed

to by Primo. He did not use the car for his personal pleasure.5

Ruiz and Figueroa “hopped” in the car to go for a drive, but Primo drove to a

Union 76 gas station (76 Station) on the San Pablo Dam Road, where defendant and

another person were waiting for them in a white Suburban SUV. Defendant was the

passenger. Primo and Delatorre got out of the car and spoke to defendant. When they

returned to the Lexus, Primo told Ruiz to drive. Primo and Delatorre got in the Lexus,

and defendant remained in the Suburban. Primo asked Figueroa to wait at the 76 Station

and Figueroa got out of the car. Primo told Ruiz to pick up some drugs, and he drove to

a nearby car wash to wait for the arrival of Guzman-Mercado, whom he did not know.

Defendant was never in the Lexus.

After Guzman-Mercado got into the back seat of the Lexus, Ruiz drove off.

Primo, who was in the front seat, turned around to speak to Guzman-Mercado. They

argued in Spanish, and Ruiz heard someone say, “Let me see it.” Suddenly he heard a

gunshot from the back seat. Ruiz stopped the car in shock and looked back to see that

Guzman-Mercado was shot, and Delatorre had a gun in his hand. Ruiz kept driving and

when he next looked back the door was open and Primo and Delatorre were trying to

eject Guzman-Mercado’s body from the car, but Guzman-Mercado’s foot was caught

under the seat and his body was being dragged along the pavement. Ruiz stopped the

car; Primo got out and extracted Guzman-Mercado’s body from the car. Primo patted

down Guzman-Mercado’s body, looking for “house keys,” but did not find any. They

drove off, and Primo made a call from his cell phone.

ii. Events After the Murder.

A short time later, they met defendant and others at the Wildcat Canyon

Apartments, from which defendant sold drugs and where some of defendant’s relatives

5

Ruiz explained that Sergio had connections with the Department of Motor

Vehicles and was able to register the car in Ruiz’s name without his knowledge. Later,

Primo and defendant sold the car to Alejandro Figueroa.

14

lived. The apartments were around the corner from the 76 Station and a couple blocks

away from the location of the shooting. The others drove off, but Ruiz and Rodolfo

Figueroa stayed until Alejandro Figueroa picked them up and dropped Ruiz at his home.

The next day, Ruiz was eating with a friend at the Portumex Restaurant on 23rd

Street in Richmond when defendant, Sergio, and Primo came into the restaurant to talk

to him. Sergio told Ruiz, “Don’t worry about it. Just don’t say nothing.” Defendant

said, “Good job. Don’t worry. You’ll be fine.”

About a week later, Delatorre told Ruiz the incident “wasn’t supposed to happen

like that. They were just going to tie him up.” Ruiz asked Delatorre what happened after

Ruiz was dropped off at the Wildcat Canyon Apartments. Delatorre said “they” went to

the victim’s apartment and “he”― Delatorre― kicked in the door. He told Ruiz “he

went in and got what they went for,” which was “pounds of crystal meth.” Delatorre did

not say who went to the apartment with him. He said defendant kept the drugs.

Delatorre explained to Ruiz he “paid his debt” to defendant by participating in the

transaction. Ruiz knew Delatorre owed defendant money for “crank” defendant had

fronted to him because Ruiz went with defendant to collect the debt from Delatorre a

couple of times.

After the Guzman-Mercado shooting, Ruiz maintained his association with

defendant, Sergio, and Delatorre and continued to make drugs sales, but he tried to “keep

[his] distance.”

Ruiz assumed Guzman-Mercado was a drug dealer because he was supposed to

pick up a package from him. Picking up things or people or making deliveries and

dropping things off was a “standard thing” that Ruiz would do with defendant, Sergio,

and Primo “[o]nce in a while.” While driving, he assumed the incident with Guzman-

Mercado was going to be just another drug transaction because drug transactions were

something he would typically do with Primo, Delatorre, or defendant.

15

At some point in December after the murder had occurred, defendant told Stacey

Taylor he got the money or drugs and that he had shot the guy in the car, or inside the

car. Defendant described the car as a Lexus.

In December 2004, defendant told Covey about shooting someone in Primo’s

Lexus. According to Covey, defendant and Primo “were laughing and joking about how

he was hanging out of the car and they were shooting him as they were going down the

road.”

They said they had to get rid of Primo’s car, which was a Lexus. They did not say

who did the shooting. Covey recalled, “It was close to Christmas and it was hard times

and everybody was trying to figure out a way to make money and I was under the

impression that it was a robbery” because “[t]here was no dope around and nobody had

no means of making money and he, Coby, had said that they had a plan to make money

and that’s all we heard.”

Beckwith overheard a conversation between defendant and Primo and Rick Ruiz

about pushing someone out of a car. Defendant asked, “Did you finish it or did you do

it?” Primo said they shot the person but he was not dead and they had to push him out of

the car. She thought they used an older model Lexus for the job.

iii. Ruiz Is Arrested for the Guzman-Mercado Murder.

Ruiz was arrested on March 5, 2007, for the Guzman-Mercado murder. At the

time, Ruiz had heard Sergio and defendant had been arrested, and he knew people were

talking about the Guzman-Mercado murder. The police questioning led him to believe

he was arrested because defendant had implicated him, Delatorre, and the Figueroa

brothers, Rudolfo and Alejandro, in the Guzman-Mercado murder, although he later

learned defendant meant a different Alejandro. After reading the police reports, he knew

defendant and Sergio had ratted him out.

Ruiz was charged with the murder. Ruiz gave police a statement on March 5. On

the advice of counsel, Ruiz admitted to the prosecutor and Inspector Pate he was in the

16

car when Guzman-Mercado was killed. Ruiz admitted he initially told law enforcement

officers that Primo shot Guzman-Mercado, because Primo was in Mexico and he wanted

to deflect suspicion from his friend Delatorre. However, Ruiz eventually identified

Delatorre as the shooter.

On September 11, 2007, he gave police another statement in which he told police

about Primo’s statements concerning the Darryl Grockett murder. In that statement, Ruiz

told police Primo said Grockett was trying to get Coby Phillips killed or trying to kill

him. According to Ruiz, Primo said two shooters―defendant and Coby―were shooting

at Grockett and “they” all had guns. He also told law enforcement about the Hernandez

shooting. According to Ruiz, Hernandez was affiliated with “northerners,” the rivals of

Sureños.

Ruiz agreed to testify for the prosecution. He entered a plea agreement in which

he was to serve three years in a local facility. As part of that deal, Ruiz also testified at

Delatorre’s trial and before the grand jury.6 He was supposed to tell the truth. Since he

started testifying in 2008, Ruiz had received approximately $63,000 and relocated with

his family.

Detective Pate recalled that he and Detective Goldberg interviewed Ruiz at the

Martinez jail in early 2007. Goldberg suggested Delatorre was already talking and told

Ruiz that if he was “honest” about what he and other people did, Ruiz would not be

booked into jail. The officers did not give Ruiz police reports to read or say defendant

had been talking about Ruiz. At that point, Ruiz admitted that he was driving the car

when Guzman-Mercado was shot.

Ruiz mentioned a Chevy Tahoe truck was also involved, but maintained he did not

know the occupants. Eventually, Ruiz identified a photograph of defendant, who went by

the nickname Calacas, as one of the people in the truck.7 Ruiz said that earlier that

6

Ruiz testified at two grand jury proceedings and two Delatorre trials.

7

At trial, Ruiz identified defendant as Calacas, the person in the truck.

17

evening, Primo had talked about “jacking” (i.e., robbing) Guzman-Mercado. Eventually,

Ruiz said Delatorre shot Guzman-Mercado. At the end of the interview, Ruiz was still

denying he had a relationship with defendant. Ruiz and Delatorre were the only ones

charged with the Guzman-Mercado murder at that time.

Ruiz was reinterviewed in the fall of 2007. An attorney was present during part of

the interview. During this interview the police learned for the first time about the

Hernandez shooting and about Ruiz’s conversation with Primo about the shooting off

Highway 4.

According to Beckwith, a few months after the shooting in the car, defendant left

for Mexico because a warrant for his arrest had been issued. Later, Timothy Covey drove

her to Mexico to meet him. At some point, defendant returned to the United States and

was eventually arrested in Petaluma in 2007.

D. Attempted Murder of Jose Hernandez—February 21, 2005.

On February 21, 2005, Jose Hernandez lived with his daughters at 1815

Roosevelt Avenue, Richmond, in one unit of a four-unit apartment complex where his

parents also lived. He was walking downstairs with his sleeping daughter in his arms

when he was shot three times. He identified defendant as the shooter.

Hernandez lived next door to Alejandro Figueroa, who was having a party that

day. A wooden-slatted cyclone fence separates the two properties. Hernandez had to

walk outside to take his daughter downstairs to his apartment and saw defendant

urinating on the fence. Hernandez deposited his daughter at his apartment. On his way

back to his mother’s apartment, he heard defendant say, “[H]ey, just stop and look to

your left.” Hernandez turned to see defendant about six or seven feet away pointing a

gun at him. Defendant smiled and shot Hernandez in the left hand, the hip, and the calf.

Hernandez yelled for help and a number of family members came to assist him. Police

and paramedics arrived shortly thereafter. A live .38-caliber bullet was found at the

scene. Police officers observed four suspected bullet holes in the fence between the two

18

residences. Hernandez subsequently identified defendant from a photographic lineup at

the hospital the next day. He recognized defendant as someone he had seen once or twice

before.

Hernandez knew Alejandro Figueroa’s brother, Rudolfo. He also knew Ricardo

Ruiz, who used to go to Alejandro’s house “lots” and went to Hernandez’s house

“sometimes.” He was not sure if defendant was the person known as Calacas, but he was

sure defendant shot him. Initially, Hernandez went +back to living at his apartment on

Roosevelt. However, a couple of years later, the police contacted him out of the blue. At

first he did not want to talk to them or testify, but now felt safe to testify, because he got

help to move out of the Roosevelt Avenue residence.

Hernandez testified that he had previously asked Alejandro to sell him cocaine,

and Alejandro had arranged for him to buy the drugs from defendant; that was when

Alejandro told Hernandez who defendant was. On that day, he also saw a gun defendant

was carrying in the car. He had seen defendant at Alejandro’s house a couple times.

Alejandro Figueroa confirmed he hosted a family barbeque at his house on

February 21, 2005, which was attended by Rudolfo and Ruiz. Alejandro knew

defendant as “Calacas” and “Carlos” and identified him in court. Defendant showed up

at the barbeque uninvited. He first passed by the residence in a Cadillac, in which he

was a passenger. The car went around the block and, shortly thereafter, defendant

walked up to Alejandro and asked if he could urinate on the side of the house.

Alejandro said he did not mind, and defendant walked to the side of the house.

Suddenly, Alejandro heard shots and saw defendant come out running. He was

holding a gun. Defendant was the only one on the side of the house when the shots

were fired. His friend and neighbor, Hernandez, had been shot. The police came, but

Alejandro did not tell them what he saw because he was scared.

According to Ruiz, Alejandro invited him to the barbecue. Primo showed up later,

as did defendant. Defendant was dropped off by one of Coby’s friends, Bubba, who was

19

driving a Cadillac.8 He looked serious. He said hello to Alejandro and then went to the

side of the house closest to a fourplex next door. Ruiz heard gunshots and saw defendant

start running, then hop a fence. Ruiz knew Hernandez, who lived in the fourplex. A few

weeks earlier, Ruiz heard Sergio say that the man who lived at the apartments (i.e.,

Hernandez) was “snitching.”

At that time, Alejandro owned a gold Lexus he had purchased from Ruiz. Before

he bought it, he had seen Primo driving it with Ruiz. He later learned from a newspaper

account that the Lexus had been used in the Mercado-Guzman shooting.

In March 2008, Alejandro was indicted for conspiracy, robbery, burglary, and two

murders, one of which involved Guzman-Mercado. He was facing life in prison. He

believed he was indicted for the Guzman-Mercado murder because defendant told the

police someone named Alejandro was responsible for it. After he learned that, he spoke

to police for the first time about the Hernandez shooting.

Alejandro pleaded no contest to a misdemeanor violation of section 32, accessory

to a crime; the remaining charges were dismissed. He was sentenced to time served. He

was not the Alejandro involved in the shooting of Guzman-Mercado and he was not a

gang member. So far as he knew, in 2004 and 2005, Ruiz used to hang around with the

RST gang, but he did not know if Ruiz was a gang member.

On February 21, 2005, Clayton Cates went from his sister’s house in Cordelia to

Bush Street in Richmond with defendant in a silver Cadillac. Tim Covey was driving.

They parked on the street in a residential neighborhood and defendant got out of the

car. Cates and Covey stayed in the car. Defendant returned about 45 seconds later

holding a gun. He appeared nervous and said emphatically, “Go” or “Let’s leave.”

They left, returning to his sister’s house. A couple weeks later, defendant said he had

shot “the guy that snitched on him.”

8

Tim and Tom Covey shared similar builds, hair color, and head shape, and “for

a long time Timmy and Bubba were the same person to some people.”

20

According to Stacey Taylor, in the late afternoon of February 21, 2005, defendant,

Tim Covey, and Cates were at Taylor’s home. The three drove off. When they returned,

Covey and Cates seemed nervous. Defendant was excited; he said he had “shot the rat.”

Sometime before that day, defendant said that Sergio had “found out who was telling.”

Timothy Covey testified that on February 21, 2005, he met defendant at Stacey

Taylor’s house in Cordelia, where Covey was living at the time. Defendant came with

his girlfriend, Jamie. Phillips was in jail. Defendant asked Covey to give him a ride to

collect some money and directed him where to go. Covey drove Sergio’s silver Cadillac

to Richmond. Clayton Cates went with them. Defendant directed Covey to park on a

street in a residential neighborhood, and defendant jumped out and went around the

corner. About five minutes later, defendant returned with a gun in his hand. He told

Covey to “[g]o,” and Covey “[w]ent. Drove fast.” They returned to Cordelia. A few

months earlier, Covey heard defendant say a “rat” was informing on him or his brother.

A couple days later, defendant said, “I got the rat.” At some point, defendant told Covey

that Sergio knew “who the rat was.”

A short time after the shooting occurred, Sergio told defendant in Covey’s

presence that defendant was going to be indicted for murder. Defendant then fled to

Mexico. About two weeks later, Covey drove Jamie Beckwith to Rosarito Beach,

Mexico, where they met defendant. Covey saw defendant after he returned to the

United States, but he was not aware when defendant returned because at the time he

was not on “talking terms with anybody . . . directly in the gang” due to his romantic

involvement with Stacey Taylor.

E. Gang testimony.

Vallejo Detective Todd Tribble testified as an expert on street gangs, generally,

and White street gangs and White prison gangs, specifically. In addition to receiving

hundreds of hours in formal and informal training, Tribble had interviewed numerous

gang members belonging to FAIM, a White supremacist gang. The symbol used by the

21

gang is a shamrock, and they associate themselves with the color green. The Aryan

Brotherhood, a prison gang, also uses the shamrock as a symbol.

FAIM boasts more than 60 members. Tribble opined that FAIM was a criminal

street gang and that its primary activity was the sales of significant quantities of

methamphetamine. FAIM members interact with other groups and persons in the Bay

Area criminal subculture to obtain their methamphetamine. Members of FAIM are

involved with firearms, often possessing them illegally. Gang members regularly carry

firearms because of the violent nature of drug trafficking.

Coby Phillips, Matthew Donohue III (Mattie Boy), Jason Donohue (Matthew’s

brother), and Thomas Covey (Bubba) founded FAIM in 1995 or 1996 in west Contra

Costa County. Phillips and Matthew Donohue later expanded the gang in the state

prison system.

Coby Phillips sported a small shamrock tattoo on his right cheek and a large

shamrock tattoo with the letters FAIM tattooed inside the shamrock covering the back of

his head. Phillips was validated as a member of FAIM by the California Department of

Corrections in 1998. He was also associated with the Aryan Brotherhood. Richard

Ahlquist, Timothy Covey, Steve Buchanan, and Scott Schweiger (known as Shovelhead)

were members of FAIM in 2004. All but Ahlquist were currently inactive members.

Stacey Taylor, Clayton Cates, and Melissa Wright were associated with the gang.

Tribble was asked to assume the following hypothetical facts: Phillips was

involved in selling methamphetamine to Grockett, which he obtained from defendant and

his brother, Sergio; Phillips arranged to meet Grockett on Crockett Boulevard off the

Cummings Skyway, and during that meeting, Phillips, defendant, and defendant’s cousin,

Primo, killed Grockett. Tribble opined that the killing was committed in association with

FAIM because Phillips was a leader of the FAIM gang and was involved in the sales of

methamphetamine, which he obtained from the Vega-Robles brothers and cousin. In his

opinion, “There was a noted association between those men, and the sales of the

22

methamphetamine at the time was an activity that further promoted the gang FAIM.”

Assuming Grockett posed a threat to a member of FAIM, killing him would benefit

FAIM. Tribble testified, “You no longer have a threat that’s not only physically

threatening a member or more than a member of the gang but that same physical threat

would entail the threat of future sales of methamphetamine which is the primary activity

of the gang. So it would benefit the gang twofold.”

San Pablo Detective Robert Brady testified as a gang expert on Hispanic gangs in

Contra Costa County. Sureños were active in west Contra Costa County from 2000 to

2006. The Sureños gang in west Contra Costa County is broken up into small groups,

and RST is a subset of the Sureño gang in that part of the county. The primary activities

of the Sureños include “drug sales, violent acts, assaults, assault[s] with firearms,

murders, and car theft.” The primary activities of the RST were the same as those of the

Sureños in 2004 and 2005. Brady opined that Delatorre was a Sureño in 2003 and 2004.

He was asked to assume the following hypothetical facts: a drug dealer with ties to

trafficking in Mexico, and who is running short of money, learns there is another dealer

who has possession of a few pounds of methamphetamine. He makes plans with two

RST members to rob that dealer, and the RST members ride in car with the dealer to rob

him. Brady opined that in those circumstances the robbery or attempted robbery could

benefit the gang financially.

II. Defense Evidence.

The defense presented witnesses to impeach the testimony of Stacey

Taylor and Timothy Covey. On January 13, 2010, Thomas Covey (Timothy’s

brother) was charged with the murders of Guzman-Mercado and Grockett and the

attempted murder of Hernandez. Timothy Covey denied having any knowledge of

the attempted murder to a defense investigator. The investigator met with Covey

and saw no physical resemblance between him and his brother.

23

The attorney who represented Phillips in a domestic violence case recalled

Stacey Taylor testified the incident was an accident; two witnesses brought to the

defense by her also testified it was an accident. The attorney believed her. Phillips was

acquitted.

The defense called Ralph Nash, a former member of the Nazi Low Riders, a prison

gang. Nash was in prison in protective custody at the time of trial, and was called to

show Phillips killed Grockett for personal reasons not related to a drug conspiracy. Nash

testified Grockett was an Aryan Brotherhood gang member. Grockett told Nash he was

going to kill Phillips, and that he had put a gun to Phillips’s head. Nash was ordered by

the Aryan Brotherhood to kill Phillips because Phillips wore a shamrock tattoo he was

not authorized to have, and because Phillips failed to carry out an order to kill a snitch.

Nash gave a statement to Detective Pate in October 2009 but it was not true, and he

recanted to prison officials a few days later. Nash denied receiving a call from Phillips in

which Phillips told Nash, “Dude, I killed him [Grockett], it’s over.”

Nash’s October 2009 tape-recorded interview was played to the jury. In it, Nash

told Detective Pate and Officer David Berna, a gang investigator at California State

Prison, Corcoran, that FAIM was a “street gang banging” “clique” started around 1994 to

protect White gang members from Blacks in Richmond and “sell drugs and make

money.” Older members wore shamrock tattoos. Nash knew Calacas, who was “real

tight” with Phillips, “one of his boys.” He met Sergio twice. All of them carried guns.

He knew Clayton Cates through Bubba “and all them. . . . They just all together sellin’.

It’s, like, one big family.” He knew Sally Sinclair from dropping off drugs from Phillips

at her house.

Nash was a close friend of Phillips and Grockett. Phillips and Grockett were

cellmates at Pelican Bay State Prison. In 2004, Phillips asked Nash to “set up” Grockett

so Phillips could kill him. He wanted Nash to lure Grockett to a house in Rodeo. Nash

did not want to be “dragged in no murder,” so Nash twice warned Grockett that Phillips

24

was “gunnin” for him. Nash did not mention he was supposed to set Grockett up.

Grockett just “shook it off.” The day after Grockett’s death, Phillips called Nash and

said, “It’s over, man. . . . I killed [Darrell]. It’s done. . . . That punk’s over. . . . It’s

over. Come over. We need to talk.” Nash did not know of anybody else involved in

Grockett’s killing. Nash owed Phillips $8,000 for methamphetamine. Phillips was his

main source. Sometimes Phillips would send Bubba to him with the drugs.

Nash said he was supposed to kill Phillips because Phillips had failed to kill

witnesses against an Aryan Brotherhood member, and wore the shamrock on his face

without permission.

A day or two after the interview, Nash contacted Berna and said he did not want

anything more to do with Inspector Pate; he did not want to testify because he had

family in Contra Costa County and that worried him. Nash did not say he lied during

the interview.

The defense presented evidence to show that no physical evidence connected

defendant to the robbery and murder of Guzman-Mercado. No fingerprints or DNA

matching defendant or Delatorre were found at Guzman-Mercado’s apartment. No blood

or bullet holes were found in a four-door Lexus processed by police. However, there was

a dimple in the passenger side rear door. No blood or bullet holes were found in a two-

door Lexus, also processed.

Gilberto Gutierrez admitted to Detective Goldberg he removed items from

Guzman-Mercado’s apartment and repaired the front door of the apartment on

December 4.

The defense also presented evidence that other people unconnected to defendant

had motives to kill Grockett. Robert Lott was incarcerated at a federal prison at the time

of trial on a federal drug indictment. He was indicted on February 6, 2008 for the

murders of Grockett and Guzman-Mercado, and the attempted murder of Hernandez and

25

eventually reached a deal in this case. He testified he had never met defendant. He had

his own Mexican connections for drugs.

Grockett was Lott’s childhood best friend who nevertheless robbed him of money

and drugs at gunpoint in 2003. He knew Grockett to be violent, and testified that

Grockett committed assaults, robberies, and shootings. Grockett was also a drug seller

and user who usually took his drugs forcibly from someone else. He was a member of

the Aryan Brotherhood. A FAIM member called Shovelhead came to Lott’s house to

collect money a friend of his owed FAIM member Mattie Boy.

On October 8, 2004, deputies located a burned-out van near the location where

Grockett’s killing took place. The van had been stolen from one of Lott’s drug

customers.

According to Detective Pate, Stacey Taylor told him Phillips told her that he and

Grockett were supposed to do something for the Aryan Brotherhood gang they did not

do, and Phillips was worried Grockett was going to try to kill him over it. Taylor also

said Phillips told her either he or Josue (Primo) shot Grockett in the head, but she “got

a feeling that all three of them [Coby, Josue and defendant]” were involved in the

shooting.

On February 14, 2007, Detective Goldberg interviewed defendant in Sonoma

County jail. Defendant was advised of his constitutional rights and said he understood

them. Defendant admitted knowing Ricardo Ruiz and Juan Antonio Delatorre and

identified photographs of them. Defendant said Guzman-Mercado was “set up” by his

own cousin and a drug dealer named Alejandro. Alejandro asked defendant whether he

wanted to be involved and defendant declined, although defendant’s cousin Primo

agreed to participate.

According to defendant, Guzman-Mercado’s cousin told Guzman-Mercado to

come to a certain car wash with crystal methamphetamine and get in the car with Primo,

Ruiz, and Delatorre. Guzman-Mercado did as instructed. Defendant said Ruiz was

26

driving, Primo was sitting in the front seat, and Delatorre was in the back seat. There

was an argument in the car, a little bit of a struggle, and Delatorre shot Guzman-

Mercado. Defendant said he was in a nearby Denny’s restaurant when the shooting

occurred. There is a Denny’s at the corner of San Pablo Dam Road and Interstate 80.

Defendant said he had been “working together” with Alejandro and that he did not know

the name of the Guzman-Mercado’s cousin who was involved.

Defendant adamantly denied being in the car when Guzman-Mercado was shot.

Defendant said “he knew about this whole plot and the scam, the way it was supposed to

happen and the details of it. He just said he wasn’t present in the actual vehicle itself.”

He also said Delatorre went into the apartment and obtained methamphetamine from it.

Defendant was worried that his name would come out in Detective Goldberg’s

report, and Goldberg told him to get past that; it was a given that his name would be in

the report. Defendant said he wanted to make a deal.

Defendant admitted he knew Coby Phillips, who was his “home-boy.” He said

he “served” Phillips, meaning he sold drugs to Phillips. Defendant also knew Bubba.

DISCUSSION

I. Sanchez Error Occurred, But the Errors Were Harmless Beyond Reasonable

Doubt.

In his original briefs, defendant claimed the court improperly gave a “nontruth”

expert hearsay instruction pursuant to CALCRIM No. 360 that was weak, confusing,

inherently ineffective, and which denied him due process, a fair trial, and the right to

confront testimonial hearsay. However, he acknowledged the instruction had been

approved, and his objections to it were contrary to binding authority. (See People v.

Gardeley (1996) 14 Cal.4th 605, 618–619, overruled in part in Sanchez, supra, 63 Cal.4th

at p. 686; People v. Hill (2011) 191 Cal.App.4th 1104, 1129–1130.) Bound by existing

precedent, we rejected defendant’s argument. However, we noted the California

Supreme Court had granted review in People v. Sanchez to decide whether a criminal

defendant’s Sixth Amendment right to confrontation is violated by a gang expert’s

27

reliance on testimonial hearsay under Crawford v. Washington (2004) 541 U.S. 36.

Following remand, we asked the parties for supplemental briefing on the effect of

Sanchez. After careful reconsideration of the issue in light of Sanchez, we conclude some

inadmissible hearsay was admitted, but none of it was testimonial; the instructions on

expert testimony were erroneous, at least in part; and any errors were harmless beyond a

reasonable doubt, given the extensive admissible testimony about gang issues from

former gang members, including a defense witness, and the wives and/or girlfriends of

defendant and Coby Phillips.

The Sanchez Decision

The defendant Sanchez was charged with the substantive crimes of possession of a

firearm by a felon, possession of drugs while armed with a loaded firearm, active

participation in the “Delhi” street gang, and a street gang enhancement allegation for

committing a felony for the benefit of the Delhi gang. (Sanchez, supra, 63 Cal.4th at

pp. 671, 698.) To prove he was a member of a gang, the prosecution called a Santa Ana

police detective as a gang expert. (Id. at pp. 671–672.) The expert testified about his

experience and training; the practice of issuing “STEP notices” to gather information

from, and impart warnings to, the associates of known gang members; preparation of

field identification (FI) cards recording police contacts with individuals; gang culture in

general, and the Delhi gang (of which Sanchez allegedly was a member) in particular; the

way gangs operate; and the Delhi gang’s territory, membership, modus operandi, and

primary activities. (Id. at pp. 672–673.) A jury convicted the defendant as charged. (Id.

at p. 673.) The Sanchez court reversed the jury findings on the street gang enhancements,

holding that “the case-specific statements related by the prosecution expert concerning

defendant’s gang membership constituted inadmissible hearsay under California law.

They were recited by the expert, who presented them as true statements of fact, without

the requisite independent proof. Some of those hearsay statements were also testimonial

28

and therefore should have been excluded under Crawford. The error was not harmless

beyond a reasonable doubt.” (Id. at pp. 670–671.)

With respect to the hearsay rule, the Supreme Court in Sanchez drew a distinction

between “an expert’s testimony regarding his general knowledge in his field of

expertise,” and “case-specific facts about which the expert has no independent

knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676, italics omitted.) The former is not

barred by the hearsay rule, even if it is “technically hearsay,” while the latter is. (Ibid.)

“Case-specific facts are those relating to the particular events and participants alleged to

have been involved in the case being tried. Generally, parties try to establish the facts on

which their theory of the case depends by calling witnesses with personal knowledge of

those case-specific facts. An expert may then testify about more generalized information

to help jurors understand the significance of those case-specific facts. An expert is also

allowed to give an opinion about what those facts may mean. The expert is generally not

permitted, however, to supply case-specific facts about which he has no personal

knowledge.” (Ibid.) The court gave the following example to illustrate the difference:

“That an associate of the defendant had a diamond tattooed on his arm would be a case-

specific fact that could be established by a witness who saw the tattoo, or by an

authenticated photograph. That the diamond is a symbol adopted by a given street gang

would be background information about which a gang expert could testify. The expert

could also be allowed to give an opinion that the presence of a diamond tattoo shows the

person belongs to the gang.” (Id. at p. 677.)

With respect to the confrontation clause, the Sanchez court reaffirmed that “[i]f a

hearsay statement is being offered by the prosecution in a criminal case, and the

Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not

satisfied, . . . [a]dmission of such a statement violates the right to confrontation if the

statement is testimonial hearsay, as the high court defines that term.” (Sanchez, supra,

63 Cal.4th at p. 680.) Synthesizing the high court’s numerous opinions following

29

Crawford, the Sanchez court defined testimonial hearsay as “statements about a

completed crime, made to an investigating officer by a nontestifying witness . . . unless

they are made in the context of an ongoing emergency . . . or for some primary purpose

other than preserving facts for use at trial.” (Sanchez, at p. 694.)

The Sanchez court rejected prior courts’ attempts to avoid the hearsay and

confrontation problems inherent in an expert’s basis testimony “by giving a limiting

instruction that such testimony should not be considered for its truth. If an expert testifies

to case-specific out-of-court statements to explain the bases for his opinion, those

statements are necessarily considered by the jury for their truth, thus rendering them

hearsay. Like any other hearsay evidence, it must be properly admitted through an

applicable hearsay exception. Alternatively, the evidence can be admitted through an

appropriate witness and the expert may assume its truth in a properly worded

hypothetical question in the traditional manner.” (Sanchez, supra, 63 Cal.4th at p. 684,

fn. omitted.)

Applying a “two-step analysis” (Sanchez, supra, 63 Cal.4th at p. 680) to the facts

before it, the Sanchez court first determined the expert’s “case-specific” testimony about

the defendant’s contacts with and admissions to other police officers about his gang

involvement was inadmissible hearsay because the expert had never met Sanchez, and his

knowledge of Sanchez’s contacts with the police was based on police records. (Id. at

pp. 670–671, 673.) The expert’s background testimony about general gang behavior or

the Delhi gang’s behavior or territory raised no hearsay or confrontation concerns; it was

“based on well-recognized sources” in the expert’s area of expertise and was “relevant

and admissible evidence as to the Delhi gang’s history and general operations.” (Id. at

p. 698.)

Next, the court determined the expert’s testimony about the defendant’s five prior

police contacts was testimonial hearsay because it was based on police reports by other

officers compiled during police investigation of completed crimes. (Sanchez, supra,

30

63 Cal.4th at p. 694.) Likewise, the expert’s testimony about the defendant’s gang

membership, gained during the issuance of a STEP notice to him by another officer, was

also testimonial because that officer gathered the information from the defendant for the

primary purpose of establishing facts to be later used against him or his companions at

trial, and recorded it on “an official police form containing the officer’s sworn attestation

that he issued the notice on a given date and that it accurately reflected the attendant

circumstances, including defendant’s statements.” (Id. at pp. 696–697.) The court was

unable to determine whether the information about the defendant recorded on an FI card

was testimonial because the circumstances of its creation were not clarified by the parties

at trial. Nevertheless, the court concluded the expert’s testimony based on the police

reports and the STEP notices was prejudicial—that is, not harmless beyond a reasonable

doubt under Chapman, supra, 386 U.S. 18—because the expert’s “case-specific

testimony as to defendant’s police contacts was relied on to prove defendant’s intent to

benefit the Delhi gang when committing the underlying crimes to which the gang

enhancement was attached.”9 (Sanchez, at p. 698.) Accordingly, the court reversed the

jury’s true findings on the street gang enhancements. (Id. at p. 699.)

Application of Sanchez

Defendant claims not to challenge the experts’ “general background information

or opinions.” Yet he challenges as case-specific facts outside the experts’ personal

knowledge “all non-hypothetical assertions of all the named specific drug/homicide-

accomplices’ gang membership, leadership status, and drug involvements . . . [and] all

the hypotheticals tied to this case to the extent they named specific persons;” and all, or

most, of the “hearsay assertions about out of court information that supported these case-

specific assertions.” We reject that contention.

9

The defendant’s conviction for the substantive offense of active membership in a

criminal street gang (§ 186.22, subd. (a)) was reversed on other grounds by the Court of

Appeal. (Sanchez, supra, 63 Cal.4th at p. 673 & fn. 5.)

31

Detective Tribble, the expert on white supremacist gangs including FAIM,

testified he gained his knowledge and expertise through hundreds of hours of formal and

informal training and numerous interviews he has conducted of gang members who

belonged to FAIM. Detective Brady, the expert on Hispanic gangs, also testified his

knowledge and expertise were gained through more than 100 hours of formal training, his

investigation of more than 100 gang cases, and over 100 interviews with gang members.

In addition, since his assignment to the gang unit in 2008, Brady had been “taught . . . a

lot about gangs” by his superior, Lt. Jeff Palmieri, a 27-year veteran of the police

department and a recognized gang investigator in Contra Costa County. Based on this

trove of knowledge, the experts testified about the gangs’ history, territory, insignia, and

primary activities.

To the extent defendant’s scattershot approach targets the underlying sources of

the officers’ training, knowledge, and expertise, his aim is off the mark. The Sanchez

court specifically exempted from scrutiny “an expert’s testimony concerning background

information regarding his knowledge and expertise and premises generally accepted in

his field.” (Sanchez, supra, 63 Cal.4th at p. 685.) As another court has recently

observed: “Under Sanchez, facts are only case specific when they relate ‘to the

particular events and participants alleged to have been involved in the case being tried,’

which in Sanchez were the defendant’s personal contacts with police reflected in the

hearsay police reports, STEP notice, and FI card. (Sanchez, supra, 63 Cal.4th at p. 676,

italics added.) The court made clear that an expert may still rely on general ‘background

testimony about general gang behavior or descriptions of the . . . gang’s conduct and its

territory,’ which is relevant to the ‘gang’s history and general operations.’ (Id. at p. 698.)

This plainly includes the general background testimony [the expert officer] gave about

[the gang’s] operations, primary activities, and pattern of criminal activities, which was

unrelated to defendants or the current [crimes] and mirrored the background testimony

the expert gave in Sanchez. It also falls in line with the Sanchez court’s hypothetical

32

example that an expert may testify that a diamond tattoo is ‘a symbol adopted by a given

street gang’ and the presence of the tattoo signifies the person belongs to the gang. (Id. at

p. 677.) By permitting this type of background testimony, the court recognized it may

technically be based on hearsay, but an expert may nonetheless rely on it and convey it to

the jury in general terms. (Id. at p. 685.) Thus, under state law after Sanchez, [the expert

officer] was permitted to testify to non-case-specific general background information

about [the gang], its rivalry with [another gang], its primary activities, and its pattern of

criminal activity, even if it was based on hearsay sources like gang members and gang

officers.” (People v. Meraz (2016) 6 Cal.App.5th 1162, 1174–1175 (Meraz), italics

added.)

Detective Tribble

Defendant takes specific aim at Officer Tribble’s testimony that his opinions about

FAIM were based on his “conversations with everybody that I have spoken to. So there

is no single person that I’m relying on [for] information specifically.” Asked by defense

counsel to name “the 15 members and associates that you’ve spoken with” (italics added),

Tribble testified: “Active members would include Coby Phillips, Troy Cariglio, Robert

Donohue, Irish Donohue, Derek Hanson, Jason Dikes, Jeanna Quesenberry, and . . .

Darrin Minifie . . . . [¶] The inactive members would include Thomas Covey, Tim

Covey, Steve Buchanan, Scott Schweiger. [¶] And then associates would include Stacy

Taylor, Clayton Cates, and Melissa Wright.”10 Defendant also singles out Tribble’s

testimony that inactive members of FAIM and other gang investigators told him about the

history of FAIM’s founding by Coby Phillips, Thomas Covey, and two others; Tribble’s

identification of a document prepared by the California Department of Justice in 2010

with Tribble’s help, which was “created for a separate unrelated case,” and which showed

“numerous photos of people that I know to be members of F.A.I.M. back in 2007”; and

10

Although defendant alleges Tribble testified about conversations he had with

police and custodial employees, no police officers or custodial employees were

referenced by Tribble in the pages cited by defendant.

33

Tribble’s testimony that he knew from his personal knowledge that the four founders

whose photographs (Phillips, Thomas Covey, and the two Donohues) were featured in the

document, and others (Alquist, Schweiger, and Timothy Covey), “were members of

F.A.I.M. in 2004.”

Finally, defendant takes exception to Tribble’s opinion that Phillips “is currently

recognized and at the time was recognized as the shot caller or leader of F.A.I.M.,” and

“[a]s far as what I know Coby Phillips was involved in . . . that time period, [in] the sales

of methamphetamine” and “[t]here was a noted association between those men [Phillips,

defendant, and defendant’s cousin Primo], and the sales of the methamphetamine at the

time was an activity that further promoted the gang F.A.I.M.”

In our view, testimony about the history and founding of FAIM was admissible

under Sanchez as background information, even though the sources for the information

were hearsay. The Attorney General concedes, and we agree, that Officer Tribble’s

testimony that Coby Phillips, Thomas Covey, and others were members of FAIM, that

Phillips was a leader of FAIM, and that Phillips was involved in methamphetamine

trafficking with defendant and his cousin Primo, were “[c]ase-specific facts . . . relating

to the particular events and participants alleged to have been involved in the case being

tried.” However, as Sanchez teaches, an expert “is generally not permitted . . . to supply

case-specific facts about which he has no personal knowledge.” (Sanchez, supra,

63 Cal.4th at p. 676, italics added.) In this case, Officer Tribble testified he had met

Phillips, seen his tattoos, seen letters signed by Phillips as “FAIM” rather than his name,

had spoken with Thomas Covey at least six times, and knew from personal knowledge

that the four founders of FAIM were members of FAIM in 2004. The fact that Tribble

identified photographs placed on an exhibit created for another case does not add to or

subtract from the admissibility of Tribble’s testimony that the persons depicted in those

photographs were members of FAIM.

34

As we read Sanchez, it is not error for a gang expert to testify about case-specific

facts about which he has personal knowledge. However, testimony about case-specific

facts of which he does not have personal knowledge is inadmissible, even if specific facts

are independently proven by other evidence. (See People v. Stamps (2016) 3 Cal.App.5th

988, 996 [“If it is a case-specific fact and the witness has no personal knowledge of it, if

no hearsay exception applies, and if the expert treats the fact as true, the expert simply

may not testify about it.”]; see People v. Williams (2016) 1 Cal.5th 1166, 1199–1200

[prosecutor’s objection to defense expert’s testimony was properly sustained because he

relied on interviews with family members for the information].)

Tribble’s testimony about the information he received from his informants did not

offend the confrontation clause. Tribble did not testify to any particular statement made

by any one person to him about Phillips’ gang affiliation, status, or drug trafficking

activities. Tribble’s statements were based on his personal knowledge and he was subject

to cross-examination. (See Meraz, supra, 6 Cal.App.5th at p. 1176.) Furthermore, the

Sanchez court determined the expert’s testimony about the defendant’s prior police

contacts was testimonial because it was based on sworn police reports by other officers

(who could not be cross-examined) and who compiled the information during police

investigations of completed crimes. (Sanchez, supra, 63 Cal.4th at p. 694.) Similarly,

the Sanchez expert’s testimony about the defendant’s gang membership gathered from

him in the course of a STEP notice was also testimonial because the officer gathered

information from the defendant for the primary purpose of establishing facts to be later

used against him or his companions at trial, and recorded it on “an official police form

containing the officer’s sworn attestation that he issued the notice on a given date and

that it accurately reflected the attendant circumstances, including defendant’s

statements.” (Sanchez, at pp. 696–697.) The court could not say whether the expert’s

testimony about the information contained on an FI card was testimonial or not because

the record did not contain enough information about its creation, but the court surmised

35

that “[i]f the card was produced in the course of an ongoing criminal investigation, it

would be more akin to a police report, rendering it testimonial.” (Sanchez, at p. 697.)

Here, even if we assume the information Tribble learned from his gang informants was

part of an ongoing investigation into the activities of the FAIM gang, there is no

indication it was gathered as part of the investigation of completed crimes, and none of

the information was sworn. As Sanchez makes clear, to violate Crawford, the out-of-

court statement must be made under circumstances that entail some formality or

solemnity.

Defendant also takes issue with Officer Tribble’s testimony that “[a]ccording to

members of the Special Services Unit and Investigative Services Unit at the California

Department of Corrections, in 1998 Mr. Phillips was validated as a member of the Aryan

Brotherhood [AB] as well as a member of F.A.I.M.” As proof that Phillips was a

member of AB and FAIM, this testimony was inadmissible hearsay. It was not based on

Tribble’s personal knowledge and the persons who validated Phillips were not subject to

cross-examination. Despite the fact that a Crawford objection was interposed (and

overruled) as to this testimony, the record is silent as to whether Phillips’ validation as a

FAIM and AB member was or was not made in the course of an ongoing investigation, or

for the purpose of memorializing facts related to past criminal acts for future use at trial,

or whether it was a sworn statement or otherwise attended by some level of solemnity.

Therefore, we cannot determine whether the statement was testimonial or not. (See

People v. Ochoa (2017) 7 Cal.App.5th 575, 584–585.)

In any event, the case-specific facts about Phillips’ gang affiliation, his connection

to defendant, and the nefarious activities to which Officer Tribble testified, and which

formed the basis of the prosecutor’s hypothetical question to him, were amply supported

by the testimony of Ricardo Ruiz, Stacy Taylor, Clayton Cates, Timothy Covey, and

Jamie Beckwith, all of whom either participated in or witnessed the drug dealing

operations and had personal knowledge of the events leading up to and after the Grockett

36

murder committed by Phillips and defendant in this case. Even the testimony of defense

witness Ralph Nash supported the view that Phillips was a member and leader of FAIM,

a member of AB, and had a motive to kill Grockett. It was the testimony of these

witnesses on which the prosecutor relied for proof of the case-specific facts to which

Tribble testified in his expert testimony. Assuming arguendo the statement was

testimonial, we are convinced beyond any reasonable doubt its admission was harmless,

given the plethora of admissible evidence on Phillips’s gang affiliation and leadership

status.

Detective Brady

Defendant also takes specific aim at Detective Brady’s opinion testimony that

Juan Delatorre was a Sureño in 2003 and 2004. We agree this testimony was about a

“[c]ase-specific fact[] . . . relating to the particular events and participants alleged to have

been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) In this

case, Detective Brady arguably had personal knowledge of Delatorre’s gang status, based

on his own observations of Delatorre (i.e., his tattoos), because he had spoken to

Delatorre while assisting in Delatorre’s arrest for breaking into a car in a casino parking

lot in 2010 or 2011. However, Brady did not testify to any statement made by Delatorre

to him, and Brady’s testimony about the arrest did not establish that Delatorre was a gang

member during the relevant time period in 2003 and 2004.

The information that Delatorre was a Sureño gang member during the relevant

time period was gleaned by Detective Brady from statements made by Delatorre in 2001

and 2003 on jail documents created for the purpose of housing him safely at the jail. “If a

gang member comes in and claims to be a gang member, they’re housed separately

depending on what gang they belong to.” Specifically, Brady reviewed a one-page

classification form filled out by the jail deputies in 2001 which documented “a self-

admission to classifications,” and a one-page self-admission form filled out by Delatorre

in 2003 “coming into jail.” Defense counsel’s hearsay objections to this testimony were

37

overruled. Under Sanchez, it appears that testimony about a nonparty’s out-of-court

admission that he or she is a gang member, offered to prove he or she is a gang member,

is hearsay. (People v. Ochoa, supra, 7 Cal.App.5th at p. 584.) However, no Crawford

objection was interposed as to the classification forms on which Delatorre made his

admissions, and the record does not contain sufficient information from which we can

determine whether the classification documents in which Delatorre’s admissions were

recorded rendered his admissions testimonial or not. Brady had no personal knowledge

of those admissions, because Delatorre did not make them to him. The record suggests

the purpose of memorializing the admissions was to secure safe jail housing for

Delatorre, not to investigate a completed crime. The record is silent as to whether

Delatorre swore to the truth of his admission on one of the classification forms, or

whether his jailers swore to the accuracy of Delatorre’s statement on the other.

Brady also testified he formed this opinion after speaking with Lt. Palmieri and

reading Palmieri’s opinion testimony given at a previous trial. While the greater

expertise of a superior would seem to qualify as a reliable source of general background

information, “[a]fter Sanchez, reliability is no longer the sole touchstone of admissibility

where expert testimony to hearsay is at issue.” (People v. Stamps, supra, 3 Cal.App.5th

at p. 996.) As discussed above, “[i]f it is a case-specific fact and the witness has no

personal knowledge of it, if no hearsay exception applies, and if the expert treats the fact

as true, the expert simply may not testify about it.” (Ibid.)11

Assuming it was error to permit Detective Brady to testify about the hearsay bases

of his opinion that Delatorre was a Sureño, as with Tribble’s testimony about Phillips’s

gang affiliation, the prosecutor here did not rely exclusively on Tribble’s expert

testimony for proof of Delatorre’s gang affiliation. Instead, proof of Delatorre’s gang

11

Defendant also takes aim at Brady’s testimony, based on information from gang

members, gang officers, and personal observation while working in San Pablo between

2005 and 2006, that Sureños were active in the area between 2000 and 2006. This was

admissible background information having no Sanchez or Crawford implications.

38

affiliation rested on Ricardo Ruiz’s extensive testimony about his personal knowledge of

Delatorre’s involvement in RST, a Sureño-affiliated gang, and Delatorre’s involvement in

the murder of Marcelino Guzman-Mercado, for which Delatorre was charged and tried.

These otherwise proven facts also formed the basis of the prosecutor’s hypothetical

question. In our view, what the prosecutor did here is, by and large, exactly what

Sanchez proposes prosecutors should do. Thus, if a Sanchez or Crawford error occurred,

any error was harmless beyond a reasonable doubt, given Ruiz’s testimony.

The Instructions

In light of Sanchez, the instructions given in this case were erroneous, at least in

part. As in Sanchez, the jury was given CALCRIM No. 332 [Expert Witness Testimony],

which told the jury to “consider the expert’s knowledge, skill, experience, training, and

education, the reasons the expert gave for any opinion, and the facts or information on

which the expert relied in reaching that opinion. You must decide whether information on

which the expert relied was true and accurate.” (Italics added.) To the extent this

instruction required the jury to evaluate the expert’s testimony, unmoored from the

admissible evidence that supported the experts’ opinion, it runs afoul of Sanchez.

The instruction also explained: “An expert witness may be asked a hypothetical

question. A hypothetical question asks the witness to assume certain facts are true and to

give an opinion based on the assumed facts. It is up to you to decide whether an assumed

fact has been proved. If you conclude that an assumed fact is not true, consider the effect

of the expert’s reliance on that fact in evaluating the expert’s opinion.” In this case, this

part of the instruction was not error, because it focused the jury’s attention on evaluation

of all the evidence introduced to prove the hypothetical facts, not merely the hearsay

underlying the expert’s opinion.

The jury was also given CALCRIM 360 [Statement to an Expert], which informed

the jury: “Detective Brady testified that in reaching his conclusions as an expert witness,

he considered statements made by Juan Delatorre, Lieutenant Jeff Palmieri of the San

39

Pablo Police Department and statements made in Contra Costa County jail classification

documents. You may consider those statements only to evaluate the expert’s opinion. Do

not consider those statements as proof that the information contained in the statements is

true. Detective Tribble testified that in reaching his conclusions as an expert witness he

considered statements made by Coby Phillips, Troy Cariglio, Robert Donohue, Irish

Donohue, Derek Hanson, Jason Dikes, Jeanna Quesenberry, Daren Minifie, Thomas

Covey, Tim Covey, Steve Buchanan, Scott Schweiger, Stacy Taylor, Clayton Cates,

[Melissa] Wright and individuals employed with the California Department of

Corrections and Rehabilitation Special Services and Investigative Service Units. You

may consider those statements only to evaluate the expert’s opinion. Do not consider

those statements as proof that the information contained in the statements is true.”

(Italics added.) As the Sanchez court explained in disapproving such contradictory

instructions: “Jurors cannot logically follow these conflicting instructions. They cannot

decide whether the information relied on by the expert ‘was true and accurate’ without

considering whether the specific evidence identified by the instruction, and upon which

the expert based his opinion, was also true. ‘To admit basis testimony for the nonhearsay

purpose of jury evaluation of the experts is . . . to ignore the reality that jury evaluation of

the expert requires a direct assessment of the truth of the expert’s basis.’ ” (Sanchez,

supra, 63 Cal.4th at p. 684.)

To the extent this instruction referred to persons who did not testify from personal

knowledge, it was erroneous. However, given the extensive testimony by former gang

members and associates of Phillips, Delatorre, and defendant, there is no reasonable

probability of a different result in the absence of the instructional error. (People v.

Watson (1956) 46 Cal.2d 818, 836.) Indeed, in our view, the errors in this case were

harmless beyond any reasonable doubt as to every finding and verdict returned by the

jury. (Chapman v. California, supra, 386 U.S. at p. 24.)

40

II. Murder Liability Instructions Premised on Natural and Probable

Consequences Were Erroneous.

While defendant’s appeal was pending in this court, the California Supreme Court

decided Chiu, supra, 59 Cal.4th 155, concluding “an aider and abettor may not be

convicted of first degree premeditated murder under the natural and probable

consequences doctrine. Rather, his or her liability for that crime must be based on direct

aiding and abetting principles.” (Chiu, at pp. 158–159.) Judicial decisions are generally

fully retroactive. (People v. Carter (2005) 36 Cal.4th 1114, 1144.)

In a supplemental brief, defendant argues that, because his jury was instructed

under the natural and probable consequences doctrine that he could be convicted of first

degree murder, his first degree murder convictions must be reversed for Chiu error. The

Attorney General concedes error as to both murders, and further concedes the error was

prejudicial as to the Grockett murder. The Attorney General contends, however, the error

was harmless as to the Guzman-Mercado murder, citing the felony-murder instructions

and defendant’s conviction for attempted robbery. In light of Chiu, we agree the

instruction was erroneously given. “When a trial court instructs a jury on two theories of

guilt, one of which was legally correct and one legally incorrect, reversal is required

unless there is a basis in the record to find that the verdict was based on a valid ground.”

(Chiu, supra, 59 Cal.4th at p. 167.)

With respect to the Grockett murder, whether defendant was a direct perpetrator of

first degree murder, or a direct aider and abettor of first degree murder committed by

Phillips, or whether the murder was “a natural and probable consequence of the common

plan or design of the conspiracy” that “further[ed] the common plan” under CALCRIM

No. 417, or a natural and probable consequence of aiding and abetting a conspiracy to

sell drugs (the “target offense”) under CALCRIM No. 402, were factual questions for the

jury to decide. (Chiu, supra, 59 Cal.4th at p. 162.) The prosecutor argued all of these

theories, and tended to conflate the natural and probable consequences prongs of

conspiracy liability and aider and abetting liability under the general umbrella of

41

forseeability. In addition, natural and probable consequences were prominently displayed

in the slide show he used during closing argument. Finally, the jury asked for a rereading

of Jamie Beckwith’s testimony, which bore in part on the meeting between defendant,

Phillips, and Primo at The Dead Fish Restaurant just prior to Grockett’s murder. Under

these circumstances, we cannot conclude beyond a reasonable doubt the jury based its

verdict on one of the legally valid theories before it—that defendant was either the direct

perpetrator, or directly aided and abetted the premeditated murder of Grockett by

Phillips—rather than on the invalid theory that first degree murder was a natural and

probable consequences of conspiracy to sell drugs. Therefore, we agree with the

Attorney General that defendant’s first degree murder conviction for the Grockett murder

must be reversed.

We also agree the error was harmless with respect to the first degree murder

verdict in the Guzman-Mercado matter. In addition to instructions on conspiracy, direct

aiding and abetting, and natural and probable consequence liability for murder, the court

gave complete instructions on felony murder,12 attempt,13 and robbery.14 With respect to

count 3 (the Guzman-Mercado killing), the jury was also instructed on criminal liability

for attempted robbery premised on an uncharged conspiracy to commit robbery. 15 The

jury did find defendant guilty of attempted robbery. The general verdict does not reveal

which of the several theories of liability presented to the jury actually undergirds the

attempted robbery or murder verdicts. Nor was the jury required to unanimously agree

on the theory of liability. (People v. Smith (2014) 60 Cal.4th 603, 618 (Smith).)

However, once the jury decided defendant was guilty of attempted robbery, under the

felony murder instructions given here, the Guzman-Mercado killing was first degree

12

See CALCRIM No. 540B.

13

See CALCRIM No. 460.

14

See CALCRIM No. 1600.

15

See CALCRIM No. 416.

42

murder, unless “a logical connection between the cause of death and the robbery or

attempted robbery” was missing. Under the facts of this case, there is no basis to so

conclude because there was a logical connection: Guzman-Mercado was targeted for

robbery because he was known to possess a large quantity of methamphetamine, and he

was killed―whether intentionally, accidentally or negligently―in the process of

separating him from his property. There is also no basis in the appellate record to

conclude the jury misunderstood, ignored, or refused to apply the felony murder

instructions. Under these circumstances, we conclude beyond a reasonable doubt the

erroneous instructions on natural and probable consequence liability for murder played

no role in the verdict. Therefore, reversal of defendant’s first degree murder conviction

for the killing of Guzman-Mercado is not required.

III. Substantial Evidence Supports the Conspiracy Conviction.

Defendant argues the evidence adduced at trial is insufficient to support his

conspiracy conviction, since the evidence showed multiple conspiracies rather than a

single one. “ ‘To determine whether sufficient evidence supports a jury verdict, a

reviewing court reviews the entire record in the light most favorable to the judgment to

determine whether it discloses evidence that is reasonable, credible, and of solid value

such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.’ ”

(Smith, supra, 60 Cal.4th at p. 617.) Following Jackson v. Virginia (1979) 443 U.S. 307,

319, we assess the verdict on appeal based on the sufficiency of the evidence. “The

evidence need not be such that it excludes every hypothesis but that of a single

conspiracy. . . ; rather, it is enough that the evidence adequately supports a finding that a

single conspiracy exists. . . . [T]his Court would have to be able to say that no rational

trier of fact could have found a single conspiracy on this evidence before we could

disturb the jury’s finding, implicit in its guilty verdict, that a single conspiracy had been

proved.” (United States v. Kenny (9th Cir. 1981) 645 F.2d 1323, 1335 (Kenny).) As we

43

discuss below, the record contains ample evidence to support defendant’s conspiracy

conviction.

Although defendant was tried alone, the indictment jointly charged defendant,

Sergio Vega-Robles (his brother), Juan Delatorre, Josue Lemeli (Primo, his cousin) and

Alejandro Figueroa with conspiracy, alleging defendant conspired with Sergio, Primo,

Delatorre, Alejandro Figueroa, Coby Phillips, Thomas Covey, Robert Lott, and Tara

Sander to sell narcotic and non-narcotic controlled substances. (Health & Saf. Code,

§§ 11352, 11378.) Nineteen overt acts in furtherance of the conspiracy were alleged:

overt act Nos. 1 and 2 involved sales of methamphetamine to Lott and Sander,

respectively; the remaining overt acts involved the killings of Darrell Grockett and

Marcelino Guzman-Mercado, both drug dealers, and the attempted murder of Jose

Hernandez, a suspected police informant. Ricardo Ruiz was named as a coconspirator in

three overt acts. 16

A conspiracy is an agreement by two or more persons to commit any crime.

(§ 182, subd. (a)(1).) “A conviction of conspiracy requires proof that the defendant and

another person had the specific intent to agree or conspire to commit an offense, as well

as the specific intent to commit the elements of that offense, together with proof of the

commission of an overt act ‘by one or more of the parties to such agreement’ in

furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416.) The

prosecution need not prove that each conspirator knew the identity of all the other

members of the conspiracy, or their exact functions. (Blumenthal v. United States (1947)

332 U.S. 539, 557 (Blumenthal); People v. Van Eyk (1961) 56 Cal.2d 471, 479.) If the

16

The jury was instructed that if the crimes of conspiracy, murder, attempted

robbery burglary, grand theft or lesser included offenses were committed, then Delatorre,

Lomeli, Lott, Phillips, Ruiz, and Sergio Vega-Robles were accomplices to those crimes.

They were also instructed to decide whether Jamie Beckwith, Clayton Cates, Timothy

Covey, Alejandro Figueroa, Ralph Nash, Sally Sinclair, and Stacey Taylor were

accomplices.

44

defendant conspired with only one person instead of many, as charged, he is still guilty of

conspiracy. (People v. Collins (1966) 242 Cal.App.2d 626, 633–634.)

The evidence supports defendant’s conspiracy conviction based on an ongoing

conspiracy to sell drugs. The People’s case presented substantial evidence defendant was

involved in a vertical chain operation that distributed illegal drugs to complicit

distributors in west Contra Costa County. Jamie Beckwith, defendant’s girlfriend from

2003 to 2007, testified defendant made his living as a drug dealer; he told her he obtained

the drug he mainly sold, crystal methamphetamine, from Mexico. Ricardo Ruiz, who

worked for defendant and Sergio Vega-Robles in the drug trade, corroborated that

defendant’s product came from Mexico. Defendant dealt in quantities of drugs as large

as 30 pounds and handled as much cash as $400,000. He worked in tandem with Sergio

but, according to Beckwith, defendant was “more of the leader.” Ruiz placed defendant

“higher on the food chain than a street dealer.”

Several members of the conspiracy testified that Coby Philips, a close friend and

business associate of defendant, and a cofounder and member of the FAIM gang, bought

methamphetamine from defendant and Sergio, sometimes in quantities as large as 10

pounds. Philips resold “sales quantities” (as opposed to “street level quantities”) to other

FAIM members. When Phillips was incarcerated, Timothy Covey took over Phillips’s

business operation and started getting drugs directly from defendant. Defendant would

“front” Covey a pound or two of methamphetamine, which Covey would resell to

“mostly sellers” and then pay defendant back from the sales proceeds.

Ruiz, Ruiz’s childhood friend Delatorre (both Sureño-affiliated gang members),

Clayton Cates (Phillips’s brother-in-law), Timothy Covey (Thomas “Bubba” Covey’s

brother), and Primo did pick-ups and deliveries of drugs for the distribution chain. Cates

drove to Los Angeles on several occasions to pick up the product and bring it to the Bay

Area. He got drugs from Phillips and delivered drugs to FAIM member Stephen

Buchanan. Ruiz knew Phillips because he and Phillips’s family members were

45

neighbors. He also went with defendant and Sergio a few times to drop off drugs at

Phillips’s house in Vallejo, and he personally negotiated a sale from Sergio to Phillips on

another occasion.

There was circumstantial evidence to support factual findings, as alleged in the

overt acts, that defendant also enlisted the aid of coconspirators lower on the distribution

chain to provide backup support, or more, when defendant needed assistance to repel or

rob competitors and silence informers. Phillips’s wife and defendant’s girlfriend both

testified to a rendezvous between Phillips, defendant, and Primo at The Dead Fish

Restaurant prior to the killing of Darrell Grockett, a troublesome drug dealer who

threatened Phillips with bodily harm and bought drugs from Phillips but did not want to

pay what Phillips charged. Before leaving for the restaurant, Phillips told his wife he was

going to meet with Grockett to shoot him. Grockett’s business partner in the drug trade,

Sally Sinclair, confirmed that Grockett received a phone call at 8:00 p.m., and

immediately thereafter left for a meeting on the night he was found dead. After the

killing, Primo told Ruiz about it, and Covey overheard defendant and Primo joking about

it in Spanish.

In December 2004, defendant told Phillips’s wife Stacey Taylor, his girlfriend

Jamie Beckwith, and Timothy Covey he knew someone he could rob of drugs or money.

Later, Primo and Delatorre picked up Ruiz and Rodolfo Figueroa and drove to a

rendezvous with defendant and another unidentified person. Primo talked that evening

about “jacking” (i.e., robbing) someone. Primo told Ruiz to drive to a place where they

were to pick up a package from a drug dealer. According to Ruiz, Delatorre shot

Guzman-Mercado in the car. The next day, defendant told Ruiz, “Good job. Don’t

worry. You’ll be fine.” A week later, Delatorre told Ruiz it “wasn’t supposed to happen

like that. They were just going to tie him up.” Afterwards, Delatorre and others went to

Guzman-Mercado’s apartment and got “pounds of crystal meth.” Delatorre said

defendant kept the drugs. Later, defendant admitted to Phillips’s wife he got the money

46

or drugs and had shot someone in a car. He also admitted the shooting to Tim Covey.

And defendant’s girlfriend overheard a conversation between defendant, Primo, and Ruiz

about pushing someone out of a car. According to Jamie Beckwith, defendant asked,

“Did you finish it or did you do it?” Primo said they shot the person but he was not dead,

and so they had to push him out of the car.

On February 21, 2005, the day Jose Hernandez was shot, defendant, Tim Covey,

and Cates left from Phillips’s wife’s house; she saw them drive off together. Covey

drove to a residential street in Richmond, where defendant alighted from the car and

returned 45 seconds later holding a gun. Ruiz and Alejandro Figueroa, who lived next

door to Hernandez, saw defendant go to the house next door to Figueroa’s. Hernandez

identified defendant as the person who shot him.

Weeks before the shooting, Sergio told Ruiz that Hernandez was “snitching.”

Sometime before the shooting, defendant told Phillips’s wife that Sergio had “found out

who was telling.” After the shooting, defendant told Cates he shot “the guy that snitched

on him.” He also told Phillips’s wife “he had shot the rat.”

Based on the analogy made famous in Kotteakos v. United States (1946) 328 U.S.

750 (Kotteakos), defendant argues the evidence summarized above shows at most that

defendant was the “hub in a wheel selling in larger quantities to the spokes,” without

evidence of “a rim connecting these spokes as might show a single ongoing plan or

conspiracy.” “The nature of that ‘rim’ defies precise statement, but general principles are

well established. . . . ‘The government need not show direct contact or explicit

agreement between the defendants. It is sufficient to show that each defendant knew or

had reason to know of the scope of the conspiracy and that each defendant had reason to

believe that their own benefits were dependent upon the success of the entire venture.’

[Citation.] Once the existence of a conspiracy has been established, evidence of only a

slight connection is necessary to convict a defendant of knowing participation in it.”

(United States v. Kenny, supra, 645 F.2d at p. 1335.)

47

Where there is a variance between an indictment charging one conspiracy and

proof at trial of multiple conspiracies, reversal is required only if the variance

prejudicially affects the defendant’s substantial rights. (Kenny, supra, 645 F. 2d at

p. 1334; United States v. Castaneda (9th Cir. 1994) 16 F.3d 1504, 1509; Berger v. United

States (1935) 295 U.S. 78; Kotteakos, supra, 328 U.S. at p. 757.) “[T]he review of such a

case involves two inquiries: was there a variance, and if so, was it prejudicial.” (Kenny,

at p. 1334.)

In this case we find no variance. “This [wheel] arrangement is a single conspiracy

only when the activities of each of the spokes is interrelated, as when the success of each

of the activities depends on the success of the others.” (United States v. Stroupe (4th Cir.

1976) 538 F.2d 1063, 1066.) In Kotteakos, supra, 328 U.S. 750, one person arranged

fraudulent loans with numerous borrowers. (Id. at pp. 752–754.) “[E]ach separate

agreement had its own distinct, illegal end. Each loan was an end in itself, separate from

all others, although all were alike in having similar illegal objects. Except for Brown, the

common figure, no conspirator was interested in whether any loan except his own went

through. And none aided in any way, by agreement or otherwise, in procuring another’s

loan. The conspiracies therefore were distinct and disconnected, not parts of a larger

general scheme, both in the phase of agreement with Brown and also in the absence of

any aid given to others as well as in specific object and result. There was no drawing of

all together in a single, over-all, comprehensive plan.” (Blumenthal, supra, 332 U.S. at

p. 558.)

In our view, the conspiracy here is more like the illegal liquor distribution scheme

to sell illegally priced whiskey to tavern owners through seemingly legitimate means in

Blumenthal, supra, 332 U.S. at p. 553, than it is like the fraudulent loan scheme in

Kotteakos, supra, 328 U.S. 750. In Blumenthal, the evidence showed two agreements,

one between X, the unknown owner of the whiskey, and the two defendants at the top of

the distribution chain; and a second agreement to which X was not a party, between the

48

top-end distributors and the other conspirators who carried out the actual sales.

(Blumenthal, at p. 556.) In upholding the defendants’ single conspiracy convictions

against variance and insufficiency of the evidence challenges, the Blumenthal court

viewed the two agreements as steps or stages in the formation of a larger, more general,

all-inclusive conspiracy directed to achieving a single unlawful end or result. (Id. at p.

558; see also People v. Elliott (1978) 77 Cal.App.3d 673, 684–685.)

In our view, the evidence here showing a vertically integrated distribution scheme

to get Mexican methamphetamine to end-users in west Contra Costa County was more

than sufficient to establish an overarching conspiracy to sell illegal drugs for profit, as

charged. Here, the evidence showed defendant obtained the methamphetamine―from

Mexico or from less savvy drug dealers―and distributed it to others―Primo, Phillips,

Covey, Ruiz, and Delatorre―who performed their parts in making sure defendant’s

product was delivered to various levels of middlemen between defendant and the end-

users. Sometimes their duties involved pickups and deliveries, and sometimes they

involved shooting people who got in the way of the operation, but all contributed in one

way or another to the success of the criminal enterprise. It was not also necessary for the

prosecution to prove drug sales to Robert Lott, as defendant suggests. Evidence that

defendant also sometimes dealt in small quantities, or that Phillips also bought product

from others, or that Ruiz and Delatorre were also drug users, does not undermine the

basic premise that defendant was a large scale supplier of methamphetamine to others in

west Contra Costa County who knowingly sold drugs to middle- and lower-level dealers

in the distribution chain, so that everybody in the chain could make some money from the

drug sales. “When all inferences favorable to the prosecution are drawn, the evidence

discloses the existence of a narcotics ring whose ultimate objective, shared in by a

number of people performing various functions, was to bring narcotics into the

possession of addicts for profit. . . . [¶] It has been held that persons can be prosecuted

as conspirators if, by buying, selling, or doing some other act, they knowingly

49

participated in a general plan to place narcotics in the hands of ultimate users.” (People

v. Van Eyk, supra, 56 Cal.2d at pp. 478–479.) Such is the case here. No variance

between the indictment and the evidence adduced at trial appears, and substantial

evidence supports defendant’s conspiracy conviction.

IV. Substantial Evidence Supports the Gang Enhancement Findings.

Defendant also contends the evidence was insufficient to support the gang

enhancements alleged under section 186.22, subdivision (b)(1), given that neither

defendant, Grockett nor Guzman-Mercado were members of FAIM or RST. He argues it

is “simply speculative” to infer Phillips or Primo shot Grockett, and Delatorre shot

Guzman-Mercado, in association with or for the benefit of a gang, or to further conduct

by gang members. We disagree.

Section 186.22, subdivision (b)(1), provides in relevant part: “[A]ny person who

is convicted of a felony committed for the benefit of, at the direction of, or in

association with any criminal street gang, with the specific intent to promote, further,

or assist in any criminal conduct by gang members, shall, upon conviction of that

felony, in addition and consecutive to the punishment prescribed for the felony or

attempted felony of which he or she has been convicted, be punished as follows. . . .”

(Italics added.) “ ‘[S]pecific intent to benefit the gang is not required. What is required

is the “specific intent to promote, further, or assist in any criminal conduct by gang

members. . . .” ’ ” (People v. Leon (2008) 161 Cal.App.4th 149, 162.)

Phillips and Thomas Covey were cofounders of the FAIM gang, whose primary

activity was drug dealing, according to Phillips’s wife Stacey and Thomas Covey’s

brother Timothy. According to Timothy Covey, the gang was formed to provide

“muscle” to “help our drug trade.” Tim Covey took over the reins of Phillips’s drug

trade after Phillips was incarcerated. Defendant would “front” Covey a pound or two of

methamphetamine, which Covey would then resell mainly to sellers, and pay defendant

out of the sale proceeds. Gang expert Detective Tribble also opined that FAIM was a

50

criminal street gang whose primary activity was selling large quantities of

methamphetamine.

Although Covey was not directly involved in Grockett’s murder, Covey testified

he later overheard defendant and Primo joking about it. Covey testified that, when

defendant and Phillips returned after the Grockett killing, “everybody was pretty much

let known that we needed to start carrying guns and we were all hanging around Coby’s

house in Vallejo.” Other evidence established that Grockett was one of the drug dealers

to whom Phillips’s organization resold the drugs, that he did not want to pay Phillips’s

price for the drugs, and that Grockett had threatened Phillips’s life. Tribble opined that

if Grockett was interfering with the FAIM gang’s drug sales, or threatening Phillips’s

life, killing Grockett would financially benefit the gang. Tribble testified, “You no

longer have a threat that’s not only physically threatening a member or more than a

member of the gang but that same physical threat would entail the threat to future sales

of methamphetamine which is the primary activity of the gang.”

Ruiz testified he and Delatorre were members of RST, a Sureños gang. According

to Ruiz, one of the primary activities of the RST gang was selling methamphetamine and

marijuana. Gang expert Detective Brady concurred that Delatorre was a Sureño gang

member in 2003 and 2004, and that one of the primary activities of RST from 2000 to

2006 was selling drugs. Ruiz and Delatorre were part of defendant’s distribution ring

and both participated in the robbery and murder of Guzman-Mercado. Brady opined that

robbery or attempted robbery could benefit the gang financially.

The prosecutor conceded defendant was not a gang member. But under the

circumstances presented here, an inescapable inference was that FAIM’s and RST’s drug

trades benefitted from activities that advanced defendant’s enterprise, and vice versa:

defendant used the gang infrastructure already in place to facilitate the sales; what was

good for him was also good for the gang. Thus, a reasonable trier of fact could find

from the facts presented that defendant orchestrated the robbery of Guzman-Mercado,

51

and participated in the murder of Grockett, in association with members of RST and

FAIM, with the specific intent to promote, further, or assist in the gangs’ primary

criminal activity—selling methamphetamine. In short, substantial evidence supports

the conclusion that defendant acted in concert with members of the RST and FAIM

criminal street gangs with the requisite intent by using gang members to pick up and

deliver drugs, collect monies and, on occasion, rob and kill other drug dealers, and by

distributing his drugs through the gang networks already in place.

V. Defendant’s Invocation of Counsel Was Equivocal.

Prior to trial, defendant moved to exclude defendant’s statement to police on the

ground all questioning should have stopped as soon as he asked for an attorney.17

Defendant argues he “unequivocally invoked the right to counsel; in light of his requests

for counsel, the implied waivers are not shown to be knowing, intelligent, or voluntary

either.” (Italics added.)

The transcript of defendant’s interview shows the interview began with defendant

being asked if he spoke English. He responded: “A little bit.” Next he was asked for his

name, which defendant gave as Raúl Sánchez Contreras. Detective Goldberg introduced

himself and his partner, and asked if defendant understood his rights. Defendant

indicated he needed an interpreter and was informed the other deputy could interpret for

him. In English and Spanish, defendant was asked if he understood his constitutional

rights, including his “right to have an attorney and . . . the right to have that attorney here

with you before and during any questioning.” Defendant said, “Yes” (“Sí”). In English,

defendant was then asked: “Okay. Alright. Now . . . ah . . . I think you understand

English enough to understand what I’m saying to you, okay?” Defendant responded in

English: “I understand a little bit.” He was asked, “Do you go by any other names?”

Defendant said, “No.” After a little more jockeying about his name, defendant was told

17

An additional ground, that defendant’s statement was involuntary due to implied

promises to let him go, is not raised on appeal.

52

in Spanish, “Okay, he’s not interested to why you were arrested today. [¶] . . . [¶] He’s

interested about another case that he imagines that you know that . . . about the case he’s

talking about.” Defendant responded in Spanish, “Like what?” The detective answered,

in English, “[W]e can start with . . . What is, what his real name is.” Defendant admitted

the detectives knew his real name; they also showed him a picture and he acknowledged

it was a picture of himself. He also admitted he was known as Calacas. Then the

detective said in English, “[W]e’re both doing an investigation, uh, it’s for an older case

and . . . you understand English now?” Defendant said, “Yeah, I understand English

but . . . .” Detective Goldberg responded, “Okay. Tell, tell me if you need him to explain

what I’m saying to you,” to which defendant responded: “Okay.”

Detective Goldberg then informed defendant his name came up in an

investigation, but “just because someone tells us you were there, okay, doesn’t

necessarily mean I believe what everybody tells me. . . .” Switching to Spanish,

defendant said he did understand, more or less, that people say things. The Spanish

speaking officer then translated: “[W]hen he was doing an investigation in a case, your

name [¶] . . . [¶] came out and . . . and since he respects you in the way you deserve, . . .

he wants to know your side of the story. He doesn’t just want the side that they told him.

You understand?” In Spanish, defendant responded, “I want you to ask him what, what,

what they know, what . . . I don’t know.” The Spanish-speaking officer continued,

“That’s why, that’s what he’s getting at. But he’s just saying to know your side of the

story that . . . that’s why he’s going to ask you the questions . . . about the case. But he’s

just letting you know that . . . your name came up during the investigation [¶]. . . [¶] and

that’s why he’s coming to talk with you so that . . . to hear your side of the story. [¶] . . .

[¶] Okay?”

Defendant responded, “Uh, but . . . okay, that’s fine. Uh, I want to listen but, . . .

can I also . . . couldn’t I talk to an attorney?” The Spanish-speaking officer responded:

“What was that?” (“¿Que qué?”) Defendant said, in Spanish, “Uh, I can listen but ah . . .

53

what is . . . what is it that . . . you can tell me what, what, what happened?” The

interview continued without defendant ever again mentioning an attorney.

The trial court ruled the statement admissible on alternative grounds. First, “there

was enough background noise that the detective needed to clarify what was said and so

for that reason I find there was no clear invocation.” Second, “even if . . . Detective

Santiago did hear ‘couldn’t I talk to an attorney,’ that is a question and not a clear

invocation and the translator, Detective Santiago, did respond with, ‘What was that?’”

A request for counsel must be unequivocal before police interrogation must cease.

(Davis v. United States (1994) 512 U.S. 452, 456, 459 (Davis).) It cannot be ambiguous

or equivocal; otherwise “the Miranda safeguards [become] wholly irrational obstacles to

legitimate police investigative activity.” (Id. at p. 460.) “Consistent with Davis, a

reviewing court . . . must ask whether, in light of the circumstances, a reasonable officer

would have understood a defendant’s reference to an attorney to be an unequivocal and

unambiguous request for counsel, without regard to the defendant’s subjective ability or

capacity to articulate his or her desire for counsel, and with no further requirement

imposed upon the officers to ask clarifying questions of the defendant. (Davis, supra,

512 U.S. at pp. 460–462.) In reviewing the issue, moreover, the reviewing court must

‘accept the trial court’s resolution of disputed facts and inferences, and its evaluations of

credibility, if supported by substantial evidence. [The reviewing court] independently

determine[s] from the undisputed facts and the facts properly found by the trial court

whether the challenged statement was illegally obtained.’ ” (People v. Gonzalez (2005)

34 Cal.4th 1111, 1125.)

Applying this standard to the facts before us, we conclude defendant’s invocation

did not require the police to cease questioning him. Defendant does not argue the trial

court was wrong in its view that at the critical point background noise so occluded

defendant’s response that Officer Santiago had to ask defendant what he said, and we see

no reason in the record to second-guess the trial court on that point. More importantly,

54

we agree with the trial court that a question is not an unequivocal invocation precluding

the police translator from even asking, “¿Que qué?” (“What was that?”) However, given

the opportunity to rephrase his question or restate it as a request for counsel, defendant

did neither. We find no error. Since there was no unequivocal invocation of counsel,

there is no basis on this record to question the voluntariness of defendant’s implied

waivers of his constitutional rights.

Defendant makes an ancillary argument that the trial court committed prejudicial

error by failing to strike the initial question and answer about whether defendant asked if

he could make a deal. In the first place, defense counsel did not object to that exchange

but to the follow-up question and answer about whether defendant was in a position to

make a deal. The court did sustain that objection and order the question and answer

stricken. Moreover, the court did not abuse its discretion in concluding that, in the

context of a police interrogation (not a plea bargain), defendant’s statement was evidence

of consciousness of guilt. No error and no prejudice appear.

VI. There Was No Double Jeopardy Violation.

Defendant claims reversal of the entire judgment is required because the court

erroneously denied his motion to dismiss the conspiracy count on state and federal

double jeopardy grounds. We disagree.

In May 2009, the Oakland Branch of the United States Attorney’s Office for the

Northern District of California filed a superseding information charging defendant with

knowingly and intentionally using a communication facility (a telephone), on

November 22, 2005, to facilitate the commission of a drug trafficking felony in violation

of Title 21 United States Code section 841(a)(1). (21 U.S.C § 843(b).) On May 11,

2009, defendant pleaded guilty “to Count One of the captioned superseding information

charging [him] with knowingly and intentionally using a communication facility (a

telephone) to facilitate the distribution of a mixture or substance containing a detectable

amount of cocaine, in violation of Title 21, United States Code, Section 843(b).” (Italics

55

added.) In the plea agreement, defendant acknowledged the elements of the offense

were identical to the allegation set forth above.18

The trial court found no violation of double jeopardy, because the federal charge

to which defendant pleaded guilty was not based on the same act or acts as the conspiracy

to sell methamphetamine in Contra Costa County. The trial court was correct. The

double jeopardy clause of the Fifth Amendment to the United States Constitution does

not preclude multiple convictions in different sovereign jurisdictions for the same

criminal act. (Heath v. Alabama (1985) 474 U.S. 82, 93.) Thus, even if the act of using

the telephone to negotiate a drug debt for one kilo of cocaine on November 22, 2005,

had been charged in California as a violation of California law, the California

prosecution would not have violated federal constitutional law.

However, California provides greater double jeopardy protection by statute than

that afforded by the federal Constitution. (People v. Comingore (1977) 20 Cal.3d 142,

145; §§ 656, 793.)19 The trial court rejected defendant’s state double jeopardy claim

because “a conviction in this state is not barred where the offense committed is not the

same act that involves an element not present in the prior prosecution. [¶] I do not read

People v. Belcher [(1974) 11 Cal.3d 91] as only . . . raising the argument that California

courts use a transactional approach [to] a prior jeopardy. In fact, in Belcher the courts

18

As a factual basis, defendant admitted that on November 22, 2005, he spoke to

his father on the telephone “about some drug debts that we were owed. In particular, on

that day, I negotiated a drug debt with a person who owed payment for one kilogram of

cocaine.”

19

Section 656 provides: “Whenever on the trial of an accused person it appears

that upon a criminal prosecution under the laws of the United States, or of another state

or territory of the United States based upon the act or omission in respect to which he or

she is on trial, he or she has been acquitted or convicted, it is a sufficient defense.”

Section 793 provides: “When an act charged as a public offense is within the

jurisdiction of the United States, or of another state or territory of the United States, as

well as of this state, a conviction or acquittal thereof in that other jurisdiction is a bar to

the prosecution or indictment in this state.”

56

made it clear that they rejected a course of the conduct rule and have adhered to a strict

same acts rule. I think that what occurred in all of the materials that I reviewed was that

there was a conflating of investigation and complaints with acquittal or conviction. And

despite the fact if there had been some overlap, even if there had been an entire overlap

between the state and the federal investigation, there was not an acquittal nor a conviction

of conspiracy in this case.”

Under sections 656 and 793, “ ‘a defendant may not be convicted after a prior

acquittal or conviction in another jurisdiction if all the acts constituting the offense in this

state were necessary to prove the offense in the prior prosecution [citation]; however, a

conviction in this state is not barred where the offense committed is not the same act but

involves an element not present in the prior prosecution.’ ” (People v. Comingore,

supra, 20 Cal.3d 142, 146; People v. Candelaria (1956) 139 Cal.App.2d 432, 440;

People v. Belcher, supra, 11 Cal.3d at p. 99; People v. Bellacosa (2007) 147 Cal.App.4th

868, 873-878.)

To illustrate, in People v. Belcher, supra, 11 Cal.4th 91, a federal narcotics agent

and an undercover Oakland police officer were robbed at gunpoint by the defendant. In

federal court, Belcher was acquitted of assault on a federal officer, but he was

subsequently convicted in state court of assault with a deadly weapon and two counts of

robbery. (Id. at pp. 94–95.) The California Supreme Court reversed the assault

conviction because it was based on the same act—“the same assault upon the same

person,” at issue in the federal case. (Id. at pp. 99–100.) The robbery convictions were

affirmed because they involved additional acts, the taking of personal property, not

necessary for proof of the federal assault charge. (Id. at pp. 100–101.) In doing so, the

court reaffirmed that section 654’s “course of conduct” rule does not apply under

section 656 (Belcher, at p. 98). While a defendant may not be convicted in this state

after a prior acquittal or conviction in another jurisdiction “if all the acts constituting the

offense in this state were necessary to prove the offense in the prior prosecution,” he

57

may be convicted where the offense “is not the same act [because it] involves an

element not present in the prior prosecution.” (Id. at p. 99.)

Recently, our Supreme Court developed the limits of section 656 and its double

jeopardy protection in People v. Homick (2012) 55 Cal.4th 816. Homick was convicted

of conspiracy to commit murder and two counts of first degree murder with special

circumstances (murder for financial gain and lying in wait were alleged as the special

circumstances). His death sentence was affirmed. Homick was previously acquitted in

federal court of a charge of murder for hire (a violation of 18 U.S.C. former § 1952A,

which has since been renumbered to § 1958) involving the same victims in the state

prosecution. (Id. at p. 837.) Our high court held the application of section 656 “turns

on whether the California charges against defendant required proof of conduct that was

not required for conviction on the earlier federal charges.” (Id. at p. 843.) As to the

lying in wait allegation, the court concluded section 656 did not bar the state

prosecution. Simply stated, the elements for lying in wait are not required as elements

and proof to convict in the crime proscribed by title 18 United States Code former

section 1952A, Homick’s federal offense.

Here, even if defendant admitted as part of his federal plea agreement that he used

the telephone frequently to negotiate drug transactions, and to discuss drug trafficking

with his associates, those facts do not establish the federal and state offenses were the

same charge. The federal and state convictions here did not share any of the same

elements or acts. The state conspiracy charge here required proof of an agreement, which

was not required to prove a violation of title 21 United States Code section 843(b). The

telephone call, which was the basis of the charge in federal court, occurred eight months

after all of the overt acts charged in state court under the conspiracy count. “If . . . the

offenses require proof of different physical acts, then the California prosecution is not

barred even though some of the elements of the offenses may overlap.” (People v.

58

Bellacosa, supra, 147 Cal.App.4th at p. 874.) Accordingly, defendant’s state double

jeopardy claim is not well taken.

Finally, the trial court did not err in rejecting defendant’s request for an

evidentiary hearing on the theory the “federal authorities colluded with state authorities

to permit imposition of a federal prison term as a sham separate sovereign; this was

done knowingly to permit the expansive state conspiracy count to go forward to help

prove murders on top of the federal charge.” The trial court “found nothing alleged nor

any evidence that supports an inference that the state and federal authorities engaged in

the conspiracy to trap the defendants by allowing them to plead to federal offenses that

would not protect them from a subsequent state prosecution. And in fact it was quite

clear that the state had information and that they would be prosecuting, and the feds

20

chose to ultimately step aside and get a very narrow plea for both defendants.”

Defendant does not challenge the prosecutor’s declaration or otherwise present

any basis for this court to override the trial court’s determination.

Defendant cites People v. Westbrook (1996) 43 Cal.App.4th 220 (Westbrook),

United States v. Montgomery (9th Cir. 1998) 150 F.3d 983 (Montgomery), and Bartkus v.

Illinois (1959) 359 U.S. 121 (Bartkus) in support of his claim, but those cases do not

assist him. In Westbrook, the court termed the “ ‘sham separate sovereign’ ” argument a

“narrow exception” to the rule that prosecutions undertaken by separate sovereigns are

permissible. (Westbrook, at pp. 224–225.) In that case, as here, a prosecuting attorney

averred that the prosecutions were separate, and the Court of Appeal rejected the claim

they were not. (Id. at p. 225.) Similarly, in Bartkus, the United States Supreme Court

rejected a showing of cooperation between federal and state prosecutors as supporting

20

Here, the prosecutor filed a declaration under penalty of perjury stating (1) he

did not consult with the United States Attorney’s Office before obtaining the indictment;

(2) the United States Attorney’s Office did not consult with him before negotiating the

federal guilty plea; and (3) the prosecutor was not influenced by the United States

Attorney’s Office in prosecuting the case against defendant.

59

“the claim that the State of Illinois in bringing its prosecution was merely a tool of the

federal authorities, who thereby avoided the prohibition of the Fifth Amendment against

a retrial of a federal prosecution after an acquittal.” (Bartkus, at pp. 123–124.)

Finally, Montgomery, supra, 150 F.3d 983 is inapposite, as it did not involve

convictions in different jurisdictions. It involved a single federal prosecution in which

two counts of conspiracy—one to manufacture methamphetamine and one to distribute

methamphetamine—were joined for trial. (Id. at p. 989.) Although double jeopardy

principles prohibit splitting one conspiracy into multiple violations of one conspiracy

statute, the Montgomery court rejected the defendant’s claim the two conspiracies were

actually only one conspiracy. (Ibid.)

In sum, the trial court did not err by denying defendant’s double jeopardy claims.

VII. Bifurcation of Gang Allegations Was Not Required.

Defendant contends the trial court abused its discretion by declining to bifurcate

the gang allegations. We disagree. A trial court has the discretion to bifurcate gang

allegations from the trial on the substantive charges. (People v. Hernandez (2004)

33 Cal.4th 1040, 1048–1051 (Hernandez).) “In cases not involving the gang

enhancement, we have held that evidence of gang membership is potentially prejudicial

and should not be admitted if its probative value is minimal. [Citation.] But evidence of

gang membership is often relevant to, and admissible regarding, the charged offense.

Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory,

membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the

like—can help prove identity, motive, modus operandi, specific intent, means of applying

force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the

extent the evidence supporting the gang enhancement would be admissible at a trial of

guilt, any inference of prejudice would be dispelled, and bifurcation would not be

necessary.” (Id. at pp. 1049–1050.) The burden is on the party seeking bifurcation to

60

clearly establish there is a substantial danger of prejudice requiring the charges be

separately tried. (Id. at p. 1050.)

Drawing an analogy between severance and bifurcation, our Supreme Court

concluded that because of the policy considerations favoring joinder, “the trial court’s

discretion to deny bifurcation of a charged gang enhancement is similarly broader than its

discretion to admit gang evidence when the gang enhancement is not charged.”

(Hernandez, supra, 33 Cal.4th at p. 1050.) Thus, “[e]ven if some of the evidence offered

to prove the gang enhancement would be inadmissible at a trial of the substantive crime

itself—for example, if some of it might be excluded under Evidence Code section 352 as

unduly prejudicial when no gang enhancement is charged—a court may still deny

bifurcation.” (Ibid.)

Here, the trial court denied the request to bifurcate the gang allegations because it

found the gang testimony would be minimally prejudicial to defendant, who was not a

gang member, but “highly relevant” to the issues at trial, “because the allegations are

that [defendant] aided the Sureño gang and the F.A.I.M. gang by providing them with

large quantities of methamphetamine.” Referencing Hernandez, supra, 33 Cal.4th 1040,

the trial court made specific findings it did not expect the evidence regarding the gang

enhancements to be so inflammatory as to sway the jury to convict defendant regardless

of his guilt, and did not believe there was a substantial danger of prejudice.

We see no abuse of discretion. Here the evidence of gang territory,

membership, signs, symbols, beliefs and practices, criminal enterprises, and rivalries

presented through both lay and expert witnesses related to defendant’s coconspirators

and was highly relevant to explain how defendant used the RST and FAIM gang

networks to distribute drugs to end-users in west Contra Costa County. The evidence

was also highly relevant to show the primary activities of the gangs, including drug

dealing and the commission of other crimes. Much, if not all, of the evidence would

have been relevant and admissible on the trial of the substantive charges even if the

61

gang allegations had been bifurcated. Under these circumstances, any inference of

prejudice from joinder of the gang enhancement allegations was dispelled. No error

appears.

VIII. Severance of the Murder Counts or Overt Acts Related to Attempted Murder

Was Not Required.

Prior to trial, the defense moved for severance of counts, requesting separate trials

“for the two homicide and assault cases” on grounds of undue prejudice. Before ruling

on the motion, the court asked defense counsel: “If the Court severed the attempted

murder count, you mentioned that you would be prepared to go forward on the two

homicides but what I’m trying to get clear in my mind is if I severed the attempted

murder but I did not sever the conspiracy charge in Count One, would you be prepared to

go forward and address overt acts 17, 18 and 19? It’s not a charge, it’s simply overt acts.

You understand where I am going?” Counsel responded: “ I understand where you’re

going, yes. Um . . . I think so. Just an act. I think so.” Following further argument, and

in light of ongoing discovery problems, the court ordered severance of the attempted

murder charge, but not of the related overt acts. The court denied the motion with respect

to the two murder counts.

On appeal, defendant argues the trial court abused its discretion based on the facts

before it in denying the severance motion as to the murder counts, or at least as to the

overt acts alleging the attempted murder.21 Defendant also argues the joinder of counts

and overt acts resulted in gross unfairness at trial amounting to a denial of due process

and requiring reversal. (People v. Carasi (2008) 44 Cal.4th 1263, 1296.) We disagree.

We review the court’s ruling for abuse of discretion based on the facts before it at

the time the motion was made. (People v. Avila (2006) 38 Cal.4th 491, 575.) “If the

court’s joinder ruling was proper at the time it was made, a reviewing court may reverse a

21

Neither defense counsel’s pretrial motion, nor appellate counsel’s argument,

mentions severance of the count alleging the attempted robbery of Guzman-Mercado, but

we assume the severance motion was intended to cover it as well.

62

judgment only on a showing that joinder ‘ “resulted in ‘gross unfairness’ amounting to a

denial of due process.” ’ [Citation.] Even if the court abused its discretion in refusing to

sever, reversal is unwarranted unless, to a reasonable probability, defendant would have

received a more favorable result in a separate trial.” (Ibid.)

The touchstone of a successful severance motion is the clear showing of “a

substantial danger of prejudice” from joinder, and the party seeking severance bears that

burden. (People v. Vines (2011) 51 Cal.4th 830, 855.) “ ‘ “ ‘ “The determination of

prejudice is necessarily dependent on the particular circumstances of each individual

case, but certain criteria have emerged to provide guidance in ruling upon and reviewing

a motion to sever trial.” [Citation.] Refusal to sever may be an abuse of discretion

where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in

separate trials; (2) certain of the charges are unusually likely to inflame the jury against

the defendant; (3) a “weak” case has been joined with a “strong” case, or with another

“weak” case, so that the “spillover” effect of aggregate evidence on several charges might

well alter the outcome of some or all of the charges; and (4) any one of the charges

carries the death penalty or joinder of them turns the matter into a capital case.’ ” ’ ”

(Ibid.)

We have already determined the evidence is sufficient to support a conviction for

a single over-arching drug conspiracy. Although defendant maintains the conspiracy

claim was unfounded, he acknowledges the single conspiracy claim provides the basis for

cross-admissibility of evidence. Furthermore, we do not view the attempted murder facts

as more inflammatory than the facts of the two murders “because it was the only street-

shooting appellant assertedly committed himself.” The Grockett and Guzman-Mercado

murders were no less disturbing, and there was some evidence defendant was one of the

people who actually shot Grockett. Some charges were not weaker or stronger than

others; all depended to some extent on the veracity of coconspirators’ statements. None

of the charges carried the death penalty or turned the matter into a capital case. Finally,

63

defense counsel expressed the view, prior to trial, she could defend against the overt acts

if the attempted murder were severed. These were the facts before the court at the time it

ruled. No abuse of discretion appears.

Defendant asserts “error and gross trial prejudice are indeed shown here” but fails

to support that assertion with any specifics. Given that most if not all of the evidence

presented at the unitary trial would have been admissible at seriatim separate trials for

murder, we see no reasonable probability defendant would have received a more

favorable result if he had separate trials. (People v. Avila, supra, 38 Cal.4th at p. 575.)

IX. The Hearsay Statements of Coconspirators Were Admissible.

Defendant asserts the trial court erred by admitting statements made by

nontestifying declarants Phillips, Delatorre and Primo under Evidence Code section

1223.22 He also asserts the error violated his constitutional rights.23 We disagree.

Defendant reiterates his argument that none of the statements were admissible as

statements made in the furtherance of a single, ongoing conspiracy to sell drugs, because

the evidence did not support the existence of such a conspiracy. We reject this argument

because, as we have explained elsewhere, there was ample evidence that defendant was

22

Evidence Code section 1223 provides: “Evidence of a statement offered against

a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made

by the declarant while participating in a conspiracy to commit a crime or civil wrong and

in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to

or during the time that the party was participating in that conspiracy; and [¶] (c) The

evidence is offered either after admission of evidence sufficient to sustain a finding of the

facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of

proof, subject to the admission of such evidence.”

23

Defendant maintains the coconspirators’ statements were so unreliable they

“should have been excluded under state law and due process.” “[T]he scope of the

federal due process clause does not accomplish the constitutionalization of every issue

arising under the applicable rules of evidence; to the contrary, the category of evidentiary

infractions which violate due process will be construed narrowly.” (People v. Blanco

(1992) 10 Cal.App.4th 1167, 1175; Estelle v. McGuire (1991) 502 U.S. 62, 72; People v.

Abilez (2007) 41 Cal.4th 472, 503.) Defendant has not demonstrated how the statements

at issue here, which we find were properly admitted, were nevertheless so unreliable as to

violate due process.

64

the leader of an ongoing overarching conspiracy to distribute drugs for sale in west

Contra Costa County during all relevant times.

Next, defendant argues even if there was an ongoing conspiracy, the statements

were not admissible because they were (a) casual, and (b) made after the discrete crimes

were committed. Because all of the discrete crimes, and all of the coconspirators’

statements, occurred while the drug distribution conspiracy was ongoing, the statements

were not made inadmissible by their timing. Defendant does not identify which

statements were “casual.” Warning Ruiz not to worry about the shooting of Guzman-

Mercado, but to keep quiet, was not casual. Telling Ruiz the details of the plan to rob

Guzman-Mercado and about the subsequent break-in at his apartment to steal

methamphetamine was not casual either. Both statements furthered the conspiracy by

instructing a trusted operative about how to act, and keeping him in the loop of the

conspiracy.

Defendant’s third claim is that Coby Phillips’s statement to Stacey Taylor about

his impending meeting with others to kill Grockett was admitted erroneously before there

was any evidence, independent of the statement, of the conspiracy to kill him. However,

Evidence Code section 1223 expressly vests in the trial court the discretion to vary the

order of proof. That discretion was not abused here. Furthermore, there was ample

evidence from which it could be inferred that the killing was part of the overall

conspiracy to distribute and sell drugs, and furthered that conspiracy.

Defendant’s fourth claim is: “[I]f admissibility based on smaller conspiracies to

murder or rob were considered, there is no evidence independent of the statements

appellant was a member of the smaller conspiracies (to kill Grockett or rob anyone)

either.” Since admissibility was plainly based on the larger conspiracy to distribute drugs

for sale, defendant’s fourth claim is not well taken.

Finally, defendant argues all his contentions apply with equal force to Sergio’s

preoffense statement that Hernandez was a snitch. For all the reasons we reject his earlier

65

contentions, we reject this one as well. The conspiracy was ongoing, the statement was

not casually made but rather spurred the attempt on Hernandez’s life, and the statement

was made in the furtherance of the overarching conspiracy to distribute drugs for sale.

No error appears.

X. The Instructions on Murder Liability Premised on Drug Conspiracy Were

Correct.

The trial court instructed the jury on liability for murder under the doctrine of

natural and probable consequences, an extension of aider and abettor liability.

(CALCRIM No. 402.) Defendant argues this instruction violates his state and federal

rights to due process, a fair trial, and the right to a jury determination beyond a

reasonable doubt on all issues because, unlike CALCRIM No. 417 on liability for

coconspirators’ acts (which was also given), CALCRIM No. 402 does not limit liability

to acts in furtherance of a conspiracy. Defendant acknowledges the rule he challenges is

the law in this state. (People v. Brigham (1989) 216 Cal.App.3d 1039, 1045.) Moreover,

our Supreme Court recently discussed the differences between aider and abettor liability

in its natural and probable consequences permutation and coconspirator liability, and

explained the reasons for those differences in terms that are dispositive of defendant’s

unfairness-based constitutional argument.

In Smith, supra, 60 Cal.4th 603, the defendant was tried and convicted of two

second degree murders on the theory he aided and abetted the actual shooters in

committing the target crimes of disturbing the peace and assault or battery, and the

murders were the natural and probable consequence of those target crimes. (Id. at

pp. 611–612.) Under the natural and probable consequences doctrine, “[a]n aider and

abettor is guilty not only of the intended, or target, crime but also of any other crime a

principal in the target crime actually commits (the nontarget crime) that is a natural and

probable consequence of the target crime. [Citations.] ‘Thus, for example, if a person

aids and abets only an intended assault, but a murder results, that person may be guilty of

66

that murder, even if unintended, if it is a natural and probable consequence of the

intended assault.’ ” (Id. at p. 611.)

The trial court in Smith instructed the jury with CALCRIM No. 402, which

included the following sentence: “If the murder . . . was committed for a reason

independent of the common plan to commit the disturbing the peace or assault or battery,

then the commission of murder . . . was not a natural and probable consequence of

disturbing the peace or assault or battery.” (Smith, supra, 60 Cal.4th at p. 612.) The

Smith court determined that sentence was incorrect, notwithstanding its inclusion in a

CALCRIM instruction. (Id. at p. 614.) “To establish aiding and abetting liability under

the natural and probable consequence doctrine, the prosecution must prove the nontarget

offense was reasonably foreseeable; it need not additionally prove the nontarget offense

was not committed for a reason independent of the common plan to commit the target

offense.” (Ibid.)

The Smith court concluded the erroneous limitation on aider and abettor liability

for natural and probable consequences in CALCRIM No. 402 was probably imported

from case law involving coconspirator liability. (Smith, supra, 60 Cal.4th at p. 614.)

Under a coconspirator theory of liability, each coconspirator “ ‘ “is responsible for

everything done by his confederates, which follows incidentally in the execution of the

common design as one of its probable and natural consequences, even though it was not

intended as a part of the original design or common plan. Nevertheless, the act must be

the ordinary and probable effect of the wrongful act specifically agreed on, so that the

connection between them may be reasonably apparent, and not a fresh and independent

product of the mind of one of the confederates outside of, or foreign to, the common

design.” ’ ” (Ibid., quoting from People v. Kauffman (1907) 152 Cal. 331, 334

(Kauffman), People v. Luparello (1986) 187 Cal.App.3d 410, 444, People v. Werner

(1940) 16 Cal.2d 216, 223; see Pinkerton v. United States (1946) 328 U.S. 640, 646,

Salinas v. United States (1997) 522 U.S. 52, 63–64.)

67

However, although aider and abettor and coconspirator liability both involve

joining with others in a criminal enterprise, they are not coextensive or interchangeable.

Citing People v. Brigham, supra, 216 Cal.App.3d 1039 with approval, our Supreme

Court explained: “Because a conspirator can be liable for a crime committed by any

other conspirator, and the defendant need not do (or even encourage) anything criminal

except agree to commit a crime, it is reasonable to make a conspirator not liable for

another conspirator’s crime that is ‘ “a fresh and independent product of the mind of one

of the confederates outside of, or foreign to, the common design.” ’ (Kauffman, supra,

152 Cal. at p. 334.) But aiding and abetting is different. An aider and abettor is someone

who, with the necessary mental state, ‘by act or advice aids, promotes, encourages or

instigates, the commission of the crime.’ [Citation.] Because the aider and abettor is

furthering the commission, or at least attempted commission, of an actual crime, it is not

necessary to add a limitation on the aider and abettor’s liability for crimes other

principals commit beyond the requirement that they be a natural and probable, i.e.,

reasonably foreseeable, consequence of the crime aided and abetted. If the prosecution

can prove the nontarget crime was a reasonably foreseeable consequence of the crime the

defendant intentionally aided and abetted, it should not additionally have to prove the

negative fact that the nontarget crime was not committed for a reason independent of the

common plan. [¶] To be sure, whether an unintended crime was the independent product

of the perpetrator’s mind outside of, or foreign to, the common design may, if shown by

the evidence, become relevant to the question whether that crime was a natural and

probable consequence of the target crime. In a given case, a criminal defendant may

argue to the jury that the nontarget crime was the perpetrator’s independent idea

unrelated to the common plan, and thus was not reasonably foreseeable and not a natural

and probable consequence of the target crime. But that would be a factual issue for the

jury to resolve [citation], not a separate legal requirement.” (Smith, supra, 60 Cal.4th at

p. 616–617; see Nye & Nissen v. United States (1949) 336 U.S. 613, 618.)

68

Here, the trial court’s adaptation of CALCRIM No. 402 included the same limiting

language disapproved in Smith: “If the murder . . . was committed for a reason

independent of the common plan to commit the crime of conspiracy to commit sale of

controlled substances and/or attempted robbery, then the commission of murder . . . was

not a natural and probable consequence of the crime of conspiracy to commit sale of

controlled substances and/or attempted robbery.” Here, as in Smith, the erroneous

language could only have helped defendant. (Smith, supra, 60 Cal.4th at p. 617.) In light

of our Supreme Court’s explanation of the differences between aider and abettor and

coconspirator liability, we reject defendant’s contention CALCRIM No. 402 is incorrect

because it does not limit liability to acts in furtherance of a conspiracy. The two theories

of liability are distinct, and engrafting an “in furtherance of” limitation onto aider and

abetting liability is inconsistent with Smith’s holding and existing law.

Defendant argues the connection between an ongoing conspiracy to sell controlled

substances and murder was too attenuated “to sustain the more serious conviction”

because the prosecution did not make out its case for an ongoing drug conspiracy

involving defendant and his confederates. To the extent defendant is rearguing the

sufficiency of the evidence to support an overarching conspiracy to distribute controlled

substances in the guise of instructional error, we have already rejected his contention and

will not revisit that issue here.

Defendant also argues the evidence of defendant’s participation in a drug

distribution conspiracy did not provide an “adequate foundation” for instructions on

coconspirator liability or aider and abettor liability under the natural and probable

consequences doctrine. We disagree. In the context of evaluating whether there was a

sufficient evidentiary foundation for giving an instruction, substantial evidence means

“ ‘ “evidence sufficient to ‘deserve consideration by the jury.’ ” ’ ” (People v. Wilson

(2005) 36 Cal.4th 309, 331.) There was certainly enough evidence of an ongoing

conspiracy to sell drugs, and a separate conspiracy to commit robbery, to warrant

69

instructions on whether homicide was a natural and probable consequence of such

conspiracies. It was for the jury to decide, as a factual matter, whether the murders were

“a natural and probable consequence of the common plan or design of the conspiracy”

that “further[ed] the common plan,” as stated in CALCRIM No. 417, or a natural and

probable consequence of aiding and abetting a conspiracy to sell drugs or rob a drug

dealer (the “target crimes”), under CALCRIM No. 402. (Smith, supra, 60 Cal.4th at

p. 617; Chiu, supra, 59 Cal.4th at p. 162.)

Defendant’s reliance on People v. Price (1991) 1 Cal.4th 324, 443 (Price) and

People v. Butts (1965) 236 Cal.App.2d 817, 836–837 (Butts), is misplaced. In Price, the

defendant complained of the trial court’s failure to instruct the jury that Myers, one of the

witnesses against him, could be found vicariously liable as an aider and abettor for one of

the murders with which the defendant was charged. (Price, at pp. 441–442.) The court

considered whether “the evidence before the jury plainly would have supported a finding

that Myers intentionally aided the commission of an offense of which a crime such as the

Barnes murder was a natural and probable consequence.” (Id. at pp. 442–443.) The

court concluded no such instruction was required because, among other reasons, the

“evidence that Myers assisted the AB by smuggling drugs and knives into state prisons

and by carrying messages . . . show[ed], at most, that Myers aided and abetted illegal

drug activity and in-prison violence; the killing of an AB defector’s relative, outside of

prison, is not a natural and probable consequence of such crimes.” (Id. at p. 443.)

While the foregoing sentence appears to be categorical, in context it was clearly

meant to summarize the evidence adduced at Price’s trial. It suggests, perhaps, that

murder is not the natural and probable consequence of low-level assistance given by

persons such as Beckwith or Taylor. We do not take it to mean that murder can never be

a natural and probable consequence of drug smuggling by a principal player in the

grander scheme. Here, there was ample evidence that defendant and his confederates

were involved in a highly profitable, vertically integrated drug-selling scheme that

70

depended on securing product to sell, by purchase or by robbery, and further depended on

maintaining respect and control by punishing underlings and others who snitched, balked

at paying full price, or otherwise threatened members of the organization.

In Butts, the Court of Appeal reversed the defendant’s conspiracy conviction for

insufficient evidence, and then reversed his involuntary manslaughter conviction for a

homicide committed by someone else, because Butts’s conviction was premised on

coconspirator liability. (Butts, supra, 236 Cal.App.2d at p. 835.) Nevertheless, the Court

of Appeal concluded Butts theoretically could be retried for the homicide on an aiding

and abetting theory. (Ibid.) However, in dicta intended for the “guidance of the parties

and the trial court,” the appellate court observed: “In view of the present record, the

possibility that the prosecution may muster up enough evidence to warrant jury

consideration of Butts’ liability as an aider and abettor seems quite remote. Perhaps the

prosecution has other testimony and other witnesses. In any event we do not preclude a

retrial if the prosecution wants one.” (Id. at pp. 835–836, fn. 3.) Here, by contrast, the

evidence warranting the jury’s consideration of defendant’s derivative liability for the

homicides of Grockett and Guzman-Mercado comfortably supported instructions on

coconspirator and aiding and abetting theories of liability. The trial court did not err in

instructing on coconspirator or aiding and abetting liability, except to the extent it

incorporated Chiu and Smith errors.

XI. An Instruction on Multiple Conspiracies as An Alternative to A Single

Conspiracy Was Not Required.

The trial court denied defendant’s request for an instruction or instructions on

multiple conspiracies, stating: “It seems very clear to this Court that the one eagle [sic]

among all these conspirators was to make money by selling controlled substances. That

is, in this Court’s opinion, the main focus of this conspiracy. None of them appear to be

significant users. They enjoyed the fruits, that is, the cash of the drug trade.”

On appeal, defendant argues the trial court violated his constitutional rights and

committed error requiring reversal by refusing to instruct the jury to determine whether

71

there were multiple conspiracies or only one “for purposes of both murder liability and

hearsay issues.” This argument apparently encompasses the undeveloped claims that

the trial court should have instructed the jury to (1) unanimously decide whether there

was one conspiracy or “a few smaller discrete drug conspiracies or smaller discrete

conspiracies to kill or rob”; and (2) further decide whether key hearsay statements were

admissible under the coconspirator exception “if there was no broader conspiracy and

the hearsay was not in furtherance of a smaller discrete conspiracy.” We glean

defendant believes the asserted error requires reversal of all counts.

Ordinarily, the error asserted here arises when the defendant has been convicted of

multiple conspiracies but the evidence supports only one conspiracy conviction. (See

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669–1671[no error]; People v. Jasso

(2006) 142 Cal.App.4th 1213, 1220–1223.) Where such an error is shown, the remedy is

reversal of the duplicative conspiracy convictions. (People v. Jasso, at p. 1223.) Jasso is

not authority for the proposition that substantive counts must be reversed as well.

In addition, “[a]ssuming that more conspiracy counts could have been charged

under the facts, the decision to charge defendant with only one conspiracy count was a

prosecutorial charging discretion that we do not review. The exercise of that discretion

involves questions of prosecutorial policies and judgment, not questions of fact for the

jury to determine. [¶] Moreover, we fail to see how charging defendant with one count

of conspiracy, instead of multiple counts, could prejudice defendant. Any error would

therefore be harmless. [¶] Furthermore, assuming there were multiple conspiracies, we

do not see how the existence of the uncharged conspiracies can result in the reversal of a

guilty finding in the one conspiracy that was charged. If the evidence submitted to the

jury supports the guilty finding on the charged conspiracy, the fact that the same evidence

might also have supported other conspiracies, which were not charged, is of no

consequence to the issue of innocence or

This text is long and has been trimmed here. Open the source document for the complete record.