The opinion
Filed 7/29/21
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B299687
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA396138)
v.
JORGE PALACIOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Larry P. Fidler, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication of all sections
except sections II, III and IV of the Discussion.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and
David A. Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
******
Prior to being charged with ordering the kidnapping, rape
and killing of a 13-year-old girl, defendant Jorge Palacios
(defendant) made inconsistent statements to law enforcement—
at first denying he ever saw the victim, but later admitting that
he saw her just before she went missing and in the company of
the gang members who kidnapped, raped and killed her.
Defendant made these statements pursuant to a proffer
agreement with prosecutors, wherein they agreed not to use “any
statements made” during the proffer session in any future case-
in-chief as long as defendant was “completely truthful and
candid” during the proffer session.
This appeal presents the question: Must the prosecutorial
agency that seeks to use these internally inconsistent (and hence
untruthful) statements first demonstrate that it has “standing” to
enforce the proffer agreement? We conclude that the answer is
“no” because standing is necessary when a party seeks
affirmative relief from a contract, but here it is defendant—not
the prosecutors—who is seeking specific performance of the
proffer agreement’s promise of inadmissibility, and hence
defendant who must establish that he met the agreement’s
condition precedent of truthfulness. This holding differs in some
respects from prior cases that have seemingly treated a
defendant’s untruthfulness as a breach of contract to be
established by prosecutors. (See, e.g., People v. Collins (1996) 45
2
Cal.App.4th 849, 870 (Collins); United States v. Adams (6th Cir.
2016) 655 Fed. Appx. 312, 317-319 (Adams); Wilson v.
Washington (7th Cir. 1998) 138 F.3d 647, 652-653 (Wilson).)
We agree with the trial court that defendant’s statements
were properly admitted because he failed to establish the
truthfulness of his proffered statements. In the unpublished
portion of this opinion, we reject defendant’s further arguments
that a key witness was an accomplice as a matter of law and that
defendant is entitled to remand for the trial court to exercise its
sentencing discretion. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In early May 2001, 13-year-old Jacqueline P. (Jacqueline)
ran away from home.
Late in the afternoon of June 27, 2001, Jacqueline
encountered defendant. It was an encounter that would
change—and end—her life.
Defendant belonged to the Francis clique of the MS-13
street gang, and was selling drugs at the intersection of 8th
Street and Magnolia Avenue in the MacArthur Park
neighborhood of Los Angeles, California. Defendant labeled
Jacqueline a “chavala”—that is, a trespasser from another gang’s
“hood.” It was a gang’s obligation to punish any chavala who set
foot into its territory.
Acting on defendant’s belief, defendant and his girlfriend
punched Jacqueline, pulled her hair, threw her to the ground and
proceeded to kick her. Two other MS-13 gang members from the
Park View clique—Melvin Sandoval (Sandoval) and Santos
Grimaldi (Grimaldi)—walked up. So did Alicia Montano (Alicia),
3
who belonged to an all-female clique of MS-13.1 Defendant asked
Alicia to join them in beating Jacqueline, but she declined.
Defendant then told Sandoval and Grimaldi that they
should take Jacqueline somewhere else, have sex with her, and
then “get rid of her.”
Moments later, MS-13 gang member Rogelio Contreras
(Contreras) pulled up in a white car. Defendant asked Contreras
if he could supply a ride to “do a job.” Contreras agreed.
Alicia took Jacqueline, whose hair was mussed and face
was red from the beating, to her sister Ana Montano’s (Ana’s)
nearby apartment to freshen up.
Minutes later and as twilight fell, Contreras pulled up in a
red car. Fearing that defendant might be upset with her for not
obeying his command to beat Jacqueline, Alicia invited Ana’s
boyfriend to come along to protect her.
Sandoval, Grimaldi, Alicia, and Ana’s boyfriend got into
Contreras’s car with Jacqueline. Defendant and his girlfriend
stayed behind because the car was full and because defendant
feared he may have been seen with Jacqueline earlier that day.
They set off for Elysian Park, with Jacqueline quietly
sobbing in the back seat. Midtransit, they stopped under a
freeway underpass and Grimaldi ordered Jacqueline into the
car’s trunk so roadway cameras would not be able to document
her as a passenger.
They arrived at Elysian Park after nightfall. Grimaldi and
Sandoval took Jacqueline with them to a secluded hillside, with
Grimaldi insisting that he wanted to “be the first one with her.”
1 Because Alicia Montano’s sister is also a witness and
shares the same last name, we will use the sisters’ first names for
clarity. We mean no disrespect.
4
After both men had sex with Jacqueline, Grimaldi retrieved
Alicia and dragged her, by her hair, to the hillside. Jacqueline
was naked except for her shoes and socks, her knees folded up
against her chest, sobbing quietly. Her soiled panties were
nearby, her loss of bowel control consistent with being in abject
terror. Sandoval was armed, and had a gun pointed at
Jacqueline.
Grimaldi then pulled out a gun, and put it in Alicia’s
hands. He told her to shoot Jacqueline; Alicia refused. Grimaldi
then reached around Alicia from behind, and aimed the gun at
Jacqueline. Grimaldi and Alicia struggled, as Grimaldi tried to
get Alicia to pull the trigger, but Alicia kept her hands solely on
the gun’s grip. Grimaldi then pulled the trigger once, then a
second time. Both bullets hit Jacqueline in the head. She died
instantly. To ensure that Alicia would take any blame and
fallout for shooting a 13-year-old who might not have been a
“chavala,” Grimaldi told everyone that Alicia had pulled the
trigger.
Everyone piled back into Contreras’s car, abandoning
Jacqueline’s naked body all alone in the dark.
II. Procedural Background
A. Charges
A grand jury returned an indictment charging defendant,
Grimaldi, Sandoval and Contreras (collectively, the defendants)
with (1) murder (Pen. Code, § 187, subd. (a)), and (2) kidnapping
to commit the crimes of rape and of committing a lewd or
lascivious act on a child (id., § 209, subd. (b)(1)).2 As to the
2 The grand jury also charged Sandoval with the substantive
crime of committing a lewd act upon a child under the age of 14
(§ 288, subd. (a)).
5
murder count, the grand jury further alleged, as a special
circumstance, that the murder occurred while the defendants
were engaged in the crimes of kidnapping, rape, and commission
of a lewd or lascivious act upon a minor (§ 190.2, subd. (a)(17)).
The grand jury additionally alleged that both the murder and
kidnapping were committed “for the benefit of, at the direction of,
and in association with a criminal street gang” (§ 186.22, subd.
(b)(1)(C)), that Sandoval and Grimaldi had personally discharged
a firearm causing death (§ 12022.53, subd. (d)), and that a
“principal” in these gang-related crimes had personally
discharged a firearm causing death (id., subds. (d) & (e)(1)).
B. Trial
The matter proceeded to a five-month jury trial before two
juries, with defendant having a separate jury from the other
defendants. The People sought the death penalty against
Grimaldi and Sandoval, but not defendant or Contreras. A jury
found defendant guilty of both crimes and found true both the
special circumstance as well as all of the alleged enhancements.
C. Sentencing
The trial court sentenced defendant to two life terms plus
50 years to life. Specifically, the court imposed a sentence of life
in prison without the possibility of parole for the murder, plus 25
years to life for the firearm enhancement. The court stayed the
gang enhancement because he was “required to do so.” The court
then imposed a prison sentence of life plus an additional 25 years
to life for the firearm enhancement; once again, the court stayed
the gang enhancement. The court ran the two life sentences
consecutively.
All further statutory references are to the Penal Code
unless otherwise indicated.
6
D. Appeal
Defendant filed this timely appeal.
DISCUSSION
On appeal, defendant argues that the trial court erred in
(1) admitting into evidence statements defendant made during a
multiday proffer session with the United States Attorney’s Office
(U.S. Attorney’s Office) in June and July 2010, (2) not instructing
the jury that Alicia was an accomplice as a matter of law, which
mandates reversal of his convictions because her testimony lacks
any corroboration, (3) ignoring the cumulative effect of these
errors, and (4) not recognizing and exercising its newly conferred
discretion to dismiss the firearm enhancements.
I. Admissibility of Defendant’s Statements from Proffer
Session
Defendant argues that the trial court violated the law as
well as his due process rights in allowing the People to introduce
statements he made during a multiday proffer session; the People
introduced them to show defendant’s inconsistent stories and
hence his consciousness of guilt. Specifically, defendant asserts
that (1) admission of his statements are barred by a proffer
agreement and the People lack standing to argue otherwise, and
(2) the People have “unclean hands.”
A. The proffer agreement as a basis for exclusion
1. Pertinent facts
a. The multiday proffer session
Defendant and his attorney met with a federal prosecutor,
two Federal Bureau of Investigations (FBI) agents, and one (and
sometimes two) Los Angeles Police Department (LAPD)
detectives who were serving on a federal task force during four
days in June and July 2010.
7
The proffer session was covered by a written proffer
agreement (proffer agreement) signed by the federal prosecutor,
defendant and his lawyer. In the proffer agreement, defendant
promised to respond “truthfully and completely to any and all
questions” posed, and the U.S. Attorney’s Office promised “not” to
“offer in[to] evidence in its case-in-chief . . . any statements made
by” defendant during the proffer session. The proffer agreement
specified that defendant’s “complete truthfulness and candor are
express material conditions to the undertakings of [the U.S.
Attorney’s] Office set forth in this letter,” such that the U.S.
Attorney’s Office could use defendant’s statements “for any
purpose” if it “concludes” that defendant was “not . . . completely
truthful and candid” and “notif[ies]” defendant before “making
use of such statements.” The U.S. Attorney’s Office also
“reserve[d] the right to use any” of defendant’s statements to
impeach defendant on cross-examination or “in any prosecution
for false statements, obstruction of justice or perjury.”
Although the proffer agreement provided that it “does not
bind any other law enforcement or prosecuting authority,” the
federal prosecutor and defendant’s attorney orally agreed that
the proffer agreement applied to the LAPD-based task force
members present during the session.
On the second and third days of the proffer, defendant
denied ever having seen Jacqueline and said he did not recognize
her in photographs he was shown. On the fourth day of the
proffer, defendant initially stuck to his prior denials. However,
defendant then changed his story and acknowledged that he had
seen Jacqueline and recognized her in a photograph; that
Jacqueline had been “talking to [MS-13’s] enemies”; that he had
seen her once at the intersection of 8th and Magnolia; and that
8
he had also seen her riding in a car with Grimaldi, Sandoval,
Contreras and Alicia.
b. Litigating the proffer statements in this
case
In September 2016, October 2017 and December 2017, the
People filed motions in limine seeking a ruling allowing them to
admit the above-delineated statements from defendant’s proffer
session. Following fulsome briefing, the trial court made two
rulings.
First, the court referred to a different judge the question of
whether the proffer agreement entered into by federal
prosecutors also applied to the People. That judge ruled that the
oral agreement between the federal prosecutor and defendant’s
attorney constituted a “side agreement” to apply the “written
[proffer] agreement” to the LAPD and, by extension, to the
People.
Second, the trial court found, “by clear and convincing
evidence[,] that [defendant had] lied during the proffer session”
because defendant’s final statement during the proffer session
was wholly inconsistent with his initial statements and because
defendant admitted to police in May 2011 that he “had lied . . .
about that girl” and “knew who that girl” was. Based on its
finding that defendant had not been truthful during the proffer
session, the court alternatively ruled that (1) defendant had
“breach[ed] . . . the agreement,” and (2) defendant’s
untruthfulness meant “there is no agreement” and that the “[t]he
agreement was null and void.”
2. Analysis
Proffer agreements are a type of contract. As such, they
“‘may be analyzed in terms of contract standards,’” although
9
“courts will not ‘follow blindly the law of contracts’ where that
body of law does ‘not provide a sufficient analogy and mode of
analysis.’” (People v. C.S.A. (2010) 181 Cal.App.4th 773, 778-779
(C.S.A.), quoting United States v. Carrillo (9th Cir. 1983) 709
F.2d 35, 36-37 & fn. 1.) Although we independently review the
plain text of agreements (Gribaldo v. Agrippina Verischerunges
A.G. (1970) 3 Cal.3d 434, 445-446), we review for substantial
evidence whether “the parties entered into an agreement,”
whether the plain text of the agreement was modified or defined
by conflicting extrinsic evidence, and “whether a party carried
through with its part of the agreement.” (C.S.A., at pp. 777-778;
Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-
866.)
The trial court correctly ruled that the People could
introduce defendant’s statements from the proffer session during
its case-in-chief. It is undisputed that those statements are
relevant, properly authenticated, and not barred by the hearsay
rule due to the adverse party admissions exception (Evid. Code, §
1220). Thus, the sole potential bar to their admission is the
proffer agreement—as extended to the People through the “side
agreement.” In this respect, defendant is seeking to specifically
enforce the proffer agreement’s provision that the U.S. Attorney’s
Office—and, through the “side agreement’s” extension, the
People—are “not” to “offer in[to] evidence in its case-in-chief” the
statements defendant made during the proffer session. (C.S.A.,
supra, 181 Cal.App.4th at p. 779 [defendant seeking to exclude
evidence by virtue of proffer agreement is “seek[ing] specifically
to enforce a promise”]; People v. Perez (2016) 243 Cal.App.4th
863, 879 [same]; accord, Santobello v. New York (1971) 404 U.S.
10
257, 263 [defendant may seek “specific performance” of a plea
agreement].)
It is well settled, however, that a party to a contract “may
not obtain specific performance unless he has performed . . . all of
the conditions precedent required of him by the terms of the
contract.” (Evarts v. Johnston (1949) 34 Cal.2d 6, 9; Realmuto v.
Gagnard (2003) 110 Cal.App.4th 193, 204; Civ. Code, § 3392
[“Specific performance cannot be enforced in favor of a party who
has not fully and fairly performed all the conditions precedent on
his part . . .”].) Because, under the proffer agreement in this case,
defendant’s “complete truthfulness and candor are express
material conditions” of the U.S. Attorney’s Office’s—and, through
the side agreement’s extension, the People’s—promise not to use
defendant’s proffered statements in their case in chief,
defendant’s truthfulness during the proffer session was a
condition precedent to his right to enforce the People’s promise.
(Cf. People v. Quartermain (1997) 16 Cal.4th 600, 617-618
[dealing with proffer agreement where “the parties did not
condition the prohibition [of use of proffered statements in the
future] on the truthfulness of defendant’s statement”].)
Substantial evidence supports the trial court’s finding that
defendant did not satisfy the condition precedent of being
truthful. Defendant’s own statements confirm his lack of
truthfulness during the proffer. Defendant’s initial statements
during the proffer that he had never seen Jacqueline before in his
life are irreconcilable with (1) his statements on the last day of
the proffer session that he recognized Jacqueline, and had seen
her once just before she disappeared and in the company of the
people who drove her to the park, and (2) his subsequent
admission to other law enforcement officers that he “knew who
11
that girl was” and “had [previously] lied” about not knowing her.
In light of these statements and admissions, we disagree with
defendant’s assertion that “[t]here is no way of knowing” that he
lied about not knowing Jacqueline.
Defendant resists this conclusion with what boil down to
five arguments.
First and foremost, defendant argues that the People lack
standing to prevent him from invoking the proffer agreement.
This argument rests on two premises: (1) the People are
obligated to prove that he breached the proffer agreement, and
thus must have standing to do so (e.g., Robinson Helicopter Co.,
Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 992-993 [“[t]he parties
to [a] contract in essence create a mini-universe for themselves”]),
and (2) the People lack standing here because they are not
parties to or intended beneficiaries of the proffer agreement.
Neither premise is valid.
Although prior cases have examined whether prosecutors
may use a defendant’s statements made under the auspices of a
proffer agreement by asking whether there was a breach of the
agreement (Collins, supra, 45 Cal.App.4th at p. 870; Adams,
supra, 655 Fed. Appx. at p. 317-319; Wilson, supra, 138 F.3d at
pp. 652-653), this is in our view not the proper analytical path to
walk. A party to a contract must prove a breach of that contract
only when that party is seeking to obtain relief—typically,
damages or specific performance—based on that contract. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [plaintiff
seeking to recover on a contract must prove a contract, breach,
causation and damages]; Mycogen Corp. v. Monsanto Co. (2002)
28 Cal.4th 888, 905 [remedies for breach of contract include
“damages” and “specific performance”]; Rogers v. Davis (1994) 28
12
Cal.App.4th 1215, 1218, fn. 2, 1220 [same].) Here, the People are
not seeking damages or specific performance of the proffer
agreement; instead, the People’s motion in limine was designed to
alert the defendant (as required by the proffer agreement, as
applied to them through the side agreement) and the trial court
(as counseled by wise pretrial procedure) to the People’s intention
to use defendant’s proffered statements because defendant did
not satisfy the condition precedent to the agreement’s continued
validity. That the trial court only partially relied on the failure-
of-condition-precedent rationale—and also partially relied on a
breach-based rationale—is of no moment because our task is to
review the court’s ruling, not its rationale.3 (People v. Chism
(2014) 58 Cal.4th 1266, 1295, fn. 12 [“‘we review the ruling, not
the court’s reasoning’ [citation]”].) For these reasons, the People
are not required to establish standing.
But even if they were, the People have established
standing. The trial court held that there was an oral side
agreement that made the “written [proffer] agreement”
applicable to the LAPD and, by necessary implication, to the
People. (After all, if the proffer agreement did not apply to the
3 The trial court’s reference to the proffer agreement being
“void” and there being “no agreement” are also of no moment.
Defendant contends that there is no such thing as a “void
contract” and that an agreement is unenforceable only if it meets
the definition of illegality set forth in Civil Code section 1667.
We need not consider these contentions because the trial court’s
language can also be read as supporting what we believe to be the
proper rationale—namely, that defendant’s failure to be truthful
was a failure of a condition precedent that prevents him from
specifically enforcing the contract, thereby effectively voiding it
and leaving no agreement to enforce.
13
People through the side agreement, there would have been no
need to litigate whether defendant had been truthful.) Because
the side agreement created an agreement between defendant and
the People identical to the proffer agreement between defendant
and the U.S. Attorney’s Office, the People necessarily had
standing to assert a breach of the side agreement. (Kanno v.
Marwit Capital Partners II, L.P. (2017) 18 Cal.App.5th 987, 1019
[“‘[I]t goes without saying that a party to a contract . . . may bring
actions related to such contracts’”]; cf. Cooper v. Pena (1863) 21
Cal. 403, 410-411 [when an agreement “cannot be specifically
enforced as to one of the parties, equity will not enforce it against
the other”]; see generally, Code Civ. Proc., § 367.)
Second, defendant argues that, under the plain text of the
proffer agreement, only the U.S. Attorney’s Office can “conclude”
that defendant was “not . . . completely truthful and candid,” and
the U.S. Attorney’s Office has yet to assert its contractual rights
under the proffer agreement or to conclude defendant was
untruthful during his June and July 2010 proffer, such that there
is no conclusion by the U.S. Attorney’s Office and, possibly, that
the Office may have waived its right to object to defendant’s
untruthfulness. As a threshold matter, we note that substantial
(and, indeed, overwhelming) evidence supports the trial court’s
finding that defendant was untruthful and also that one of the
FBI agents on the last day of the proffer informed defendant of
his belief that defendant had been untruthful. Even if there was
some dispute, defendant’s argument lacks merit for many reasons
in any event. To begin, it is the trial court’s job to assess whether
defendant carried his burden of showing that he was truthful,
which, as noted above, was a condition precedent for specifically
enforcing the proffer agreement. (E.g., Phoenix Ins. Co. v. Sukut
14
Construction Co. (1982) 136 Cal.App.3d 673, 677; Paratore v.
Scharetg (1942) 53 Cal.App.2d 710, 714-715.) The judge who
determined whether there was a side agreement in this case
recognized as much. Moreover, the side agreement effectively put
the People in the proverbial shoes of U.S. Attorney’s Office vis-à-
vis the proffer agreement: If the proffer agreement precluded the
People—like the U.S. Attorney’s Office—from introducing
statements in its case in chief, then the agreement empowered
the People—like the U.S. Attorney’s Office—to determine
whether defendant was being truthful during the proffer session.
Defendant offers no support for his implicit assertion that the
side agreement incorporated some, but not all, provisions of the
proffer agreement. What is more, defendant’s selective
incorporation argument would lead to a nonsensical outcome—
namely, that the proffer agreement (despite its plain language to
the contrary) would preclude every prosecutorial authority who is
not a party to the agreement from using any and all of
defendant’s proffered statements unless and until the U.S.
Attorney’s Office intervened to declare its determination that
defendant had been untruthful during the proffer, even in
cases—such as this one—where it is overwhelmingly established
that defendant was untruthful.
Third, defendant argues that, under the terms of the
proffer agreement, the People’s sole remedy for his
untruthfulness is to prosecute him for making “false statements,
obstruction of justice or perjury.” This would make the proffer
agreement operate like use and derivative immunity, for which
the exclusive remedy for untruthfulness is a prosecution for
perjury. (Kastigar v. United States (1974) 406 U.S. 441, 448-449,
quoting 18 U.S.C. § 6002.) This argument rests on a misreading
15
of the proffer agreement, which explicitly provides that a
prosecution for false statements, obstruction of justice or perjury
is one of three exceptions to the bar to the use of his statements
during the prosecution’s case-in-chief; another exception is when
the defendant’s failure to be truthful enables the prosecution to
“use” the proffered statements “for any purpose.” There is also no
reason to equate the proffer agreement with use and derivative
use immunity: The former is a voluntary and conditional
immunity premised, at least in this case, on the truthfulness of
defendant’s statements (Collins, supra, 45 Cal.App.4th at p. 869),
while the latter is an involuntarily imposed immunity that
overcomes a person’s privilege against self-incrimination
regardless of whether the immunized testimony is truthful.
There is no basis for reading the narrow exception to the latter as
the sole exception to the former.
Fourth, defendant argues that his proffered statements are
involuntary—and hence inadmissible—because they were
premised on the promise of immunity conferred by the proffer
agreement. (See, e.g., Perez, supra, 243 Cal.App.4th at pp. 866-
867.) This argument ignores that the immunity promised was
conditioned on his truthfulness. Because defendant necessarily
knew he was being untruthful at the time he made his proffered
statements, he had no basis to rely upon a conditional promise of
immunity that he knew he was not satisfying; his statements
were not involuntary.
Lastly, defendant argues that the trial court erred in
allowing one of the FBI special agents who attended the proffer
sessions to testify before the jury that defendant had been
untruthful when he initially denied knowing Jacqueline during
the proffer session. Although it is error for one witness to offer
16
an opinion on the truthfulness of another witness (e.g., People v.
Sergill (1982) 138 Cal.App.3d 34, 39; People v. Smith (1989) 214
Cal.App.3d 904, 915; United States v. Sanchez (9th Cir. 1999) 176
F.3d 1214, 1219-1220), that maxim does not provide a basis for
relief here. To begin, defendant did not raise this argument until
his reply brief on appeal, and thus waived it. (E.g., Hibernia Sav.
& Loan Soc. v. Farnham (1908) 153 Cal. 578, 584.) The record
also refutes the factual premise of defendant’s argument because
the trial court never allowed the FBI agent to testify that he
believed defendant’s initial statements to be untruthful for the
purpose of establishing that they were, in fact, untruthful. The
FBI agent testified that he “wasn’t satisfied” with defendant’s
statements denying knowledge of Jacqueline on the second and
third days of the proffer, but when the agent testified to not
believing defendant’s denial of knowledge on the fourth day, the
trial court on all but one occasion instructed the jury to consider
the statement only for the purpose of explaining why the agent
kept pressing defendant and not “for [its] truth.” There was no
prejudice in any event because defendant later admitted that he
had lied during the proffer; whether the FBI agent had been
correct in intuiting the same could not have been prejudicial.
B. Unclean hands a basis for exclusion
“[T]he equitable doctrine of unclean hands applies when a
plaintiff has acted unconscionably, in bad faith, or inequitably in
the matter in which the plaintiff seeks relief.” (Salas v. Sierra
Chemical Co. (2014) 59 Cal.4th 407, 432.) Defendant urges that
the People have unclean hands because (1) the federal prosecutor
or FBI agents wrongfully gave the LAPD and the People copies of
defendant’s proffer statements, and (2) the People wrongfully
17
took advantage of the federal officers’ intransigence by seeking to
admit those statements in the trial in this case.
Defendant’s unclean hands argument lacks merit for two
reasons. First, the doctrine applies to bar plaintiffs from seeking
relief, but the People—albeit a plaintiff in the overall
prosecution—were not seeking relief under the proffer
agreement. Instead, as explained above, it was defendant who
was seeking to specifically enforce the proffer agreement. Thus,
the doctrine does not apply. Second, even if the doctrine applied,
it is not satisfied because the People did not act unconscionably,
in bad faith or inequitably in trying to use defendant’s proffer
statements in its case-in-chief. As we hold, defendant did not
satisfy the condition precedent required by the proffer agreement
to render his statements inadmissible in the People’s case-in-
chief. The People did not act with unclean hands in moving to
admit evidence that is, in fact, admissible.
II. Insufficiency of the Evidence Based on Alicia’s
Status as an Accomplice as a Matter of Law
In a series of interrelated arguments, defendant contends
that (1) Alicia was an accomplice as a matter of law, so the trial
court erred in not so instructing the jury and instead allowing the
jury to decide whether she was an accomplice, and (2) Alicia’s
status as an accomplice as a matter of law means that the People
were required to adduce evidence corroborating her testimony, so
the People’s failure to do so means that there is insufficient
evidence to sustain defendant’s convictions. We independently
review each of these claims. (People v. Mitchell (2019) 7 Cal.5th
561, 579 [instructional error]; People v. Cole (2004) 33 Cal.4th
1158, 1213 [sufficiency of the evidence].) In evaluating the
sufficiency of the evidence, we ask only whether the record
18
contains “‘substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.]” (People v. Clark (2011) 52 Cal.4th 856, 942.)
In undertaking this inquiry, we “‘review the whole record in the
light most favorable to the judgment below’” (ibid.), which
includes “resolv[ing] conflicting inferences” and credibility
findings in favor of that judgment. (People v. Casares (2016) 62
Cal.4th 808, 823, overruled on other grounds in People v. Dalton
(2019) 7 Cal.5th 166; People v. Reed (2018) 4 Cal.5th 989, 1006.)
A. Instruction declaring Alicia to be an accomplice
as a matter of law
A defendant’s conviction cannot rest upon “the testimony of
an accomplice” unless that testimony is “corroborated” by “other
evidence” that “tend[s] to connect the defendant with the
commission of the [charged] offense[s].” (§ 1111.) The testimony
of an accomplice requires corroboration because accomplices—
unlike other witnesses—“‘usually testif[y] in the hope of favor or
the expectation of immunity’ [citation]” and “may try to shift
blame to the defendant in an effort to minimize his or her own
culpability.” (People v. Tobias (2001) 25 Cal.4th 327, 331; accord,
People v. Sanmiego (2009) 172 Cal.App.4th 1148, 1177.)
For these purposes, an “accomplice” is “defined as one who
is liable to prosecution for the identical offense[(s)] charged
against the defendant” in that case. (§ 1111.) “To be chargeable
with an identical offense, a witness must be considered a
principal under section 31.” (People v. Lewis (2001) 26 Cal.4th
334, 368-369.) Under section 31, a principal is a person who
either “directly commit[s]” the crime or who “aid[s] and abet[t]s
in its commission.” (§ 31; People v. Stankewitz (1990) 51 Cal.3d
19
72, 90 (Stankewitz) [principals include aiders and abettors];
People v. Tewksbury (1976) 15 Cal.3d 953, 960 [same].) To be an
aider and abettor, a person must (1) do something to aid,
promote, or encourage the charged crime(s), (2) while knowing of
the perpetrator’s unlawful purpose, and (3) while intending to
encourage the crime(s). (People v. Nguyen (2015) 61 Cal.4th
1015, 1054; Clark, supra, 63 Cal.4th at p. 606; People v. Beeman
(1984) 35 Cal.3d 547, 561.) A person is not an aider and abettor
because she (1) is merely present when the crime is committed
unless her presence was intended to—and did—encourage the
crime (Lewis, supra, 26 Cal.4th at p. 369; Stankewitz, supra, 51
Cal.3d at p. 90; People v. Swanson-Birabent (2003) 114
Cal.App.4th 733, 744), (2) knows that the crime will be committed
(Lewis, at p. 369; People v. Nguyen (1993) 21 Cal.App.4th 518,
529-530), or (3) fails to prevent the crime unless she otherwise
had a duty to do so (Swanson-Birabent, at p. 745).
Who decides whether a witness is an accomplice? Usually,
the jury decides. (Clark, supra, 63 Cal.4th at p. 606; Stankewitz,
supra, 51 Cal.3d at p. 90; People v. Rodriguez (1986) 42 Cal.3d
730, 759 (Rodriguez).) However, the court may decide that a
witness is an accomplice “‘“as a matter of law”’” “‘“when the facts
regarding the witness’s criminal culpability are ‘clear and
undisputed’”’” and thus “‘“‘permit only[] [the] single inference’””’
that the witness is an accomplice. (Clark, at p. 606, quoting
People v. Riggs (2008) 44 Cal.4th 248, 312; see People v. Boyce
(1980) 110 Cal.App.3d 726, 736 [where “inferences” are
“conflicting,” witness’s status as an accomplice is “for the jury”].)
Applying the above-stated definitions, Alicia was not an
accomplice as a matter of law because the evidence as to whether
20
she was a principal in Jacqueline’s murder and kidnapping was
conflicting rather than “clear and undisputed.”
There was conflicting evidence as to whether Alicia was a
principal in Jacqueline’s murder. The evidence as to whether
Alicia directly perpetrated the murder was conflicting: Although
Grimaldi told several people after the fact that Alicia had pulled
the trigger and killed Jacqueline, Alicia steadfastly denied
pulling the trigger. The evidence as to whether Alicia aided and
abetted the murder was also conflicting. Alicia was certainly
present when Grimaldi killed Jacqueline; she knew that
Grimaldi, Sandoval and defendant intended to kill Jacqueline;
and she did not do anything to stop the killing. As explained
above, however, these facts are insufficient to make Alicia an
aider and abettor at all—let alone an aider and abettor as a
matter of law. Alicia also had no duty to stop the killing; Alicia
took no actions that could be viewed as unequivocally aiding or
encouraging the killing, as taking Jacqueline to freshen up at
Ana’s apartment is just as reasonably viewed as an act of
compassion as an attempt to calm Jacqueline down and thus
facilitate the killing intended by the others, and Alicia did not
drive to the park, did not bring a weapon, and denied acting as a
lookout; and Alicia disclaimed any intent to kill Jacqueline, a
disclaimer confirmed by the facts that she feared Grimaldi, that
she asked Ana’s boyfriend to come along to protect her from
Grimaldi, and that Grimaldi had to drag Alicia by her hair and
had to wrestle the gun into her hand. (See People v. Williams
(2008) 43 Cal.4th 584, 637-638 [where witness “denie[s] he had
the intent to further [the direct perpetrator’s] criminal purpose,”
witness is not an accomplice as a matter of law]; People v.
Gonzalez (2016) 246 Cal.App.4th 1358, 1376 [same].) To be sure,
21
the jury could have rejected Alicia’s testimony and found that
Alicia acted as a lookout, while knowing of the others’ plan to kill
Jacqueline and sharing their intent to kill her. But the evidence
was in conflict, and thus precluded a finding that Alicia was an
accomplice as a matter of law.
There was also conflicting evidence as to whether Alicia
was a principal to Jacqueline’s kidnapping to facilitate the rape
and commission of lewd acts. Given that Alicia was one of five
people (aside from Jacqueline) who traveled from the MacArthur
Park neighborhood to Elysian Park, the analysis for whether she
directly perpetrated the kidnapping, or instead aided and abetted
it, is largely the same. And the evidence to support either
analysis was conflicting: Alicia was present for the kidnapping,
knew that the others planned to rape Jacqueline and commit
lewd acts upon her, and did not stop them. But Alicia also had no
duty to stop the kidnapping, took no actions that could be viewed
as unequivocally supporting or encouraging the kidnapping, and
disclaimed any intent to kidnap or otherwise harm Jacqueline.
Once again, the jury could have found Alicia to have been a
principal, but the evidence on that issue was conflicting. (See
People v. Manibusan (2013) 58 Cal.4th 40, 94 [evidence sufficient
to permit a finding does not compel that finding as a matter of
law].)
Defendant responds with two arguments.
First, defendant asserts that the prosecutor conceded that
Alicia was an accomplice as a matter of law. The record does not
support this assertion: The prosecutor acknowledged only that
Alicia “would be an accomplice if she did those things with the
intent to kill the victim”; the prosecutor did not concede that
Alicia had the intent to kill the victim.
22
Second, defendant contends that the defense of duress is
unavailable to excuse Alicia’s actions because (1) duress is not a
defense to the crime of murder (People v. Burney (2009) 47
Cal.4th 203, 249), and (2) duress requires an “immediate[] and
“imminen[t] . . . threat[]” of harm (People v. Vieira (2005) 35
Cal.4th 264, 290), and the gang retaliation Alicia feared was too
remote to constitute duress in the commission of the kidnapping.
But whether Alicia could have availed herself of the defense of
duress is ultimately beside the point. That is because duress is a
defense that negates criminal intent (People v. Heath (1989) 207
Cal.App.3d 892, 901; People v. Petznick (2003) 114 Cal.App.4th
663, 676), and the evidence as to whether Alicia possessed
criminal intent in the first place is in conflict—and this conflict is
itself sufficient to preclude a finding that Alicia was an
accomplice as a matter of law. The unavailability of duress as a
defense does not wipe away the conflicting nature of the evidence
on the precursor question of Alicia’s intent.
For these reasons, the trial court correctly refused to
instruct the jury that Alicia was an accomplice as a matter of law.
B. Sufficiency of the evidence
Because Alicia was not an accomplice as a matter of law, it
was up the jury to decide whether she qualified as an accomplice.
If she did not, then the People were not required to corroborate
her testimony. (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 432; People v. Sternberg (1896) 111 Cal. 3, 9;
Gonzalez, supra, 246 Cal.App.4th at p. 1378.) Because no one
disputes that Alicia’s testimony, if accepted, amply supported
defendant’s convictions for aiding and abetting Jacqueline’s
murder and kidnapping to commit rape and the commission of
lewd acts, whether defendant’s convictions may stand turns on
23
whether sufficient evidence supported the jury’s implicit finding
that Alicia was not an accomplice to the murder or the
kidnapping.
We conclude that it did. To be sure, the jury had an ample
basis to question Alicia’s credibility. Alicia had a motive to
fabricate, as she admitted to (1) cooperating with law
enforcement to avoid deportation and the loss of her children, (2)
receiving payments from law enforcement, and (3) disliking
defendant. Alicia’s recounting of events changed over time: In
2006, she omitted Contreras’s role as the driver and said that
Sandoval (her former boyfriend) had been the driver and had
stayed in the car, omitted that Ana’s boyfriend came along with
her, and said defendant only wanted Jacqueline to be beaten up;
in 2011, Alicia omitted that she took Jacqueline up to Ana’s
apartment, and said defendant had little influence in the MS-13
gang; and in her 2012 grand jury testimony, Alicia omitted her
struggle with Grimaldi over the gun and testified both that she
did not pull the trigger and that she could not tell whose finger—
hers or Grimaldi’s—pulled the trigger. Alicia’s recounting of
events even varied during her trial testimony: Alicia testified
that defendant ordered the group to “get rid of” Jacqueline, to “let
her go” after they had sex with her, and to both “get rid of” her
and “let [her] go”; Alicia also testified that she cut off the hand of
the man who raped her when she was 10 years old, and that she
just “cut his hand” without severing it.
But none of these inconsistencies permit us to second-guess
the jury’s decision to credit the portions of Alicia’s testimony
supporting defendant’s convictions. Adjudging witness credibility
is “‘the exclusive province of the trier of fact’” (People v. Gomez
(2018) 6 Cal.5th 243, 281), and we may gainsay a jury’s
24
credibility findings regarding a witness only when the witness’s
“testimony is physically impossible or its falsity is apparent
‘without resorting to inferences or deductions.’” (People v. Cudjo
(1993) 6 Cal.4th 585, 608; accord, People v. Friend (2009) 47
Cal.4th 1, 44; Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th
1221, 1233.) Alicia’s testimony claiming that she did not pull the
trigger and did not intend to kill or kidnap Jacqueline was
neither physically impossible nor false on its face.
For these reasons, there was sufficient evidence to support
the jury’s finding that Alicia was not an accomplice, such that
there was no need for the People to adduce evidence
corroborating her testimony. Because Alicia’s testimony is
sufficient to prove defendant’s guilt of the crimes of murder and
kidnapping charged in this case, we reject defendant’s challenge
to the sufficiency of the evidence.
III. Cumulative Error
Defendant argues that the cumulative effect of the trial
court’s errors in admitting his proffer statements and in failing to
instruct the jury that Alicia was an accomplice as a matter of law
warrants reversal. We disagree. Because these individual claims
lack merit, there is no error to cumulate. (People v. McWhorter
(2009) 47 Cal.4th 318, 377.)
IV. Remand to Apply Newly Conferred Sentencing
Discretion
Defendant lastly argues that this case should be remanded
to give the trial court the opportunity to consider whether to
exercise its discretion, conferred by Senate Bill No. 620 (SB 620),
to dismiss the firearm enhancements. (§ 12022.53, subd. (h).)
Although this newfound discretion applies retroactively to all
cases not yet final on direct appeal (People v. Arredondo (2018) 21
25
Cal.App.5th 493, 506-507), we conclude that no remand is
warranted in this case for two reasons.
First, SB 620 became effective on January 1, 2018.
Defendant was sentenced nearly 18 months later—on June 21,
2019. Although the trial court did not discuss its authority to
dismiss the firearm allegations, its silence on this point is of no
consequence because, “[i]n the absence of . . . evidence to the
contrary, we must presume the [trial] judge was aware of his [or
her] discretion and chose not to exercise it.” (In re Consiglio
(2005) 128 Cal.App.4th 511, 516); see People v. Mosley (1997) 53
Cal.App.4th 489, 496 [“The general rule is that a trial court is
presumed to have been aware of and followed the applicable
law”].) Here, there is no evidence to the contrary. Although, as
defendant notes, SB 620 was a relatively recent change in the
law, the presumption that trial courts are aware of their
discretion is not limited to discretion that has been “on the books”
for longer than a certain period of time; and even if it did, nearly
18 months is certainly long enough. Defendant cites a passage
from the sentencing hearing where the trial court indicates that
it was “required to do so,” but the court was referring to having to
stay the gang enhancement due to its imposition of the firearm
enhancement—not having to impose the firearm enhancement in
the first place. If anything, the court’s remark that it had to stay
the gang enhancement indicates its desire not to stay that
additional punishment.
Second, and even if we assume that the trial court had been
unaware of its discretion to dismiss the firearm enhancements, a
remand to exercise discretion is not appropriate when “the record
‘clearly indicate[s]’ that the trial court would have reached the
same conclusion ‘even if it had been aware that it had such
26
discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391;
People v. Chavez (2018) 22 Cal.App.5th 663, 713.) Here, the trial
court denied defendant’s motion to strike the special
circumstance finding after finding him to be “the reason all these
acts took place” and declined to impose concurrent sentences on
the murder and kidnapping convictions in favor of imposing
consecutive sentences. The court’s unwillingness to cut one
lifetime off of defendant’s sentence “clearly indicate[s]” that the
court would not cut 25 or 50 years off that sentence.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
27