People v. Navarro

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY NAVARRO,

Defendant and Appellant.

S165195

Orange County Superior Court

02NF3143

October 28, 2021

Chief Justice Cantil-Sakauye authored the opinion of the Court,

in which Justices Corrigan, Liu, Cuéllar, Kruger, Groban, and

Jenkins concurred.

PEOPLE v. NAVARRO

S165195

Opinion of the Court by Cantil-Sakauye, C. J.

A jury convicted defendant Anthony Navarro of the first

degree murder of David Montemayor and of conspiracy to

commit his murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd.

(a)),1 as well as participation in a criminal street gang (§ 186.22,

subd. (a)). The jury found true the special circumstance

allegations that the murder was committed in the course of a

robbery (§ 190.2, subd. (a)(17)(A)) and in the course of a

kidnapping (§ 190.2, subd. (a)(17)(B)) and was committed to

further the activities of a criminal gang (§ 190.2, subd. (a)(22)).

Following the penalty phase of the trial, the jury returned

a verdict of death. Defendant moved for a new trial and for

modification of his sentence to life without the possibility of

parole. The trial court denied those motions and sentenced

defendant to death. This appeal is automatic. (§ 1239, subd.

(b).)

We affirm the judgment.

I. FACTS

A. Guilt Phase Evidence

1. Prosecution evidence

The murder victim, David Montemayor, was the manager

and part owner of a trucking company, Interfreight Transport,

1

All further statutory references are to the Penal Code

unless otherwise indicated.

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located in Rancho Dominguez. Montemayor’s sister, Deborah

Perna, who also worked at Interfreight, disliked her brother.

She believed that Montemayor was embezzling funds from the

company and storing the cash in coffee cans in his garage.

In early 2002, Perna hired Edelmira Corona to work as an

office assistant at Interfreight. Around May that year, Perna

asked Corona if she knew anyone who could have Montemayor

killed.2 Corona put her off, but Perna was persistent. At some

point, Perna gave Corona a handwritten note bearing

Montemayor’s home address and telephone number and asked

again whether Corona could arrange for Montemayor’s killing.

Corona was again noncommittal and stashed the note in her

desk.

According to Corona, she introduced defendant to Perna in

August 2002, when he came to Interfreight to deliver

methamphetamine to Corona.3 Soon after, Perna suggested

that Corona give defendant the note with Montemayor’s address

and phone number and ask him to kill her brother. When

2

Although it is not clear why Perna believed Corona could

arrange for a killing, the evidence at trial suggested that

Corona’s father is a high-ranking member of a criminal gang.

3

Corona was the only person involved in the killing to

testify at trial, besides defendant himself. Four other

participants — Perna and three others, whose roles are

discussed subsequently — were convicted of the murder after

separate trials. The convictions of Perna and one of the other

participants have been affirmed on appeal. (People v. Perna

(July 23, 2007, G036905 [nonpub. opn.]; People v. Lopez (July

23, 2007, G0371693 [nonpub. opn.].) The other two were

sentenced to death, and their automatic appeals are pending

before this court. (People v. Alberto Martinez, S185364, app.

pending; People v. Armando Macias, S196185, app. pending.)

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Corona saw defendant later and he inquired about Perna,

Corona told him that Perna had seen his tattoos and suggested

Corona hire him to kill Montemayor. Defendant merely

laughed.

In mid-August, defendant drove Corona to northern

California to visit her father, an inmate at the state prison at

Pelican Bay, and her then-boyfriend, who was jailed in

Humboldt County. Corona told defendant that her father was a

leader in the Mexican Mafia, a southern California prison gang.

During the drive, Corona received a call from Perna. When

Perna learned Corona was with defendant, she asked whether

Corona had mentioned the killing of Montemayor. When

Corona told defendant about the conversation, he asked for

Montemayor’s address, but Corona did not have the address

with her.

Corona and defendant made plans to meet about another

matter a week later, and defendant asked Corona to bring

Perna’s handwritten note to the meeting. Before giving

defendant the note that day, Corona wrote “one hand” on it,

indicating that Montemayor was an amputee. She also told

defendant that Perna said he could keep anything he found in

Montemayor’s home, in particular the cash Perna believed was

hidden in the garage. When Corona told defendant that Perna

wanted him to make Montemayor “disappear,” he responded,

“yes.”

During a later phone call, Corona asked defendant about

the note. He said he had lost it and asked her to get him the

information again, but she never did so. In early September,

Perna asked Corona when defendant was going to kill

Montemayor. Corona told her defendant had lost the note and

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“wasn’t doing anything.” Corona never again spoke with

defendant about Montemayor’s killing, she testified. Although

Perna continued to talk to Corona about having Montemayor

killed, Corona “would just laugh at her.” Corona ceased working

at Interfreight soon after, on September 17, 2002.

Montemayor’s weekday routine was to leave his Orange

County home at 6:00 a.m., drive to Interfreight in his Ford

Expedition, and open the business. On the morning of October

2, the business was already open when the other employees

began to arrive, but Montemayor was not there. Around 6:45

a.m., a neighbor spotted Montemayor’s Expedition driving down

the street near his home, followed closely by another SUV. A

few minutes later, shortly before 7:00 a.m., near an intersection

about a half-mile from Montemayor’s home, several gunshots

were heard. Police found Montemayor’s body lying near his

Expedition, along with spent bullet casings. He had been killed

by a gunshot to the head.

At the time of the shooting, the driver of a vehicle near the

intersection saw two men running around a vehicle, one of them

firing a handgun. The two men entered a blue Chevrolet Blazer

with a license plate containing “3L” and drove off. Soon after, a

police officer driving an unmarked car spotted a Chevrolet

Blazer matching the description of the vehicle seen at the site of

the shooting. After a high-speed chase, during which two

firearms were thrown from the Blazer, police arrested the three

occupants, Armando Macias, Alberto Martinez, and Gerardo

Lopez. One of the handguns thrown from the vehicle was later

matched to the bullet that killed Montemayor, and the other gun

was linked to a bullet and spent casings found at the scene of

the shooting.

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As he was being apprehended, Macias threw a cell phone

into nearby bushes; police later found that the cell phone was

registered to defendant’s girlfriend.4 The phone dropped by

Macias was determined to have been in contact with a cell phone

used by defendant 18 times in the hour and one-half

surrounding the killing. Macias was also found to have a

business card in his wallet. Handwritten on the back was

defendant’s gang moniker and the number of another cell phone

linked to defendant. Martinez’s wallet contained a piece of

paper with “Anthony Navarro” written on it, along with

defendant’s auto club membership number.

On the day before Montemayor’s killing, Macias had

rented a car. Investigating police found Macias’s rented car

parked in front of defendant’s home. The Blazer used by the

three was registered at the address of defendant’s home,

although not in defendant’s name. Around 9:00 a.m. on the

morning of the killing, defendant’s wife called police to report

that the Blazer had been stolen, but a subsequent search of the

Blazer revealed keys in the ignition and no signs of forced entry.

The registered owner of the Blazer never sought its release from

police impoundment after the killing.

In subsequent testimony, defendant acknowledged that he

maintained a series of cell phones for the use of gang members

who worked with him.5 Telephone records showed that one of

4

Although defendant was married at the time of the killing,

he was romantically involved with another woman, whom we

will refer to as his girlfriend.

5

In addition to the cell phone dropped by Macias, three

other numbers were registered to defendant’s girlfriend. A

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the cell phones linked to defendant, with a number ending in

“1600,” was in repeated contact with cell phones linked to

Corona, defendant’s wife, defendant’s girlfriend, Macias, and

Martinez in the hours preceding Montemayor’s killing. In

particular, the records show that Corona called the 1600 phone

at 5:00 p.m. on the evening prior to the homicide. Later that

evening, the phone was used to make repeated calls to

defendant’s wife and Corona. Beginning around 11:00 p.m., the

1600 phone recorded multiple calls to Macias and Martinez,

followed throughout the night by more calls to Corona, Macias,

and defendant’s wife. Early the following morning, the 1600

phone was used to call Macias and Corona. The next day, a

person who identified herself as “Mrs. Johnston” called

customer service of the Nextel mobile phone company and

changed the number assigned to the 1600 cell phone;

defendant’s wife’s cell phone records reflected calls to Nextel

around that time. In addition, Corona attempted to call Macias

four times around 6:30 a.m. on the morning Montemayor was

killed. Her last call connected and lasted for a minute.

Two weeks later, police stopped defendant while he was

driving a Lexus vehicle. In the glove compartment of the Lexus

were Perna’s handwritten note with Montemayor’s address and

phone number and a CD case containing a photograph of

Corona. During the stop, defendant confirmed to a detective

that he was “an older member or elder member” of the Pacoima

Flats street gang. Following his arrest in connection with

Montemayor’s murder, defendant wrote several letters from jail

mechanic who lived at defendant’s home prior to the killing,

Daniel Johnston, testified that defendant used four of the five

cell phone numbers registered in Johnston’s name.

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suggesting his involvement in gang activities. Among these

were letters to both Macias and Martinez expressing affection

and discussing personal matters.

A local police detective, Nathaniel Booth, testified as an

expert concerning matters relating to street gangs. Booth was

a member of the gang unit of the Buena Park police department

and had participated in a search of defendant’s home during its

investigation of the Montemayor killing. He testified that gang

members are expected to “put[] in work” for the gang by

committing crimes or violence for the benefit of the gang. Older

members of the gang “often are more like supervisors,” with

younger members committing “the majority of the violent crime”

in order to prove their mettle.

Booth testified that gangs generally acquire a name,

which often refers to the neighborhood in which they operate,

and individual members are given monikers used within the

gang. Graffiti is used to promote the gang or individual

members, mark turf, and challenge other gangs. One form of

graffiti is the “roll call,” in which a gang member records a list

of the gang members with which that member regularly

associates. Tattoos are also used to indicate gang membership

and identity. Citing several of defendant’s tattoos, Booth

identified him as a member of the Pacoima Flats gang, which is

affiliated with the Mexican Mafia. When Booth searched

defendant’s residence, he saw words spray painted and written

on the walls of the garage in the manner of graffiti. Among

others, these illustrated the words or terms PF, Droop, Droops,

Droop Baby, Lil Droops, Crook, Pirate, Lil Pirate, Chito, Blackie,

D’Sta, Dee, and Weaz. Booth identified “Droopy” as defendant’s

gang moniker, while Crook and Pirate are the monikers of

Martinez and Macias, respectively, both of whom Booth also

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identified as Pacoima Flats gang members.6 He identified this

graffiti as a “very short” roll call, identifying a series of members

who “associate together within the gang.” Booth also identified

Lopez as a member of the Pacoima Flats gang. Based on this

and other information, Booth concluded that defendant,

Martinez, Macias, and Lopez were all members of the Pacoima

Flats gang at the time of Montemayor’s killing and that

Montemayor was killed for the benefit of the gang.

2. Defense evidence

Defendant testified that he became a member of the

Pacoima Flats gang in 1978, at the age of 12. He decided to

become an informer for the Federal Bureau of Investigation

(FBI) in 2000, after the Mexican Mafia killed his cousin.

Thereafter, he cooperated with the Los Angeles office of the FBI

from April to October 2000, the San Diego office of the FBI from

November 2000 to November 2001, and the Bureau of Alcohol,

Tobacco, and Firearms (ATF) for two months in mid-2002.

As an aspect of his cooperation, defendant attended

meetings of members of the Mexican Mafia while wearing a

listening device and camera. He was able to relate extensive

information about planned gang activities. Defendant was also

provided funds by the FBI that he turned over to a senior

member of the Mexican Mafia, passing the money off as

protection payments extorted from other gang members,

referred to as “rent.” This enhanced defendant’s status in the

6

Subsequently, during cross-examination, defendant

acknowledged that his home was a “hangout” and that “Crook”

and “Lil Pirate 2,” painted on the garage walls, referred to

Martinez and Macias, respectively. “D’Sta” referred to

defendant.

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gang, which in turn increased his effectiveness as an informant.

Defendant was declared by the gang to be a llavero, or “key

holder,” effectively the top gang member in an assigned portion

of Pacoima. Defendant acknowledged that he maintained “at

least nine” cell phones at this time. He permitted others to use

the phones, which helped him keep track of his fellow gang

members.

Defendant believed that he began to be viewed with

suspicion within the gang no later than March 2002, when he

was arrested for possession of a firearm by a felon, a potential

third strike crime, but was released on low bail and never

formally charged. He received the lenient treatment because of

his status as an informant. The Los Angeles FBI terminated

defendant as an informant in 2000 because it learned that

rumors of his cooperation were circulating within the gang.

Defendant said he first met Corona in April 2002, when

Macias introduced her to him. Corona told him she was the

daughter of Felipe Vivar, a “mafia boss” whom defendant knew

by reputation, and that Vivar had put her in charge of gang

activities in the area. Corona told defendant that Vivar wanted

him to commit a killing in Orange County. By that time,

defendant had been terminated as an informant, was no longer

receiving government funds, and had stopped making rent

payments to the gang. He was concerned that the gang assumed

he was collecting and withholding the payments and had

ordered his killing.

In June 2002, defendant was the victim of a freeway

shooting, which he interpreted as a warning from the gang. He

sought a second meeting with Corona, hoping that she could

help him set things right. Corona told him she could arrange for

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the removal of an order for defendant’s death, imposed by the

gang, for a payment of $14,000. Defendant only had $7,000,

which he gave to her. On this occasion, Corona gave him Perna’s

handwritten note with Montemayor’s address and asked him to

arrange for the killing, telling him the victim owed Vivar money.

Defendant believed that she also told him the intended victim

was her boss. “One hand” was written on the note, but

defendant did not ask what it meant. Defendant put the note in

the glove compartment of his Lexus.

After this meeting, defendant attempted to report the

requested killing to his handler for the ATF, James Starkey, but

Starkey told defendant he was too busy and instructed

defendant to contact Rod Rodriguez, a Los Angeles police

detective with whom defendant had also worked. Defendant

thereafter spoke with Rodriguez and told him that Vivar’s

daughter said Vivar “wanted somebody from the San Fernando

area to come out to Orange County to kill somebody.” Defendant

told Rodriguez he did not know the name of the victim but had

his address. Because the note with the address was in his car,

defendant was unable to provide Rodriguez the address, nor did

he provide Corona’s phone number. Rodriguez instructed him

to find out the name of the intended victim, telling defendant he

could not do anything without that name.

Defendant acknowledged driving to northern California

with Corona, characterizing the trip as a further attempt to

straighten out his relations with the gang, as well as to get more

information about the requested killing for Detective Rodriguez.

During the drive, Corona told defendant about the money

thought to be hidden in Montemayor’s garage, but she refused

to give him the victim’s name. This time, rather than asking

defendant to commit the killing, Corona suggested that he “get

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some homies to do it.” Defendant thought she was not serious.

Two weeks later, Corona paged defendant. When he returned

her call, she asked, “Are you going to do this?” He told her he

needed the address again, claiming he had lost the note.

Although she said she would get back to him with the address,

she never did. Defendant testified that by the time of this

conversation with Corona he had forgotten where he left the

note and did not remember until it was found in the police

search.

Defendant testified that he believed the prosecution’s

theory of the crime was implausible because no senior gang

member would permit a car registered at his address to be used

in a killing; the same is true regarding his cell phones. Further,

by the time of the killing defendant believed he was regarded as

a turncoat by the gang. Defendant had been shot at twice while

driving on the freeway, suffering a wound the second time. In

addition, his car was shot at while being driven by a friend.

After his arrest, defendant was attacked by Macias and Lopez

while detained in a holding cell. They stabbed him eleven times,

calling him a “rat.”

The account by defendant of his activities as an informant

was largely corroborated by the testimony of law enforcement

agents from the FBI and ATF. Their recollections of defendant’s

communications about the Montemayor murder plot, however,

differed from his own. Starkey confirmed that in early June

2002, defendant called him and said “somebody was going to hit

somebody.” Defendant was unable to provide any additional

information, such as the potential victim, location, or timing of

the killing. Starkey told defendant to get more information and

to deal with Rodriguez because Starkey was busy with another

matter. Starkey said that if defendant had provided sufficient

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detail to support an investigation, he would have turned to it

immediately.

When Rodriguez, a Los Angeles police detective in 2002,

first met defendant, he was aware that defendant was regarded

as an effective informant. Because defendant was, as Rodriguez

characterized him, a “shot caller” in the gang, he was in a unique

position to gather information. In July 2002, defendant called

Rodriguez to ask if he was interested in “some type of a kidnap

for ransom or a murder for hire case.” At the time, defendant

said he did not have any additional information. In particular,

defendant did not mention Corona or the note with the victim’s

address and telephone number. Rodriguez told defendant he

needed more information, such as the name of the victim, and

asked defendant to find out as much additional information as

he could. Defendant mentioned the matter again in a telephone

call two weeks later, suggesting that the killing would occur in

Orange County. Rodriguez said he needed more information to

put defendant in touch with appropriate law enforcement

officials in Orange County. Again, defendant did not provide

any other information. He said he would get back to Rodriguez,

but he never did.

B. Penalty Phase Evidence

1. Prosecution case in aggravation

Laurie Fadness testified that in February 2002, several

men entered her home and attacked three men — David

Gallegos, Gallegos’s cousin, and a roommate of Fadness.

Fadness had left the house that evening. When she returned,

she saw several unfamiliar vehicles parked in front, including a

black SUV. As she approached the back door, she heard “two

loud bangs.” Entering, she saw several men scattering toward

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the doors. One of them yelled, “Droopy, Jesse, let’s go!” Gallegos

and his cousin were bloody and in shock, and her house was a

shambles.

Gallegos testified that five men entered Fadness’s house

that night. He identified all five, without naming defendant.

When they entered, one of the men said to Gallegos’s cousin,

“Droopy wants to talk to you.” The cousin responded that he

had nothing to say to Droopy. At that point, the men began

beating them, and Gallegos heard two gunshots. He later saw

that his cousin had suffered a gunshot wound to the head.

Gallegos acknowledged that he told police he heard the name

“Droopy” that day and knew defendant by that name, but he

said that defendant was not present.

Gallegos also testified regarding an incident about six

weeks later, in March 2002. At that time, he was asked to

deliver a letter to a member of the Pacoima Flats gang by a

member of a rival gang. Two weeks after he made the delivery,

Gallegos learned that Droopy wanted to talk to him. Gallegos

was eventually taken to defendant’s house at gunpoint.

Defendant was in the garage with several other men, including

the men to whom Gallegos had delivered the letter. Defendant

asked about Gallegos’s delivery of the letter. When Gallegos told

them who had given it to him, defendant and the other men

began to beat and torture him. Eventually, Gallegos heard

defendant say, “He’s got to go,” after which Gallegos was taken

away and shot 14 times. Gallegos identified defendant to police

as one of the shooters in a photographic line up.

Paul Parent was a mechanic hired by defendant in

September 2001 to service the vehicles of defendant, his family,

and his friends. At defendant’s insistence, Parent moved into

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defendant’s house two weeks later. Within a few weeks, Parent

became frightened by activities at the house and attempted to

leave. In retaliation, defendant and two other men beat Parent

and broke his finger with a hammer. Defendant thereafter

threatened to kill Parent if he did not return to work. A month

later, Parent again attempted to get away from defendant’s

house. When his escape attempt failed, he was beaten again by

defendant and four other men. Defendant beat Parent on at

least two other occasions. In April, defendant gave Parent a van

and granted him permission to leave, in return for Parent’s

assistance in moving defendant’s household. Ten minutes after

the move was complete, defendant called Parent and said, in a

mocking tone, “Rudy is going to shoot you.” About two minutes

later, Parent was shot in the back. His recovery required six

months of hospitalization.

Karensa Spellman met defendant through a friend and

began selling defendant methamphetamine. At some point,

defendant sought information from her about one of his rivals in

the gang, whom she knew. When Spellman told defendant she

had no information, he beat and kicked her repeatedly. He then

locked Spellman in his garage, where she remained for two

weeks without food before Parent helped her escape.

The prosecution also provided evidence of two prior

adjudicated crimes. In 1983, when he was 16 years old,

defendant participated with between 25 and 30 other gang

members in the shooting of two rival gang members. There was

no evidence that defendant was among the shooters, and he was

convicted of voluntary manslaughter. In 1995, defendant

arranged to meet Francisco Chavez in a parking lot to purchase

some clothing. When defendant arrived, he and three other men

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robbed Chavez and his wife at knifepoint. Defendant was

convicted of second degree robbery with use of a weapon.

There was, in addition, testimony about the impact of

Montemayor’s death. His wife and daughters testified about

their personal losses, and Montemayor’s death led to the failure

of Interfreight, putting its employees out of work.

2. Defense case in mitigation

Detective Rodriguez testified that defendant continued to

act as an informant even after his arrest in this case, providing

useful information to law enforcement. Two FBI agents

provided additional detail about defendant’s work as an

informant for the FBI. His cooperation was valuable and was

undertaken at great risk, placing the lives of both defendant and

his family members in danger. For several years, defendant also

had participated in outreach programs for youth directed at

preventing gang participation. Defendant’s brother and

daughter testified about his positive role in their lives.

II. DISCUSSION

A. Guilt Phase Claims

1. Defendant’s convictions are supported by the

evidence

Defendant’s convictions are necessarily premised on a

finding that he conspired with or acted as an accomplice to the

actual killers to bring about Montemayor’s murder. Defendant

contends that the jury was not presented with sufficient

evidence of his participation in such a conspiracy to support the

convictions. We find sufficient evidence to support the jury’s

judgment.

“When reviewing a challenge to the sufficiency of the

evidence, we ask ‘ “whether, after viewing the evidence in the

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light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” ’ [Citation.] Because the sufficiency of the

evidence is ultimately a legal question, we must examine the

record independently for ‘ “substantial evidence — that is,

evidence which is reasonable, credible, and of solid value” ’ that

would support a finding beyond a reasonable doubt.” (People v.

Banks (2015) 61 Cal.4th 788, 804 (Banks).) In doing so, we “view

the evidence in the light most favorable to the jury verdict and

presume the existence of every fact that the jury could

reasonably have deduced from that evidence.” (People v. Reed

(2018) 4 Cal.5th 989, 1006 (Reed).) “We must also ‘accept logical

inferences that the jury might have drawn from the

circumstantial evidence.’ ” (People v. Flores (2020) 9 Cal.5th

371, 411 (Flores).) We do not question the credibility of a

witness’s testimony, so long as it is “not inherently improbable,”

nor do we reconsider the weight to be given any particular item

of evidence. (Reed, at p. 1006; see id. at p. 1007.)

“ ‘ “Conspiracy requires two or more persons agreeing to

commit a crime, along with the commission of an overt act, by at

least one of these parties, in furtherance of the conspiracy.” ’ ”

(People v. Dalton (2019) 7 Cal.5th 166, 244 (Dalton).) “ ‘Evidence

is sufficient to prove a conspiracy to commit a crime “if

it supports an inference that the parties positively or tacitly

came to a mutual understanding to commit a crime.” ’ ” (People

v. Thompson (2016) 1 Cal.5th 1043, 1111, italics omitted

(Thompson).) “Evidence of an agreement does not require proof

that the parties met and expressly agreed; a criminal

conspiracy can be shown through circumstantial evidence.”

(People v. Penunuri (2018) 5 Cal.5th 126, 145.) “If the

agreement between the conspirators is the crux of criminal

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conspiracy, then the existence and nature of the relationship

among the conspirators is undoubtedly relevant to whether such

agreement was formed, particularly since such agreement must

often be proved circumstantially. ‘ “The existence of a

conspiracy may be inferred from the conduct, relationship,

interests, and activities of the alleged conspirators before and

during the alleged conspiracy.” ’ ” (People v. Homick (2012) 55

Cal.4th 816, 870, italics omitted (Homick).)

The testimony and forensic evidence, viewed in the light

most favorable to the prosecution, demonstrated that Perna

wanted her brother killed and solicited Corona’s aid to that end.

Corona, who had ties to the Mexican Mafia, contacted

defendant, a well-positioned gang member, about that

possibility. By Corona’s account, she introduced Perna to

defendant and later conveyed to him Perna’s request for the

killing. By defendant’s account, Corona passed on a request,

which could have been understood as a demand, for the killing

from a highly placed member of the Mexican Mafia. Either way,

it was not disputed that Corona solicited defendant to commit

the murder, generally described the victim to him, and provided

him a writing with the victim’s address and telephone number.

From defendant’s acceptance of the note, which was still in his

possession at the time of the murder, and Corona’s description

of his conduct in accepting it, the jury could have inferred that

he was willing to consider undertaking the assignment.

Detective Booth testified that the typical street gang is

disciplined and hierarchical. Junior members of the gang are

expected to serve the interests of more senior members; senior

members, in turn, leave the execution of criminal activities to

more junior members. Defendant was a longtime member of the

Pacoima Flats street gang. By his own admission, he was

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regarded as a llavero, the chief gang member in a portion of

Pacoima. His home was a gathering place for gang members, to

whom he provided vehicles and cell phones. Yet at the time of

the murder his standing within the gang was threatened by

rumors that he was an informant and by his failure to maintain

the rent payments. From this, the jury could have concluded

that defendant had a non-financial motive to accomplish the

murder, which could have shored up his deteriorating position

in the gang.

Between two and six months after Corona first proposed

the murder, Montemayor was killed by three gang members, all

of whom were members of the same gang as defendant.7 Two of

the three were sufficiently close to defendant within the gang

that their monikers were among those of a small number of

associates painted on the walls of his garage. In committing the

killing, these associates used a vehicle registered to defendant’s

address. In the hours prior to the shooting, two of the gang

members were repeatedly in contact with cell phones associated

with defendant and Corona.8 Further, the 1600 cell phone

linked to defendant was in constant communication with

Macias, Martinez, Corona, and defendant’s wife beginning on

the evening prior to the killing, continuing through the night

7

Corona testified that she first proposed the murder to

defendant in August 2002, but his recollection was that the first

conversation occurred in April.

8

Although the Blazer and cell phone service plans were not

in defendant’s name, there was evidence that defendant

registered his assets in the names of other persons, presumably

to avoid the assets being traced to him. The jury could therefore

have inferred that the Blazer and the various cell phones were

controlled by defendant.

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and into the early morning. After the killing, attempts were

made to obscure the connection between defendant and the

crime by reporting stolen the vehicle used in the killing and

changing the number of the 1600 cell phone.

Accordingly, the evidence could be understood to

demonstrate that: (1) defendant, a relatively senior member of

the Pacoima Flats, a criminal street gang, was asked or directed

to commit the Montemayor killing by Corona, whose father was

a highly placed gang member; (2) defendant received and

retained Montemayor’s address and phone number from

Corona; (3) Montemayor was subsequently killed by two

Pacoima Flats gang members who were among a small group

closely associated with defendant, along with a third member of

the same gang; (4) these gang members were permitted to use

and did use defendant’s car and cell phones in committing the

killing; (5) the two gang members closest to defendant were in

repeated contact with him and Corona in the hours leading up

to the killing; and (6) defendant was similarly in constant

communication with these two and Corona in the twelve hours

leading to the murder. This pattern is consistent with Detective

Booth’s testimony about street gang culture, in which, he said,

older members tend to supervise, while younger members are

tasked with the actual commission of violent crime.

As noted above, when reviewing the sufficiency of the

evidence to support a criminal conviction, we apply a deferential

standard. We view the evidence in the light most favorable to

the prosecution and, taking that view, ask whether

“ ‘ “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” ’ ” (Banks,

supra, 61 Cal.4th at p. 804, italics omitted.) Given defendant’s

standing within the Pacoima Flats gang, a jury reasonably could

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Opinion of the Court by Cantil-Sakauye, C. J.

have inferred that the subordinates were enlisted to commit the

crime on defendant’s behalf. Further, although there is no direct

evidence that defendant conspired with the three gang members

to commit the crime, a jury reasonably could have concluded

beyond a reasonable doubt that defendant recruited and

directed them and facilitated their commission of the killing,

based on the shooters’ gang relationship to defendant, their use

of a vehicle registered to defendant’s address, and the killers’

repeated contact with him and Corona immediately before the

killing.

Defendant offers several alternative, contrary

interpretations of the evidence. The interpretations vary in

their plausibility, but our consideration of them is, in any event,

constrained by our deferential standard of review. We must

accept the jury’s verdict if it represents a rational conclusion

from the evidence, and, for the reasons discussed above, we find

it so. We analyze defendant’s interpretations below, while

recognizing that, in the end, they address matters that were the

jury’s to resolve.

Defendant first contends that the foregoing evidence was

sufficient to support only a “suspicion” that he “might” have

been a member of the conspiracy. This characterization

underestimates the probative force of the evidence, which

readily supported the conclusion that defendant was, in effect,

the killers’ boss in a criminal enterprise. He was solicited to

commit the killing; his subordinates committed the shooting

using his property; and these subordinates were in repeated

contact with him before and during the killing. The inference

that the gang members were working in concert with defendant

therefore finds solid support in the evidence. It is true, as

defendant argues, that there was no direct evidence of his

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personal participation past the point of his solicitation by

Corona, but such evidence was not required. Given the nature

of criminal conspiracies, it is often the case that there is no

direct evidence of an agreement among the conspirators.

(Homick, supra, 55 Cal.4th at p. 870 [“such agreement must

often be proved circumstantially”].) Contrary to defendant’s

contention, direct evidence is unnecessary when, as here, the

circumstantial evidence permits the jury to infer beyond a

reasonable doubt that an agreement existed.

Defendant also contends that his mere association with

the shooters is insufficient to support a finding that he conspired

with them. (See, e.g., Simmonds v. Superior Court (1966) 245

Cal.App.2d 704, 708 [“the law recognizes that mere association

or mere presence cannot alone furnish the basis for a charge of

coconspiracy”].) That is correct as a principle of law, but the

prosecution provided evidence of more than mere association.

As noted above, it could be concluded that defendant had a

personal motive to commit the killing; was, pursuant to his

standing in the gang, the shooters’ boss; permitted them to use

his property in committing the crime; and was in

communication with them before and at the time of the shooting.

Defendant suggests the killing was staged in a manner

designed to frame him, perhaps because of the suspicions that

he was an informant. As noted, he testified that no person in

his position would knowingly permit gang underlings to use his

car in committing a homicide or would communicate with those

underlings by cell phone in the course of the crime. Although

these aspects of the killing certainly inculpated defendant in the

killing, the jury was not required to accept them as the result of

an attempt to frame him. They could simply be explained as

incaution.

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The jury could also have discounted defendant’s theory

because the plot he outlined depended for its success on the

shooters’ apprehension. The forensic evidence used to implicate

defendant was located because the killers were found in

possession of it immediately after the homicide. Had the

shooters not been spotted, chased, and arrested, police would not

have been able to use Macias’s cell phone to connect defendant

to the crime. Nor would they have found the business card

bearing defendant’s gang moniker in Macias’s wallet, and they

might not have been able to identify the vehicle used. In other

words, framing defendant in this manner would succeed only if

the killers were caught soon after the killing. Accepting

defendant’s claim therefore required the jury to conclude that

the killers’ apprehension was an integral part of the plan to

frame him. Although this is conceivable, the jury was by no

means compelled to conclude that the evidence of defendant’s

involvement in the execution of the scheme was, in effect,

fabricated.

Defendant contends that it “defies logic” to infer that he

was involved in the killing after having told two law

enforcement officers about it. Though defendant was free to

argue, as he did, that this evidence was helpful to him, the jury

was entitled to discount it. (See Reed, supra, 4 Cal.5th at p.

1007.) Defendant knew considerably more about the planned

killing than he told the officers, including the involvement of

Corona and the address and telephone number of the proposed

victim. Yet he told the detectives little more than that a

homicide would occur at some unspecified time in Orange

County, perhaps involving unidentified gang “big homies.” As a

result, nothing defendant told the detectives would permit them

to connect the crime, if and when it occurred, to him personally.

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For this reason, the jury’s conclusion that the reports did not

preclude his subsequent participation in the murder was

entirely rational.

Finally, defendant contends the evidence is “just as

consistent” with his innocence and points to several

circumstances that, he asserts, are inconsistent with his

participation in the killing. In particular, defendant cites (1) his

disclosures to law enforcement, (2) his move to Las Vegas prior

to the killing, (3) the use of his vehicle in the crime, (4) the

suspicions within the gang that he was an informant, and (5) his

poor relations with his wife, who was a friend of Corona. We

acknowledge that these factors, if accepted as true, weighed

against the conclusion that defendant was involved in the

killing. Our task in reviewing the sufficiency of the evidence to

support a criminal conviction, however, is not to weigh the

evidence to determine the most likely interpretation. Rather,

we view the evidence and the reasonable inferences therefrom

in the light most favorable to the jury’s determination, taking at

face value evidence that is not inherently improbable, and

presuming the existence of every fact reasonably deduced from

that evidence. (Flores, supra, 9 Cal.5th at p. 411; Reed, supra,

4 Cal.5th at p. 1006.) We ask not whether the jury’s judgment

was the most probable interpretation of the evidence, but simply

whether it was a rational one. (Banks, supra, 61 Cal.4th at p.

804.) For the reasons discussed above, we conclude that the

jury’s judgment here was rational. None of the circumstances

cited by defendant persuades us otherwise.

2. Defendant failed to demonstrate that he withdrew

from the conspiracy

Defendant contends that, assuming he was involved in the

homicide, he withdrew from the conspiracy by reporting the plan

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Opinion of the Court by Cantil-Sakauye, C. J.

to police. Simply as a matter of the law of withdrawal,

defendant’s conduct was insufficient. As defendant

acknowledges, California law requires a withdrawing defendant

to “ ‘notify[] the other party or parties of whom he had

knowledge of his intention to withdraw from the commission of

the crime and . . . [do] everything in his power to prevent its

commission.’ ” (People v. Richardson (2008) 43 Cal.4th 959,

1022, fn. omitted; see also People v. Fayed (2020) 9 Cal.5th 147,

178–179.) Putting aside the issue of notification, the evidence is

clear that defendant did not do “everything in his power” to

prevent the killing. Merely by disclosing to Rodriguez either

Corona’s involvement or the address and phone number of the

intended victim, defendant could have prevented the killing.

Instead, he withheld that information.

Defendant argues, alternatively, we should hold that “a

person may withdraw from a conspiracy by communicating the

pending plot to law enforcement,” although he acknowledges

that he is unaware of any California decision announcing such

a rule of law. Even if we were to adopt his proposed rule, it

would presumably require that the defendant make a more

fulsome disclosure of the planned crime than occurred here. As

discussed above, defendant disclosed no genuinely useful

information to law enforcement, while withholding information

that likely would have permitted the officers to prevent the

killing — for example, the address and phone number of the

victim or Corona’s solicitation. We decline to rule that the

limited nature of defendant’s disclosure to the law enforcement

officers was sufficient to constitute a withdrawal from the

conspiracy.

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3. The evidence was sufficient to support the special

circumstances for murder during a robbery and

murder during a kidnapping

Relying on our decision in Banks, supra, 61 Cal.4th 788,

defendant contends the evidence was insufficient to support a

finding that he was a “major participant” in the killing, as

required by section 190.2, subdivision (d). Such evidence was

unnecessary, however, because the jury necessarily found that

defendant intended Montemayor’s death.

Section 190.2, subdivision (d), states that a defendant can

be sentenced under a felony murder special circumstance upon

findings that the defendant was a “major participant” in the

crime and acted with reckless indifference to life. In Banks, we

applied this subdivision in concluding that a defendant who

participated as the getaway driver in an armed robbery that

resulted in a killing was a not “major participant” in the robbery.

(Id., supra, 61 Cal.4th at p. 807; see id. at pp. 804–807.) Section

190.2, subdivision (d), however, applies only to defendants who

lacked the intent to kill and did not actually kill. Section 190.2,

subdivisions (b) and (c) subject defendants who were either the

actual killer or possessed the intent to kill, respectively, to a

felony murder special circumstance without the finding of

further elements.

The clear distinction between this case and Banks is the

underlying crime. The defendant in Banks participated in an

armed robbery that incidentally involved a killing; defendant in

the present case conspired to commit a murder that incidentally

involved an attempted robbery and kidnapping. Although not

all of the theories of murder on which defendant was tried

required a finding of intent to kill, both conspiracy to murder

and a special circumstance for murder committed for the benefit

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of a criminal street gang require that finding. (E.g., People v.

Beck and Cruz (2019) 8 Cal.5th 548, 641, 642 (Beck and Cruz)

[“ ‘all conspiracy to commit murder is necessarily conspiracy to

commit premeditated and deliberated first degree murder’ ” and

“conspiracy to commit murder may not be based on a theory of

implied malice”]; People v. Anthony (2019) 32 Cal.App.5th 1102,

1144–1145 [street gang special circumstance requires intent to

kill concerning a defendant who was not the actual killer].) The

jury was so instructed.9 In finding defendant guilty of

conspiracy to murder and finding true the criminal street gang

special circumstance, the jury necessarily found that he acted

with the intent to kill Montemayor. Defendant was therefore

subject to the felony murder special circumstances under section

190.2, subdivision (c).

Sufficient evidence supported the jury’s finding that

defendant possessed intent to kill. From the beginning, the

result sought by Perna and Corona was Montemayor’s death.

Any kidnapping was merely a means to that end, and the

robbery was intended to compensate the killers for their efforts.

The jury was entitled to infer that in participating in this

scheme, defendant knew and intended that Montemayor would

be killed. Accordingly, neither Banks nor section 190.2,

subdivision (d) provides a basis for reversing the special

9

Conspiracy to murder, the jury was instructed, “requires

proof that the conspirators harbored express malice

aforethought, namely, the specific intent to kill.” Regarding the

special circumstance, the jury was instructed that it was

required to find that “such defendant with the intent to kill

counseled, commanded, induced, solicited, requested, or

assisted any actor in the commission of the murder.”

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circumstance findings for murder in the course of a robbery or

kidnapping.

4. Sanchez error does not require reversal of

defendant’s gang-related conviction and special

circumstance

Because the trial featured testimony by an expert

concerning gang activities, we requested that the parties file

supplemental briefing addressing the possible application of

People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In Sanchez,

we held that “case-specific out-of-court statements” cited by an

expert witness to support an expert opinion are offered for their

truth. (Id. at p. 684.) Such evidence must therefore be

admissible under an exception to the hearsay rule or supported

by competent evidence in the record. (Id. at p. 686.) In a

subsequent decision, we held that a claim of error from the

admission of Sanchez hearsay is not forfeited by a defendant’s

failure to object at a trial that occurred prior to the issuance of

Sanchez. (People v. Perez (2020) 9 Cal.5th 1, 9 (Perez).)

Defendant raises two issues under Sanchez. First, he

contends the prosecution’s gang expert, Detective Booth, relied

on hearsay in testifying regarding defendant’s gang affiliation.

Second, defendant argues that because Booth’s testimony about

predicate criminal activity by members of the Pacoima Flats

gang was based on hearsay, his gang-related conviction and

special circumstance were not supported by the evidence.

Assuming Booth’s testimony regarding defendant’s gang

affiliation was admitted in violation of Sanchez, it was plainly

harmless, given his own later admission of that membership.

Although we agree with defendant that Booth’s testimony about

predicate criminal activity was inadmissible under Sanchez,

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that error was harmless under the circumstances, for the

reasons stated below.

a. Defendant’s participation in the Pacoima Flats

gang

Defendant contends that Booth related the following items

of case-specific hearsay in his testimony addressing defendant’s

gang affiliation: (1) defendant was a member of the Pacoima

Flats gang; (2) defendant had been a member of the gang “all of

his life”; and (3) defendant’s moniker within the gang was

“Droopy.” Defendant is correct that Booth identified hearsay

sources when testifying to these three matters, but that does not

necessarily make the admission of the testimony error under

Sanchez. Its admission was improper only if the expert’s

testimony about the case-specific facts was not otherwise

supported by competent evidence in the record. (See Sanchez,

supra, 63 Cal.4th at p. 686 [“What an expert cannot do is relate

as true case-specific facts asserted in hearsay statements,

unless they are independently proven by competent evidence or

are covered by a hearsay exception”].)

There was abundant competent evidence admitted at trial

to demonstrate that defendant was a longtime member of the

Pacoima Flats gang, notably including his own testimony, and

that his moniker within the gang was Droopy. Because most of

this evidence was admitted after Booth’s testimony, however, it

arguably cannot be cited to support admission of his testimony.

(See, e.g., People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510 [“If

prior unobjected testimony supported the prosecution experts’

case-specific testimony, the testimony was not objectionable

under Sanchez”].)

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We need not resolve the propriety under Sanchez of the

admission of Booth’s testimony about defendant’s gang

activities because any error in the admission of this testimony

was unquestionably harmless. In addressing the standard for

harmless error in the Sanchez context, we must take into

consideration whether the erroneously admitted hearsay

evidence was “testimonial” for purposes of Crawford v.

Washington (2004) 541 U.S. 36, 61. (See Valencia, supra, 11

Cal.5th at p. 840.) If so, we apply the federal constitutional

standard of Chapman v. California (1967) 386 U.S. 18

(Chapman), which requires reversal unless we conclude “beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” (Id. at p. 24; Valencia, at p.

840.) If not, we apply the state law standard of People v. Watson

(1956) 46 Cal.2d 818 (Watson), which requires reversal if it is

reasonably probable the verdict would have been different had

the error not occurred. (Id. at p. 836; Valencia, at p. 840.)

Here, we conclude that the admission of Booth’s testimony

about defendant’s gang ties was harmless under either

standard. Competent, credible evidence establishing his gang

membership and moniker was ultimately admitted, including,

as noted, defendant’s own admissions. The jury therefore would

have learned these facts independently of Booth’s testimony.

b. Defendant’s membership in a criminal street

gang

Defendant also contends that Sanchez was violated when

Booth relied on hearsay in testifying with respect to various

predicate gang crimes, assertedly resulting in insufficient

evidence to support his gang-related conviction and special

circumstance. Although we agree with defendant that some of

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this evidence was admitted in violation of Sanchez, we conclude

that its admission was harmless error.

In contending that the evidence was insufficient to

support his convictions, defendant misunderstands the effect of

a finding of Sanchez error. Evidence erroneously admitted is

properly considered in weighing the sufficiency of evidence to

support a conviction, notwithstanding its erroneous admission.

(E.g., People v. Story (2009) 45 Cal.4th 1282, 1296–1297

[erroneously admitted evidence is considered in deciding

whether the evidence at trial was sufficient to support a

conviction, thereby permitting a retrial after a reversal for

prejudicial error in the admission of the evidence]; see also

People v. Potts (2019) 6 Cal.5th 1012, 1031 [“But the evidence

here was admitted, and its probative value bears on the

sufficiency of the evidence at trial”].) Sanchez error therefore

does not affect the sufficiency of the evidence to convict. Instead,

the question before us, as with any other erroneously admitted

hearsay, is whether the error in admitting that evidence was

prejudicial. Unlike a finding of insufficient evidence, a finding

of prejudice does not bar retrial of the overturned conviction.

(People v. Hernandez (2003) 30 Cal.4th 1, 6 [“As a general rule,

it is well established that if the defendant secures on appeal a

reversal of his conviction based on trial errors other than

insufficiency of evidence, he is subject to retrial”].) We evaluate

defendant’s claim of error from this perspective.

To prove defendant’s participation in a criminal street

gang, it was necessary for the prosecution to establish that the

Pacoima Flats gang qualified as a “criminal street gang” under

the governing statute, section 186.22. That statute defines

“criminal street gang” as a group “whose members individually

or collectively engage in, or have engaged in, a pattern of

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criminal gang activity,” among other requirements. (§ 186.22,

subd. (f).) In turn, a “pattern of criminal gang activity” is

defined as the commission of two or more specific enumerated

crimes, known as predicate offenses, by members of the gang.10

(§ 186.22, subd. (e).) The circumstances of such predicate

offenses are case-specific facts for purposes of Sanchez, and

expert testimony about them must be supported by competent

evidence. (People v. Valencia (2021) 11 Cal.5th 818, 839

(Valencia) [“facts concerning particular events and participants

alleged to have been involved in predicate offenses . . . constitute

case-specific facts that must be proved by independently

admissible evidence”].)

To establish the commission of the predicate offenses

constituting a pattern of criminal gang activity, Detective Booth

testified about his examination of documents maintained by the

Department of Corrections and Rehabilitation regarding the

crimes committed by four men he identified as members of the

Pacoima Flats gang. As defendant acknowledges, Booth’s

reliance on these materials to establish the commission of the

predicate offenses did not violate Sanchez because the

documents were admitted into evidence.11

Defendant persuasively argues, however, that Booth

relied on hearsay materials in testifying that the men who

committed these crimes were associated with the Pacoima Flats

10

Although section 186.22 has been amended since

Montemayor’s killing, the same elements existed at the time.

(See, e.g., People v. Zermeno (1999) 21 Cal.4th 927, 930 [citing

the definition of a “ ‘pattern of criminal gang activity,’ ” from the

then-current version of section 186.22, subd. (e)].)

11

Defendant has not challenged the propriety of the court’s

ruling in admitting this evidence, and we do not consider it.

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gang. Booth described the basis for his conclusion that each of

the four were gang members as an “investigation” of their

“backgrounds.” He did not describe the nature of the

investigations, other than that they involved a review of

documents maintained by local law enforcement. Although

Booth mentioned a few specific documents uncovered during the

investigation and explained their role in his conclusions, many

of the documents were not identified, and most of them appear

not to have been introduced into evidence. The documents he

identified that were in evidence — notably, four packets of

documents relating to the crimes from the Department of

Corrections and Rehabilitation — contain little or no

information relevant to the gang membership of the men who

committed the crimes. The admission of Booth’s testimony that

these men were members of the Pacoima Flats gang was

therefore erroneous under Sanchez.

We conclude, however, that the error was harmless under

either standard. (See Valencia, supra, 11 Cal.5th at p. 840.) In

People v. Turner (2020) 10 Cal.5th 786 (Turner), which provides

helpful guidance, an expert witness offered her opinion that a

fetus killed by the defendant was viable at the time of its death,

which was then an element of the crime of murder of a fetus.

The conclusion was based on the contents of an autopsy report

that was not admitted into evidence. We found admission of the

expert’s testimony on this point to have been in violation of

Sanchez. Because there was little other evidence in the record

to support the jury’s presumed finding that the fetus was viable

at the time of its death, we concluded that the defendant likely

would have been acquitted of this charge in the absence of that

testimony and reversed the fetal murder conviction. (Id. at

pp. 821–825.)

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A similar evaluation of prejudice here suggests two

separate but related inquiries. The first, as in Turner, is

whether there was sufficient evidence to support a finding that

the Pacoima Flats gang satisfied the statutory requirements for

a criminal street gang in the absence of Booth’s testimony about

the crimes of the four alleged gang members. If there was

insufficient evidence to convict in the absence of the erroneously

admitted testimony, the error cannot have been harmless. The

second inquiry, assuming sufficient evidence existed in the

absence of the error, is whether the jury’s judgment nonetheless

might have been different in the absence of Booth’s testimony.

With respect to proof of the predicate offenses, the

Attorney General argues that, in the absence of Booth’s

testimony, the jury would have been entitled to consider for this

purpose the crimes committed by defendant and Montemayor’s

killers, citing People v. Loeun (1997) 17 Cal.4th 1 (Loeun). The

defendant in Loeun and a fellow gang member each assaulted

and struck a person they believed to be a member of a rival gang.

(Id. at p. 6.) The jury convicted the defendant of assault with a

deadly weapon and found true an allegation that the crime was

committed for the benefit of a criminal street gang, despite the

absence of proof of any other crimes committed by alleged gang

members. (Id. at p. 7.) Acknowledging that the jury could

consider evidence of his own crime, the defendant argued that

“to establish the requisite ‘pattern of criminal gang activity,’ the

prosecution must in addition present evidence of at least

one prior offense of gang activity.” (Ibid, italics in original.) We

rejected the contention, finding the evidence at trial sufficient to

support the enhancement allegation. As we explained, section

186.22 “allows the prosecution the choice of proving the

requisite ‘pattern of criminal gang activity’ by evidence of ‘two

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or more’ predicate offenses committed ‘on separate

occasions’ or by evidence of such offenses committed ‘by two or

more persons’ on the same occasion. Therefore, when the

prosecution chooses to establish the requisite ‘pattern’ by

evidence of ‘two or more’ predicate offenses committed on a

single occasion by ‘two or more persons,’ it can, as here, rely on

evidence of the defendant’s commission of the charged offense

and the contemporaneous commission of a second predicate

offense by a fellow gang member.” (Id. at p. 10, italics in

original, fn. omitted; see also People v. Tran (2011) 51 Cal.4th

1040, 1046.)

Under Loeun, supra, 17 Cal.4th 1, the evidence of the

crimes committed by defendant, Macias, Martinez, and Lopez in

the course of the Montemayor killing was sufficient to support

the jury’s finding that the Pacoima Flats gang qualified as a

criminal street gang. One of those crimes, of course, was the

underlying homicide, a crime committed by defendant and all

three direct participants. Further, as demonstrated by this

jury’s true finding of the two special circumstances, each also

committed, at a minimum, attempted robbery and kidnapping.12

12

Even if the evidence admitted at trial was insufficient to

demonstrate that the three killers actually accomplished the

robbery of Montemayor, both attempted and completed crimes

qualify under section 186.22. (Id., subd. (e) [“ ‘pattern of

criminal gang activity’ means the commission of, attempted

commission of, conspiracy to commit, or solicitation of, . . . or

conviction of two or more of the following offenses . . . .”].) The

jury could have inferred from the evidence that Montemayor

traveled to the office that morning, opened the office, and was

kidnapped by the killers when they forced him to return home.

In light of the evidence that defendant was told Montemayor

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All of these crimes qualify as a predicate offense under section

186.22. (Id., subds. (e)(2), (3), (15).) Ample evidence established

that Macias and Martinez were members of the Pacoima Flats

gang, including defendant’s testimony that they were members

of the gang and the presence of their gang monikers with his on

his garage wall. Accordingly, even disregarding Booth’s

testimony, the record contained sufficient evidence of predicate

offenses committed by members of the Pacoima Flats gang to

satisfy section 186.22.

We further conclude that admission of Booth’s testimony

about the four individuals was harmless under either standard

for assessing prejudice. (See Valencia, supra, 11 Cal.5th at p.

840.) Wholly apart from evidence sufficient to satisfy the

statutory “pattern” requirement, voluminous evidence was

offered at trial suggesting that the Pacoima Flats gang operated

as a criminal gang. Defendant testified as much, describing for

the jury his role in the gang and its activities. As he

acknowledged, he acted as an informant for federal agencies

investigating the gang’s criminal activities, while acting as a

leader in the gang. Booth offered similar, unobjectionable

testimony. Because (1) the statute’s technical requirements

were satisfied by evidence of the crimes committed in connection

with Montemayor’s death and (2) there was copious other

evidence that the Pacoima Flats gang operated as a street gang,

the jury had no reason to hesitate in concluding that the

Pacoima Flats gang qualified as a criminal street gang under

kept cash in a can at his house, the jury could have inferred that

the killers’ purpose in forcing Montemayor to return home was

to rob him of that cash.

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the law. Exclusion of Booth’s testimony about the other four

purported gang members would not have changed this result.

5. The trial court did not abuse its discretion in

anticipating potentially objectionable assertions in

defendant’s opening statement

Prior to trial, the defense kept from the prosecution its

decision to present testimony by defendant, but defense counsel

disclosed this intent in confidence to the court. During an ex

parte hearing shortly before the parties were to deliver their

opening statements, the trial court discussed with defense

counsel an outline of his planned opening statement. The court

was concerned that a series of factual assertions contained in

the outline had no obvious evidentiary source other than

defendant’s planned testimony. As the trial court recognized,

the assertions might be viewed as objectionable by the

prosecution, given its ignorance of defendant’s intention to

testify and the absence of any other known witness competent

to testify about the assertions. In an effort to anticipate such

objections, the court suggested that the defense either

(1) disclose the potentially objectionable assertions to the

prosecution, (2) disclose defendant’s intent to testify, or (3) defer

its opening statement until the close of the prosecution’s case-

in-chief. Defense counsel elected to defer the opening statement.

Defendant now contends that the trial court rulings leading to

this decision constituted a prejudicial abuse of discretion.

We find no error. The trial court’s rulings were a

reasonable and proper attempt to prevent a likely disruption of

trial while preserving the confidentiality of defendant’s intent to

testify.

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a. Factual background

During pretrial proceedings, the prosecution lodged an

objection to a defense proposal to elicit testimony from law

enforcement officers Starkey and Rodriguez that defendant

reported the possible killing to them. The prosecution

contended that defendant’s statements to the officers were both

irrelevant and hearsay. After a lengthy but inconclusive

hearing on the objection, defense counsel asked for an ex parte

hearing in camera. There, counsel informed the court that

defendant intended to testify, a tactical decision that counsel did

not want to reveal to the prosecution. The court acknowledged

that the officers’ testimony might be admissible to corroborate

defendant’s testimony. The court declined to overrule the

prosecution’s objection on that basis, however, because “I don’t

know whether defendant [will] or will not take the stand until

such time as he actually gets sworn in,” given his constitutional

right not to testify.

When the matter arose again in open court, the trial court

ruled, without further explanation, that defendant’s statements

to Starkey and Rodriguez were inadmissible, but it couched the

ruling as open to reconsideration during trial, recognizing that

“there are several contingencies that could take place.” As a

result of the ruling, however, the court instructed the defense

that it could not refer, during its opening statement, “to any

alleged statement by the defendant to Starkey or Rodriguez.”

Defense counsel again asked for an ex parte hearing, at

which counsel reiterated the plan to present defendant’s

testimony. Although the court accepted counsel’s

representation, it continued to express the belief that a “legal

standard” prevented it from making any ruling premised on

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defendant’s testimony because defendant could not be assumed

to testify until he, in fact, took the stand. Over defense

objection, the court adhered to its ruling regarding opening

statement, although the court modified the ruling slightly to

permit counsel to tell the jury that defendant spoke to Starkey

and Rodriguez soon after speaking with Corona.

A week before the commencement of trial, the court had

asked both parties to submit “a brief summary of your opening

statement.” The court did not explain the purpose of the

request, but it appears to have been part of the court’s efforts to

organize and control the proceedings. On the day before opening

statements were to be given, the court requested an ex parte

hearing with defense counsel. During the hearing, the court told

counsel that it had reviewed the outline of defendant’s planned

opening statement.13 The court was concerned because “a large

portion of [the planned opening statement] is really predicated

on [defendant’s testimony], and the prosecution is not aware

that that’s going to take place. That’s going to trigger objections

during your opening statement . . . .”14 Further, the court

13

The court’s ex parte discussion of the outline with defense

counsel was unusual, but the procedure has not been challenged

by defendant. We make no ruling regarding the propriety of this

aspect of the court’s conduct.

14

The trial court’s concerns were well-founded. The outline

of an opening statement submitted to the court relied heavily on

defendant’s anticipated testimony. In addition to describing

Navarro’s report to Starkey and Rodriguez, it provided an

extended account of his work as an informant, including details

that were likely known only to defendant. Further, the outline’s

account of defendant’s dealings with Corona differed in some

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explained, it would sustain an objection to assertions in the

opening statement if no witness could be identified whose

testimony would support them. The court suggested that, in

order to maintain the confidentiality of defendant’s intent to

testify, “I’m prepared to defer your opening statement until the

prosecution completes their case-in-chief.” As the court noted,

“The only other alternative I would have is a disclosure at this

juncture and during your opening statement that you plan to

call the defendant and he will testify.”

During the ensuing discussion, the court identified several

matters in defendant’s proposed opening statement for which

there was no obvious evidentiary source other than defendant.

According to the court, these were found on a single page of the

confidential outline. As a possible means of obviating the need

to defer defendant’s opening statement, the court suggested that

defense counsel give the prosecution a copy of that page to

determine whether the prosecution objected to any of the

assertions. If the prosecution raised no valid objection, the court

noted, “then I’m going to leave the opening statement alone.”

Although objecting to this approach, defense counsel tentatively

agreed to the disclosure.15 At this point in the hearing, the court

respects from her own account, and defendant was the only

conceivable evidentiary source for these differences. Given the

defense’s decision not to disclose defendant’s intended

testimony, it was certainly possible, as the trial court feared,

that portions of the opening statement would be challenged by

the prosecution as unsupported by the testimony of known

witnesses.

15

This procedure would not necessarily have required the

defense to reveal to the prosecution its plan to call defendant as

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adjourned for lunch, with the express understanding that the

defense could consider its options during the break.

When the ex parte hearing resumed, defense counsel

immediately informed the court that, in light of its rulings, “I

think we would like to withdraw the proposed opening

statement that we intended to use and reserve the right to

present to the court a new and different opening statement

predicated upon what we hear in court from the People’s case-

in-chief, as well as what we intend to introduce on the defense.”

In response to a question from the court, counsel confirmed that

defendant had decided to defer his opening statement until

completion of the prosecution’s case-in-chief.

b. Discussion

“ ‘[T]he function of an opening statement is not only to

inform the jury of the expected evidence, but also to prepare the

jurors to follow the evidence and more readily discern its

materiality, force, and meaning.’ ” (People v. Gurule (2002)

28 Cal.4th 557, 610.) Although the assertions made in an

opening statement do not constitute evidence (Cox v. Griffin

(2019) 34 Cal.App.5th 440, 451), “the statement does offer a

‘story line’ into which the pieces of evidence should fit.” (People

v. Harris (1989) 47 Cal.3d 1047, 1085, fn. 19.) “[I]t is

requisite that when [a party] elects to make an opening

statement the facts shall be fairly presented by counsel, and that

there shall be no statement of facts which he cannot, or will not,

be permitted to prove.” (People v. Stoll (1904) 143 Cal. 689, 693–

694.) For that reason, counsel must have a good faith belief that

a witness, but the content of the outline would have made plain

defendant’s intent to testify.

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the assertions in an opening statement are supported by

evidence that is reasonably available and admissible. (Hawk v.

Superior Court (1974) 42 Cal.App.3d 108, 121 (Hawk).) This

principle is illustrated by People v. Romero (2007) 149

Cal.App.4th 29, which considered a claim that the trial court

erred in permitting the defense to refer to self-defense in its

opening statement only on the express condition that counsel

knew the defendant would testify. The Court of Appeal held the

condition appropriate because defendant and the deceased

victim were the only witnesses to the crime. “Without testimony

from [defendant], there would have been no evidence of the

circumstances which led to [the victim’s] death and hence no

evidence to support a finding of self-defense.” (Id. at p. 44.)

Under section 1044, the judge in a criminal trial has “the

duty . . . to control all proceedings during the trial, and to limit

the introduction of evidence and the argument of counsel to

relevant and material matters, with a view to the expeditious

and effective ascertainment of the truth regarding the matters

involved.” The statute “vests the trial court with broad

discretion to control the conduct of a criminal trial.” (People v.

Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) With

respect to closing argument, “the trial court retains the

discretion to ‘ensure that argument does not stray unduly from

the mark, or otherwise impede the fair and orderly conduct of

the trial.’ ” (People v. Rhoades (2019) 8 Cal.5th 393, 446.) We

see no reason why the same rule should not apply to counsels’

opening statements, with due regard for the different functions

of those two presentations. We review an exercise of the court’s

authority in controlling the trial for abuse of discretion. (People

v. Edwards (2013) 57 Cal.4th 658, 743.)

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Defendant first contends the trial court erred in ruling

that his attorney could not mention the content of defendant’s

communications with Starkey and Rodriguez in opening

statement. We need not review the merits of this ruling,

however, because it was never implemented. In defense

counsel’s opening statement, given at the close of the

prosecution’s case-in-chief, counsel was permitted, without

objection, to describe the content of defendant’s communications

with Starkey and Rodriguez. Further, it is not clear that the

court’s ruling regarding the content of defendant’s

communications with Starkey and Rodriguez was a dispositive

or even substantial factor in defendant’s decision to defer his

opening statement, which was motivated by an overarching

desire to keep from the prosecution knowledge of his plan to

testify. Even if the court had permitted mention of defendant’s

statements to Starkey and Rodriguez, the defense’s underlying

dilemma remained: The defense risked revelation of

defendant’s intent to testify because “a large portion” of

defendant’s planned opening statement, well beyond the

mention of his discussions with Starkey and Rodriguez, was

premised on defendant’s own testimony.16

16

Although we decline to review the merits of the trial

court’s ruling barring the defense from mentioning in opening

statement the content of defendant’s communications with the

detectives, we share defendant’s skepticism about the trial

court’s rationale. The court appeared to accept that the

communications would be admissible if defendant testified, but

it declined to adopt this justification because defendant had not

yet taken the stand. With respect to inclusion of the

communications in opening statement, however, the relevant

consideration appears to have been defense counsel’s good faith

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With more pertinence, defendant contends that the trial

court committed prejudicial error by forcing the deferral of his

opening statement until after the prosecution’s case in chief.

Preliminarily, we note that there is nothing unprecedented

about the deferral of an opening statement. As a matter of

tactics, criminal defendants are expressly authorized to defer

opening statement in this manner. (§ 1093, subd. (b)

[“defendant or his or her counsel may . . . make an opening

statement [at the beginning of trial], or may reserve the making

of an opening statement until after introduction of the evidence

in support of the charge”].)

We conclude that in making the rulings leading to deferral

of the opening statement, the trial court acted within the bounds

of its broad discretion to manage trial proceedings. The trial

court’s suggestion that it was prepared to defer the defense’s

opening statement was made in response to defendant’s resolve

not to inform the prosecution of his intent to testify. In the

ensuing discussions, the court presented counsel with a set of

choices. The defense could provide a copy of one page of the

outline of its opening statement to the prosecution to determine

whether the prosecution objected to statements in the outline,

or it could reveal defendant’s intent to testify, or it could defer

the opening statement. As the court told the defense, if the

prosecution expressed no objection to the outline, “[T]hen I’m

going to leave the opening statement alone.” As noted, counsel

initially agreed to provide a copy of the page to the prosecution.

It was only after his return from lunch that defense counsel

belief that defendant would testify to the communications.

(Hawk, supra, 42 Cal.App.3d at p. 121.) There seems little

question that counsel possessed such a belief.

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informed the court that defendant would defer his opening

statement.

We find no abuse of discretion in the trial court’s actions.

Defense counsel planned to make assertions in an opening

statement that had no disclosed evidentiary source. As the trial

court recognized, it was possible that the prosecution would

raise ostensibly well-founded objections to these assertions

because it was unaware of defendant’s intent to testify. Further,

the prosecution had previously secured favorable rulings that

appeared to cover at least some of the content of the proposed

opening statement. From the prosecution’s point of view, the

assertions would have been improper because they were not

supported by evidence that is reasonably available and

admissible. (See Hawk, supra, 42 Cal.App.3d at p. 121.) Such

objections, in turn, would have presented the trial court with the

choice either of overruling the objections based on the defense’s

ex parte communications about its trial strategy or sustaining

the objections despite its knowledge that defendant planned to

testify. Within those confines, the court would have had little

choice but to sustain the objections to avoid reliance on

confidential ex parte communications. At that point, the

defense would have been faced with the decision either of (1)

disclosing for the first time to the prosecutor and the jury its

plan for defendant to testify, (2) amending its opening statement

in light of the sustained objections, or (3) deferring its opening

statement. Its choices, in other words, would have been little

different from those presented to the defense by the court at the

ex parte hearing.

By presenting this set of choices to the defense prior to the

commencement of trial, the court sought to avoid the disruption

and possible prejudice to defendant that might have occurred

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had the objections been raised during defendant’s opening

statement. A trial judge has broad discretion in controlling the

conduct of a trial, and the court’s attempt to prevent disruption

on the first day of trial was well within that discretion. As the

court noted, if the prosecution did not object to the outline,

defendant’s opening statement could proceed as planned. If the

prosecution objected, the defense would need to take account of

those objections in the presentation of its opening statement.

Had the defense been confident that it could proceed with the

opening statement as planned without giving away defendant’s

intent to testify, it presumably would have been willing to share

the outline with the prosecution, as proposed by the court. The

defense’s decision to defer its opening statement, rather than

disclose the outline, suggests that defense counsel recognized

that giving the opening statement as planned was inconsistent

with preserving the confidentiality of defendant’s intent to

testify.

Defendant contends the trial court’s ruling was an

improper interference with defense counsel’s tactical decisions.

Any interference, however, was within the trial court’s broad

discretion. The trial court did not prevent defendant from giving

an opening statement or calling witnesses. Nor did it order

disclosure of defendant’s intent to testify or the contents of such

testimony. As discussed above, the trial court’s ruling merely

sought to anticipate and prevent a possible disruption of trial.

As a result of the court’s diligence, defense counsel had a

meaningful opportunity to consider the options the court made

available to avoid the disruption, and defendant chose the option

of deferring his opening statement until after the prosecution’s

case. That decision presumably reflected the defense’s view of

the best tactical course in dealing with the realities of trial,

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which made it difficult both to rely on defendant’s testimony in

opening statement and to keep confidential his intent to testify.

Defendant contends he was prejudiced by the deferral of

his opening statement, relying on a contemporary scientific

theory of communications. For the reasons discussed above, we

find no error in the trial court rulings that led to the deferral of

defendant’s opening statement, which attempted to

accommodate defendant’s desire to maintain as confidential his

intent to testify under the circumstances. We therefore have no

occasion to reach the issue of prejudice.17

6. The trial court’s discovery sanction was not

prejudicial

Defendant contends the trial court committed a

prejudicial abuse of discretion when it imposed a discovery

sanction that barred the defense from asking Detective

Rodriguez whether, during a pretrial interview with one of the

defense attorneys, Rodriguez said defendant told him about

Corona’s involvement in the solicitation of Montemayor’s

killing. We find it unnecessary to rule on the propriety of the

court’s sanction because, even presuming error, there was no

prejudice.

Defendant testified that he when he spoke with Rodriguez

following his solicitation by Corona, he told Rodriguez

“[e]verything that happened, how I met this girl, what she said

she was, and what she wanted to happen in Orange County.”

17

For similar reasons, we reject defendant’s contention that

the trial court’s action denied him due process of law. Due

process did not guarantee defendant the right to rely on the

substance of his own testimony in opening statement while

preserving the confidentiality of his intention to testify.

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When defense counsel asked Rodriguez about the same

conversations during his direct testimony, Rodriguez’s

recollection of the conversations was different. According to

Rodriguez, defendant called him to ask if he was interested in

“some type of a kidnap for ransom or a murder for hire case.”

Rodriguez recalled that defendant later said that “big

homies” — that is, persons in control of the Mexican Mafia —

were involved. When Rodriquez asked defendant “for suspect

information and who they thought the victim was going to be,”

defendant responded that “he didn’t really know at that point.”

A short time after this testimony, defense counsel asked

Rodriguez, “Did you tell [a member of the defense] that

[defendant] . . . said that some woman was behind this also

trying to get the defendant to do something?” Before Rodriguez

was able to answer, the prosecution objected, and the trial court

excused the jury. Asked by the court for a foundational offer of

proof, defense counsel told the court that Rodriguez spoke to one

of his co-counsel “at an earlier date, I think even three years

ago.” In that conversation, defense counsel told the court,

Rodriguez recalled defendant telling him “not only about the big

homies but there was some woman involved who was trying to

get him . . . to do something.” Counsel said that notes were

taken of the conversation, although, as discussed below, counsel

subsequently recanted that claim.

The prosecutor objected to the introduction of this

evidence because the defense had not provided any discovery

regarding Rodriguez’s communications with defense counsel

about his recollection of defendant’s statements. The trial court

noted that the defense had disclosed two reports concerning its

communications with Rodriguez, which the court and the

parties had reviewed during a conference immediately prior to

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Rodriguez’s testimony, but “that information is not contained in

those documents.” The court “accept[ed] the People’s

representation” that the defense had “not disclosed that to

them.” Defense counsel acknowledged that this information

might “inadvertently” have been “left . . . out.”

The court did not believe defense counsel’s claim that he

had made a good faith effort to comply with discovery

obligations, recounting prior instances in which the defense had

failed to disclose the contents of communications with Rodriguez

and noting that counsel had earlier expressed a reluctance to

comply with Roland v. Superior Court (2004) 124 Cal.App.4th

154 (Roland), then-new case law requiring the disclosure of oral

communications by potential witnesses with the defense,

including defense counsel. The court expressly found that the

failure to disclose “was not a good faith error” and prohibited the

defense from inquiring about Rodriguez’s communications with

the defense about defendant’s statements as a “sanction” for

failing to comply with Roland.

During the subsequent colloquy, defense counsel admitted

that he was by no means certain that Rodriquez had ever made

the statement attributed to him in the objectionable question.

Counsel “thought” co-counsel had mentioned the comment, but

he could not find any reference to it in his notes. He said that

co-counsel claimed to have heard Rodriguez make the statement

again during a meeting they held with Rodriguez the day before.

Defense counsel himself, however, did not “remember

[Rodriguez] exactly even saying that.” As the discussion

continued, counsel acknowledged that he was “not sure . . .

where exactly I got the information from. My recollection is, my

feeling was, it might have [come] from [Rodriguez].” Eventually,

counsel conceded, “[T]his might be a lot to do over nothing. He

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might not even have said that exactly. I don’t know if he said

that for sure or not. I’m asking a question, what else was said

basically is what I wanted to know.”

During subsequent cross-examination by the prosecution,

Rodriguez was asked directly whether defendant had told him

about Corona or her relationship with Vivar as well as many

other details surrounding the proposed killing known to

defendant, and Rodriguez responded that defendant had not.

Section 1054.3, subdivision (a), provides in relevant part:

“The defendant and his or her attorney shall disclose to the

prosecuting attorney: [⁋] (1) The names and addresses of

persons, other than the defendant he or she intends to call as

witnesses at trial, together with any relevant written or

recorded statements of those persons, or reports of the

statements of those persons.” In Roland, the Court of Appeal

interpreted the phrase “reports of the statements of those

persons” to require a defendant (and, reciprocally, the

prosecution) to disclose the content of any oral statements made

by a disclosed witness to the defense, including those made

directly to defense counsel. (§ 1054.3, subd. (a)(1); see Roland,

supra, 124 Cal.App.4th at pp. 165, 167.) Defendant argues we

should find the sanction imposed by the trial court improper

because (1) Roland was incorrect in requiring the disclosure of

the content of a witness’s oral statements to defense counsel or

(2) the trial court abused its discretion in concluding that

counsel violated section 1054.3 and in imposing the sanction.

We have previously declined to address the propriety of Roland

when the failure to disclose was harmless. (Thompson, supra, 1

Cal.5th at p. 1102.)

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We decline to resolve defendant’s contentions because the

trial court’s sanction was unquestionably harmless, whether

measured by the state law standard of Watson or the more

exacting federal constitutional standard of Chapman. The

content of defendant’s communications with Rodriguez was

unquestionably important to the defense, but the court’s

sanction in no way prevented counsel from asking about those

communications. Rather, the area of inquiry forbidden to the

defense was Rodriguez’s conversations with defense counsel

about his communications with defendant. The detective’s

conversations with defense counsel were irrelevant to the trial,

except as a means of impeachment or as an aid to memory.

Their potential value in even that role, however, was limited.

Because the defense had no notes reflecting Rodriguez’s

purported comments and counsel disavowed any intent to put

co-counsel on the stand to dispute Rodriguez’s version, the

defense had little ability to challenge a denial by Rodriguez that

he made the claimed remarks to co-counsel. In a declaration

subsequently submitted to the court, Rodriguez was, in fact,

quoted as denying that he had told co-counsel that defendant

had mentioned Corona.18

18

The denial was contained in a declaration submitted to the

court in connection with the prosecution’s opposition to

defendant’s motion to reconsider the denial of a request to recall

Rodriguez. In the declaration, an investigator for the

prosecution stated: “I told Rodriguez that the defense was now

saying that Rodriguez wanted to change his testimony. [¶]

Rodriguez rolled his eyes and said that all that happened in the

hallway was that [co-counsel] had asked him whether he

remembered Navarro telling him, during the pre-October

conversations, that a woman was trying to drag him into a crime

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Further, the inquiry barred to defense counsel was

revealed to be little more than a fishing expedition when he

conceded that he did not know whether Rodriguez had ever

made the statement attributed to him. As counsel eventually

acknowledged, “I don’t know if he said that for sure or not. I’m

asking a question, what else was said basically is what I wanted

to know.” The court’s sanction did not preclude defense counsel

from asking that question — “what else was said” by defendant

to Rodriguez. Finally, as noted, the prosecution thoroughly

explored just that issue on cross-examination, and Rodriguez

expressly testified that defendant did not tell him about

Corona’s relationship with Vivar or her solicitation of the

killing. Given these circumstances, the trial court’s sanction

precluding the defense from asking Rodriguez about his

conversation with co-counsel was harmless beyond a reasonable

doubt.19 (Chapman, supra, 386 U.S. at p. 24; see People v.

Aledamat (2019) 8 Cal.5th 1, 3–4.)

that had been set up by the big homies. Rodriguez said that he

told [co-counsel] ‘no,’ he did not remember that. Rodriguez said

[co-counsel] then asked him ‘if it was possible’ that Navarro had

said that to him sometime prior to October. Rodriguez said he

told [co-counsel] that he supposed it was literally possible that

Navarro had told him that, but that he had no such recollection.”

19

In general terms, defendant contends the trial court’s

sanction denied him a litany of constitutional rights, including

“appellant’s right to due process of law under the Fifth and

Fourteenth Amendments, his Sixth Amendment right to

counsel, and his Eighth Amendment right to a reliable guilt and

penalty judgment.” For the reasons discussed, we find no

violation of defendant’s federal constitutional rights.

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7. The trial court did not err in excluding defendant’s

post-arrest statements to Rodriguez

Defendant contends the trial court erred in excluding

statements by Rodriguez regarding a conversation with

defendant following defendant’s arrest for Montemayor’s

murder. We find no error.

During redirect of Rodriguez, defense counsel asked about

a conversation Rodriguez had with defendant after he was jailed

for the Montemayor killing. Following a hearsay objection, the

trial court excused the jury and questioned Rodriguez

concerning the conversation. Rodriguez said that he went to the

jail with the intent of meeting with defendant and “clos[ing] out”

the file associated with defendant’s work as an informant.

During their meeting, defendant explained his presence in jail

by reference to his earlier conversations with Rodriguez, saying

“[Y]ou remember me telling you about this kidnap case?”

Defendant then referred, in Rodriguez’s recollection,

“specifically [to] a female and . . . the big homies.” The mention

of a “female” was significant because Rodriguez’s and

defendant’s accounts of their conversations prior to the killing

had differed in this respect. Defendant contended he had told

Rodriguez about Corona; Rodriguez did not recall defendant

mentioning a woman. Defense counsel argued that evidence of

defendant’s post-arrest statement to Rodriguez should be

admitted as a prior consistent statement, but the trial court

excluded it as hearsay.

We find no abuse of discretion in the court’s ruling.

Because defendant’s statement to Rodriguez was made

following his arrest, its primary relevance to the case at hand

was to demonstrate that defendant told Rodriguez about Corona

when he first contacted Rodriguez — that is, it was being offered

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for its truth to bolster defendant’s assertion on the stand that he

had told Rodriguez about Corona prior to his arrest. The

statement was therefore inadmissible hearsay, unless subject to

an exception. Evidence Code section 791, subdivision (b) does

allow admission of this type of hearsay, a prior consistent

statement of a witness, but the exception is available only if “the

statement was made before the bias, motive for fabrication, or

other improper motive is alleged to have arisen.” (See, e.g.,

Dalton, supra, 7 Cal.5th at p. 234.) By the time of defendant’s

arrest for the Montemayor killing, a motive for fabrication had

plainly arisen. We therefore find no abuse of discretion in the

trial court’s exclusion of the statement as hearsay. (People v.

Edwards (1991) 54 Cal.3d 787, 820.)

Defendant contends the statement was not hearsay

because it was offered to prove that “appellant had disclosed the

plot to Rodriguez.” The contention does not avoid the hearsay

problem. It is true that the statement was not hearsay if the

purpose of its admission was to prove that defendant informed

Rodriguez of the plot at the time the statement was made, after

defendant had been jailed. For that purpose, however, the

statement was excludable as irrelevant; defendant does not

contend that his post-arrest disclosure to Rodriguez had

probative value independent of its confirmation of his pre-arrest

statements. As defendant acknowledges, “what mattered was

that he had told one of his law enforcement handlers about the

plot in advance.” If admitted for that purpose, however, the

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statement was being offered to prove its truth and, as discussed

above, was properly excluded as hearsay.20

8. The trial court’s other challenged evidentiary

rulings were largely correct or did not prejudice

defendant

a. Defendant’s additional hearsay claims fail

Defendant contends the trial court erroneously sustained

hearsay objections to three questions. We find no prejudicial

error.

First, defendant contends that the trial court incorrectly

sustained a hearsay objection to a question asked of Rodriguez

about his encounter with defendant in jail following defendant’s

arrest for the Montemayor killing. Defense counsel asked, “Did

[defendant] confirm that he was [in jail] for this robbery-murder

that he was trying to tell you about in July?” Defendant argues

that “[n]either the fact that [defendant] had been arrested for a

robbery-murder nor the fact that the offense was the same one

[defendant] had told Rodriguez about in July or August were

offered to prove the truth of those facts but instead to show that

[defendant] had made the statements.”

We find no abuse of discretion in the court’s ruling. As

noted above, defendant’s post-arrest statements in jail about his

earlier conversations with Rodriguez were irrelevant to the

trial, except to corroborate his trial testimony about those

earlier conversations. Defendant’s “confirmation” to Rodriguez

that he was in jail in connection with the same incident “that he

20

Because there was no error under state evidence law,

defendant’s federal constitutional claim fails as well. (People v.

Seumanu (2015) 61 Cal.4th 1293, 1311.) The same is true of

each of defendant’s unsuccessful claims of evidentiary error.

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was trying to tell you about in July” was relevant only to prove

that he had told Rodriguez about the possible killing in July,

prior to its occurrence. In that role, the confirmation would have

been offered to prove its truth. Defendant argues that the

statement was offered to prove Rodriguez’s knowledge, but the

argument does not help his claim. Rodriguez’s knowledge of

defendant’s statement was irrelevant, except to the extent that

his knowledge confirmed defendant’s making of the statement.

Second, defendant contends, and we agree, that the trial

court erred in preventing him, on hearsay grounds, from asking

Rodriguez about questions posed by defendant’s wife during

telephone calls with Rodriguez. Defendant believed that the

nature of the questions would demonstrate that his wife was

sexually jealous of defendant. We agree with defendant that it

is difficult to imagine how the wife’s questions could constitute

objectionable hearsay. (See, e.g., People v. Jurado (2006) 38

Cal.4th 72, 117 [“The request for the gun, by itself, was not

hearsay, however, because an out-of-court statement is

hearsay only when it is ‘offered to prove the truth of the matter

stated.’ [Citation.] Because a request, by itself, does not assert

the truth of any fact, it cannot be offered to prove the truth of

the matter stated”].) The court’s ruling was not, however,

prejudicial because defendant was able to obtain equivalent

information merely by asking Rodriguez directly whether

defendant’s wife appeared to be jealous. Rodriguez confirmed

that she appeared to be “extremely” jealous. Defendant does not

point to any additional material information he was prevented

from obtaining by the court’s ruling; the only other topic,

defendant’s relocation to Las Vegas prior to the killing, was

proved by other evidence.

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Finally, the trial court erred in precluding any inquiry into

the nature of telephone calls between defendant’s wife and his

mother on hearsay grounds. Because the purpose of defendant’s

questions was not to prove the truth of any particular statement

made by either participant during these calls, but rather to show

through defendant’s wife’s comments that she was attempting

to find defendant, counsel’s questions did not seek hearsay

testimony. Through persistence, however, defense counsel was

able to establish that the purpose of these calls was to locate

defendant. The court’s error was therefore harmless.

b. The evidence of gang activities was not excessive

Defendant contends the trial court permitted the

admission of “far more gang-related evidence than was

necessary for the prosecution’s case.” We find no abuse of

discretion in the trial court’s rulings.

Defendant asserts the trial court erred in permitting the

gang expert, Detective Booth, to testify regarding certain gang

behavior patterns that, he maintains, were not directly raised

by the present case — for example, the connection to a

particular geographic territory, the ways in which members are

admitted to the gang, the value afforded violent acts within the

gang, and the manner in which gangs control their territory.

Defendant argues that because this was “not a typical gang

case,” which he characterizes as “a drive-by shooting of rival

gangs, or defense of turf, or violence for the sake of

intimidation,” but instead was a “murder for hire,” such

evidence served no purpose other than to engender bias.

We find no abuse of discretion in the trial court’s refusal

to exclude such evidence as more prejudicial than probative

under Evidence Code section 352. Although, as defendant

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argues, this might not have been the type of crime associated in

the public mind with street gangs, it was undoubtedly a product

this type of organized crime. Montemayor’s killing was

accomplished by three men acting in concert, while in regular

communication with other interested persons. The motive for

the crime was unclear, although various possibilities were

raised. Booth’s testimony about the behavior of street gangs,

the relations among gang members, and their values placed the

killers’ conduct in context, served to explain why three young

men who had no known connection to the victim would commit

such a serious crime with no apparent guarantee of financial

gain. We find no error in its admission.

c. The materials seized from Martinez’s residence

were relevant

Defendant next contends the trial court abused its

discretion in permitting the introduction of items seized from

the home of one of the killers, Martinez. These items included

(1) a paper containing doodles, along with the writings “Crook”

and “Pacoima Flats,” (2) photographs of Macias and Martinez,

and (3) a notebook containing the telephone numbers of Macias

and Lopez. Although these materials did not relate directly to

defendant, they were probative of the relationships among the

individuals and their connection to the Pacoima Flats gang.

There was no abuse of discretion in their admission.

d. The evidence of predicate offenses was not

excessive

Defendant also contends the trial court abused its

discretion in permitting the prosecutor to introduce evidence of

more than the minimum number of predicate offenses necessary

to demonstrate a pattern of criminal activity under section

186.22, subdivision (e).

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The prosecution alleged a special circumstance under

section 190.2, subdivision (a)(22), which requires that the

murder occur “while the defendant was an active participant in

a criminal street gang” and be “carried out to further the

activities of the criminal street gang.” As discussed above, a

criminal street gang is statutorily defined, in part, as an

association of at least three persons who have engaged in “a

pattern of criminal gang activity.” (§ 186.22, subd. (f).) A

pattern of criminal gang activity, in turn, requires a

demonstration that the alleged gang has committed “two or

more” of a series of specified crimes. (§ 186.22, subd. (e).) In

theory, therefore, it was necessary for the prosecution to prove

the commission of only two of the listed crimes to demonstrate

this element of the special circumstance.

Booth was permitted to testify regarding the commission

of three predicate offenses by three different gang members

before defendant objected under section 352 that proof of

additional predicate offenses was more prejudicial than

probative. In ruling on the objection, the trial court first noted

that defendant had failed to object to this testimony when it was

disclosed in outline form prior to Booth’s testimony. The court

then denied the objection on the merits, ruling that it was

“prepared to give the [prosecution] some latitude” in proving the

elements of the special circumstance. Booth then presented

evidence of one additional crime, a robbery committed by a

fourth gang member.

Defendant argues the trial court abused its discretion in

allowing evidence of “twice as many predicate crimes than were

needed.” We find no abuse of discretion. The prosecution had

the burden of proving to the satisfaction of the jury that the

Pacoima Flats gang was a criminal street gang, as defined in

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section 186.22. As part of that burden, the prosecution was

required to demonstrate that the alleged gang had participated

in a “ ‘pattern of criminal activity,’ ” which required the

commission of “two or more” of the predicate offenses. (§186.22,

subd. (e), italics added.) Two predicate offenses is therefore the

minimum that the prosecution was required to prove, but proof

of more than the minimum was consistent with this statutory

language. Further, the prosecution was required more

generally to prove that the Pacoima Flats gang qualified as a

“ ‘criminal street gang,’ ” defined in part as “any ongoing

organization, association, or group . . . having as one of its

primary activities the commission of one or more of” the

predicate offenses listed in subdivision (e). (§186.22, subd. (f).)

In making a case under this provision of subdivision (f), the

prosecution may need to introduce more than the bare minimum

of predicate offenses to ensure that the jury is provided with a

reasonable account of the “primary activities” of the gang. Like

the trial court, the courts of appeal have recognized that

prosecutors must be given some latitude in this regard and have

refused to impose an “artificial” numerical limit on the number

of predicate offenses that may be proved. (People v. Hill (2011)

191 Cal.App.4th 1104, 1139 [not error to allow proof of eight

predicate offenses].)

Section 352 serves as a brake on such proof, limiting it to

a number of predicate offenses that is not more prejudicial than

necessary to make the case under the elements of section 186.22.

We find no abuse of discretion in the trial court’s conclusion that

evidence of four predicate offenses was not excessive,

particularly because there was no contention that any of the

predicate offenses mentioned by Booth involved defendant.

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9. The trial court did not abuse its discretion in

denying an adjournment to permit counsel to

interview an FBI witness

Defendant contends the trial court erred in declining to

delay trial proceedings to give defense counsel an opportunity to

interview an FBI agent who had appeared to testify. We find no

error.

Defendant called FBI agent Curran Thomerson to testify

about defendant’s work as an informant. The FBI had declined

to make Thomerson available to the parties prior to his

appearance to testify. Reports concerning defendant’s work

with the FBI had been produced to the defense, however, and

the parties were informed that Thomerson would be made

available to testify concerning the matters disclosed in the

reports.

On the morning of Thomerson’s testimony, defense

counsel was apparently able to speak privately with him for a

few minutes prior to the commencement of trial. When the case

was called, counsel asked the court for an additional fifteen

minutes with Thomerson for the purpose of “see[ing] what areas

we are going to concentrate on.” The court denied the request,

noting that “you already know what testimony you’re going to

elicit from this witness concerning the relationship of your client

to the FBI, and you’ve been provided adequate discovery for that

purpose.”

Toward the end of Thomerson’s testimony, during a break

in the proceedings, the court asked defense counsel whether

there was “any area [of testimony] that you think that you

haven’t had a chance to inquire into.” Counsel renewed his

request for additional time to speak privately with Thomerson,

explaining that he wanted to go over the reports produced to the

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defense. Counsel suggested that the court take an early lunch

break. The court denied that request, but it permitted defense

counsel a “few minutes” with Thomerson to clarify a specific

issue identified by counsel. The court explained that counsel’s

request “to go over the reports . . . in detail with the witness”

was denied because, “essentially, I think everything that you

wanted to give to the jury in the guilt phase dealing with his

relationship with the FBI has, in fact, been presented fully.”

Without articulating a specific legal theory or pointing to

an offer of proof made in the trial court, defendant contends the

trial court’s refusal to delay the trial to give counsel additional

time with Thomerson “hampered [his] ability to present his

defense.” We are unaware of any principle of law that would

have required the trial court to adjourn the trial to permit

counsel to interview Thomerson. The trial court has broad

discretion to carry out its “duty” under section 1044 to “control

all proceedings during [a criminal] trial, . . . with a view to the

expeditious and effective ascertainment of the truth regarding

the matters involved.” (§ 1044; see Hernandez, supra, 33

Cal.4th at p. 1048.) Counsel was seeking, in effect, a brief

continuance of trial to permit him to interview Thomerson.

“ ‘[T]he decision whether or not to grant a continuance of a

matter rests within the sound discretion of the trial court.

[Citations.] The party challenging a ruling on a

continuance bears the burden of establishing an abuse of

discretion, and an order denying a continuance is seldom

successfully attacked.’ ” (People v Fuiava (2012) 53 Cal.4th 622,

650.) On the other hand, “the trial court may not exercise its

discretion ‘so as to deprive the defendant or his attorney of a

reasonable opportunity to prepare.’ ” (People v. Doolin (2009) 45

Cal.4th 390, 450.)

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Defendant has failed to establish that the trial court

abused its discretion or violated his constitutional rights by

denying the request for a brief continuance. There was no

general claim that defendant lacked sufficient time to prepare

his defense. The only complaint involved this specific witness,

Thomerson. As the trial court found, defendant was provided

with detailed reports on the subject of Thomerson’s testimony

sufficiently in advance to allow preparation. Further, the trial

court did permit defense counsel a few minutes with Thomerson

in advance of his testimony and an additional opportunity to

speak with him regarding the single specific issue about which

counsel expressed uncertainty. The trial court merely denied

defense counsel the post hoc opportunity to review with the

witness the reports of defendant’s work to, as counsel phrased

it, “find out what else he left out [of the reports].” As defendant

concedes in his brief, “[t]here may have been little more that

[defense counsel] could have gleaned from meeting with

Thomerson.” Particularly given defendant’s opportunity to

review these reports well in advance of Thomerson’s appearance

and the abundance of evidence introduced relating to

defendant’s activities as an informant, we find no abuse of

discretion in the trial court’s decision to push ahead with trial.

Defendant also contends the trial court abused its

discretion in denying his motion to admit the entirety of the FBI

reports into evidence. Those reports consisted largely of the logs

made by law enforcement of their contacts with defendant in the

course of his work as an informant. Well in advance of

Thomerson’s testimony, the trial court told counsel that “the

nature and the quality of [defendant’s cooperation with law

enforcement] is relevant and viable.” But the court noted that

the logs themselves “appear[] to be unduly time consuming and

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not relevant in many respects.” Despite the court’s request that

defense counsel prune the reports to redact extraneous

materials, counsel identified for redaction only a recitation of

defendant’s arrests and mentions of two attorneys suspected of

criminal conduct when offering the reports into evidence.

Consistent with its earlier expressed concern that the reports

“contain[] many entries that are extraneous to the particular

case,” the court denied the motion, reasoning that “the pertinent

portions have been given to the jury in the form of testimony.”

We find no abuse of discretion in the trial court’s decision

to exclude the reports of defendant’s activities as an informant.

The specific details of his work were, after all, peripheral to the

trial. The critical issue was to demonstrate that defendant was,

for a significant period of time, a useful and effective informant

for law enforcement, and the lengthy testimony of defendant

and his handlers conclusively established this. Further, as the

trial court noted, the “pertinent portions” of the reports were the

subject of live testimony. The additional details contained in the

reports were of marginal relevance, and the trial court acted

well within its discretion in concluding that this evidence was

more likely to distract than inform.

Defendant suggests the trial court’s ruling deprived him

of a fair trial because it excluded evidence “critical” to his

defense. (See Chambers v. Mississippi (1973) 410 U.S. 284, 302.)

As the trial court noted, however, the pertinent evidence

contained in the reports was presented to the jury through the

testimony of defendant and his handlers. Defendant identifies

no material, let alone critical, evidence contained in the reports

that was not the subject of live testimony.

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Defendant’s appellate brief characterizes the rulings

challenged in this section as reflecting the trial court’s bias

against the defense. Defendant does not attempt to make a

serious demonstration of judicial bias, and we find no evidence

of bias in the foregoing rulings. “[A] trial court’s numerous

rulings against a party — even when erroneous — do not

establish a charge of judicial bias, especially when they are

subject to review.” (People v. Guerra (2006) 37 Cal.4th 1067,

1112.)

Finally, we reject defendant’s claim that the challenged

evidentiary rulings were cumulatively prejudicial. As discussed

above, we have found no significant error in the trial court’s

rulings, and any errors that did occur had no bearing on the

jury’s judgment, whether considered alone or together.

10. Defendant’s claims of prosecutorial misconduct

lack merit

a. The prosecutor’s leading questions were not

improper

Defendant contends the prosecutor committed prejudicial

misconduct when he “repeatedly prevented [defendant] from

giving complete answers to his questions, engaged in . . .

repeated argumentative questions and sarcastic comments, and

engaged in questioning which had been precluded in a pretrial

hearing.” We find no misconduct.

“ ‘A prosecutor commits misconduct when his or her

conduct either infects the trial with such unfairness as to render

the subsequent conviction a denial of due process, or involves

deceptive or reprehensible methods employed to persuade the

trier of fact.’ [Citation.] ‘As a general rule a defendant may not

complain on appeal of prosecutorial misconduct unless in a

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timely fashion — and on the same ground — the defendant

made an assignment of misconduct and requested that the jury

be admonished to disregard the impropriety.’ ” (People v.

Silveria and Travis (2020) 10 Cal.5th 195, 306.) “[T]o establish

reversible prosecutorial misconduct a defendant must show that

the prosecutor used ‘ “deceptive or reprehensible methods” ’ and

that it is reasonably probable that, without such misconduct, an

outcome more favorable to the defendant would have resulted.”

(People v. Caro (2019) 7 Cal.5th 463, 510.)

Defendant first cites a series of six leading questions

asked during the prosecution’s cross-examination of defendant.

Each time, the prosecutor, after hearing defendant’s negative

response to the question, cut defendant off as he tried to explain

his denial and moved to strike defendant’s partial, attempted

explanation. The trial court sustained each request to strike,

noting that the defense could allow defendant to explain his

answers during redirect examination.

The Attorney General argues defendant forfeited any

claim of prosecutorial misconduct by failing to object and

request an admonition. Defendant did, however, repeatedly

object to the prosecutor’s conduct. Because the trial court

clearly condoned the prosecutor’s approach to cross-

examination, any request for an admonition would appear to

have been futile. (See Flores, supra, 9 Cal.5th at p. 403 [defense

need not object and request an admonition when to do so would

have been futile].)

On the merits, we find no misconduct by the prosecutor,

and defendant cites no legal authority suggesting an

impropriety. The prosecutor’s insistence on a yes or no answer

to his leading questions is an accepted convention of cross-

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examination. Generally, “[a] witness must give responsive

answers to questions, and answers that are not responsive shall

be stricken on motion of any party.” (Evid. Code, § 766.) When

a question calls for a yes or no answer, the attempt to append

an explanation to the answer is, strictly speaking,

nonresponsive. (E.g., People v. Davis (1963) 217 Cal.App.2d 595,

598 [“A general question alluding to a meeting at another ‘time’

at a given place does not invite the witness to include that which

happened on the occasion in his answer. The motion to strike

should have been granted as to all that portion of the answer

after the word ‘yes’ ”].) The practice can be subject to abuse if,

for example, a prosecutor asks questions premised on assumed

facts for which the prosecutor has no good faith basis. But that

type of abuse is not alleged here. The prosecutor’s questions

were based on a reasonable reading of the evidentiary record.

Defendant was given the opportunity, in the first instance, to

deny the questions’ implicit accusations. Defendant had the

opportunity to explain those denials on redirect examination. In

these circumstances, we do not find the prosecutor’s conduct to

have been so unfair as to deny due process to defendant.

b. The prosecutor’s allegedly aggressive cross-

examination did not rise to the level of

misconduct

As a second example of prosecutorial misconduct,

defendant cites a series of questions during the prosecutor’s

cross-examination of him that, he contends, constituted

testimony or were argumentative or sarcastic or “denigrated

[defendant’s] testimony and character.” Defendant failed to

preserve this claim by registering an objection on this ground

and seeking an admonition. Further, the prosecutor’s

aggressive questioning did not constitute misconduct.

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“A prosecutor is permitted wide scope in the cross-

examination of a criminal defendant who elects to take the

stand.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1147

(Gutierrez).) “When a defendant voluntarily testifies in his own

defense the People may ‘fully amplify his testimony by inquiring

into the facts and circumstances surrounding his assertions, or

by introducing evidence through cross-examination which

explains or refutes his statements or the inferences which may

necessarily be drawn from them.’ ” (People v. Harris (1981) 28

Cal.3d 935, 953.) Generally, as we explained in People v.

Armstrong (2019) 6 Cal.5th 735, “A prosecutor may honestly

urge that a defendant lied. Convincing the jury that he did so is

a potent weapon.” (Id. at p. 797.)

Defendant forfeited these claims of prosecutorial

misconduct. Although defendant did object to many of the

questions on evidentiary grounds, he did not do so on grounds of

prosecutorial misconduct, nor did he seek an admonition from

the court regarding this type of conduct.21

21

As to some of defendant’s claims, this failure makes it

impossible to determine whether the prosecutor’s questions

were improper. On one cited instance, the prosecutor attempted

to demonstrate that an occasion of cooperation with law

enforcement by defendant, which occurred several years before

trial, was undertaken for the purpose of gaining leniency. The

prosecutor asked, “What actually happened is a couple days

later [the arresting officer] went down and talked to a court

commissioner that your case was going to be in front of” to

secure defendant’s release. Defense counsel unsuccessfully

objected that “[c]ounsel is testifying,” but he did not otherwise

contest the question. The question was not improper, however,

merely because evidence supporting its factual premise was not

at that time contained in the trial record, so long as the

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Even if these claims were not forfeited, we would not find

this aspect of the prosecutor’s manner of cross-examination to

constitute misconduct. Defendant provides details of eleven

separate incidents. An example is the prosecutor’s cross-

examination regarding defendant’s decision to become an

informant. When defendant said he was “tired” of gang life, the

prosecutor responded, “So in response to being tired of the gang

life, you signed up to be a rat.” When defendant said he chose

that course rather than moving away because he was not

“financially set,” the prosecutor responded, “That’s a good topic

for conversation. Being an informant offer[ed] monetary

rewards, didn’t it?” Defendant acknowledged that he needed to

support himself, to which the prosecutor responded, “Support

yourself by turning in friends like Philip Sanchez, is that right?”

When defendant answered affirmatively, the prosecutor

followed, “Is that how you view this, I’ll trade my friends in so I

can have a few dollars for myself?”

In a similar vein, when defendant said he did not

remember what he meant when writing in a letter, “I got five

signatures,” the prosecutor responded sarcastically, “Did you go

to Dodger Stadium, get the autographs of five ballplayers?”

When defendant answered he had no idea what the question

meant, the prosecutor asked rhetorically, “If the author doesn’t

know, how are we to know?” Soon after, when defendant

acknowledged that one purpose in writing the letter was to

convince the recipient that he was still the llavero in his

prosecutor had a good faith belief in the truth of the premise.

Because defendant did not seek an offer of proof, however, we

have no way of knowing the basis for the prosecutor’s question

and, consequently, have no grounds to evaluate its propriety.

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territory, the prosecutor responded, “That’s what your whole life

was about, was keeping up that appearance, right?” When

defendant responded that, no, he was trying to find out

information, presumably to relay to law enforcement, the

prosecutor again employed sarcasm, asking, “You were very,

very motivated to stop crime, weren’t you?”

Defendant also highlights “aggressive” cross-examination

about his actions immediately following the murder. After

defendant acknowledged that, upon first hearing press reports

of the Montemayor’s killing, he did not contact Starkey or

Rodriguez to tell them what he knew, the prosecutor asked,

“[W]hy not?” Defendant answered, “I don’t know. I don’t know.”

The prosecutor responded, “That’s the best you can do for us?”

To bring the point home, the prosecutor followed up, “This is

your whole defense, isn’t it? . . . That you were an informant

and you were trying to stop this murder, and somehow you got

tossed up in this and you’re wrongly accused. Isn’t that your

defense?” When defendant then said he did not remember

whether he called Rodriguez at that time, the prosecutor

responded, “Let me give you some time. Think about it. Give

us a better answer than that, if you can.” The prosecutor

followed up, “Isn’t it because you were involved in the murder?”

As these examples illustrate, the prosecutor’s questions

were sometimes sarcastic and aggressive. His approach,

however, was not unfair or deceptive. The questions cited by

defendant generally constitute fair, if forceful, comment on

inconsistencies and improbabilities in his testimony.

Accordingly, they were not outside the “wide scope” permitted in

the cross-examination of a criminal defendant who elects to take

the stand. (Gutierrez, supra, 28 Cal.4th at p. 1147.) We find no

misconduct.

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c. The prosecutor’s reference to Summer Sherwood

was not prejudicial

During the prosecutor’s cross-examination of defendant,

the questioning turned to communications between male and

female inmates during defendant’s pre-trial detention,

accomplished using piping in the jail. The prosecutor

established that defendant had engaged in the practice and

asked whether he still had communications with female

inmates. Defendant answered that he had gotten tired of it and

stopped. To the prosecutor’s inquiry when he stopped,

defendant answered, “After speaking to some girl named

Summer.” The prosecutor took this as a reference to Summer

Sherwood, who was eventually sentenced to prison for

threatening Corona to discourage her from testifying against

defendant in this matter. Upon defendant’s answer, the

prosecutor responded, “Oh, the girl who went upstate for

threatening Mira Corona?” This appears to have been the first

mention of Sherwood at trial.

Defendant objected and immediately moved for a mistrial,

contending the question constituted “intentional prosecutorial

misconduct.” In a subsequent colloquy, the prosecutor said that

he had no intention of introducing evidence of Sherwood’s

conviction prior to defendant’s mention of her name, but “[N]ow

that [defendant] has volunteered his connection to Summer Star

Sherwood it was something I was thinking of doing.” The court

took defendant’s motion for a mistrial “under submission”

pending the prosecutor’s decision. Defense counsel did not ask

to strike the question nor seek a jury admonition, and the

prosecution never presented further evidence regarding

Sherwood.

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We agree with defendant that the prosecutor’s question

appears to have been improper, although we do not accept his

proffered rationale. It is “well established that the prosecuting

attorney may not interrogate witnesses solely ‘for the purpose of

getting before the jury the facts inferred therein, together with

the insinuations and suggestions they inevitably contained,

rather than for the answers which might be given.’ ” (People v.

Wagner (1975) 13 Cal.3d 612, 619; see also People v. Visciotti

(1992) 2 Cal.4th 1, 52 [“a prosecutor may not examine a witness

solely to imply or insinuate the truth of the facts about which

questions are posed”].) It is clear from the proceedings that the

prosecutor had no intention, at the time he questioned

defendant, of actually proving Sherwood’s crime and

demonstrating its relevance to this matter. He appears to have

asked the question solely for the improper purpose of suggesting

to the jury that the woman with whom defendant acknowledged

speaking had been imprisoned for threatening Corona.

Although we recognize that the prosecutor’s question was

likely improper, it did not constitute prosecutorial misconduct;

the question was neither deceptive nor reprehensible, nor did it

infect the trial with such unfairness as to render the subsequent

conviction a denial of due process. It was a single, unanswered

question and an isolated reference to a matter only tangentially

related to the issues at trial. It undoubtedly had no effect on the

jury’s verdict.

d. The prosecutor’s questions regarding the reason

for the killers’ assault on defendant were proper

When defendant was incarcerated awaiting trial, two of

the killers, Lopez and Macias, attacked him with homemade

blades when the three were placed together in a holding cell.

Defendant testified that he had been the subject of a “green

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light” — an order from the highest levels of the Mexican Mafia

for his death — for some months prior to the Montemayor

killing, due to rumors of his work as an informant. He believed

the stabbing occurred pursuant to the green light. The

prosecution, by contrast, hoped to prove that the assailants had

learned of defendant’s work as an informant from discovery

produced during their murder prosecutions and sought revenge

on their own, rather than in response to orders from superiors

in the gang. The defense objected to the admission of evidence

supporting this theory as speculative and, in proceedings prior

to trial, sought to preclude it. The trial court reserved judgment

on the admission of the prosecution evidence, but it directed the

prosecution not to mention this theory in its opening

statement.22

The matter came to a head during the prosecution’s cross-

examination of defendant. The prosecution had changed its

theory by this time, postulating that Macias and Lopez sought

revenge because they learned from discovery in their

prosecutions that defendant had lied to them about the reason

for the Montemayor killing. According to the prosecution’s

revised theory, defendant told them that the order for the killing

came from Mexican Mafia leaders, but in fact it was committed

“just to curry personal favor with . . . Corona.” The court ruled

22

Defendant contends the trial court’s comments constituted

an in limine ruling precluding the defense from presenting

evidence and that the prosecutor’s subsequent questions

constituted misconduct because they violated this ruling. In

fact, the court made no ruling beyond precluding mention of

these matters in an opening statement, a ruling with which the

prosecution complied. The court deferred to trial any

substantive evidentiary rulings on this matter.

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that the prosecution would be limited to asking defendant

whether he had considered “that the other three co-defendants

felt he had lied to them,” without permitting mention of the

means by which they might have come to that conclusion. When

trial resumed, the prosecutor, after asking the permitted

question, also asked defendant a series of leading questions

premised on the theory that Macias and Lopez had learned

defendant had lied to them, although without suggesting the

manner in which they might have learned the truth. The court

overruled the defense objections, including the claim the

questions had not been asked in “good faith.”

Assuming the claim has been preserved, we find no

misconduct. The prosecutor’s questions simply presented to the

jury an alternative theory to explain the assailants’ conduct,

countering the theory articulated by defendant. Because the

prosecutor’s theory and questions were based on reasonable

inferences from the evidence presented at trial, there is no

reason to conclude they were asked in bad faith. Further,

because the prosecutor avoided asking defendant about the

assailants’ motives, but simply outlined factual circumstances

that might have explained their conduct, the questions did not

stray into impermissible speculation.

e. The cumulative impact of the prosecutor’s

conduct was not prejudicial

Defendant contends the cumulative impact of the

prosecutor’s misconduct was prejudicial. As discussed above,

however, we largely reject defendant’s claims of misconduct,

either on their merits or because the claims were not preserved.

To the limited extent the prosecutor’s conduct was improper, it

involved issues largely peripheral to defendant’s guilt and had

no impact on the verdict, under either test for prejudice.

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11. The cumulative impact of the trial court’s

errors was not prejudicial

We have largely rejected defendant’s claims of judicial

error. The possible errors we did find — the court’s discovery

sanction, its erroneous evidentiary rulings, and the admission

of evidence in violation of Sanchez — were individually minor

and had no material cumulative impact on the jury’s decision

under either test for prejudice.

B. Penalty Phase Claims

1. The evidence of defendant’s involvement in prior

criminal acts was sufficient to support their

admission under section 190.3, factor (b)

“In making its penalty determination, the jury is

authorized to consider three types of aggravating evidence, ‘[t]he

circumstances of the crime of which the defendant was convicted

in the present proceeding’ (§ 190.3, factor (a)), ‘[t]he

presence . . . of criminal activity by the defendant which

involved the use or attempted use of force or violence or the

express or implied threat to use force or violence’ ([§ 190.3],

factor (b)), and ‘[t]he presence . . . of any prior felony conviction’

(§ 190.3, factor (c)).” (People v. Johnson (2016) 62 Cal.4th 600,

645 (Johnson).) During the penalty phase, the prosecution

presented evidence of several violent criminal acts by defendant

under section 190.3, factor (b), including the armed assault at

the home of Laurie Fadness and the shooting of mechanic Paul

Parent. In addition, the trial court permitted the jury to

consider during the penalty phase a letter sent by defendant to

a person named “Niño” that purportedly solicited the recipient

to commit aggravated assault on another gang member.

Regarding the two criminal incidents mentioned, defendant

contends there was insufficient evidence of his involvement. As

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to the letter, defendant contends there was insufficient evidence

that it solicited violence. Although we find sufficient the

evidence supporting the two incidents, we agree with defendant

there was insufficient evidence to permit the jury to find that

the letter solicited aggravated assault. The erroneous

admission of that evidence, however, was not prejudicial.

a. The assault at the Fadness residence

During the penalty phase, the prosecution presented

testimony by Laurie Fadness and David Gallegos about a violent

assault in Fadness’s home. When Fadness came home one

evening, she found that Gallegos had been badly beaten and his

cousin had been shot. As she entered her home, the presumed

assailants were scrambling to leave, and she heard a person she

knew as “Primo” yell, “Droopy, Jesse, let’s go.” As Fadness

explained, Primo’s tone of voice at this time was not “casual.”

“[I]t was like hollering at him, like, ‘Let’s go.’ ” Fadness did not

identify defendant as having been present, but she did not have

a clear view of all the men as they hurriedly left her home.

Gallegos testified that five men entered the house that night,

and he identified all of them, without naming defendant; on the

contrary, Gallegos testified affirmatively that defendant was not

present. Yet when the five entered, Gallegos testified, one of

them said to Gallegos’s cousin, “Droopy wants to talk to you.”

The assault began when the cousin responded that he had

nothing to say to Droopy.

Defendant contends that this testimony contained

insufficient evidence of his involvement in the assault to support

its admission as a factor in aggravation under section 190.3,

factor (b). As we explained in People v. Johnson (2019) 8 Cal.5th

475, “Section 190.3, factor (b) permits the jury to consider the

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‘presence or absence of criminal activity by the defendant which

involved the use or attempted use of force or violence or the

express or implied threat to use force or violence.’ Before the

evidence is presented to the jury, the trial court must determine

that the evidence offered would allow a rational trier of fact to

decide beyond a reasonable doubt that the defendant committed

the criminal activity alleged under factor (b).” (Id. at p. 515.)

“We review a trial court’s decision to admit evidence of other

crimes for abuse of discretion, ‘ “and no abuse of discretion will

be found where, in fact, the evidence in question was legally

sufficient.” ’ [Citation.] ‘On appeal, the test of legal sufficiency

is whether there is substantial evidence, i.e., evidence from

which a reasonable trier of fact could conclude that the

prosecution sustained its burden of proof beyond a reasonable

doubt.’ ” (Ibid.) “ ‘Substantial evidence includes circumstantial

evidence and any reasonable inferences drawn from

that evidence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 57.)

The jury could have concluded beyond a reasonable doubt

that defendant was a participant in the events described by

Fadness and Gallego. The witnesses testified concerning two

occasions on which the assailants used the name “Droopy,”

defendant’s gang moniker. Fadness heard Primo use the name

“Droopy” in a manner that suggested he was addressing Droopy

directly, urging him to leave. Gallegos heard one of the

assailants tell his cousin, “Droopy wants to talk to you.”

Although it is true, as defendant contends, that Fadness did not

identify defendant as one of those present, it was evident from

her testimony that she did not get a clear view of all the

participants, who were leaving as she entered. It is also true

that Gallegos denied defendant’s presence, but it was for the

jury to resolve this apparent contradiction. The assailants’

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references to “Droopy,” both of which could be understood to

refer to a person present at Fadness’s home, constituted

sufficient evidence to support the conclusion that defendant was

present.23

Defendant contends the evidence was insufficient because

there was “no evidence that [defendant] was the only Droopy

that might have been involved in the drug trade in the San

Fernando Valley” and argues that the person who used the

name could have been “using [defendant’s] name to justify the

attack.” Defendant’s moniker, however, is sufficiently unusual

that the jury could have inferred beyond a reasonable doubt that

it referred to defendant. Given the distinctive nature of the

moniker, it was unnecessary for the prosecution to provide proof

that no other gang member in the general area used the name.

Further, the suggestion that the assailants were falsely using

defendant’s name is inconsistent with the remainder of the

witnesses’ testimony. Gallego’s cousin, like defendant, was a

member of the Pacoima Flats gang and presumably would have

been familiar with defendant.

b. The Parent shooting

Defendant hired Paul Parent as a mechanic and forced

him to live at defendant’s home. Parent testified that defendant,

often with others, beat him on at least four occasions and broke

his finger with a hammer after Parent attempted to leave the

23

Even if defendant were not present, we would be inclined

to find sufficient evidence to support the admission of this

conduct as factor (b) evidence. The remark “Droopy wants to

talk to you” strongly suggests that the assailants were acting at

the behest of defendant. As discussed above, defendant held a

position of authority within the gang and could direct others to

do his bidding.

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home. The shooting occurred after defendant had told Parent

he would be given defendant’s van and allowed to leave if he

helped defendant move his home furnishings. Ten minutes after

the move was completed, Parent was working under the hood of

the van, which was parked near defendant’s house, when his cell

phone rang. Defendant said, “Rudy is going to shoot you,” in a

tone of voice, Parent said, “like he just won the lottery.” “Two

minutes later,” Parent was, in fact, shot in the back by Rudy.

Parent said that he and Rudy were on friendly terms, but Rudy,

like Parent, worked for defendant.

Defendant argues the evidence was insufficient because it

is possible that defendant was simply warning defendant that

he was about to be shot, rather than being the instigator of the

shooting. We conclude that the evidence was sufficient for the

jury to find beyond a reasonable doubt that defendant was

involved in the shooting. Although defendant’s proposed

interpretation is plausible in the abstract, to conclude that

defendant was simply warning Parent would have been

inconsistent with the remainder of Parent’s testimony.

According to Parent, defendant had kept him a virtual prisoner.

On two prior occasions when Parent attempted to leave,

defendant enlisted others to help him beat Parent in retaliation.

Defendant’s ostensible grant to Parent of permission to leave,

much less to give him a van in the bargain, was wholly at odds

with this prior conduct. Rudy had no evident reason of his own

to shoot Parent; the two were on good terms. Further, defendant

presumably could have prevented the shooting if he knew of it

but did not approve, since Rudy worked for him. When

defendant called to alert Parent that he was to be shot,

defendant gave no indication of alarm; on the contrary, he was

exultant. As Parent said, defendant “warned” Parent in a tone

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of voice “like he just won the lottery.” Finally, the nearly

instantaneous shooting by Rudy strongly suggests that the

attack was coordinated with defendant’s cell phone call. These

circumstances permitted the jury to conclude beyond a

reasonable doubt that defendant’s call was not intended merely

to alert Parent.

c. The letter sent to Niño

During the guilt phase, the prosecution introduced a letter

written by defendant, largely in Spanish, to a person called

“Niño.” During the penalty phase, the court permitted the jury

to consider the letter as evidence of defendant’s attempt to solicit

an assault against two people named Chino and Sapote by

means of force likely to cause great bodily injury under factor (b)

of section 190.3. Defendant contends the letter was insufficient

in this role because (1) there was no evidence that Niño ever saw

the letter, (2) the letter was at most a solicitation of violence,

rather than the “use” of violence required by factor (b), and (3)

the letter did not clearly solicit criminal violence against Chino

and Sapote.

We agree with defendant that the trial court erred in

admitting this letter as evidence of the solicitation of violent

criminal conduct. Defendant testified that Niño was one of his

drug customers, and the letter was intended to shore up his

business relationship with Niño at a time when defendant was

in jail. It was written largely in Spanish, and the purported

references to assaultive conduct were couched in Spanish

language idioms that could not be understood literally — for

example, “send that Chino dude to the penis” and “hit him in the

mother.” The prosecution initially sought to translate the letter

through defendant, and he rejected the prosecutor’s suggestion

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that its language solicited violence. Although the prosecution

later presented a translation by a qualified Spanish translator,

the expert conceded that “to give a completely accurate

translation” of the letter “you would have to be very familiar

with [the participants’] form of the casual language to know

what they are really saying.” The intended meaning of the

critical phrases in the letter therefore appears too uncertain to

permit the jury to conclude that defendant was soliciting Niño

to commit aggravated assault. (Contra People v. Phillips (1985)

41 Cal.3d 29, 77 (Phillips) [written solicitation containing

detailed instructions for the abduction of witnesses, as well as

“directions to ‘knock out,’ ‘nail’ and ‘blast’ ” them]; see also id. at

p. 76, fn. 30.)

Any error in this respect, however, was harmless under

both the state law and constitutional standards for prejudice.

(People v. Casares (2016) 62 Cal.4th 808, 838; People v.

Rodrigues (1994) 8 Cal.4th 1060, 1170.) As other aggravating

factors, the prosecution provided evidence of a series of

disturbing acts of violence committed by defendant or

coordinated under his direction: the two separate assaults

against Gallegos, in one of which Gallegos was shot 14 times by,

among others, defendant; the shooting of Gallegos’s cousin; five

separate assaults on Parent, including defendant’s sadistic

participation in Parent’s shooting; and the kidnapping of

Spellman. These were, of course, in addition to defendant’s

participation in the murder of Montemayor. It strains credulity

to argue that, in the face of this evidence, the jury would have

found defendant’s letter to Niño unduly persuasive in any way.

Against a multitude of acts of extraordinary violence, the letter

at most solicited a violent act. Further, as noted above, the

letter was not even clear in seeking violence. Its impact on the

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jury’s assessment of the appropriate penalty was undoubtedly

negligible. (See, e.g., Turner, supra, 10 Cal.5th at p. 827.)

2. The trial court did not err in instructing the jury

regarding its consideration of the facts underlying

defendant’s prior convictions

Defendant contends the trial court erred when it

instructed the jury that it could consider the facts underlying

his prior convictions as section 190.3, factor (b) evidence without

finding them true beyond a reasonable doubt.

Section 190.3, factor (c) permits the prosecution to

introduce evidence of prior felony convictions of a defendant as

factors in aggravation. To the extent the conduct underlying

those convictions satisfies the requirements of section 190.3,

factor (b), the jury may consider that conduct under factor (b) as

well. (Homick, supra, 55 Cal.4th at p. 889 ([“A prior felony

conviction for a violent crime is ‘admissible under section 190.3,

factor (b) as proof of criminal activity by’ the defendant”].) Here,

defendant stipulated to three prior felony convictions for

consideration under factor (c). In addition, the prosecution

introduced evidence of the conduct underlying two of the prior

convictions and argued that this conduct could also be

considered under factor (b). The trial court instructed the jury

that, in contrast to other factor (b) conduct, it was not required

to find beyond a reasonable doubt that this evidence

demonstrated criminal conduct because defendant had already

been convicted of the charges.

Defendant forfeited this claim when he failed to object to

the court’s instruction on these grounds.

On the merits, we have consistently declined to decide

“whether a reasonable-doubt instruction is required where the

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People seek to prove ‘conduct’ underlying the conviction other

than the facts necessarily established.” (People v. Hinton (2006)

37 Cal.4th 839, 911; People v. Bacon (2010) 50 Cal.4th 1082,

1123–1124 (Bacon); People v. Ashmus (1991) 54 Cal.3d 932,

1000.) In light of defendant’s forfeiture, we again decline.24

In any event, the court’s instruction was unquestionably

harmless. It is settled that the jury was entitled to consider the

conduct necessarily established by the convictions without proof

beyond a reasonable doubt. (Bacon, supra, 50 Cal.4th at p.

1123.) The details of the conduct underlying these two

convictions added little because it did not feature any conduct of

a severity beyond that suggested by the elements of the crimes.

Further, that conduct — defendant’s presence at a gang

shooting and his participation in a robbery at knifepoint —

added little to the litany of defendant’s violent conduct proved

under factor (b).

3. Defendant forfeited his claim that the trial court

erred in failing to consider his ability to pay the

levies it imposed

At sentencing, the trial court imposed the statutory

maximum restitution fine of $10,000 and a victim restitution

payment of $10,433.80. (§ 1202.4, subds. (b), (f).) Then, as now,

section 1202.4 permitted a trial court to consider a defendant’s

ability to pay in setting the amount of a restitution fine above

24

Defendant incorrectly contends that the question was

resolved in Phillips, supra, 41 Cal.3d 29. Although Phillips

holds that factor (b) conduct must be proved beyond a reasonable

doubt (id. at p. 65), it did not consider the particular interaction

between factors (b) and (c) presented here. As noted in the text,

our decisions subsequent to Phillips recognize that we have yet

to resolve the issue.

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the statutory minimum (id., subd. (c)), while it precluded the

court from considering the defendant’s ability to pay in setting

the amount of victim restitution (id., subd. (g)), which is

intended to reimburse a victim’s actual economic loss (id., subd.

(f)). Without distinguishing between the two types of levy,

defendant contends the trial court erred in imposing them

without inquiring about his ability to pay, given statements in

the probation report suggesting that he was destitute.25

Defendant acknowledges that he forfeited this claim when

he failed to object to imposition of t

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