The opinion
Filed 3/29/24
CERTIFIED FOR PARTIAL PUBLICATION *
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082754
Plaintiff and Respondent,
(Super. Ct. No. RIF1605051)
v.
GABRIELA T. RANGEL AYALA
et. al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Riverside County,
Diane B. Altamirano** and John D. Molloy, Judges. Reversed and remanded.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant
and Appellant Gabriela T. Rangel Ayala.
Ronda G. Norris, under appointment by the Court of Appeal, for
Defendant and Appellant Raymundo Ortega Ramirez.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of parts B through E of the
Discussion.
** Retired Judge of the Imperial Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, A.
Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury convicted Gabriela T. Rangel Ayala 1 and Raymundo Ortega
Ramirez (together defendants) of murdering Samuel G. (Pen. Code, 2 § 187,
subd. (a)), also finding true the special circumstance allegations that
defendants killed Samuel while lying in wait (§ 190.2, subd. (a)(15)) and that
the murder involved the infliction of torture (id. at subd. (a)(18)). The trial
court sentenced Ayala to prison for life without the possibility of parole, and
Ramirez to prison for life without the possibility of parole, plus 10 years.
The key witness for the prosecution was Breanna S., but she did not
testify at trial. Instead, the jury heard only a reading of her testimony from
the preliminary hearing years earlier. Defendants collectively maintain the
court violated their right to confrontation by admitting this testimony.
They claim the prosecution failed to demonstrate it exercised reasonable
diligence in securing her attendance at trial. (Evid. Code, § 240, subd. (a)(5).)
The People knew Breanna was an important witness who had gone missing
at least two years before trial. Yet they waited until two weeks before the
trial date to start their unsuccessful search for her. Under these
circumstances, we conclude the prosecution failed to demonstrate reasonable
1 Although the trial minute orders, the abstract of judgment and the
notice of appeal identify defendant as “Gabriela T. Rangelayala,” we
determine by the reporter’s transcript that her name is “Gabriela Rangel
Ayala” and refer to her as “Ayala” throughout the opinion.
2 Undesignated statutory references are to the Penal Code.
2
diligence in securing Breanna’s presence at trial in accordance with Evidence
Code section 240, subdivision (a)(5) and, as a result, the court erred by
admitting her preliminary hearing testimony pursuant to Evidence Code
section 1291.
We find it necessary to discuss some, but not all, of defendants’
remaining arguments. First, we conclude the evidence is sufficient to permit
retrial of Ramirez’s first degree murder conviction and the lying in wait and
torture special circumstances. Next, for the benefit of the trial court, we
address two issues that may arise again on remand. We agree with Ayala’s
contention the trial court erred by allowing the prosecution to introduce
evidence of her “Satan worshiping.” But we reject defendants’ argument the
court erred when it declined to instruct the jury that Breanna was an
accomplice as a matter of law.
Accordingly, we reverse the judgments and remand the matter to the
trial court. 3
FACTUAL AND PROCEDURAL BACKGROUND
The Participants
In 2016, Ayala was living in an R.V. that was parked near an
abandoned house in a remote area of Riverside County. The abandoned
house had no electricity or running water. Ayala had two sons, Jonathan and
Victor. 4 Cheyenne was Victor’s girlfriend. In 2009, Ayala informally adopted
Angel A. and considered him to be her son.
3 This conclusion moots defendants’ remaining arguments alleging
instructional error, numerous instances of prosecutorial error, and
cumulative error.
4 Victor plays no significant role in these events because police arrested
him on unknown charges before the murder occurred.
3
In August 2016, Breanna was about six months pregnant. At about
this time, she met Samuel, the eventual victim, on an internet dating site.
They met in-person about three times and twice engaged in a sexual
relationship. After Breanna told Samuel that she no longer wanted to see
him, he threatened to kill her and tell the father of her child, who was in
prison, about their affair.
In September 2016, knowing that Breanna was homeless, Cheyenne
and another person arranged for Breanna to meet Ayala so she could have
a place to stay. They first met about three days before Samuel’s murder.
Ayala let Breanna sleep on a couch inside the R.V. Breanna, who viewed
Ayala as a protector and mother-figure, mentioned that Samuel had been
threatening her.
That same day, Ayala met Ramirez. Ramirez also started sleeping
inside the R.V. Ayala referred to Ramirez as her “boyfriend” and Ramirez
said Ayala was his “girl.”
Samuel’s Murder
On the evening of September 11, Breanna was inside the R.V. with
Ayala when she started getting calls from Samuel, which she ignored. 5
Breanna told Ayala that Samuel had threatened her, she feared him and was
frustrated by his constant telephone calls. According to Breanna, Samuel
wanted to continue having sex but she was no longer interested. Ayala asked
for Breanna’s phone to call Samuel. She called and asked him what he
wanted with “her daughter.” Ayala then started talking in a sexy voice about
5 Breanna testified under a grant of immunity. She was deemed
unavailable at the time of trial and her preliminary hearing testimony was
read to the jury.
4
Samuel coming to the property for a threesome. Breanna could not hear
Samuel’s responses.
After the call, Ayala appeared angry because she found it inappropriate
for Samuel to be interested in a threesome after she identified herself as
Breanna’s mother. Breanna told Ayala that she did not want to see Samuel
and was not interested in a threesome. Ayala responded that Samuel would
“get his threesome” and pounded her fist.
Breanna said she thought Ayala was going to beat up Samuel or scare
him so he would leave her alone. She heard Ayala giving Samuel directions
to the R.V. and saw that she also sent him a text message. After this
occurred, Ayala did not return Breanna’s phone. Breanna heard Ayala pray,
“ ‘Dear Lord Satan, please let this go through.’ ” Ramirez then went inside
the R.V. Breanna decided to leave and went into the abandoned house.
Watching from a window in the house, Breanna saw the headlights of
Samuel’s car. She saw Samuel get out of the car, talk briefly with Ayala, and
then go with her into the R.V.
A few minutes later, Breanna heard what she characterized as the
screams “of someone dying” from inside the R.V. It was a male voice. Shortly
after the screaming started, Breanna heard Ayala yell for Angel. After the
screaming stopped, Ayala called her name. When Breanna approached the
R.V., she saw Ramirez and Angel pull Samuel out of the R.V. on a sheet.
Samuel’s head was smashed in and it appeared to Breanna that he was dead.
Breanna heard Ayala tell Ramirez and Angel to bring Samuel’s body to the
fire pit. They put the body in the fire along with Samuel’s phone and wallet.
Angel, Ramirez and Ayala burned their clothes, washed their bodies,
and put on different clothes. Ayala then instructed Breanna to help clean up
the blood and the mess inside the R.V. Breanna did whatever Ayala told her
5
to do because she remembered what Cheyenne had said about Ayala’s violent
tendencies and she was afraid. Ayala called Jonathan, told him something
bad had happened and they needed to get rid of a car. Jonathan eventually
sold Samuel’s car for methamphetamine and about $40 cash.
DISCUSSION
A. There Was Prejudicial Error in Admitting Breanna’s
Preliminary Hearing Testimony
It took an investigator with the district attorney’s office two months to
locate Breanna for the 2017 preliminary hearing. On November 30 and
December 4, 2017, Breanna appeared and testified. After that hearing and
sometime “pre-COVID,” the district attorney’s office lost contact with her.
There was no record of any contact after the preliminary hearing.
Trial was originally scheduled for May 11, 2018. After multiple
stipulated or unopposed continuances, trial was set for April 8, 2020.
However, on March 23, 2020, the Chief Justice of California issued a
statewide order suspending jury trials for sixty days because of the COVID-
19 pandemic. 6 There were numerous additional continuances, some based on
new emergency orders. On June 15, 2021, trial was trailed to July 13. On
that date, all parties announced they were ready for trial.
Jury selection began on July 19, 2021. That same day, the People filed
their witness list, which included Breanna’s name, and moved in limine to
introduce Breanna’s preliminary hearing testimony on the ground she was
unavailable pursuant to Evidence Code section 1291. The court tentatively
6 (<Https://newsroom.courts.ca.gov/covid-19-news-center/court-
emergency-orders> [as of March 29, 2024], archived at
<https://perma.cc/7DFQ-KXZU>.)
6
ruled that Brenna’s preliminary hearing testimony could be read to the jury,
subject to a due diligence hearing.
When the prosecution case began on July 22, 2021, district attorney
investigator Felipe Villalobos testified at the due diligence hearing regarding
efforts undertaken by the People to locate and serve Breanna. Villalobos
explained that he created a subpoena for Breanna on July 6, 2021, less than
two weeks before the start of trial. Using several programs, he located two
addresses for her in Los Angeles. He went to both locations and learned that
Breanna’s child lived at one of them with the paternal grandmother.
On July 7, he visited the paternal grandmother’s residence, which was
also the address on Breanna’s driver license, and discovered that Breanna
had been there sometime before July 4 to visit her child. The paternal
grandmother reported that Breanna was homeless, would be gone for a
month or two, and “comes and goes like the wind.” Villalobos obtained two
telephone numbers for Breanna and one for Breanna’s friend. Two of the
numbers were disconnected, and he left a voice mail and text message on the
other.
Villalobos had the Los Angeles police run Breanna’s name through
their computer system but did not locate her. He created a wanted flyer for
Breanna which was distributed to over 400 officers. He also communicated
with the sheriff’s department and had an alert placed on Breanna’s name to
notify him if anyone had contact with her. On July 21, Villalobos again
visited the two Los Angeles addresses, and followed up on another address
and telephone number for her, without success. He visited two markets in
Los Angeles where Breanna had used her “Cal Fresh card,” but no one at the
markets recognized her photograph. He also checked to determine if
Breanna was in custody.
7
After hearing argument, the court found the People made a good faith
effort and exercised reasonable diligence to obtain Breanna’s appearance at
trial. It subsequently allowed Breanna’s preliminary hearing testimony be
read to the jury.
Defendants assert the trial court erred in admitting Breanna’s
preliminary hearing testimony because the prosecutor failed to prove due
diligence in attempting to secure her presence at trial. In particular, they
fault the prosecution’s delay in beginning the search for Breanna after losing
touch with her following the preliminary hearing. The People disagree with
defendants’ contentions. They also argue that even if the court erred by
admitting the preliminary hearing transcript, the error was harmless beyond
a reasonable doubt because Breanna’s account of what occurred that night
was mostly duplicative of Angel’s statements to the police and corroborated
by the physical evidence found at the scene.
A criminal defendant has a constitutional right to confront prosecution
witnesses, but the right is not absolute. (People v. Cromer (2001) 24 Cal.4th
889, 892 (Cromer).) “An exception exists when a witness is unavailable and,
at a previous court proceeding against the same defendant, has given
testimony that was subject to cross-examination.” (Ibid.) Under this
exception, the preliminary hearing testimony of an unavailable witness may
be admitted at trial without violating a defendant’s confrontation right.
(People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera).) 7 A witness is
7 This exception is codified in Evidence Code section 1291, subdivision
(a)(2), which provides that “former testimony,” such as preliminary hearing
testimony, is not made inadmissible by the hearsay rule if “the declarant is
unavailable as a witness,” and “[t]he party against whom the former
testimony is offered was a party to the action or proceeding in which the
testimony was given and had the right and opportunity to cross-examine the
8
unavailable when the witness is absent from the hearing and the proponent
of the witness’s testimony has exercised reasonable diligence but has been
unable to procure the witness’s attendance by the court’s process. (Evid.
Code, § 240, subd. (a)(5).)
Factors we consider in determining whether the prosecutor has shown
reasonable diligence include the timeliness of the search, the importance of
the witness’s testimony, and whether leads to the witness’s possible location
were reasonably explored. (People v. Thomas (2011) 51 Cal.4th 449, 500
(Thomas).) The timely commencement of the search and the energy with
which it was pursued are sequential aspects of the prosecution’s obligation to
demonstrate diligence. But whether these efforts were reasonable depends in
part on the importance of the witness’s testimony. If a witness is critical, the
search must be started sooner and pursued with more energy than if the
witness is less significant. And while we defer to the trial court’s
determination “ ‘of the historical facts of what the prosecution did to locate an
absent witness’ ” (id. at p. 503), we independently review the prosecution’s
claim of good faith and reasonable diligence.
Defendants do not dispute that they were parties to the action in which
Breanna’s former testimony was given, and they exercised their right to
cross-examine her with the requisite interest and motive. The question is
whether Breanna was unavailable as a witness. On this issue, we analyze
the timeliness of the search, the importance of Breanna’s testimony, and the
extent to which the prosecution diligently investigated any available leads.
(Thomas, supra, 51 Cal.4th at p. 500.) Defendants did not identify any
declarant with an interest and motive similar to that which he has at the
hearing.”
9
promising leads that Villalobos failed to investigate. Rather, they focus on
the timeliness of the search and the importance of Breanna’s testimony.
Ayala contends this case is like Cromer, supra, 24 Cal.4th 889, where
the prosecution knew the witness had moved in June 1997 but took no action
to locate her until December 1997 for a January 12, 1998, trial date. (Id. at
p. 903.) Then, investigators merely visited the witness’s former residence
only to be informed that the witness no longer lived there. (Ibid.) When
investigators learned she was living in another location with her mother,
they waited two days to follow up on this information. (Id. at pp. 903–904.)
Although an investigator eventually left a subpoena at the home where the
witness’s mother resided, the investigator failed to return to the home or
attempt to find contact information so they could speak with the mother.
(Id. sat p. 904.)
Our case is similar in certain key respects. Breanna appeared and
testified at the preliminary hearing in late 2017. The district attorney’s office
then lost contact with her sometime “pre-COVID.” After several
continuances, trial was set for April 8, 2020. There is nothing in the record
showing the prosecution did anything to locate Breanna before this trial date.
Based on the COVID-19 pandemic and the suspension of jury trials in March
2020 it is likely the prosecution simply believed the matter would not go to
trial in April 2020 and it need not locate her. But it was also aware that the
matter would eventually be rescheduled for trial, and that Breanna, an
important witness, was missing. Nonetheless, the prosecution did nothing to
locate her.
There were numerous additional continuances. On June 15, 2021, trial
was trailed until July 13, and on the latter date, the parties finally
announced they were ready for trial. Yet it was not until July 6, seven days
10
earlier, that Villalobos first created a subpoena for Breanna and the search
for the missing witness began. Villalobos quickly learned that Breanna’s
child lived with the paternal grandmother, visited that location the following
day and discovered Breanna had been there sometime before July 4 to visit
her child. Critically, had the prosecution attempted to locate Breanna a few
weeks or even days earlier it would have discovered where her child lived,
that Breanna visited her child every month or two, and likely could have
contacted her well before the eventual trial date.
Breanna lived a transient lifestyle, but she cooperated with police
before the preliminary hearing by telephoning the investigator when she
learned law enforcement was looking for her. The investigator met with
Breanna, who identified photographs of Ayala and Ramirez as being involved
in the murder. She also participated in a walk-through of the crime scene
and pointed out the firepit where Samuel’s body had been burned. The
investigator then interviewed Breanna a second time. The following year,
Breanna appeared at the preliminary hearing. There is nothing in the record
to suggest that Breanna disappeared to avoid testifying, would have been
uncooperative if located or even knew the prosecution was looking for her.
Although the prosecution exercised diligence during the two weeks it
searched for Breanna immediately before trial, 8 it did nothing to locate her
during the months this matter was repeatedly continued for trial, making the
search untimely. The uncertainty as to when trial would begin does not
excuse the prosecution from timely starting to search for a cooperative
8 Villalobos checked to see if Breanna was in custody, had the Los
Angeles police run her name through their computer system, distributed
wanted flyers, had the sheriff’s department place an alert on Breanna’s
name, called three telephone numbers, and checked markets where Breanna
had previously shopped.
11
witness it actually knew was missing. The record suggests Breanna would
have been found and produced had the prosecution begun to look for her even
a short time earlier.
We next analyze the importance of Breanna’s testimony, which bears
heavily on whether the prosecution’s unexplained delay in commencing the
search for Breanna satisfies the constitutional requirement for reasonable
diligence. In People v. Louis (1986) 42 Cal.3d 969, 991–995 (Louis) 9 the most
critical evidence for the prosecution’s case was the prior testimony of an
absent witness. (Id. at p. 989.) As the court observed, “the sole evidence
identifying defendant as the trigger man came from [the absent witness].”
(Ibid.) In reaching the conclusion that the prosecution did not exercise due
diligence, the Supreme Court reasoned that the expectation of diligence is
particularly high when the witness’s testimony is critical for the conviction.
(Id. at p. 991.)
Like the witness in Louis, Breanna was essential to the prosecution’s
case. She was the only witness who knew Samual and had percipient
knowledge of the events leading up the murder, including Ayala’s alleged
motive for the murder. The only other evidence on these matters came from
Ayala whose testimony about the events leading to the murder materially
differed from Breanna’s. 10 As we address below, Breanna’s testimony was
9 Louis, supra, 42 Cal.3d 969 overruled on another ground in People v.
Mickey (1991) 54 Cal.3d 612, 672, fn. 9.
10 Ayala testified that Breanna gave Samuel the address over the phone
and texted the information to him. Breanna then guided Samuel to the
property over the phone and with a flashlight, where he met Ayala, Ramirez
and Breanna outside the R.V. According to Ayala, she never spoke to Samuel
on the phone. After all four sat down to eat, Samuel allegedly said “Let’s do
this.” When Samuel clarified he wanted a “threesome,” Ayala slapped him
stating she was old enough to be his mother. Samuel pushed her down to her
12
critical to establish the degree of murder and the lying in wait special
circumstance allegation as to both defendants. (See, post, pt. B.) Her
testimony was also needed to corroborate Angel’s testimony regarding the
torture special circumstance allegations. Consistent with Cromer, supra, 24
Cal.4th 889, we conclude Breanna was not an unavailable witness, and the
court erred by admitting her preliminary hearing testimony pursuant to
Evidence Code section 1291.
“When there is ‘ “a reasonable possibility” ’ that the error might have
contributed to the verdict, reversal is required.” (People v. Aranda (2012) 55
Cal.4th 342, 367.) We conclude the error was not harmless beyond a
reasonable doubt as to either defendant because Breanna’s testimony was
critical to several aspects of the prosecution’s case. (Chapman v. California
(1967) 386 U.S. 18, 24; Lilly v. Virginia (1999) 527 U.S. 116, 139–140
[applying Chapman beyond a reasonable doubt standard to violations of the
Confrontation Clause].) Accordingly, we reverse defendants’ first degree
murder convictions and the attached special circumstance allegations.
B. Ramirez’s First-Degree Murder Charge and the Lying
in Wait Special Circumstance Allegation May be Retried
“[W]hen a defendant’s conviction is reversed by an appellate court on
the sole ground that the evidence was insufficient to sustain the jury’s
verdict, the Double Jeopardy Clause bars a retrial on the same charge.”
(Lockhart v. Nelson (1988) 488 U.S. 33, 39.) “It has long been settled,
however, that the Double Jeopardy Clause’s general prohibition against
successive prosecutions does not prevent the government from retrying a
defendant who succeeds in getting his first conviction set aside, through
seat. She then saw Samuel’s and Ramirez’s fists flying as she ran toward the
door and Breanna ran to the other room.
13
direct appeal or collateral attack, because of some error in the proceedings
leading to conviction.” (Id. at p. 38.) Here, a retrial would generally be
permissible because the trial court’s erroneous admission of Breanna’s
preliminary hearing testimony is based on trial error. (Burks v. United
States (1978) 437 U.S. 1, 15 [retrial permissible based on “incorrect receipt or
rejection of evidence”].) However, Ramirez also contends he cannot be retried
for first degree murder because the evidence of premeditation and special
circumstances was insufficient as a matter of law. Accordingly, we are
required to address the merits of his sufficiency contentions.
To determine the sufficiency of the evidence, “we review the entire
record in the light most favorable to the prosecution to determine whether it
contains evidence that is reasonable, credible and of solid value, from which a
rational trier of fact could find that the elements of the crime were
established beyond a reasonable doubt.” (People v. Tripp (2007) 151
Cal.App.4th 951, 955.) We must “view the evidence in the light most
favorable to respondent and presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.”
(People v. Lewis (1990) 50 Cal.3d 262, 277 (Lewis).) Reversal based on
insufficient evidence is warranted only if “it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’ ”
(People v. Bolin (1998) 18 Cal.4th 297, 331.) “ ‘[I]t is the jury, not the
appellate court which must be convinced of the defendant’s guilt . . . .’ ”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1055–1056.) The testimony of a
single witness, if believed by the trier of fact, is sufficient to support a
conviction, unless that testimony is physically impossible or inherently
improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)
“A sufficiency of evidence challenge to a special circumstance finding is
14
reviewed under the same test applied to a conviction.” (People v. Stevens
(2007) 41 Cal.4th 182, 201 (Stevens).) In reviewing the sufficiency of the
evidence to determine whether retrial is permissible for purposes of double
jeopardy, we “must consider all of the evidence presented at trial, including
evidence that should not have been admitted.” (People v. Story (2009) 45
Cal.4th 1282, 1296.)
The jury convicted Ramirez of first degree murder and found true the
special circumstance allegation that he intentionally killed Samuel while
lying in wait. The court instructed the jury that Ramirez could be guilty as a
direct perpetrator or by aiding and abetting the perpetrator. (CALCRIM Nos.
400, 401.) “Aiders and abettors may . . . be convicted of first degree
premeditated murder based on direct aiding and abetting principles.
[Citation.] Under those principles, the prosecution must show that the
defendant aided or encouraged the commission of the murder with knowledge
of the unlawful purpose of the perpetrator and with the intent or purpose of
committing, encouraging, or facilitating its commission. [Citation.] Because
the mental state component—consisting of intent and knowledge—extends to
the entire crime, it preserves the distinction between assisting the predicate
crime of second degree murder and assisting the greater offense of first
degree premeditated murder. [Citation.] An aider and abettor who
knowingly and intentionally assists a confederate to kill someone could be
found to have acted willfully, deliberately, and with premeditation, having
formed his own culpable intent. Such an aider and abettor, then, acts with
the mens rea required for first degree murder.” (People v. Chiu (2014) 59
Cal.4th 155, 166–167, superseded by statute on another ground as stated in
Lewis, supra, 11 Cal.5th at p. 959, fn. 3.) The required elements for aiding
and abetting are: (1) the perpetrator’s commission of the crime; (2)
15
knowledge of the perpetrator’s unlawful purpose, (3) specific intent to aid
that purpose, and (4) an act by the defendant which facilitates the
commission of the crime. (See CALCRIM No. 401.)
The theories of first degree murder presented to the jury were killing
“by means of . . . lying in wait” and “willful, deliberate, and premeditated
killing.” (§ 189, subd. (a).) Where, as here, a jury is instructed on two
theories of first degree murder, a guilty verdict will be upheld if sufficient
evidence supports either one of the theories. (People v. Sandoval (2015) 62
Cal.4th 394, 424 [sufficient evidence of premeditation and deliberation, thus
no need to decide sufficiency of evidence of murder by means of lying in
wait].) The lying in wait special circumstance requires (1) an intentional
murder committed under circumstances that include (2) a concealment of
purpose, (3) a substantial period of watching and waiting for an opportune
time to strike, and (4) a surprise attack on an unsuspecting victim from an
advantageous position. (People v. Parker (2022) 13 Cal.5th 1, 58 (Parker).)
“The purpose of the watching and waiting element is to distinguish those
cases in which a defendant acts insidiously from those in which he acts out of
rash impulse. [Citation.] This period need not continue for any particular
length “ ‘of time provided that its duration is such as to show a state of mind
equivalent to premeditation or deliberation.” ’ [Citation.] ‘ “ ‘The element of
concealment is satisfied by a showing “ ‘that a defendant’s true intent and
purpose were concealed by his actions or conduct. It is not required that he
be literally concealed from view before he attacks the victim.’ ” ’ ” ’ ” (Stevens,
supra, 41 Cal.4th at p. 202.) Sufficient evidence of each element was
introduced at trial.
According to Breanna, Ayala lured Samuel to the property with the
promise of a “threesome.” When Breanna told Ayala she was not interested
16
in a threesome, Ayala responded that Samuel would “get his threesome” and
pounded her fist. The jury could reasonably infer that the “threesome” Ayala
referred to was her, Ramirez and Samuel. Ayala testified that on the evening
of the murder she called Ramirez and asked him to come to her R.V. She
admitted wanting Ramirez there before Samuel arrived and agreed she asked
Ramirez to be there as a “protector.” She also agreed with the prosecutor
that the intended victim was physically too big for her and Breanna “to take
Samuel out” by themselves. When Ramirez arrived at the R.V., Breanna saw
Ayala speak to him and overheard Ayala asking for Ramirez’s help. Ramirez
then went inside the R.V. and Samuel arrived about five minutes later.
Ramirez’s act of secreting himself inside the R.V., instead of waiting outside
with Ayala to meet Samuel and protect her, supports the inference
defendants planned a surprise attack on Samuel from an advantageous
position. (Parker, supra, 13 Cal.5th at p. 58.)
Breanna saw Samuel get out of his car, talk briefly with Ayala, and
then go with her into the R.V. About three to five minutes after Samuel went
inside the R.V., Breanna heard a man screaming in pain. Shortly after the
screaming started, Breanna heard Ayala yell for Angel. When Angel stepped
inside the R.V. he saw a man lying on the floor getting beat up by Ayala and
Ramirez. He specifically observed Ramirez hitting Samuel in the head and
torso. Ramirez helped Angel put Samuel’s body in the fire, then burned his
clothes, washed himself, and put on different clothes.
A jury could reasonably conclude this evidence supports the four
elements of lying in wait and the inference that Ramirez had the opportunity
to reflect on his intentions and did not act “out of rash impulse.” (Stevens,
supra, 41 Cal.4th at p. 202.) Ramirez’s presence at the scene of the crime, his
close companionship with Ayala, tossing Samuel into the fire, and his conduct
17
after the offense also support aiding and abetting liability. (People v.
Campbell (1994) 25 Cal.App.4th 402, 409 [factors to consider in determining
aiding and abetting include presence at the scene of the crime,
companionship, and conduct before and after the offense].)
In sum, the totality of the evidence is sufficient for a reasonable jury to
conclude Ramirez committed first degree murder or lying in wait, to allow
retrial for the murder charge and special allegation against him.
C. The Torture Murder Special Circumstance Allegation
May be Retried
“To prove a torture-murder special circumstance, the prosecution must
show that defendant intended to kill and had a torturous intent, i.e., an
intent to cause extreme pain or suffering for the purpose of revenge,
extortion, persuasion, or another sadistic purpose.” (People v. Streeter (2012)
54 Cal.4th 205, 237; CALCRIM No. 733.) The intent to torture “ ‘ “is a state
of mind which, unless established by the defendant’s own statements (or by
another witness’s description of a defendant’s behavior in committing the
offenses), must be proved by the circumstances surrounding the commission
of the offense [citations], which include the nature and severity of the victim’s
wounds.” ’ ” (People v. Tran (2022) 13 Cal.5th 1169, 1202–1203.) “[R]evenge,
extortion, and persuasion are self-explanatory. Sadistic purpose
encompasses the common meaning, ‘ “the infliction of pain on another person
for the purpose of experiencing pleasure.” ’ ” (People v. Massie (2006) 142
Cal.App.4th 365, 371.) The length of time over which the offense occurred
and the severity of any wounds are relevant, but not necessarily
determinative. (Ibid.)
In cases that “have upheld [torture-murder special circumstance]
findings, the evidence has shown that the defendant deliberately inflicted
18
nonfatal wounds or deliberately exposed the victim to prolonged suffering,”
thereby demonstrating a “ ‘ “sadistic intent to cause the victim to suffer pain
in addition to the pain of death.” ’ ” (People v. Mungia (2008) 44 Cal.4th
1101, 1136, 1137.) “It is not the amount of pain inflicted which distinguishes
a torturer from another murderer, as most killings involve significant pain.
[Citation.] Rather, it is the state of mind of the torturer—the cold-blooded
intent to inflict pain for person gain or satisfaction—which society
condemns.” (People v. Steger (1976) 16 Cal.3d 539, 546.)
Ramirez argues the record does not show he acted with the specific
intent to cause extreme pain and suffering or that he wanted revenge, was
trying to extort or persuade Samuel, or participated in the murder for any
sadistic purpose. 11 Based on the evidence adduced at trial, the jury could
infer beyond a reasonable doubt that Ramirez intended to cause extreme pain
or suffering for a sadistic purpose.
Angel’s pretrial interviews were admitted at trial and played for the
jury. He told investigators that although it was dark inside the R.V.,
he could see Samuel on the floor trying to fight as Ramirez hit him. Angel
saw a “big blunt object” in Ramirez’s hand that appeared to be a box with
handles and could have been a generator or a skill saw. Angel claimed Ayala
was sitting while Ramirez hit Samuel’s upper torso at least twice with the
object. Angel stated that Samuel was aware of what was happening and
“flail[ed]” as he “tr[ied] to get out.”
11 Ramirez also appears to argue that Angel’s statements should not be
considered because they were uncorroborated. However, independent
corroboration is required only to prove the crime underlying the torture
special circumstances allegation, not the special circumstances allegation
itself. (People v. Hamilton (1989) 48 Cal.3d 1142, 1177; People v. Noguera
(1992) 4 Cal.4th 599, 632, fn. 9.)
19
When Ayala and Ramirez told him to move Samuel, Angel could hear
Samuel “grasping for his life.” Angel saw that Samuel’s face was bashed in,
part of his neck was missing, and Samuel was trying to breathe. Angel told
investigators that Samuel was still alive when his body slid out of the R.V.
because “you could see in his neck that he was still breathing.” After
Ramirez asked for Angel’s help in dragging Samuel, each man grabbed one
side of the body. Angel stated that when Samuel was placed in the fire he
was alive because he saw Samuel’s Adam’s apple pulsing, then about ten
minutes later he saw Samuel’s eyes roll back and the pulsing stopped.
Although there is no direct evidence Ramirez knew Samuel was still
alive when he and Angel place him in the fire, the jury could reasonably infer
that Ramirez, who helped Angel drag Samuel to the fire, saw what Angel
observed, namely, that Samuel was still alive but likely was dying from the
severe wounds to his head and neck. Although Ramirez could have killed
Samuel with another blow, he chose instead to place him into the fire where
he arguably survived for about ten minutes. Although other inferences are
possible, a rational jury could infer that by placing Samuel alive into the fire,
Ramirez deliberately and intentionally caused Samuel extreme pain or
prolonged suffering to satisfy a sadistic impulse or purpose. Because the
focus “is on defendant’s intent to inflict pain and suffering, . . . [i]t need not be
demonstrated that the victim was actually conscious and suffered pain at the
time otherwise painful injuries were inflicted.” (People v. Powell (2018)
5 Cal.5th 921, 945.) Accordingly, we conclude the torture special
circumstance allegation may be retried on remand.
D. The Court Erred in Admitting Evidence of “Satan Worshiping”
During opening statements, the prosecutor told the jury that Ayala’s
“true religion is the worship of Satan.” She claimed Ayala prayed to Satan to
20
let the murder go through and had a “satanistic plan” to kill Samuel. On the
second day of trial, Ayala’s defense counsel moved in limine to exclude any
evidence of Ayala’s Satan worshiping and praying to the devil on the ground
this evidence was irrelevant, inadmissible uncharged bad acts evidence under
Evidence Code section 1101, and more prejudicial than probative. The trial
court denied the motion, finding this evidence would not unduly consume
time, did not constitute uncharged bad acts evidence, and was relevant to
Ayala’s state of mind regarding the torture and lying in wait special
circumstance allegations.
Thereafter, the jury heard three witnesses testify regarding Ayala’s
prayers to Satan. Her “adopted” son Angel was aware that Ayala prayed to
Satan and referred to Satan as her father. Angel opined that Ayala believed
in Satan. But on the night of the murder, he did not hear any prayers to
Satan and did not remember hearing any other Satanic references. When
asked on direct how Ayala’s beliefs affected him, Angel claimed he did not
find them important because he did not share her beliefs. During cross-
examination, he testified that Ayala believed in the devil, the belief made her
dangerous to other people, and if he was no longer under Ayala’s protection
she “would turn this stuff” on him.
On the day of the murder, Breanna heard Ayala say a prayer about
Satan. She also previously heard Ayala use the word Satan when Ayala’s son
was “locked up.” She observed “Satanic cards” inside the R.V. but never saw
Ayala use the cards.
When asked about Ayala’s religion, Jonathan testified that Ayala’s
religion was Satanic, “like witchcraft stuff,” and that she worshiped “Santa
Muerte,” which he thought was like “the devil’s advocate” and bad. During
his childhood, Jonathan had heard Ayala praying for death to come upon
21
people, and throughout his life he heard her chanting, which he interpreted
as praying to Satan. On cross-examination, Jonathan agreed he was “a little
bit afraid” of Ayala, partly because of the Satanic business he talked about
and partly because she had previously pulled a gun on him.
Ayala testified on direct that she worshiped Santa Muerte, “a God for
drug dealers,” not Satan or the devil. She explained that she used to sell
drugs, and “Muerte” was one of her drug cartels or dealers that they worship
for their drug deals to go through. Ayala agreed that her nickname “Ms.
Diabla” meant “female devil,” but said this was her stripper name when she
danced at strip clubs. She denied praying to Santa Muerte or Satan before
Samuel arrived and claimed Breanna and Angel were wrong. On cross-
examination, Ayala contradicted herself. She agreed that she prayed to
Santa Muerte for successful drug deals and that Santa Muerte was a type of
religion pertaining to Satan and the devil. She explained that Santa Muerte
was related to the grim reaper who represents death, murder and darkness.
During closing argument, the prosecutor asserted that Ayala’s prayers to
Satan were part of a sadistic ritual and showed her intent to kill.
“No evidence is admissible except relevant evidence.” (Evid. Code,
§ 350.) “ ‘Relevant evidence’ means evidence, . . . having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Id., § 210, italics added.) Relevant evidence
“ ‘tends “logically, naturally, and by reasonable inference” to establish
material facts such as identity, intent or motive.’ ” (People v. Champion
(1995) 9 Cal.4th 879, 922.) Relevant evidence must be excluded “when its
probative value is substantially outweighed by its prejudicial effect.”
(People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran); Evid. Code, § 352.)
“ ‘Evidence is substantially more prejudicial than probative [citation] [only] if,
22
broadly stated, it poses an intolerable “risk to the fairness of the proceedings
or the reliability of the outcome.” ’ ” (Tran, at p. 1047.)
We acknowledge that evidence of Ayala’s Satanic beliefs carried with it
the potential for creating unfair prejudice. As our Supreme Court has
recognized, “[a] favorable view of the biblical figure of Satan is generally
understood as a symbolic rejection of the values of love and compassion, and
as indicating acceptance of the contrary values of hatred and violence, with a
consequent rejection of all moral restrictions on crimes such as murder.”
(People v. Kipp (2001) 26 Cal.4th 1100, 1135.) Accordingly, the issue here is
whether the indisputably prejudicial effect of this evidence substantially
outweighed its probative value. (Tran, supra, 51 Cal.4th at p. 1047.)
We find the evidence had minimal probative value. It may have had
some relevance in showing Ayala’s intent to kill. After Breanna heard Ayala
giving Samuel directions and saw that a text message was sent, She heard
Ayala pray, “Dear Lord Satan, please let this go through.” If believed, the
jury might infer from this evidence that Ayala prayed for Satan’s help in
murdering Samuel.
The People also argue the evidence of Satan worship was relevant to
show the witnesses’ fear of Ayala and why they may have complied with her
demands. But the support for this assertion is slight. Cheyenne told
Breanna that Ayala was “a cool person” but “not that great of a person.”
She warned that if Ayala got mad she would not be afraid to hit Breanna.
She added that Breanna “cannot say anything about God” in Ayala’s
presence. Breanna claimed the “really big reason” why she did not contact
the police after the murder is because she was “terrified of [Ayala]. She told
me if I ever contacted the police, she has people to find me; she could find me
wherever I go.” When the police first contacted her, Breanna admitted lying
23
because she was terrified but decided to tell the truth after she realized what
the police already knew. Breanna explained that after the killing, she
followed Ayala’s orders to help clean up the blood in the R.V. because she was
terrified and “did whatever [Ayala] told me to do.”
While this evidence tends to show that Breanna feared Ayala, nothing
connected Breanna’s fear to Satanic worship rather than a generalized fear of
Ayala as a potentially violent person who should not be crossed. The only
evidence from which an inference could be drawn that Breanna feared Ayala
because of unorthodox spiritual beliefs was testimony from Breanna that she
became “scared” when she heard Ayala praying to the devil about Victor.
This testimony, however, was exceedingly brief and lacked any elaboration.
Evidence that Angel feared Ayala based on her religious practices is
also weak. Angel repeatedly told investigators that he voluntarily
participated in Samuel’s murder. He testified he was not threatened by
Ayala but feared her. Angel did not know that Ayala believed in the devil
when she took him in, and by the time he found out about her beliefs he did
not know how to extricate himself from the situation. One of the first things
Angel did when getting into the police interview room is yelling twice “ ‘I love
you, Mom’ ” because he had to be careful if he wanted to extract himself from
Ayala. When Ayala told Angel to do things, he obeyed because he had a
general fear about crossing her and believed she might shoot him. Although
he was generally aware that Ayala prayed to Satan, believed in Satan, and
referred to him as “her father,” he did not hear her comment about Satan or
say prayers to Satan on the night of the murder.
Like Breanna, this evidence shows Angel feared Ayala but fails to
connect Angel’s fear of Ayala to Satanic worship. Angel’s comment that
Ayala’s belief in Satan made her physically dangerous to other people is the
24
only evidence from which the jury could infer that Angel may have feared
Ayala based on her belief in Satan. But this testimony was also brief and
lacked elaboration. Although Jonathan testified he was “a little afraid” of
Ayala, partly because of her Satanic worship, counsel did not ask any follow-
up questions connecting Jonathan’s act of selling Samuel’s car after the
murder to his fear of Ayala based on her worshiping Satan.
Thus, evidence Ayala worshiped Satan at best had only minor
probative value regarding her state of mind or intent, and to show that
certain witnesses feared her. As we have already noted, the potential for
unfair prejudice is patent. The trial court erred in admitting the evidence
because of its limited probative value and high potential for prejudice.
(Evid. Code, § 352.) On remand if the matter is retried, this evidence should
be excluded.
E. Trial Court Did Not Err by Failing to Instruct That Breanna
Was an Accomplice as a Matter of Law
While discussing jury instructions, defense counsel asserted that, for
purposes of jury instructions, Breanna could be construed an accomplice. The
prosecutor disagreed, stating Breanna was never part of the murder plot and
her receipt of immunity did not “trigger[ ] an accomplice act.” Defense
counsel argued the trial court should instruct with CALCRIM No. 335, to
inform the jury that Breanna was an accomplice as a matter of law, because
the prosecutor sought to admit Breanna’s statements under the coconspirator
exception and being a coconspirator is synonymous with being an accomplice.
Ramirez’s counsel believed that when the parties discussed admitting
Ayala’s statements as those of a coconspirator, Breanna was included among
the conspirators. The prosecutor disagreed that she presented Breanna’s
statements as a coconspirator to the events and argued the court should
25
instruct with CALCRIM No. 334, which would allow the jury to decide
whether Breanna was an accomplice. The trial court did not find Breanna
was an accomplice as a matter of law and concluded it would instruct the jury
with CALCRIM No. 334.
Under CALCRIM No. 334, the jurors were told they had to decide if
Breanna was an accomplice. They were instructed that an accomplice is
“subject to prosecution for the identical crime charged against [defendants].”
An accomplice had to personally commit the crime, or aid and abet its
commission knowing the criminal purpose of the perpetrator. The jurors
were advised that if they determined Breanna was an accomplice, they could
not convict defendants based on her testimony alone. Instead, corroborating
evidence was needed which tended to connect defendants to the commission
of the charged crimes. If Breanna was an accomplice, the jurors were to view
her testimony with caution.
Defendants contend the trial court erred when it denied their request
to instruct the jury that Breanna was an accomplice as a matter of law under
CALCRIM No. 335. The People disagree, claiming the trial court properly
instructed the jury with CALCRIM No. 334 because Breanna’s status as an
accomplice was reasonably disputable. Even assuming the court erred by
failing to instruct the jury that Breanna was an accomplice as a matter of
law, the People assert the assumed error was harmless because Breanna’s
testimony was amply corroborated. We conclude the trial court properly
instructed the jury with CALCRIM No. 334 instead of CALCRIM No. 335.
“Section 1111 defines an accomplice as ‘one who is liable to prosecution
for the identical offense charged against the defendant on trial in the cause in
which the testimony of the accomplice is given.’ In order to be chargeable
with the identical offense, the witness must be considered a principal under
26
section 31. That statute defines principals to include ‘[a]ll persons concerned
in the commission of a crime . . . whether they directly commit the act
constituting the offense, or aid and abet in its commission, or, not being
present, have advised and encouraged its commission . . . .’ [Citations.]
A mere accessory, however, is not liable to prosecution for the identical
offense, and therefore is not an accomplice.” (People v. Horton (1995) 11
Cal.4th 1068, 1113–1114 (Horton).)
“Whether someone is an accomplice is ordinarily a question of fact for
the jury; only if there is no reasonable dispute as to the facts or the inferences
to be drawn from the facts may a trial court instruct a jury that a witness is
an accomplice as a matter of law.” (People v. Valdez (2012) 55 Cal.4th 82,
145–146.) When the issue of whether a witness is an accomplice is disputed,
“[t]he burden is on the defendant to prove by a preponderance of the evidence
that a witness is an accomplice.” (People v. Fauber (1992) 2 Cal.4th 792, 834.)
We review a claim for instructional error de novo. (People v. Posey (2004) 32
Cal.4th 193, 218.)
Defendants first argue that Breanna could have been charged as a
direct participant in the murder. The evidence, however, does not
conclusively show that Breanna participated in the murder. According to
Breanna, she was inside the abandoned house when she heard screams
coming from the R.V. After Breanna heard Ayala call her name, she
approached the R.V. and saw Ramirez and Angel pulling Samuel out of the
R.V. on a sheet. In contrast, Ayala claimed Breanna was inside the R.V.
when Ramirez and Samuel began to fight. Although Breanna did not come
outside with her, Ayala assumed Breanna went to the back of the R.V. Angel
told police that Breanna was sitting on a bed in the bedroom of the R.V. when
27
he observed Ayala and Ramirez hitting Samuel. No witness testified that
Breanna participated in beating Samuel.
Defendants next argue Breanna was a direct aider and abettor to the
murder: that is, a person who “with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing, encouraging, or
facilitating the commission of the offense, (3) by act or advice aid[ed],
promote[d], encourage[d] or instigate[d], the commission of the crime.”
(People v. Beeman (1984) 35 Cal.3d 547, 561.) While the evidence shows
Breanna’s phone was used to lure Samuel to the campsite, the evidence is
disputed whether Breanna or Ayala spoke to Samuel and directed him to the
property. Thus, it is at best unclear whether Breanna intended to facilitate
the murder, and whether she actually aided, promoted, encouraged or
instigated the Samuel’s killing. 12 Finally, Breanna’s alleged actions and
statements after the murder, such as helping clean up the murder scene,
laughing while saying “this is kinda fun” while cutting bloody upholstery out
of the R.V., or lying to police, do not necessarily show she acted as an
accomplice to murder. (Horton, supra, 11 Cal.4th at p. 1114 [a mere
accessory is not an accomplice].) 13
12 Although Breanna testified Ayala punched a fist into her other hand
while stating “ ‘ “He’ll get his threesome,” ’ ” she believed Ayala was just
going to beat Samuel up and scare him so he would leave her alone. This
evidence does not indisputably show Breanna was defendants’ accomplice as
a matter of law.
13 Defense counsel’s contention during argument to the court outside the
jury’s presence—that Breanna’s status as a coconspirator was synonymous
with her being an accomplice—is of no moment because defendants do not
contend Breanna is liable for the murder as a principal on a conspiracy
theory. Moreover, the jury was not instructed that Breanna was a
coconspirator, only that Ayala, Ramirez and Angel were members of the
conspiracy.
28
In sum, no evidence clearly and indisputably showed that Breanna was
an accomplice as a matter of law. Accordingly, the court properly refused to
instruct that Breanna was an accomplice as a matter of law and correctly
allowed the jury to decide whether Breanna had the intent necessary to
establish accomplice status. Should the prosecution retry this matter and
Breanna testifies, the court should instruct with CALCRIM No. 334.
DISPOSITION
The judgments are reversed and the matter is remanded to the trial court.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
KELETY, J.
29