Opinion
E070428
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID ERNESTO AVINA et al., Defendants and Appellants.
Maline Law Group and Rajan R. Maline for Defendant and Appellant David Ernesto Avina. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Aureliano Mendez. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting and Kristen A. Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
The court has reviewed the petition for rehearing filed on June 16, 2020. The petition is denied.
The opinion filed in this matter on June 15, 2020 is modified as follows:
On pages 43-44, the following three sentences are changed from:
Defendants argue that an objection would have been futile because "the court had ruled in favor of the prosecution on every trial issue." They provide no citation to support this claim; hence, we disregard it. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) A fortiori, they do not show that the trial court had erred by ruling in favor of the prosecution.
to:
Avina argues that an objection would have been futile because "the court had ruled in favor of the prosecution on
every trial issue." He provides no citation to support this claim; hence, we disregard it. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) A fortiori, he does not show that the trial court had erred by ruling in favor of the prosecution.
Except for these modifications, the opinion remains unchanged. This modification does not effect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. MENETREZ
J. cc: See attached mailing list Superior Court Clerk
San Bernardino County
8303 N. Haven Ave
Rancho Cucamonga, CA 91730 Kristen Ramirez
Office of the Attorney General
P.O. Box 85266
San Diego, CA 92186-5266 Rajan R. Maline
Law Office of Rajan Maline
3850 Vine Street, Suite 100
Riverside, CA 92507 Allen G. Weinberg
9454 Wilshire Boulevard, Suite 600
Beverly Hills, CA 90212 Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101 2396
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. FWV17000793, FWV17000794) OPINION APPEAL from the Superior Court of San Bernardino County. Bridgid M. McCann and Ingrid A. Uhler, Judges. Affirmed as modified with directions. Maline Law Group and Rajan R. Maline for Defendant and Appellant David Ernesto Avina. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Aureliano Mendez. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting and Kristen A. Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Judge McCann denied defendant Mendez's pretrial request to represent himself. (See part II, post.) Judge Uhler presided over the trial and made all of the other challenged rulings.
As the gang expert in this case testified, "This [wa]s the classic gang murder." Defendants David Avina and Aureliano Mendez, members of a gang called Hard Times, went cruising around Fontana; they were armed and looking for rival gang members to shoot. They spotted a bicyclist who was "all banged out." Mendez asked him where he was from — the standard gang challenge and threat. The bicyclist claimed another gang. As the bicyclist started "riding for his life," Avina shot at him but missed. Defendants then overtook him, and Avina shot him dead.
As a result, defendants were found guilty of one count of first degree murder (§ 187, subd. (a)), with a gang enhancement (§ 186.22, subd. (b)(1)(C)) and an enhancement for the personal and intentional discharge of a firearm by a principal, causing death (§ 12022.53, subds. (d) and (e)(1)). Defendants were also found guilty of one count of active gang participation. (§ 186.22, subd. (a).) They were each sentenced to a total of 50 years to life.
This and all further statutory citations are to the Penal Code, unless otherwise indicated.
In this appeal, one or both defendants contend:
1. The trial court erred by denying Mendez's request to represent himself.
2. The trial court erred by admitting Mendez's out-of-court statements to a jailhouse informant.
3. The trial court erred by forcing George Franco — Avina's nephew and a fellow member of Hard Times — to refuse to answer questions in front of the jury.
4. The trial court erred by admitting evidence that witness Franco had been convicted of a gang-related manslaughter.
5. The instructions erroneously failed to specify that an aider and abettor cannot be convicted of first degree murder unless he or she personally premeditated and deliberated.
6. The trial court erred by failing to instruct on imperfect self-defense.
7. The prosecutor committed misconduct in closing argument by urging jurors to "do the right thing."
8. The trial court erred by staying, rather than striking, the 10-year gang enhancement term.
9. The trial court miscalculated defendants' presentence custody credits.
10. There are errors in each of the abstracts of judgment.
We find no error affecting the convictions. The People concede defendants' last three contentions, regarding the sentences. We accept two out of three of those concessions; hence, we will modify the judgments accordingly. However, we reject the People's concession regarding the presentence custody credits.
I
FACTUAL BACKGROUND
A. The Shooting.
A female eyewitness lived on Redwood Avenue, just north of Valley Boulevard, in Fontana.
On April 26, 2015, around 10:00 p.m., she heard approximately three shots. After the first or second shot, she looked out the window. She saw a "guy" holding a gun in both hands and firing. He was in the street, near the open driver's side door of a black car. After "a break in time," she heard approximately three more shots, from farther south, toward Valley.
The witness described the shooter as Hispanic and approximately 30 years old. He was "chubby" or "chunky."
She testified that he was taller than the prosecutor (who was nearly six feet tall). However, she also testified (and told police) that he was approximately her height; she was five feet four or five inches tall.
According to the witness, "[h]is hair was[] . . . not too short . . . ." However, she then agreed that he had "very, very[] short hair . . . ." She had told police that he was bald.
Someone else called 911. A police officer was dispatched to the intersection of Valley and Redwood. When she arrived, medical personnel were working on a man lying in the street. There were several bystanders, including a woman wearing scrubs, "[l]ike a nurse." A bicycle was also lying in the street.
The victim was identified as Guy Estrada. He had been shot once in the back. The bullet "tore through the left lung[,] causing internal bleeding" and eventually death. One fired bullet casing, stamped, "Tulammo .223," was found nearby.
Surveillance videos from three nearby businesses, all timestamped between 10:05 and 10:09 p.m., showed a black sedan going south on Redwood. It slowed or stopped. On the driver's side, there were three flashes of light. It then turned right (west) on Valley, and right (north) on Cherry, thus going in the direction of a Jack in the Box. Ten minutes later, the same (or a similar) black sedan came back the same way.
B. The Arrest of Defendants.
On April 30, 2015 — four days after the shooting — police officers saw a black Lexus in the driveway of a house on Kempster Avenue in Fontana. It was similar to the car shown in the surveillance videos. Avina was standing near it.
When it left the house, about 20 minutes later, the officers followed it. It seemed to be driving evasively. The police turned on their lights and sirens; it ran a red light and accelerated onto a freeway. As they pursued it, it went up to 90 miles an hour and "was weaving in and out of traffic . . . ." After going five and a half miles, the Lexus got off the freeway and stopped at a gas station. The occupants — Avina, the driver, and Mendez, the passenger — were arrested.
As of April 2015, Avina was 26 years old. He was five feet eight inches tall and weighed 205 pounds. He had a shaved head.
Mendez appeared to be 21 or 22 years old. He was five feet eleven inches tall and weighed 260 pounds; he had a full head of hair.
According to the probation report, he was 18.
The Lexus belonged to Avina. In it, the police found a Washington Nationals hat that also belonged to Avina. They found a .22-caliber handgun under the passenger seat and an SKS .223-caliber rifle in the trunk. The rifle was loaded with Tulammo .223 bullets. The bullet casing found at the scene had been fired from this rifle. There were no usable fingerprints on either gun.
C. Mendez's Recorded Statement to a Jailhouse Informant.
Christopher Baca was a member of a Hispanic gang in Los Angeles called Little Hill. Normally, Los Angeles gangs "feud" with Inland Empire gangs. When in prison, however, members of Southern California Hispanic gangs band together as Sureños. Sureños, in turn, are connected to the Mexican Mafia.
Baca had pleaded guilty to armed robbery, with a gang enhancement, and assault with a firearm, in exchange for a sentence of 20 years. While he was awaiting sentencing, he was in the same jail as Mendez. Mendez told Baca that he was a member of a gang called Hard Times. He also mentioned the murder of a man riding a bike in Rancho Cucamonga or Fontana.
Baca contacted the police and told them what Mendez had told him. He was hoping to get a deal for a shorter sentence. In the end, he did not get a deal of any kind. Nevertheless, he agreed to become an informant, for the sake of the victim's family.
Baca admitted, however, that three years later, in exchange for his help in a different case, he was given $1,000 and assistance in moving to a different prison.
The police had Baca wear a wire and placed him in the same cell as Mendez. At that time, Mendez believed that Avina was "throwing him under the bus." He asked Baca to send a "kite" to gang higher-ups, telling Mendez's side of the story.
Mendez therefore told Baca, "[W]e . . . shot that fool on Valley."
Avina was driving; his passengers were Mendez and "Ant" — i.e., Anthony Guerra. They were "looking out for those fools." "[Mendez] and Ant were . . . supposed to bust that day . . . ."
They were on the street before Cherry and Valley when they saw the victim, "all banged out on a bike riding past [them]." He was headed toward Valley. Avina said, "'Bang on this fool!'"
Mendez asked the victim where he was from. The victim said, "'187 Rancho' something." Mendez "had the SKS," "but [Avina] said we weren't doing it right[,] so[] that fool did it himself." Avina got out and tried to fire, but Mendez had not "put the clip all the way in." The victim started "riding for his life." Avina fixed the clip and fired several shots, but missed.
Mendez also said, however, that it was Avina who asked the victim where he was from.
Avina then said, "Fuck that, we're going to get this fool!" He got back in the car and drove after the victim. The victim was on Mendez's side, so Avina handed the gun to Mendez. "[B]ut then [the victim] swerved his bike to the other side of the street" and Avina said, "'Give me it, he's on my side!"
As they turned right on Valley, toward Cherry, they pulled up alongside the victim. Avina said, "[H]old my steering wheel." Avina then fired several shots; he hit the victim in the back and "dropped him." Avina laughed an "evil laugh" and started singing, "Another one bites the dust."
They stopped at a Jack in the Box on Cherry. Avina decided to go back to check on the body. They saw a bunch of cars and people, including a nurse. Mendez "was like, 'Yeeeah!'" He and Avina were "just laughing at that shit cause that fool's dead right there."
In sum, then, Mendez's statement was consistent with the eyewitness testimony and the physical evidence, except in two arguable respects. First, while he said he and Avina were going down the first street east of Cherry, he added, "I think it's Banana [Street]," rather than Redwood. Banana was nearby, on the other side of Cherry.
Photos that may have either confirmed or contradicted some of Mendez's statements have not been transmitted to us. For example, Mendez said the victim had a BMX bike, and photos of the bike were admitted. Presumably, however, if the photos contradicted Mendez's statements, defense counsel would have pointed that out in closing argument.
Second, he said, "Every single shot hit that fool." However, he also said that some shots missed, both in the initial and in the final volleys.
D. Gang Evidence.
In the opinion of a gang expert, both defendants were active members of a gang called Hard Times (or Hard Times Fontana).
Photos showed Mendez associating with Hard Times members and throwing Hard Times gang signs.
Similarly, a photo showed Avina, at a known gang house, wearing gang attire, and associating with Hard Times members, including one throwing a gang sign.
Anthony "Ant" Guerra was also a member of Hard Times.
Hard Times had 30 to 40 members. It used common signs or symbols, including "HT," "HTF," and "P13." Members of Hard Times and other Inland Empire gangs wear Washington Nationals gear to signify "IE." The gang's primary activities were homicide, assault, battery, burglary, identity theft, and vandalism. Its rival gangs included South Fontana and Head Hunters.
The following predicate offenses were introduced to show a pattern of criminal activity:
1. Manslaughter, committed by George "Sicko" Franco, a member of Hard Times, on April 19, 2015.
2. Grand theft, committed by Steve Roybal, a member of Hard Times, on August 6, 2014.
3. Transportation of a controlled substance, committed by Jimmy Rojas, a member of Hard Times, on May 3, 2013.
4. Unlawful taking of a motor vehicle, committed by Ernesto Hernandez, a member of Hard Times, on June 27, 2012.
5. Murder, committed by Mark Morales, a member of Hard Times, on December 5, 2009.
6. Transportation of a controlled substance, committed by Augustine Baraza, a member of Hard Times, on August 14, 2009
7. Unlawful possession of a firearm, committed by Theodore "Ziggy" Sanchez, a member of Hard Times, on December 29, 2006.
The testimony regarding the predicate offenses is not always clear as to whether the dates refer to the commission or the conviction of the offense. Exhibits that would have clarified this have not been transmitted to us.
The expert defined "banging on" someone as asking "where are you from," meaning what gang. It is effectively a challenge to fight. If the other person claims a rival gang, the person who initially banged on them is expected "to at least threaten them, assault them, or all the way up . . . to kill them." Otherwise, that person would become known as a coward.
"Banged out" means having paraphernalia or tattoos indicating gang membership. "187" means murder and can be a threat of murder. "Bust" means shoot or assault.
Gang members brag to fellow gang members about their crimes and talk about crimes committed by fellow gang members. Thus, they are aware of the crimes committed by their gang.
Victim Estrada had tattoos indicating that he was a gang member, including "Southern Style" on his neck and "Etiwanda" and "X3" on his chest. The shooting occurred outside Hard Times' territory, in a contested area on the border between South Fontana and Head Hunters.
In the expert's opinion, the shooting benefited Hard Times because it "show[ed] a willingness to commit violence . . . against rival gang members in their own territory."
It was also committed in association with Hard Times, because two Hard Times members helped each other commit the crime while hanging out with a third Hard Times member.
Because defendants were in the territory of rival gangs, carrying a firearm, with the windows rolled down, the expert believed they were "looking for a fight."
II
THE DENIAL OF MENDEZ'S REQUEST TO REPRESENT HIMSELF
Mendez contends that the trial court erred by denying his request to represent himself.
A. Additional Factual and Procedural Background.
About six months before trial, Mendez made a Marsden motion. The trial court (a different judge than the eventual trial judge) held a hearing on this motion. Mendez listed his complaints about his counsel, including that his counsel had not shared the discovery with him. The trial court allowed his counsel to respond. When Mendez continued to assert "I'm entitled to discovery," the trial court responded, "No, sir. You are not." Mendez began arguing with the court and talking over it.
A Marsden motion is a motion to discharge existing appointed counsel, based on ineffective assistance, and to appoint new counsel. (People v. Marsden (1970) 2 Cal.3d 118.)
This exchange ensued:
"The Court: Sir, listen to what I'm saying. I told you I have a procedure I have to follow. You gotta help me follow it.
"The Defendant: All right. Can I just go pro per?
"The Court: No sir, you cannot.
"The Defendant: I'll just go pro per.
"The Court: No, sir. You cannot.
"The Defendant: I have a right.
"The Court: No sir, you cannot. At this point we are having a conversation. We are going to finish this conversation. You have indicated you don't disagree with what [defense counsel] has factually represented; is that correct? . . .
"The Defendant: You guys are going to deny it anyways, so can we just
"The Court: I don't know that I'm going to deny it. I'm not done with my fact-finding yet. I need the answer to that question in order to make my determination. Otherwise, I have someone who won't follow the Court's instructions, who is not going to be able to represent himself. Because if you want to represent yourself in a separate hearing, you gotta follow my instructions, and right now you are not doing too well."
The trial court then denied the Marsden motion. It advised Mendez, "[I]f you wish to represent yourself, then you need to make that representation, and there's a form that we have to have you fill out, and we'll go through that process as well, if that's what you would like to do."
Mendez never asked to represent himself again.
B. Discussion.
Under Faretta v. California (1975) 422 U.S. 806, "a criminal defendant has a federal constitutional right to represent himself if he voluntarily and intelligently so chooses. [Citation.] A trial court must grant a defendant's request for self-representation if the request is timely and unequivocal, and the defendant makes his request voluntarily, knowingly, and intelligently. [Citation.]" (People v. Johnson (2019) 8 Cal.5th 475, 499.)
"A defendant's request to proceed pro per must be unequivocal, voluntary, and intelligent. Often, defendants make a self-representation motion in the heat of the moment, after a different motion has been denied." (People v. Becerra (2016) 63 Cal.4th 511, 519.) "'[A] [Faretta] motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal — even if the defendant has said he or she seeks self-representation.' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 932.)
"[A] court 'properly may deny a request for self-representation that is a "momentary caprice or the result of thinking out loud."' [Citation.] In People v. Hacker [(1990)] 563 N.Y.S.2d 300, for example, in response to defendant's request, the trial court inquired whether the defendant was certain he wanted to proceed pro se, and he responded affirmatively. The reviewing court nonetheless found the record as a whole did not reflect an unequivocal request, but rather a spur of the moment decision prompted by the denial of defendant's motion for substitute counsel. [Citation.] And in Jackson v. Ylst [(9th Cir. 1990)] 921 F.2d 882, the defendant stated: "'I want to fight it in pro per then. Relieve him and I do this myself.'" The reviewing court considered the record as a whole, including the defendant's failure to assert the right of self-representation at a later hearing, and independently determined that the defendant's request for self-representation was an impulsive response to the trial court's denial of his request for substitute counsel. . . . [T]he court stated: 'Jackson's emotional response when disappointed by the trial court's denial of his motion for substitute counsel did not demonstrate to a reasonable certainty that he in fact wished to represent himself.' [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 21-22.)
Moreover, "the right 'once asserted, may be waived or abandoned.' [Citations.] A defendant's waiver or abandonment of this constitutional right should be voluntary, knowing, and intelligent [citation]; [but] such waiver or abandonment may be inferred from a defendant's conduct. [Citations.]" (People v. Trujeque (2015) 61 Cal.4th 227, 262-263.)
"In determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo. [Citation.]" (People v. Dent (2003) 30 Cal.4th 213, 218.)
People v. Tena (2007) 156 Cal.App.4th 598 is all but on point here, and it requires us to reject Mendez's contention. There, at one early hearing, in the course of complaining to a commissioner about his appointed counsel's failure to subpoena witnesses, the defendant said, "'I want to go pro per.'" (Id. at p. 605.) The commissioner replied, "'You can't.'" (Ibid.)
Later, at the preliminary hearing, the defendant made a Marsden motion. (People v. Tena, supra, 156 Cal.App.4th at p. 605) When it was denied, he became "agitated" and threatened to walk out. (Id. at p. 606.) The judge called a recess. After the recess, the defendant asked, "Your Honor, may I go pro per?" The judge denied this request as untimely (i.e., as to the preliminary hearing); however, it added, "You can revisit that . . . at your next appearance." (Ibid.) The defendant never asked to represent himself again. (Ibid.)
The appellate court held that the trial court did not err by failing to let the defendant represent himself, for two reasons.
First, his requests to do so were equivocal. (People v. Tena, supra, 156 Cal.App.4th at pp. 607-609.) The court explained: "In our view, appellant's remarks were impulsive reactions to his frustrated attempts to secure an attorney who would subpoena the witnesses that he desired, rather than unequivocal Faretta requests." (Id. at p. 608.) "Only after [the c]ommissioner . . . told him to consult his public defender did appellant refer to self-representation, which [the c]ommissioner . . . denied. Although appellant otherwise spoke vigorously in court, he immediately returned to the topic of the witnesses, and did not pursue self-representation." (Id. at pp. 608-609.)
"We conclude that appellant's remarks about self-representation before [the j]udge . . . arose from the same desire. Only after [the j]udge . . . denied the Marsden motion and a continuance to facilitate representation by his private attorney did appellant refer to self-representation, immediately following his emotional response to these rulings. Thereafter, despite [the j]udge[']s express invitation, appellant declined to revisit the question of self-representation . . . ." (People v. Tena, supra, 156 Cal.App.4th at p. 609.)
Second, the defendant had abandoned his request to represent himself. (People v. Tena, supra, 156 Cal.App.4th at pp. 609-612.) "[W]e conclude that following the preliminary hearing, appellant abandoned any desire for self-representation expressed to [the c]ommissioner . . . and [the j]udge . . . . He never accepted [the j]udge[']s invitation to renew his request following the preliminary hearing, notwithstanding his demonstrated proclivity to speak for himself and opportunity to do so before a new bench officer." (Id. at p. 610.)
Here, as in Tena, defendant asked to represent himself out of frustration that his Marsden motion was not going his way. He made his Faretta request only after the trial court indicated that it would not relieve his appointed counsel based on failure to share the discovery. He even stated on the record that he was making the Faretta request because "[y]ou guys are just going to deny [the Marsden motion] anyways . . . ." Like the defendant in Tena, he had become disruptive.
Admittedly, by saying, "No sir, you cannot," the trial court seemed to flatly deny the Faretta request. However, it immediately made it clear that it was merely postponing it. It told Mendez, "[I]f you want to represent yourself in a separate hearing, you gotta follow my instructions . . . ." It also said, "[I]f you wish to represent yourself, then you need to make that representation, and there's a form that we have to have you fill out, and we'll go through that process as well, if that's what you would like to do." Nevertheless, Mendez never renewed his Faretta request, despite, as in Tena, "his demonstrated proclivity to speak for himself and [the] opportunity to do so before a new bench officer." (People v. Tena, supra, 156 Cal.App.4th at p. 610.)
His failure to renew the request confirms that it was the product of frustration. Moreover, as in Tena, it also shows, alternatively, that he abandoned his Faretta request.
III
THE ADMISSION OF MENDEZ'S STATEMENTS
TO JAILHOUSE INFORMANT BACA
Avina, joined by Mendez, contends that the trial court erred by admitting Mendez's out-of-court statements to jailhouse informant Baca.
A. Additional Factual and Procedural Background.
The prosecution filed a motion in limine to admit Mendez's jailhouse statements. Avina's counsel objected, based on hearsay and the confrontation clause. He requested, if the statements were admitted, that the trial court either empanel separate juries or redact the statements so as to omit any reference to Avina. Mendez's counsel objected based on Miranda.
Miranda v. Arizona (1966) 384 U.S. 436 [defendant's statements in response to custodial interrogation are inadmissible in People's case-in-chief unless defendant is advised of applicable constitutional rights and waives them].
The trial court ruled that the statements were hearsay but admissible as declarations against penal interest. It specifically found that they were trustworthy, because, among other things, "[Mendez's] motivation in making the statements was not to shift blame on others but to accept responsibility for his actions so that he can be credited for those actions by the Hard Times [g]ang and the Mexican Mafia."
It further ruled that the confrontation clause was not implicated because the statements were not testimonial. Finally, it ruled that Miranda does not apply to statements to jailhouse informants.
B. Discussion.
1. Hearsay under state law.
Defendants argue that, as a matter of state law, the trial court erred by admitting the statements under the declaration against interest exception.
It is undisputed that the statements were hearsay (Evid. Code, § 1200, subd. (a)), and thus inadmissible unless they fell under an exception to the hearsay rule. (Id., subd. (b).) However, the statements were admissible against Mendez under the exception for admissions by a party. (Evid. Code, § 1220.) The only real dispute is as to whether they were admissible against Avina under the exception for declarations against interest.
Under that exception, as relevant here, hearsay is admissible "if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.)
"'"To be against penal interest . . . , the statement need not be made to persons who are likely to use it against the declarant in court proceedings. Declarations against penal interest are received notwithstanding that they were spoken in confidence in the expectation they would not be repeated to the authorities. [Citations.] Indeed, that makes such declarations more trustworthy." [Citation.]' [Citation.]" (People v. Masters (2016) 62 Cal.4th 1019, 1056.)
Avina argues that the statements were not against Mendez's penal interest because they tended to shift the blame to Avina. He relies on People v. Leach (1975) 15 Cal.3d 419, which held that "any portions of declarations against interest . . . not actually disserving to the declarant" are not admissible under the exception. (Id. at p. 439.) "Under the rule of Leach, a hearsay statement 'which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible.' [Citations.]" (People v. Duarte (2000) 24 Cal.4th 603, 612.)
Leach indicated that the rule it stated flows from the requirement that the statement must be against the declarant's penal interest. (People v. Leach, supra, 15 Cal.3d at pp. 438-441.) Other cases, such as Duarte, have indicated that it flows from the requirement that the statement must be trustworthy. Of course, these two factors overlap, because the fact that a statement is against the declarant's penal interest is precisely what normally makes it trustworthy.
In People v. Grimes (2016) 1 Cal.5th 698, however, the court, noting that "the proper application of the Leach rule appears to have generated some confusion" (People v. Grimes, supra, at p. 713), clarified the rule. It declared that "the nature and purpose of the against-interest exception does not require courts to sever and excise any and all portions of an otherwise inculpatory statement that do not 'further incriminate' the declarant." (Id. at p. 716.)
Instead, the court adopted "a contextual approach." (People v. Grimes, supra, 1 Cal.5th at p. 715.) It explained: "We have applied Leach to bar admission of those portions of a third party's confession that are self-serving or otherwise appear to shift responsibility to others. [Citations.] But we have permitted the admission of those portions of a confession that, though not independently disserving of the declarant's penal interests, also are not merely 'self-serving,' but 'inextricably tied to and part of a specific statement against penal interest.' [Citation.]" (Ibid.) It added that "a statement is not . . . automatically inadmissible merely because it does not render the declarant more culpable than the other portions of his confession — or because . . . the statement does not 'significantly enhance the personal detriment' to a person who has already confessed responsibility for the crime." (Id. at pp. 716-717.)
Under the law as it stands since Grimes, "the fact a hearsay statement portrays the declarant as a more minimal participant in a crime by itself does not require exclusion or end our analysis. . . . Only when there is both blame shifting by the declarant and other circumstances suggest[ing] some improper motive for the blame shifting have courts found admission of a hearsay statement error. [Citation.]" (People v. Smith (2017) 12 Cal.App.5th 766, 792, italics added.)
"We review a trial court's decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion. [Citation.]" (People v. Grimes, supra, 1 Cal.5th 698, 711-712.)
According to Avina, Mendez's statements tended to shift the blame, in that he said that Avina was the actual shooter; Mendez admitted only that he was originally supposed to be the shooter and that he did briefly hold the gun. As we will discuss, however, this did not preclude the admission of the statements.
In People v. Brown (2003) 31 Cal.4th 518, there was evidence that defendant Brown, one Broderick Fields, and others were in a car together when Brown saw a truck that he wanted to steal. (Id. at pp. 524-525.) Brown jumped out, went up to the driver's side of the truck, shot the driver, and got in the driver's seat. Fields, too, jumped out, went up to the passenger side of the truck, and got in. Brown drove away. (Id. at p. 525.) Both Brown and Fields were African-American. (Id. at p. 533.)
To impeach an eyewitness who had testified that both of the men who got in the truck were Hispanic, the People introduced a redacted version of Fields's statement to the police. (People v. Brown, supra, 31 Cal.4th at p. 533.) In it, Fields admitted that he got out of a car, entered the passenger side of the truck, and left the scene in the truck. (Id. at p. 533.)
The Supreme Court held that Fields's statement was admissible as a declaration against interest. (People v. Brown, supra, 31 Cal.4th at pp. 535-537.) Brown argued that Fields's statement was not contrary to Fields's penal interest because Fields "'clearly tried to distance himself from being the shooter' and . . . 'denied having any knowledge that a crime had been committed.'" (Id. at p. 535.) The Supreme Court disagreed. It noted that Fields, while under arrest for murder, had admitted seeing a person run up to the driver's side with a gun and hearing a gunshot. (Id. at pp. 535-536.)
It concluded: "[T]here was evidence from which the trial court could reasonably conclude Fields knew his statement was against his penal interest: He knew defendant had a gun, he knew defendant ran up to the victim's truck, he knew defendant fired the gun and pulled the victim from her truck, and he knew they were stealing the victim's truck. Although he denied personally committing the murder, he did not attempt to cast blame for the murder on defendant, repeatedly saying he did not know if the victim had died, and that defendant had told him he merely shot out the window and the victim fainted as a result. This was thus not a case in which Fields admitted to some culpability in order to shift the bulk of the blame to another. Although he did say defendant had a gun, his story nevertheless admitted he and defendant were relatively equally to blame. Like the trial court, we conclude the circumstances surrounding Fields's statement indicate it 'was sufficiently reliable to warrant admission despite its hearsay character.' [Citation.]" (People v. Brown, supra, 31 Cal. 4th at pp. 536-537.)
Here, similarly, Mendez knew that, by his statement, he was implicating himself in a murder and a conspiracy to commit murder. Admittedly, Brown is arguably distinguishable; there, Fields claimed he did not know whether Brown actually shot the victim, whereas here, Mendez affirmatively said that Avina did shoot the victim. Nevertheless, Mendez indicated that this was a matter of happenstance. He was supposed to be the shooter; he was holding the gun, and he would have shot, but for the fact that the victim swerved over to Avina's side of the street. When Mendez saw that the victim was dead, he was exultant, shouting "'Yeeeah!'" Both he and Avina were laughing. Thus, as in Brown, he admitted that he and Avina were relatively equally to blame. At a minimum, the trial court could reasonably conclude that Mendez's statement was not untrustworthy merely because he said Avina was the shooter.
Moreover, there was an additional indicator of trustworthiness: As the trial court noted, Mendez was afraid that Avina intended to "throw[] him under the bus." He made his statements so Baca could send them in a kite to gang higher-ups. Thus, he had every reason to downplay Avina's role in the shooting and to play himself up as more culpable. Nevertheless, he admitted that Avina was the shooter. The trial court properly concluded that, under the circumstances, this was particularly trustworthy and not an effort to shift blame.
Finally, even assuming this could be viewed as blame shifting, under Grimes and Smith, supra, that would not require exclusion, unless there was also evidence of some improper motive. There was none. As discussed, Mendez's motive was to take blame, not shift it. It was reasonable to conclude that he was telling the truth about both his and Avina's participation.
Avina also argues that Mendez's statements were untrustworthy because the gang expert testified that gang members sometimes lie and sometimes boast about things they did not do. When the trial court ruled, however, the expert had not yet testified. Moreover, after the expert did testify, Avina did not move to strike the statements. Hence, he forfeited any reliance on this testimony as grounds to exclude the statements.
We also reject this argument on the merits. Actually, the gang expert testified that gang members sometimes lie and sometimes tell the truth; they lie to stay out of trouble. However, non-gang members also sometimes lie and sometimes tell the truth. That is why the trustworthiness of a declaration against penal interest must be viewed in context. Here, Mendez clearly was not lying to keep himself out of trouble. And he had no reason to make Avina look more criminal than he in fact was.
Finally, Avina argues that the statements were not against Mendez's interest (and/or were not trustworthy) because he was hoping they would ingratiate him with gang higher-ups. As we have already mentioned, a statement can be against the declarant's penal interest even when it is made to a cellmate or similar confidant. (People v. Masters, supra, 62 Cal.4th 1019, 1056.) In People v. Dalton (2019) 7 Cal.5th 166, the defendant argued that her accomplice Tompkins' statements to a cellmate were not declarations against penal interest because they were mere "'bragging or puffing'" — the accomplice "'was in custody and wanted to be perceived of as tough.'" (Id. at p. 207.) The Supreme Court responded that this "argument shows "'only that a court might perhaps have been able to arrive at the conclusion that [Tompkins's] statement did not so far subject him to the risk of criminal liability that a reasonable person in his position would not have made it unless he believed it to be true. [It] simply do[es] not show that a court was unable to arrive at the opposite conclusion. Therefore, [it does] not establish an abuse of discretion.'" [Citation.]" (Id. at pp. 207-208; see also People v. Arauz (2012) 210 Cal.App.4th 1394, 1400-1401 [accomplice made statements to jailhouse informant because he believed he had been "greenlighted" by the Mexican Mafia for committing a drive-by shooting; statements were against interest and trustworthy].)
For these reasons, the trial court did not err by admitting the statements under the declaration against interest exception.
2. The confrontation clause.
Avina also argues that the admission of the statements violated the federal confrontation clause.
Although Mendez purports to join this argument, the statements were his own statements. Hence, he has no standing to assert a violation of the confrontation clause. (See People v. Armstrong (2019) 6 Cal.5th 735, 790.)
Avina relies on the so-called Bruton-Aranda (or Aranda-Bruton) rule. "Aranda and Bruton stand for the proposition that a 'nontestifying codefendant's extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant's right of confrontation and cross-examination, even if a limiting instruction is given.' [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 652.)
Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.
Crawford v. Washington (2004) 541 U.S. 36, however, put a significant gloss on the confrontation clause, and hence on the Bruton-Aranda rule. It held that the admission of an out-of-court statement does not implicate the confrontation clause unless it is "testimonial." (Crawford at pp. 50-52, 60.) Under Crawford, an out-of-court statement that is not testimonial, "while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." (Davis v. Washington (2006) 547 U.S. 813, 821.) Accordingly, the admission of a nontestifying codefendant's nontestimonial hearsay statement cannot violate the confrontation clause. (People v. Cortez (2016) 63 Cal.4th 101, 129; People v. Washington (2017) 15 Cal.App.5th 19, 28-29; People v. Arceo (2011) 195 Cal.App.4th 556, 571-575.)
A statement to someone other than a law enforcement officer is testimonial if it is "made with the primary purpose of creating evidence for [a] prosecution" or "given with the 'primary purpose of creating an out-of-court substitute for trial testimony.'" (Ohio v. Clark (2015) 576 U.S. ___, ___ [135 S.Ct. 2173, 2181, 2183].)
Ordinarily, an inmate's statement to a fellow inmate is not testimonial within the meaning of Crawford. (People v. Dalton, supra, 7 Cal.5th at p. 209.) Avina argues, however, that Baca "was acting as a government agent." Although he does not fully connect the dots, he is essentially arguing that Baca got Mendez to make the statement with the primary purpose of creating evidence. The United States Supreme Court has stated, however, that "statements made unwittingly to a Government informant" are not testimonial. (Davis v. Washington, supra, 547 U.S. at p. 825.) California courts, in reliance on this statement, have squarely so held. (People v. Almeda (2018) 19 Cal.App.5th 346, 362-363; People v. Gallardo (2017) 18 Cal.App.5th 51, 66-68; People v. Arauz, supra, 210 Cal.App.4th at pp. 1401-1402.)
Avina does argue: "The Supreme Court has recognized that an informant who takes deliberate action to obtain incriminating remarks from a suspect can result in a Sixth Amendment violation," citing Kuhlmann v. Wilson (1986) 477 U.S. 436. Kuhlmann, however, dealt with the Sixth Amendment right to counsel, not the Sixth Amendment right to confrontation. (Id. at pp. 456-461; see generally Massiah v. United States (1964) 377 U.S. 201, 206 [once a defendant's Sixth Amendment right to counsel has attached, it violates that right for an informant, acting as a government agent, to deliberately elicit statements from the defendant].)
Avina's defense counsel did not object based on the right to counsel below — and for good reason. The fact that Baca was acting as a government agent when he deliberately elicited incriminating statements from Mendez could not possibly violate Avina's right to counsel.
Mendez's defense counsel also did not object based on the right to counsel. It is less obvious why he would not. The record suggests, however, that when Baca questioned him, Mendez was not in jail in connection with this case, but rather in connection with an unrelated murder case. (See part X, post.) If so, then his Sixth Amendment right to counsel in this case had not yet attached. (See generally McNeil v. Wisconsin (1991) 501 U.S. 171, 175 [Sixth Amendment right to counsel is "offense specific"; it attaches only when "a prosecution is commenced."].)
Indeed, Gallardo is on point. There, the police arranged to have defendant Angel Gallardo housed in a jail cell with two paid informants, each wearing a wire. (People v. Gallardo, supra, 18 Cal.App.5th at p. 59.) In response to their questions, Gallardo incriminated himself and two of his codefendants. (Id. at pp. 59-61.) The resulting recording was "[t]he primary piece of evidence at trial." (Id. at p. 55.)
The appellate court held that the admission of Gallardo's statements against his codefendants did not violate the Bruton-Aranda rule. (People v. Gallardo, supra, 18 Cal.App.5th at pp. 65-69.) It explained that "'"statements made unwittingly to a Government informant"' are 'nontestimonial.' [Citation.]" (Id. at p. 67.) "[T]his determination necessarily forecloses any claim under Bruton." (Id. at p. 69.)
We therefore conclude that the admission of Mendez's hearsay statements did not violate the confrontation clause.
3. Miranda.
Avina did not raise a Miranda objection below. In this appeal, he specifically disclaims any argument based on Miranda.
As noted, Mendez did raise a Miranda objection. In this appeal, however, he, too, does not make any Miranda argument. He merely joins Avina's arguments regarding his jailhouse statements, which, as noted, do not rest on Miranda.
Accordingly, we do not consider any Miranda issue.
IV
GEORGE FRANCO'S REFUSAL TO TESTIFY
Avina, joined by Mendez, contends that the trial court erred by forcing witness George Franco to refuse to answer questions in front of the jury.
A. Additional Factual and Procedural Background.
George Franco was Avina's nephew and a member of Hard Times. Shortly after the shooting, he told the police that defendants had admitted to him that they committed the shooting.
The People filed a motion in limine to admit Franco's testimony, arguing, among other things, that he did not have a Fifth Amendment privilege not to testify.
The trial court ruled, "[W]itness George Franco does not have any right against self-incrimination in regards to any potential testimony in this case." It added, "When he's brought to the witness stand, he'll be ordered by the court if he refuses to testify, and that would be done in front of the jury."
Neither Avina's counsel nor Mendez's counsel raised any objection.
When the prosecution called Franco, the trial court ordered him to state his name; it warned him that it would hold him in contempt if he refused. He did refuse.
The prosecutor then asked Franco a series of questions designed to elicit the same facts as he had stated to the police: That defendants had told him they were on Valley, in Fontana, riding in Avina's Lexus, when "they saw a guy all banged out on a bike," "caught him slipping," and "banged on him." The prosecutor also asked Franco if he was a member of Hard Times and if Avina was a member of Hard Times. Finally, the prosecutor asked, "[O]n April 9th, 2015, you committed homicide for the benefit of [the] Hard Times Fontana gang; isn't that correct?"
The trial court repeatedly warned Franco that he had no right to refuse to answer the questions and, if he did refuse, he would be in contempt of court. Franco nevertheless refused to answer any questions.
As far as the record shows, the trial court never actually held Franco in contempt.
The trial court instructed the jury: "I want to revisit the testimony or lack of testimony of George Franco. . . . So I want you to remember . . . that I told you that what the attorneys say is not the evidence. Their questions are not evidence. The importance of a question is only to put in context the answer that you get from the witness. You got no answers from the witness."
"George Franco did not have the right to refuse to answer questions in this case. You may consider this refusal during your deliberations as to whether or not his refusal is relevant to the gang expert's opinion in this trial. However, [the prosecutor's] questions are not evidence, so you are to disregard those questions and not discuss those questions during deliberations."
B. Discussion.
This contention stumbles at the threshold, because defense counsel never raised it below. (People v. Smith (2007) 40 Cal.4th 483, 517 [defense counsel's failure to object forfeited claim that the trial court should not have forced a witness to assert his right against self-incrimination in front of the jury].) "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Defendants claim the objection requirement was excused because an objection would have been futile. The record does not support this claim. It merely shows that the People asserted that Franco had no Fifth Amendment privilege and thus could be forced to testify; defense counsel did not argue otherwise; and the trial court then accepted the People's argument. If defense counsel had raised a valid counterargument, the trial court might well have accepted that.
However, we do not mean to suggest that this contention, if not forfeited, would have merit. It would not.
"'"[I]t is the better practice for the court to require the exercise of the privilege [against self-incrimination] out of the presence of the jury."' [Citation.]" (People v. Smith, supra, 40 Cal.4th at p. 517.) "'[P]ermitting the jury to learn that a witness has invoked the privilege . . . serves no legitimate purpose and may cause the jury to draw an improper inference of the witness's guilt or complicity in the charged offense.' [Citations.]" (Id. at pp. 516-517.)
The obvious flaw in defendants' argument is that Franco never invoked the Fifth Amendment. He never indicated that his refusal to answer was based on the privilege against self-incrimination. The less obvious flaw — though more important —is that (with two exceptions, which we will discuss below), Franco had no Fifth Amendment privilege under the circumstances. There is no contention that he was involved in the charged shooting. The prosecutor asked about a conversation in which defendants incriminated themselves. That did not make Flores an accessory after the fact nor incriminate him in any other way.
Avina says, "the jury saw Franco on the stand asserting his Fifth Amendment privilege to every question . . . ." That is not true.
"When a 'court determines a witness has a valid Fifth Amendment right not to testify, it is . . . improper to require him [or her] to invoke the privilege in front of a jury . . . . But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.' [Citation.]" (People v. Morgain (2009) 177 Cal.App.4th 454, 466, italics added.) This, of course, explains why defense counsel did not object.
This brings us to the two exceptions. First, the prosecutor asked Franco if he was a member of Hard Times. Active gang membership is a crime. (§ 186.22, subd. (a).) Thus, this did tend to incriminate him. Second, the prosecutor asked, "[O]n April 9th, 2015, you committed homicide for the benefit of [the] Hard Times Fontana gang; isn't that correct?" This was blatantly incriminating.
What matters, however, is that before Franco took the stand the trial court had no reason to expect the prosecutor to ask these incriminating questions. The prosecution's motion in limine indicated that it was only going to ask Franco about defendants' statements to him. Thus, the trial court had no reason to require Franco to invoke the privilege outside the presence of the jury, and it did not err by not doing so.
We reiterate that, when the prosecutor did ask these two incriminating questions, Franco did not invoke the Fifth Amendment, and defense counsel did not object. Hence, no error regarding those questions has been preserved for appeal.
In any event, we perceive no possibility of prejudice from just these two questions. The gang expert testified that Franco was a member of Hard Times. The prosecution also introduced documentary evidence showing that Franco had been convicted of a homicide committed in April 2015 (see part V, post). Thus, the jury became aware of these facts without any need to speculate based on Franco's refusal to answer.
V
THE ADMISSION OF EVIDENCE THAT
GEORGE FRANCO HAD BEEN CONVICTED OF MANSLAUGHTER
Avina, joined by Mendez, contends that evidence that witness George Franco had been convicted of a gang-related manslaughter was more prejudicial than probative.
A. Additional Factual and Procedural Background.
When the gang expert was on the stand, the prosecution had him authenticate a plea form in which Franco had pleaded guilty to manslaughter, with a gang enhancement. The expert testified that the underlying crime was committed on April 19, 2015, and that the victim was a member of a rival gang, the Head Hunters. At the end of trial, the plea form was admitted without objection.
B. Discussion.
Defense counsel did not object to the challenged evidence. Accordingly, defendants have forfeited any contention that it should not have been admitted. (Evid. Code, § 353, subd. (a).)
Defendants therefore also argue that the failure to object constituted ineffective assistance.
"When challenging a conviction on grounds of ineffective assistance, . . . the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. . . . On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
"'[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' [Citation.]" (People v. Romero and Self (2015) 62 Cal.4th 1, 25.)
To prove both the gang count and the gang enhancement, the prosecution was required to show (among other things) that members of Hard Times had committed predicate offenses, which could include manslaughter. (§ 186.22, subds. (e), (f).) Franco's conviction was admitted for this purpose. Because it directly proved a necessary element of the charged crimes and allegations, it had substantial probative value.
Defendants argue that it was cumulative, because the prosecution was only required to prove a minimum of two predicate offenses (§ 186.22, subd. (e)), but ultimately, it introduced evidence that other members of Hard Times had committed another six predicate offenses. Franco's crime, however, was significantly more probative than the others, for two reasons.
First, for purposes of the gang charge, the People had to prove that defendants knew that members of the gang had committed at least two predicate offenses. The gang expert was able to testify that, in general, gang members are aware of crimes committed by their fellow gang members. However, it was particularly likely that Avina, at least, knew about Franco's crime, because Franco was Avina's nephew and he hung out at Avina's home. More generally, the more predicate offenses the prosecution proved, the more likely it was that defendants knew about at least two of them.
Second, the charged crime was committed in a "gray" area that was "contested" between South Fontana and Head Hunters. The prosecution's theory was that defendants were cruising around looking for rival gang members, and they challenged the victim because they thought he was one; this was part of the factual basis for the expert's conclusion that the crime was committed for the benefit of Hard Times. The fact that Franco had killed a member of Head Hunters supported this theory.
We turn, then, to whether Franco's conviction was unduly prejudicial. It was not. Nothing about it made it any more prejudicial than any of the other predicate offenses. Defendants argue that the conviction was likely to confuse the jury, because Franco had refused to testify about it. We see nothing there that the jury would have been confused about.
In sum, then, the conviction had substantial probative value and negligible prejudicial effect. For this reason alone, defense counsel could reasonably decide not to object. If they were in any doubt, they could still reasonably decide not to object to avoid highlighting this particular conviction. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1313.) It also follows that defendants cannot show any prejudice from the failure to object. Thus, there was no ineffective assistance.
VI
FAILURE TO INSTRUCT THAT AN AIDER AND ABETTOR
MAY BE GUILTY OF A LESSER CRIME THAN THE PERPETRATOR
Mendez contends that the aiding and abetting instructions were erroneous.
Avina joins in Mendez's contentions "to the extent that the arguments may benefit him." The evidence showed that, if either defendant was the shooter, it was Avina, not Mendez; that evidence includes not only Mendez's jailhouse statements, but also the description of the shooter and the fact that the shots were fired from the driver's side of Avina's Lexus. Accordingly, this contention does not apply to Avina.
A. Additional Factual and Procedural Background.
Regarding aiding and abetting, the trial court instructed:
"A person may be guilty of a crime in two ways: One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted a perpetrator who directly committed the crime. A person is guilty of a crime whether he committed it personally or aided and abetted the perpetrator." (CALCRIM No. 400.)
"To prove that the defendant is guilty of the crime based on aiding and abetting that crime, the People must prove that, one, the perpetrator committed the crime. Two, the defendant knew that the perpetrator intended to commit the crime. Three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime. And, four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of the crime. If all these requirements are proved, the defendant does [sic] need to actually be present when the crime is committed to be guilty as an aider and abettor. If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor.
"However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not by itself make him an aider and abettor." (CALCRIM No. 401.)
B. Discussion.
In Mendez's view, these instructions omitted two crucial principles: (1) that an aider and abettor can be guilty of a lesser crime than the perpetrator, and (2) that an aider and abettor cannot be found guilty of first degree murder unless he or she personally premeditated and deliberated. (See People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 845-846.)
Preliminarily, the People respond that he forfeited this contention by failing to object or to request amplifying or clarifying language. No objection was required. (§ 1259.) It has been held, however, that the identical asserted error is forfeited by failure to request amplification or clarification. (People v. Loza (2012) 207 Cal.App.4th 332, 349-350; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) Hence, we agree that Mendez forfeited this contention.
Which is not to say that it would otherwise have merit. The question is whether there is a reasonable likelihood that the jury was misled on these points. (People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 846.) Or, to put it another way, it is whether there was substantial evidence that Mendez aided and abetted but did not premeditate. (See People v. Johnson (2016) 62 Cal.4th 600, 640; see also People v. Moon (2005) 37 Cal.4th 1, 30 [trial court may properly refuse to give instruction that is not supported by substantial evidence].)
The evidence of premeditation and deliberation, however, was identical as to both defendants. According to Mendez's jailhouse statements, defendants were riding around, looking for a rival gang member to shoot. They had agreed that Mendez and Guerra would be the shooters; ultimately, Avina became the shooter, but only because Mendez was not "doing it right" and because the victim swerved over to Avina's side.
Mendez claims, "The evidence in this case showed that, at worst, [he] held the wheel while Avina decided how and when to shoot." Not so. It shows that he held the wheel as part of a premeditated plan to shoot a rival gang member. In addition, he held the gun for a while, and he would have shot, if he got the chance.
In any event, as our Supreme Court has observed, "'[i]t would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required.' [Citation.]" (People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 847.)
In closing argument, counsel for Mendez argued that his client was not even at the shooting, as shown by the few minor discrepancies between his jailhouse statements and the other evidence. (See part I.C, ante.) He also argued that Avina and/or Guerra was the shooter and that there was insufficient evidence that Mendez was a gang member. He dismissed Mendez's jailhouse statements as mere "boasting and bragging." The evidence, however, left no room to argue that Mendez did aid and abet the shooting and did intend to kill, but did not deliberate and premeditate.
Counsel for Avina raised similar arguments, except that he never argued that Mendez was the shooter.
Finally, even assuming, for the sake of argument, that the trial court erred, the error was harmless under any standard. For the reasons already discussed, we are convinced, beyond a reasonable doubt, that even if the jury had been instructed on the principles that Mendez cites, it still would have found him guilty of first degree murder on an aiding and abetting theory.
VII
FAILURE TO INSTRUCT ON IMPERFECT SELF-DEFENSE
Avina, joined by Mendez, contends that the trial court erred by failing to instruct on imperfect self-defense.
"Imperfect self-defense is the killing of another human being under the actual but unreasonable belief that the killer was in imminent danger of death or great bodily injury. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 182.) Imperfect self-defense reduces what would otherwise be murder to the lesser included offense of voluntary manslaughter. (People v. Simon (2016) 1 Cal.5th 98, 132.)
"A trial court has a sua sponte duty to instruct the jury on a lesser included uncharged offense if there is substantial evidence that would absolve the defendant from guilt of the greater, but not the lesser, offense. [Citation.] Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed. [Citations.]" (People v. Simon, supra, 1 Cal.5th at p. 132.)
"We review de novo a trial court's decision not to give an imperfect self-defense instruction. [Citations.]" (People v. Simon, supra, 1 Cal.5th at pp. 132-133.)
Like "perfect" self-defense, "[i]mperfect self-defense does not apply when the defendant, through [his or her] own wrongful conduct, has created circumstances that justify [his or her] adversary's use of force." (CALCRIM No. 571; see generally People v. Enraca (2012) 53 Cal.4th 735, 761; In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
Imperfect self-defense is very hard to establish when the defendant does not testify. Here, the only evidence of defendants' actual state of mind was Mendez's jailhouse statements. According to Mendez, he, Avina, and Guerra were riding around looking for rival gang members, with the intent to shoot them.
Defendants point to the fact that, when they asked the victim where he was from, he said (in part), "187," which can be a threat to kill. Defendants, however, were already the original aggressors. By asking him where he was from, they announced that they intended to attack him. Thus, it was the victim who had the right to self-defense. Even if his response was a threat to kill defendants, he did not actually take any action to that end; this was perfectly proportional. Moreover, before any shots were fired, the victim began riding away — "riding for his life." Accordingly, there was no substantial evidence of imperfect self-defense.
Defendants cite evidence that gang members commonly carry guns. However, this cuts both ways. If defendants could reasonably think that the victim most likely had a gun, then the victim could reasonably think that defendants most likely had a gun, and therefore that they intended to attack him with deadly force.
VIII
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT
Avina, joined by Mendez, contends that the prosecutor committed misconduct in closing argument by urging jurors to "do the right thing."
A. Additional Factual and Procedural Background.
In closing argument, the prosecutor repeatedly referred to doing "the right thing," as follows:
"Based on the evidence, you follow the evidence, you do the right thing in this case."
"What do you do to do the right thing to make sure you're reaching verdicts and results that are accurate and promote justice? You mark the true box."
"I told you, I want to help you do the right thing. I want you to feel confident that you're doing the right thing. That's why I weave the law and the facts together so you know, beyond a reasonable doubt, that you're doing the right thing."
"Follow the instructions for aiding and abetting and you'll feel confident you're doing the right thing, and we can then live in a system that works."
"Hold these defendants accountable by doing the right thing and reaching the only just verdict. That's a verdict of guilty."
Defense counsel did not object to any of these remarks.
B. Discussion.
1. Forfeiture.
The People respond (among other things) that defendants forfeited this contention. We agree.
"To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and request an admonition. [Citations.] An exception exists where the objection and request for admonition would have been 'futile or ineffective.' [Citation.]" (People v. Caro (2019) 7 Cal.5th 463, 510.)
Here, defense counsel did not object. Defendants argue that an objection would have been futile because "the court had ruled in favor of the prosecution on every trial issue." They provide no citation to support this claim; hence, we disregard it. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) A fortiori, they do not show that the trial court had erred by ruling in favor of the prosecution. For all that appears, in every instance, the prosecution's position was meritorious and the defense position was not.
This is essentially a claim that the trial court was biased — a serious accusation that should not be made reflexively. The record does not show any bias. Nor do we see any reason why a prosecutorial misconduct objection — if valid — would have been futile. We conclude that the misconduct claim was forfeited.
2. Merits.
Separately and alternatively, we also reject this contention on the merits.
"'[I]t is improper for a prosecutor to appeal to the passion or prejudice of the jury.' [Citation.]" (People v. Rivera (2019) 7 Cal.5th 306, 337.)
"'[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' [Citation.]" (People v. Centeno (2014) 60 Cal.4th 659, 666-667.)
"[P]rosecutors have wide latitude to present vigorous arguments so long as they are a fair comment on the evidence, including reasonable inferences and deductions from it. [Citation.]" (People v. Leon (2015) 61 Cal.4th 569, 606.)
In People v. Seaton (2001) 26 Cal.4th 598, the prosecutor "told the jurors that the only just verdict was to convict defendant of special circumstances murder, because it is 'the only right thing to do in this case' and because '[h]e did it.'" (Id. at p. 663.) On appeal, the defendant argued that "the prosecutor expressed a personal belief in defendant's guilt . . . ." (Ibid.) The Supreme Court disagreed; it held, "These statements were fair commentary on the evidence presented." (Ibid.)
So it is here. Urging the jury to do the right thing is not an appeal to passion or prejudice. Every single closing argument by a prosecutor boils down to an assertion that a guilty verdict is right and a not guilty verdict is wrong. If a prosecutor cannot argue this, he or she cannot argue anything.
And don't we want juries to do the right thing — whatever that may be? This argument does not point ineluctably to a guilty verdict. A prosecutor who makes this argument takes the risk that, in the jury room, a juror will say, "The prosecutor told us to do the right thing; the evidence didn't prove guilt beyond a reasonable doubt, so acquittal is the right thing."
The prosecutor did not appeal to sympathy for the victim. (See People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 857.) Nor did he "urge the members of the jury to act on the basis of their fear of chaos and crime in the community . . . ." (People v. Cornwell (2005) 37 Cal.4th 50, 92, disapproved by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In sum, then, there was no prosecutorial error.
IX
SENTENCING ON THE GANG ENHANCEMENT
Mendez, joined by Avina, contends that the trial court erred by staying, rather than striking, the 10-year gang enhancement to count 1.
The People concede the error. We agree. Under People v. Lopez (2005) 34 Cal.4th 1002, when a defendant is convicted of a felony punishable by life in prison, the 10-year enhancement (§ 186.22, subd. (b)(1)(C)) does not apply; a 15-year minimum parole period (id., subd. (b)(5)) applies instead. (People v. Lopez, supra, at pp. 1004, 1006-1011.) We will modify the judgment accordingly.
X
PRESENTENCE CUSTODY CREDIT
Mendez, joined by Avina, contends that the trial court miscalculated their presentence custody credits.
The People concede the error. However, we reject their concession. (See People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021 [court is not bound by Attorney General's concession].)
Defendants had also been charged in a separate, unrelated murder case (the same one in which Franco had pleaded guilty to manslaughter; see part V, ante). Each defendant had been booked in that case (No. FWV1501597) on April 30, 2015, for a total of 1,097 actual days in custody. They had been booked in this case on April 3, 2017, for a total of 393 actual days in custody.
"Penal Code section 2900.5 provides that a convicted person shall receive credit against his sentence for all days spent in custody, including presentence custody (subd. (a)), but 'only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted' (subd. (b), italics added)." (People v. Bruner (1995) 9 Cal.4th 1178, 1180.)
Defendants' custody from April 30, 2015 through April 3, 2017 simply was not "attributable" to this case. (See, e.g., People v. Murillo (1986) 178 Cal.App.3d 232, 236-237.) "Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant's liberty." (In re Rojas (1979) 23 Cal.3d 152, 156.)
We accept that defendants are entitled to credit for the 393 days from April 3, 2017 through April 30, 2018, even though they were in custody in both matters during this period. (People v. Lathrop (1993) 13 Cal.App.4th 1401, 1403-1404.) Accordingly, the trial court did not err.
XI
ERRORS IN THE ABSTRACTS
Mendez, joined by Avina, contends that there are errors in each of the abstracts of judgment: The term of 25 years to life imposed on the firearm enhancement to count 1 is not listed in section 2, which is for enhancements, and is listed instead in section 6, which is for substantive offenses. The People concede these errors. We agree. We will direct the trial court to correct the abstracts.
XII
DISPOSITION
The judgments are modified by striking the 10-year gang enhancement to count 1. (See part IX, ante.) The judgments as thus modified are affirmed. The superior court clerk is directed to prepare amended abstracts of judgment, correcting the errors we have identified (see part XI, ante), and to forward certified copies of the amended abstracts to the Director of the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. MENETREZ
J.