Opinion
F084296
08-29-2024
THE PEOPLE, Plaintiff and Respondent, v. MONICO PENA, Defendant and Appellant.
Law Offices of Beles &Beles, Robert J. Beles and Paul McCarthy, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, Christina H. Simpson and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Super. Ct. No. CRM036247D, Steven K. Slocum, Judge.
Law Offices of Beles &Beles, Robert J. Beles and Paul McCarthy, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, Christina H. Simpson and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Defendant Monico Pena, along with Heliodoro Arreola Silva, Gerardo Alvarez Silva and Salvador Silva, was arrested and charged in connection with the 2014 kidnappings and killings of Rodolfo Salgado Barona and Reyes Salgado Barona, whose bodies were found inside a burned car in an orchard. In 2021, defendant was tried by jury and convicted of two counts of first degree murder with multiple-murder and kidnapping-murder special circumstances findings, and two counts of kidnapping by force. (Pen. Code, §§ 187, subd. (a)/189, subd. (a), 190.2, subd. (a)(3), (17)(B), 207, subd. (a).) On all four counts, the jury found that a principal was armed with a firearm, and for the murder of Reyes, the jury found that defendant personally used a deadly or dangerous weapon. (§ 12022, subds. (a)(1), (b)(1).)
Given the mix of shared first and last names, we refer to Heliodoro, Gerardo, Rodolfo and Reyes by their first names and we refer to Salvador Silva as Salvador S. and Salvador Pena, who is defendant's nephew, as Salvador P. No disrespect is intended.
Heliodoro and Gerardo were convicted by jury of special circumstances murder and kidnapping in 2016 and 2017, respectively, and their convictions were affirmed on appeal in People v. Silva, August 7, 2019, case No. F074899 (nonpub. opn.) and People v. Silva, August 7, 2019, case No. F075955 (nonpub. opn.). (Evid. Code, §§ 452, subd. (d), 459.) Salvador S. testified against Heliodoro, Gerardo, and defendant pursuant to a plea agreement, and Bernardo Rangel and Salvador P. entered into plea agreements and were sentenced to 13 years in prison. (Shannon,' We need this to be over.' Last killer sentenced in brutal Merced County double murder, Merced Sun-Star (Apr. 28, 2022) <https://www.mercedsunstar.com/news/local/ crime/article260855927.html> [as of Aug. 29, 2024], archived at <https://perma.cc/DNQ8-7YL5>.)
All further statutory references are to the Penal Code unless otherwise stated.
In 2022, the trial court sentenced defendant to two consecutive terms of life without the possibility of parole for special circumstances murder, with an aggregate determinate term of 13 years.
On the murder counts, the court imposed a one-year term for the firearm enhancement on count 1 and count 2, and a one-year term for personal use of a deadly or dangerous weapon on count 2. On the kidnapping counts, the trial court imposed the lower term of three years on count 3, with an additional one year for the firearm enhancement, and the middle term of five years on count 4, with an additional one year for the firearm enhancement. (§ 1170.1, subd. (b).)
On appeal, defendant seeks reversal of his conviction for Rodolfo's murder on the ground that there is insufficient evidence he murdered Rodolfo under any theory. He also claims that the trial court misinstructed the jury on felony murder, entitling him to reversal of both murder convictions. Finally, he claims the trial court misadvised him regarding his right to testify or not and the court erred when it denied his motion for a new trial, necessitating reversal.
The People dispute any entitlement to relief.
For the reasons set forth below, we reject defendant's substantial evidence challenge and we reject his claim of instructional error. We also find no error with the trial court's advisement concerning defendant's right to testify and we find no error with the denial of defendant's motion for a new trial. Accordingly, we affirm the judgment.
As addressed in part IV.B. of the Discussion, in resolving defendant's challenge to the denial of his motion for a new trial, we decline to consider his Brady claim, which was raised for the first time in this appeal. (Brady v. State of Maryland (1963) 373 U.S. 83 (Brady).)
FACTUAL SUMMARY
I. Prosecution Evidence
A. Discovery of Rodolfo's and Reyes's Bodies
On the morning of Monday, October 20, 2014, an employee with a farming company in Merced County called 911 and reported a burned car in one of the company's orchards, with what appeared to be bones inside. Responding sheriff's deputies found two potential kill sites in the orchard. In a charred car, they saw what appeared to be one body in the backseat and one body in the trunk, and, on the ground, they located a license plate for a vehicle registered to Reyes's wife, seven .45-millimeter shell casings and a pool of what appeared to be blood. From there, deputies followed tire tracks approximately 100 yards deeper into the orchard and found a wooden bat with what appeared to be blood on it, a knife, a pool of what appeared to be blood, and a spill that smelled like diesel fuel.
The body in the backseat was later identified as Rodolfo through dental records. He died from multiple gunshot wounds, inflicted prior to being burned. The body in the trunk was identified as Reyes through DNA. He had extensive fractures over his entire face and a cut to the right side of his larynx, consistent with a bat and a knife, and he died from blunt impact and sharp force injuries inflicted prior to the fire.
Defendant's right thumbprint was found on the handle of the wood baseball bat, pressed into red liquid. In the analyst's opinion, when the print was left, the red liquid was already on the bat and still in a liquid state. Blood found on the bat and knife belonged to Reyes.
B. Rodolfo's and Reyes's Disappearance
Rodolfo and Reyes were nephew and uncle, respectively. On the weekend of October 18, 2014, Rodolfo, his wife, and one of their children traveled to Livingston from Sacramento to visit Reyes, his wife, and their two children. Rodolfo's and Reyes's wives last saw them on Saturday morning, when the men went to the store to buy food for breakfast. They never returned, but were in cell phone contact with their wives until the mid-afternoon. At that time, Rodolfo told his wife he would be home later, and Reyes told his wife he would meet her at the family baby shower they planned to attend. Nothing seemed out of the ordinary to their wives, but the men did not show up later and their wives were unable to reach them again, despite trying repeatedly. At bedtime, Reyes's wife saw he had opened a WhatsApp message she sent, so she thought he was fine and went to sleep.
At the time the men disappeared, their wives did not know defendant and had never seen him, but Rodolfo's wife testified she had heard the name "Monico" when Rodolfo was talking to Reyes on the phone. Both women knew Heliodoro and described him as friends with their husbands. Later on the morning of Sunday, October 19, 2014, after Reyes's wife was still unable to reach him, she went to Heliodoro's house on Manchester Road in Atwater to look for him. No one answered the front door, but a woman answered a knock on the garage door and said Heliodoro did not live there anymore. The woman provided a phone number for him, however, and Heliodoro answered when Reyes's wife called the number. Heliodoro told her that he last saw Rodolfo and Reyes on Saturday afternoon at his house, and the two had gone to Fresno.
Soon after Reye's wife returned to her home, she received a call from Heliodoro telling her he was outside the house. She went to the door, and Heliodoro reassured her that Rodolfo and Reyes were fine and would be coming home any moment. He told her to let him know if she heard anything and he would do the same. Rodolfo's wife overheard their conversation, and she thought Heliodoro seemed worried and anxious. She testified he asked Reyes's wife if they knew anything about Rodolfo and Reyes.
On Monday, October 20, 2014, Rodolfo's and Reyes's wives went to the police and reported them missing. A detective checked their cell phones. Rodolfo's wife last spoke with him at 3:09 p.m. on Saturday, and Reyes's wife last spoke to him at 3:14 p.m., but otherwise, their multiple calls and texts to the men went unanswered. By then, police were investigating a burned car found in an orchard, and the detective informed the women that the car the men were last seen in was found in an orchard with bodies inside. After hearing that, Reyes's wife told the detective that Reyes met Heliodoro in jail and she provided the Manchester Road address.
In an interview later that evening, Reyes's wife told the detective she had gone to Heliodoro's house on Sunday looking for him and that Heliodoro had come to her house afterward. While at Heliodoro's house, Reyes's wife spoke to a woman who told her that Heliodoro had moved out and the house was vacant, but Reyes's car had been there on Saturday afternoon. Later that night, police went to the address with Reyes's wife and a woman, later identified as Salvador S.'s wife, came out of the garage.
C. Searches of Residences Connected to Heliodoro
Two days later, based on the information that the victims' car and one of the victims was last seen there, deputies obtained a search warrant for Heliodoro's former residence on Manchester Road. The back door had a key in the lock and the house was vacant, but there were some beer cans and a store receipt for duct tape in the kitchen. There were also possible blood stains on the carpet and wall in one of the bedrooms, along with footprints low on the wall, as if someone was lying on his back with his feet up against the wall. Deputies found marijuana plants in the backyard; two plastic bags with used duct tape stuck to them in an outside garbage can; and a black zip tie, clothing, and tire impressions in the dirt driveway.
The same day, deputies executed a search warrant at a second residence on California Street in Winton, where officers located Heliodoro and Gerardo. Heliodoro had a loaded magazine for a .38-caliber handgun in his pocket, along with cash and some drugs. Inside, deputies located a large amount of cash and marijuana, ammunition, a shotgun, a Colt .38-caliber Super, and utility bills for the Manchester Road address. A second search of the California Street residence was conducted two days later. During the second search, deputies found a Colt .45-caliber 1911 with an ammunition magazine in it, a second ammunition magazine, rope, and identification for Heliodoro and Gerardo.
Based on the store receipt found inside the Manchester Road residence, deputies linked the duct tape purchase to Heliodoro's nephew, Salvador S. Video surveillance footage from the store showed a red sedan arrive and park at the store on Saturday, October 18, 2014, at approximately 8:00 p.m. Salvador S. got out of the passenger side, went inside the store, and purchased duct tape.
Three plastic bags from the Manchester Road residence were submitted for testing: one yellow bag with two strips of duct tape stuck to the bottom, one yellow bag without any duct tape, and one white bag from the store where the duct tape was purchased. The white bag had two duct tape labels and pieces of clear cellophane inside. Four fingerprints belonging to Heliodoro and one fingerprint belonging to Gerardo were found on the yellow bag with the duct tape, and Heliodoro's palm print was found on the yellow bag without the duct tape. One of Gerardo's fingerprints and one of Salvador S.'s fingerprints were found on the white plastic bag from the store, and three of Gerardo's fingerprints were found on the cellophane inside the bag.
Two beer cans were collected from the kitchen sink in the Manchester Road residence and tested. One fingerprint on one of the beer cans and four fingerprints on the other beer can were consistent with defendant's and Reyes's fingerprints, respectively, and they could not be excluded, but the prints were not sufficiently clear to establish identification.
The seven .45-caliber shell casings collected from the orchard were fired from the Colt .45 found at the California Street residence.
D. Salvador S.'s Testimony and Statements
1. Trial Testimony
a. The Kidnappings and Murders
Salvador S. testified against defendant pursuant to a plea agreement under which he pleaded guilty to two counts of kidnapping. In October 2014, Salvador lived in the garage at the Manchester Road property with his wife and children. His uncle, Heliodoro, lived in the main house and his cousin, Gerardo, was there almost daily. Heliodoro, Gerardo, defendant, Rangel, Rodolfo and Reyes were involved in marijuana cultivation; and Salvador saw Rodolfo and Reyes on the property three or four times a week for about a year.
Heliodoro eventually left the Manchester Road residence abruptly and told Salvador S. he rented a house in Winton. On a Saturday around the time of the move, Salvador S. arrived home and saw multiple vehicles in the driveway. Heliodoro was outside with a gun and when Salvador asked what was going on, Heliodoro directed him to get in a red car, which he later learned belonged to Salvador P. After getting gasoline and beer, Heliodoro, his gun sitting on his leg, drove to a second store across the street, where Salvador S. bought two rolls of duct tape at Heliodoro's direction. Salvador S. identified himself in the store surveillance video and testified that Heliodoro told him the tape was needed to box marijuana.
During the drive back to the house, Heliodoro told Salvador S. he had two people at the house and Salvador S. was to give Gerardo the duct tape. The door to the house was locked and Gerardo let Salvador S. in. Heliodoro stayed outside. Inside, Salvador S. saw defendant, Salvador P., and Rangel, who was also armed with a gun. Rodolfo and Reyes were in the living room, and Rodolfo was sitting in a chair tied up. Rodolfo had an injury to his head, and Salvador S. was told by Heliodoro that Rangel hit Rodolfo in the head with a gun after he resisted being tied up by Gerardo. Salvador S. testified that Heliodoro and Rangel threatened the rest of them and would not let them leave the house.
Sometime after Salvador S. gave Gerardo the duct tape, Heliodoro let him go home to eat, but called repeatedly and threatened to kill him and his family if he called the police. When his wife asked why he looked nervous, Salvador S. told her it was nothing. Heliodoro came over after Salvador S. finished eating and told him he looked nervous. Salvador S. responded that what Heliodoro was doing was not right, and Heliodoro then made him return to the main house so he would not call the police.
When he returned, Rodolfo and Reyes were both tied up and had been moved to a bedroom. Salvador S. was told Gerardo had tied Reyes up. Heliodoro told defendant to get a stick and defendant picked up a two-by-four. Salvador P. was also told to pick something up and he ended up with a sprinkler stake. Heliodoro told defendant to stay there because he was distrustful one of them might let Rodolfo and Reyes go, and Heliodoro threatened to kill them if they went outside. Heliodoro and Rangel went in and out of the house and, at one point, Heliodoro handed Gerardo his gun while he and Rangel went outside together.
There was some discussion about a debt and someone coming to pay $10,000-$20,000, but no one ever came. Salvador S. testified that although defendant guarded the men, armed with a two-by-four, defendant also told the men he was going to try and free them. Several times, defendant offered to pay the money if Heliodoro would let the two men go and, on one occasion, he tried to loosen the ropes. Heliodoro retightened the ropes and refused defendant's offer. Heliodoro threatened to kill defendant and Gerardo if the men got away. Salvador S. testified that Heliodoro said he was going to kill the men, but Heliodoro also stated at one point that he was just going to leave the men tied up in a field. Salvador S. thought Gerardo told Heliodoro that defendant wanted to free the men, but Heliodoro told them that only he would decide what happened and he threatened to kill them if they let the men go. Heliodoro and Rangel ended up making everyone leave the room Rodolfo and Reyes were being held in while the two of them talked about what to do.
At around 2:00 a.m. Sunday morning, Rodolfo and Reyes were moved from the Manchester Road residence to the California Street residence. Initially, Salvador S. was sent to the backyard of the Manchester Road residence and Rangel told him to uncover a hole that was there. After Salvador S. refused, defendant and Gerardo, with Salvador P. following behind, walked Rodolfo and Reyes out of the house with their eyes and mouths taped over. Heliodoro and Rangel were already outside. Rodolfo and Reyes were put in a car, and Heliodoro told Salvador S. he was going to leave them in a field tied up. Everyone else then left and Salvador S. stayed home. After testifying that he did not know anything beyond that and denying he heard any agreement to kill the men, he said that he remembered Heliodoro telling defendant and Gerardo that they would each kill one of the victims.
Heliodoro was not at the Manchester Road residence on Sunday, but after Salvador S.'s wife told him that the victims' wives came by looking for them, he called Heliodoro. Later that day, after Salvador S. got off work, Heliodoro called and said to meet him in Winton. Salvador S. testified that he had purchased $50 of methamphetamine for Heliodoro from a coworker of his, and he met Heliodoro to give him the drug. It was around 8:00 or 9:00 p.m. and Heliodoro, who was alone and armed with a gun, got in Salvador S.'s car. When he asked Heliodoro what happened to Rodolfo and Reyes, Heliodoro just laughed. While Heliodoro was in the car, he was getting phone calls and he asked someone whether defendant had arrived. After Salvador S. gave Heliodoro the meth, Heliodoro got out of the car and left. Salvador S. then drove home. He denied he ever went to the orchard.
Salvador S. testified he did not recall telling a detective that defendant showed up driving the victims' car or that Gerardo showed up. He said the information he gave detectives about what happened in the orchard, including that he saw defendant kill Reyes with a baseball bat and free Rodolfo before Gerardo chased him down and shot him in the face, came from things Heliodoro and Gerardo told him later. He said he lied to detectives about seeing the murders after being questioned for many hours and being blamed for things he did not do. In addition, he said that Detective Sanchez twice allowed him to smoke marijuana. On cross-examination, Salvador S. said that Heliodoro told him defendant released one of the men, Gerardo chased the man down and shot him, and Heliodoro stabbed the other man in the neck and forced defendant at gunpoint to hit the man in the head with a bat.
b. Prior Incidents
Salvador S. testified that a few days before the murders, Heliodoro lured Rodolfo and Reyes over to the Manchester Road residence by telling them that Salvador S.'s brother was interested in buying a car they were trying to sell. Salvador S.'s brother did not know what Heliodoro and Rangel were planning, but he was asked to help trap some people. Gerardo was also present that day. Salvador S.'s brother left and told Salvador S. not to trust Heliodoro because he was acting strangely.
Salvador S. also testified that some days or weeks prior to the murders, Gerardo showed him a video of an unknown man tied up. Gerardo was pouring water with something fizzy in it on the man's head. Heliodoro was also there, and Salvador S. could hear defendant and Salvador P. talking. The men were telling the person the water was acid. Heliodoro also had a weedeater he was turning on and rubbing on the man's feet, telling him it was a chainsaw and they were going to cut off his feet. Salvador S. then said he did not remember if it was a video or photographs, and his recollection was refreshed by prior testimony in which he said Gerardo showed him photographs of two men tied up. He agreed he could not have heard defendant's voice or a weedeater from photos, but Heliodoro and Gerardo said defendant was there and defendant told Salvador S. he knew the men. The victims were suspected of robbery and after Salvador S. came home from work, defendant, Gerardo, Heliodoro, Rangel, and Salvador P. told him about it. Salvador S. subsequently testified that defendant was not around when Gerardo showed him the cell phone photos, but defendant talked about the photos after they were arrested for murder.
c. Jail Interactions
Salvador S. testified that after their arrests, Gerardo wrote multiple letters to the district attorney's office pretending to be Salvador S. In addition, defendant wrote him letters telling him what to say and what not to say. Defendant and Salvador S. were housed in cells next to each other at one point, and Salvador S. testified that defendant offered him money and a car if he did not blame defendant.
2. Statements to Detectives
Salvador S. was interviewed and then arrested by detectives two days after Rodolfo's and Reyes's bodies were found. He was interviewed a second time in May 2015. Detective Sanchez denied that he allowed Salvador S. to smoke marijuana and agreed it would be on video if he had.
Salvador S. told detectives that Heliodoro and Rangel decided to kill Rodolfo and Reyes days before the murders over a $12,000 drug debt owed Rangel. They tried to enlist Salvador S.'s brother to help them get Rodolfo and Reyes, and defendant was not involved at that point.
Several hours into the first interview, Salvador S. admitted he was present in the orchard with defendant, Heliodoro, Gerardo, and Salvador P., and he saw defendant beat Reyes to death with a bat, hitting him three or four times. He did not mention seeing anyone's throat cut. He also said that after defendant freed Rodolfo, defendant said, "'Run. Help, Gerardo because he .. . is going to leave.'" Salvador S. and Gerardo then went after Rodolfo, and Gerardo shot him in the face with a .45-caliber pistol. Salvador S. heard approximately 10 shots. Afterward, they placed the bodies in the car and lit it on fire with diesel fuel from a blue container. Salvador S. told detectives he helped put Reyes's body in the trunk.
Prior to driving to the orchard, the group met in Winton around 9:00 p.m. Defendant arrived in his own vehicle, but drove the victims to the orchard in their vehicle.
In the second interview in May 2015, Salvador S. told detectives that Heliodoro, Rangel, and the victims owned the marijuana grow. He said Gerardo tied Rodolfo up and defendant tied Reyes up; and defendant had a two-by-four and threatened to kill the victims if they moved. Salvador P. was also present and armed with a sprinkler stake, and he told the victims not to move. Salvador S. changed his story and denied he was in the orchard. Consistent with his trial testimony, he said he met Heliodoro in Winton the evening of Sunday, October 19, 2014, after buying some meth for Heliodoro. On Monday, October 20, 2014, Gerardo told Salvador S. that he had killed Rodolfo and Reyes and then he and Heliodoro had burned their bodies, but Gerardo did not mention defendant killing anyone. Salvador S. stated that all the specific details he had relayed to detectives in October 2014 about what happened at the crime scene came from others, and he had lied because he was on drugs and feared Heliodoro was going to kill him.
In testimony, detectives pointed out that it benefitted defendant to deny Salvador S. was in the orchard and that Salvador S. changed his story and denied he was in the orchard after many months in custody, where cooperation with law enforcement is not viewed favorably.
Salvador S. also told detectives that while Rodolfo and Reyes were tied up at the Manchester Road residence, the group was waiting for someone to bring money, but no one showed up. Defendant offered money or his car in exchange for letting the men go. Defendant also untied the men at some point, but Heliodoro saw the loosened ropes, became upset, and threatened to kill anyone who loosened them again.
E. Defendant's Statement
Detective Ruiz and Detective Sanchez testified regarding defendant's interrogation and arrest, which occurred three days after the bodies were discovered and one day after detectives interrogated and arrested Salvador S. Defendant told detectives that on Saturday, October 18, 2014, he attended a football game and a soccer game, went out for fast food for dinner, and was otherwise home. He denied being at the house on Manchester Road. On Sunday, October 19, 2014, defendant said he attended a birthday party and was otherwise home. After viewing some photos, he identified Salvador S. and Gerardo, but initially denied he knew Heliodoro or the victims. Several minutes later, he conceded that he knew Heliodoro, but as "Helio," and that he knew Rodolfo and Reyes. Defendant also denied he had Heliodoro's phone number until he was told his cell phone reflected two calls to Heliodoro.
Defendant acted shocked when informed detectives were investigating a homicide. He denied any involvement when detectives told him they had already spoken to two involved people who implicated him. Approximately one hour into the interrogation, detectives brought Salvador S. into the room to tell defendant that he had confessed, and the audio-video recording of that exchange was played for the jury. Salvador S. told defendant that Heliodoro had betrayed them and said the two of them killed the victims. He also said that defendant killed Reyes with a bat to the head, and that he did not want to pay for a death he did not cause. Defendant asked what they did and then said they did not do anything.
Subsequently, defendant told detectives he wanted to give a statement but wanted to give the background first. He said he and his nephew, Salvador P., were at Heliodoro's house on Manchester Road to trim marijuana, and he overheard that Reyes owed Rangel $14,000 and that Gerardo was an assassin from Mexico who would kill Reyes. The victims arrived and Rodolfo was tied up with duct tape. Both Heliodoro and Rangel had guns, and they would not let anyone leave and were threatening them that they had to be involved. One of the victims pleaded to be let go and said he would get the money. Defendant said he stated, "'Hey, just let them go.'" At around 3:00 a.m., defendant and Salvador P. were allowed to go home.
At 8:00 p.m. the next day, defendant received a phone call and he and Salvador P returned to the Manchester Road residence to move some marijuana. The victims were not there anymore, but when defendant and Salvador P arrived at the California Street residence to unload the marijuana, Heliodoro told them he had a surprise for them. The victims were inside the house on a mattress, tied up with duct tape over their eyes. Heliodoro told defendant they were going to take them to a field and let them go, and defendant and Salvador P then left.
Defendant said the next day, he received a call saying his help was needed to take the victims somewhere and let them go. When he and Salvador P arrived, Heliodoro, Gerardo, and Rangel were there. They were armed and told defendant he and Salvador P. had to do what they were told, including taking the victims to a certain spot. The victims were placed in the backseat of their car with their hands behind their backs and duct tape over their eyes. Defendant drove while Gerardo sat in the front passenger seat pointing a gun at him, and he said he was pleading with Gerardo to let the men go. Heliodoro was in the lead driving his own car and Salvador P. was in the rear driving his own car.
They drove to an orchard and got out, leaving Rodolfo in the car. Defendant said that as he got out of the car, he untied Rodolfo's hands and told Rodolfo to run. With his eyes still covered by tape, Rodolfo ran. Gerardo chased after him and defendant heard six to eight gunshots. At that point, Heliodoro had Reyes, whose eyes were still covered by tape. When Reyes attempted to get away, Heliodoro threw him against the trunk and started hitting him in the head with a baseball bat.
Defendant initially said he never touched the bat, but once told that his fingerprints or DNA would be on the bat if he touched it, he said he touched it at some point at the house or in the car. When detectives told him there would be evidence from the last person who touched the bat, he changed his story again and said that after Heliodoro beat Reyes with the bat, defendant picked it up. Defendant subsequently said he hit Reyes twice in the back with the bat because Heliodoro threatened him and told him to "finish [Reyes]." After detectives told defendant the autopsy did not reveal any bruising on the victim's back, he then said it was dark and he thought he was hitting Reyes in the back. He conceded he might have hit Reyes in the head.
After Gerardo returned from shooting Rodolfo, he told Heliodoro that defendant had let Rodolfo loose and they pointed guns at defendant. Defendant said both that he then took off running and that he hit the ground, hid from them, and then ran. Defendant said the vehicle was lit on fire, after which Heliodoro and Gerardo fled.
Defendant was "adamant" that Salvador S. was not present during the events in the orchard, and defendant stated he did not see Rangel there. He also said that on the drive to the orchard, Gerardo was holding a gallon of diesel fuel in a blue container between his legs.
F. Cell Phone Evidence
At around 3:00 p.m. on the day of the murders, referring to Gerardo as Gera, Salvador P. texted defendant, "'If you want, bring some waters, Gera said.'" Defendant responded, "'Okay. When I go, I'll take them.'" Salvador P. then texted, "'And a lighter, Gera said.'"
Shortly before 7:00 p.m., defendant texted Salvador P asking if he brought the blue gas can. Salvador P responded, "'Okay. I got it,'" and defendant said, "'Okay.'"
Approximately 10 minutes later, defendant texted, "'We're going to say that Metrayeta called us to go for him,'" referring to Rangel. Defendant told detectives that around that time, Heliodoro told defendant to tell his wife he was at Wal-Mart or was going to Wal-Mart.
At 9:12 p.m. on the night the victims were killed, Heliodoro's cell phone was in the area of the orchard where the bodies were found the next day.
II. Defense Evidence
A. C.C.'s Testimony
Defendant's former wife, C.C., testified that she had seen Rangel several times before and knew he sold cars, but she did not know if he and defendant worked together or were friends. She did not know Heliodoro, Gerardo, Salvador S. or the two victims.
On Saturday, October 18, 2014, she and defendant were supposed to go dancing but defendant left the house and came back late. He did not say where he was going and at 8:42 p.m., she texted him that she was ready. At 12:16 a.m., he texted her, "'Were [ sic ] almost leaving.'" She responded, "'You have been saying that since 8:00.'" At 12:21 a.m., he texted, "'We're moving these things. Got complicated. We'll go soon.'" She did not know what he was talking about.
Defendant was home Sunday and did not say anything about the night before. They went to his brother's birthday party, but he left the birthday party that evening and did not say where he was going. He did not seem nervous and it was already late. Although she no longer recalled the texts, at 7:42 p.m., defendant told her to go inside and he sent a text about going to Wal-Mart.
B. Defendant's Testimony
In 2010, defendant worked with Rangel for about a year buying vehicles. He ran into Rangel again in 2013 and agreed to invest money buying vehicles at auction. He continued doing that until August or September 2014. He also helped Rangel plant and care for marijuana at a location other than the Manchester Road property. On September 23, 2014, a date he recalled because one of his children had a birthday the next day, a plane flew over the marijuana grow. He and Rangel fled in a vehicle, managing to evade a patrol car that was chasing them. The next day, they returned and the plants were still there. However, days later, the plants were gone.
A few days later, on the Tuesday preceding the murders, Rangel asked defendant if he wanted to trim marijuana for a friend of Rangel's, and after he agreed, he and Salvador P. ended up at Heliodoro's Manchester Road property. He met Gerardo that day and met Salvador S. that Thursday. Defendant returned to the Manchester Road property on Saturday sometime after 6:00 p.m. Rangel had called him, and they were supposed to finish trimming marijuana. He had plans to go dancing with his wife and only planned to work two to three hours.
Heliodoro let them in and when defendant entered, Rangel was inside and there were two young men there, one of them tied up. He had never seen the two men before, and the one who was free, whom he later learned was Reyes, had a beer in his hand and was arguing with Rangel over a drug debt owed to Rangel. The man offered Rangel his car, but Rangel said he could buy one at auction for $4,000 or $5,000. There was also talk about someone coming from Sacramento with money. Defendant tried to leave in the beginning and said it was not his problem, but Rangel and Heliodoro had guns.
The arguing continued and defendant offered to pay the money owed or put his diesel truck, which Rangel really liked, toward the debt. His offer was refused, however, and he ended up there for hours. He testified that although he was texting with his wife, he did not tell her anything because either Rangel or Heliodoro would ask who it was and tell him what to say. Defendant testified that he repeatedly said he was going to free the men and pay whatever was owed. After Reyes was tied up and the men were moved to another room, he tried to loosen their ropes but Heliodoro caught him and put a gun to his head. He was then seated on the floor next to the men, with Salvador P. next to him. He denied that he ever had a two-by-four, and he said he did not see anyone get beaten or see any injuries, but he was told that Rangel pistol-whipped Rodolfo when he resisted being tied up.
Defendant got home late and went to bed. He did not call the police because of threats made toward his sons. He also said he was told the group would resolve it and let the men go, and that the person coming from Sacramento to pay the money got lost but would be arriving.
On Sunday, defendant went to his brother's birthday party. He and Salvador P. left the party that evening and went to Heliodoro's house to get paid and to pick up some leftover marijuana leaves that could be used for baking but would otherwise be thrown away. Rangel was supposed to be there but was not. Heliodoro answered the door. He had a gun and said he had a little surprise for defendant. Gerardo, who also had a gun, gestured for Salvador P. to get out of the car. Once inside the house, Heliodoro received a phone call and said "the other little dear that we're missing were already there." Rodolfo and Reyes were inside on a mattress bound by their hands and feet with duct tape.
Defendant's wife called him and Heliodoro told him to put it on speaker phone. Defendant had told her they were going to Wal-Mart to buy some boxes with Rangel. Heliodoro had to go somewhere and he tied defendant up with the rope that was on the mattress so Gerardo would only have to keep an eye on Salvador P Gerardo told defendant not to do anything stupid. Defendant testified that Salvador S. was not there.
After Heliodoro returned, he took Rodolfo out of the house and then Reyes. They did not have tape over their eyes, but their mouths were taped. They were put in the backseat of a burgundy car defendant thought was theirs. He was ordered to drive and Gerardo sat in the passenger seat. Heliodoro was in the lead in his black car and Salvador P was told to follow behind in his car. Defendant said he saw the headlights of a fourth vehicle and Gerardo told him it was Rangel, but defendant never saw who was in the vehicle and he did not see Rangel that night.
They drove until Heliodoro stopped at an orchard and, gun in hand, waved defendant to drive in. Defendant yelled at Salvador P. to run and then drove into the orchard far enough to keep passing vehicles from seeing lights. Heliodoro told Gerardo not to let defendant out and took Reyes out of the car. Gerardo also got out, and the two opened the trunk and took out a bat. Defendant heard them hit Reyes hard and he fell to the ground. Defendant took out a small knife he had picked up back at the house. He cut the tape binding Rodolfo's feet and was able to cut some of the tape binding his hands. Rodolfo took off, and Heliodoro and Gerardo called defendant to get out of the car.
Defendant stood by the trunk as Heliodoro laughed and hit Reyes with the bat approximately three times. Gerardo took off after Rodolfo and defendant heard around six gunshots. Defendant stood paralyzed as Heliodoro asked him why he let Rodolfo go and threatened to kill him. Gerardo returned, and he told Heliodoro that Rodolfo was dead and defendant let him go. Heliodoro ordered defendant to hit Reyes with the bat and "'finish him off'" or they would kill Salvador P. Defendant did not want to but Heliodoro had him at gunpoint so he hit Reyes twice in the back and then threw the bat. He did not see anyone cut Reyes's throat.
After defendant threw the bat, Heliodoro told Gerardo to kill defendant since he let Rodolfo go. Gerardo told Heliodoro that Salvador P had run, and he raised his gun toward defendant. Defendant then ran downhill and laid down in a ditch behind a tree. He heard the car engine start up and the car drive off. After he heard car tires screech off, he came out of hiding and saw a car on fire through the trees.
Defendant walked to where Salvador P.'s car was parked along the road and found the keys on the seat. He called for Salvador P., but got no answer. He did not know what happened to Salvador P., but he saw red liquid on the glass of the car and drove off. He began calling Salvador P.'s phone and Salvador finally answered. Salvador P told him he was about a mile away in another field, lost. He was able to see the fire so he ran toward it. Although the calls dropped at times, they met up and defendant drove them to his house.
Defendant denied he sold or loaned Heliodoro his nephew's red car on Saturday, but he said Heliodoro demanded the keys from Salvador P. so they would not leave. Defendant could hear vehicles coming and going that day, but could not see if Heliodoro drove off in the red car.
When Salvador P. texted him to say that Gera said to bring waters, he was at home and did not know where Salvador was. He acknowledged Salvador told him to bring a lighter, too, but he did not recall getting one. Regarding the blue gas can, defendant said he was working on vehicles that day and discovered one of the trucks was out of fuel. His son would always leave their vehicles on empty so he was angry about it. Salvador P had just arrived and was playing videogames. He offered to go get fuel, and defendant and his wife left for the birthday party. Later on, defendant texted Salvador to ask if he brought the blue gas can and Salvador said yes. Defendant denied taking any fuel anywhere.
Defendant testified that "Metrayeta" means machine gun, and it was Rangel's nickname because he had a stutter that made him sound like a machine gun. At his brother's birthday party, defendant texted Salvador P, who was inside the house, about saying Metrayeta called them because defendant's wife was still angry about the night before and about being late to the party. Salvador knew the address of the house on California Street in Winton because he had been there before and said he would go alone, but defendant wanted to go along because he did not trust the other men.
On cross-examination, defendant testified he did not recall when he left the house on Manchester Road early Sunday morning, but he said he and Salvador P left together. He denied he went back to the Manchester Road house on Sunday. He said Salvador P brought a gas can to his brother's birthday party and before they went to the house in Winton, they stopped by his house to put fuel in the truck. He said he told his wife they were going to Wal-Mart, but also told her to call the police if he did not answer his phone or call her within an hour.
Defendant testified that after he left the orchard and was looking for Salvador P., he called Rangel to ask where Salvador was. He said he did not recall if he also called Gerardo or what he said to detectives.
Regarding the gas can, defendant said it was diesel fuel he needed for his truck, and he was at the birthday party when he sent the text. Salvador P. responded that he got it at 7:33 p.m. and defendant replied at 7:36 p.m. Defendant testified he did not think Salvador P was at the party yet, but Salvador did come and have a little food. By 7:42 p.m., defendant was getting ready to leave the party and texted his wife to go inside.
III. Rebuttal Evidence
A. Prosecution
Detective Goins testified that he examined defendant's cell phone data for October 19, 2014, between 5:00 p.m. and 12:00 a.m. GPS data from three photographs was consistent with his testimony that he was at his brother's birthday party around 6:30 p.m. At 10:53 p.m., GPS data placed the phone in Livingston, where defendant lived. The last phone call to or from Salvador P.'s phone was an incoming phone call to defendant's phone at 7:08 p.m., but there was no GPS information.
Detective Ruiz testified that defendant told him he went to the California Street residence between 7:30 and 8:00 p.m. to move marijuana. He also said he and Salvador P were needed because they were going to let the victims go somewhere in Merced. Defendant knew the victims were at the California Street residence and was not surprised to find them there. He also never mentioned being tied up.
B. Defense
Defendant testified that he told detectives he hit Reyes in the back. He said he did not hit Reyes in the head, but they pressured him to say so by telling him they would say it was an accident. He also said that he called Salvador P multiple times while looking for him after the murders, but the calls kept dropping. When Salvador P. finally answered, defendant turned the car around to pick him up.
DISCUSSION
I. Substantial Evidence Challenge to Conviction for Murdering Rodolfo
A. Legal Standard
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict" (Zamudio, supra, at p. 357), but "speculation, supposition and suspicion are patently insufficient to support an inference of fact" (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268).
B. Analysis
1. Summary of Parties' Positions
Viewed in the light most favorable to the prosecution, defendant drove into the orchard and Reyes was killed at that location. Both defendant and Salvador S. testified that defendant cut Rodolfo's bindings and told him to run. Rodolfo made it approximately 100 yards into the orchard before Gerardo caught up and shot him to death. Defendant claims that the only reasonable inference a jury could draw from the evidence is that he cut Rodolfo's bindings to free him and facilitate his escape, and that these actions defeat the aiding and abetting, conspiracy, and felony murder theories underlying his murder conviction, entitling him to reversal of his murder conviction.
Defendant argues Rodolfo was killed almost 600 feet away, but Detective Tighe testified that the furthest point was 100 yards, or 300 feet, away. Our rejection of defendant's claim does not depend on the precise distance, however.
With respect to direct aiding and abetting, defendant contends that the mere failure to take action to prevent a crime will not support liability and, therefore, taking action to prevent the crime is inconsistent with aiding and abetting that crime. He contends that because he freed Rodolfo and allowed him to escape, the jury could not have reasonably inferred that he intended to kill Rodolfo, as the two are inconsistent. With respect to felony murder, he contends that given his actions in freeing Rodolfo and letting him escape, the jury could not have reasonably inferred that he acted with reckless indifference to human life. Finally, his actions in freeing Rodolfo also defeat a conspiracy theory of liability, as that theory requires that he share his coconspirators' intent and agreement to kill.
In his reply brief, defendant also characterizes the kidnappings as merely incidental to the murders. He subsequently sought, and was granted, leave to file a supplemental brief raising a claim of instructional error concerning the independent felonious purpose rule as applicable to felony murder. As discussed post, even if we accept defendant's premise that this rule applies to felony murder, we conclude there was no instructional error and no prejudice.
The People maintain that substantial evidence supports all the murder theories advanced by the prosecution.
2. Murder Theories
The jury was instructed on willful, deliberate, and premeditated murder and felony murder, based on either direct perpetration of the killings or aiding and abetting the killings as a major participant who acted with reckless indifference to human life. The jury was also instructed on conspiracy to commit murder. Although jurors were required to unanimously agree, beyond a reasonable doubt, that defendant murdered Rodolfo, they were not required to agree on the theory of guilt, including whether defendant was the direct perpetrator or an aider an abettor. (People v. Valdez (2012) 55 Cal.4th 82, 153- 154; accord, People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 31 (Miranda-Guerrero); People v. Scully (2021) 11 Cal.5th 542, 598.)
"'[M]urder is the unlawful killing of a human being .. with malice aforethought.'" (People v. Baker (2021) 10 Cal.5th 1044, 1104, quoting § 187, subd. (a).) "'Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature'" and "'implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and
With respect to defendant's substantial evidence comment in his reply brief, we do not agree that "[t]he evidence shows that the sole purpose of the kidnapping was [to] take Reyes and Rodolfo to a secluded orchard so that they could be killed." The California Supreme Court has stated, "'[T]here is nothing magical about the phrase "to carry out or advance" the felony.' [Citation.] A jury '"'is not required to assign a hierarchy to the defendant's motives ... [and] need only determine whether commission of the underlying felony was or was not merely incidental to the murder.'"'" (People v. Nieves (2021) 11 Cal.5th 404, 466.) Here, Rodolfo and Reyes were held more than 24 hours at multiple locations before they were killed, their captivity began over a drug debt, early on there was a plan for someone to bring money to pay the debt, and Heliodoro vacillated between letting them go and killing them. Of additional note, the relevant rule, where applicable, does not set forth an element of the offense. (People v. Brooks (2017) 3 Cal.5th 1, 117 (Brooks).) malignant heart'" (Baker, supra, at p. 1104, quoting § 188, subd. (a)(1)-(2).) Willful, deliberate, and premeditated murder, and murder that is committed in the perpetration of certain specific felonies, including kidnapping, is first degree murder. (§ 189, subd. (a).) Relevant in this case given the absence of any evidence that defendant shot Rodolfo, liability for murdering Rodolfo as an aider and abettor required the prosecution to prove "'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.'" (In re Lopez (2023) 14 Cal.5th 562, 579 (Lopez).) "'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.'" (Ibid.) With respect to felony murder, the prosecutor was required to prove either that defendant "with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree" (§ 189, subd. (e)(2)), or defendant "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2" (id., subd. (e)(3)).
As to conspiracy to commit murder, "Conspiracy '"is an inchoate offense, the essence of which is an agreement to commit an unlawful act."' (People v. Johnson (2013) 57 Cal.4th 250, 258 (Johnson).) This crime has four elements: (1) the existence of an agreement between at least two persons; (2) the specific intent to agree to commit an offense; (3) the specific intent to commit the offense that is the object of the agreement; and (4) an overt act in furtherance of the conspiracy, which may be committed by any conspirator. (Pen. Code, § 182, subd. (a)(1); see, e.g., People v. Morante (1999) 20 Cal.4th 403, 416.)" (People v. Ware (2022) 14 Cal.5th 151, 163.) "Conspiracy to murder requires not only intent to kill, but also intent to agree and actual agreement. (§ 182; People v. Swain (1996) 12 Cal.4th 593, 600, 607.) 'Consequently, it logically follows that where two or more persons conspire to commit murder-i.e., intend to agree or conspire, further intend to commit the target offense of murder, and perform one or more overt acts in furtherance of the planned murder-each has acted with a state of mind "functionally indistinguishable from the mental state of premeditating the target offense of murder." [Citation.] The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder-hence all murder conspiracies are conspiracies to commit first degree murder, so to speak.' (People v. Cortez (1998) 18 Cal.4th 1223, 1232.)" (Lopez, supra, 14 Cal.5th at p. 588.)
3. Substantial Evidence Supports Conviction for Murdering Rodolfo
Salvador S. and defendant were the only two eyewitnesses to testify, and both had credibility issues. However, it was for the jury to determine whether to credit their testimony in whole, in part, or not at all. (Lopez, supra, 14 Cal.5th at p. 591 ["It is well settled that the jury has wide latitude to believe or disbelieve witnesses, or even specific portions of their testimony, as it sees fit."].) Our inquiry is necessarily limited. As stated, "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Zamudio, supra, 43 Cal.4th at p. 357.) There was ample evidence of defendant's involvement in kidnapping the two men, transporting them to the orchard and killing Reyes, and defendant does not claim otherwise. His position that there is insufficient evidence to support his conviction for murdering Rodolfo focuses on evidence that he cut Rodolfo's bindings and freed him.
The crimes in this case were senseless and horrific, and the victims endured more than 24 hours in captivity before being brutally murdered. Among other evidence, defendant's text messages implicated him in supplying the fuel and lighter used to torch the car, and there was evidence that he was present during an earlier incident in which at least one person was tied up, made to think acid was being poured on his head, and told his feet were going to be cut off with a chainsaw. Furthermore, prior to driving Rodolfo and Reyes to the orchard, defendant had ample opportunity to ensure their release without further harm, but he did not do so.
Assuming the jury believed defendant cut Rodolfo's bindings, Salvador S. told detectives that as soon as defendant cut the bindings and told Rodolfo to run, he also told Gerardo to go after Rodolfo. A reasonable trier of fact could have concluded that defendant remained fully committed to the group's plan, but told Rodolfo to run and then sent Gerardo to hunt him down simply to add to the torment inflicted on Rodolfo and Reyes. Notwithstanding defendant's contrary argument, the jury was not required to believe that defendant freed Rodolfo from his bindings, and it was not required to believe that if he did so, it was motivated by his desire to help Rodolfo escape. Notably, duress is not a defense to murder (People v. Powell (2018) 6 Cal.5th 136, 164), and had defendant been concerned about coming to Rodolfo's aid, he had ample opportunity over the course of two days to call the police or avoid any further involvement with Heliodoro and Rangel. Instead, his actions evidence his willing participation in the events leading up to and including Rodolfo's and Reyes's deaths.
The underlying public policy is that "fear for one's own life does not justify killing an innocent person." (People v. Anderson (2002) 28 Cal.4th 767, 770.) "The law should[, and does,] require people to choose to resist rather than kill an innocent person." (Id. at p. 772.) The jury was instructed on the defense with respect to kidnapping and the lesser included offense of false imprisonment, but, in convicting defendant of the kidnappings, necessarily rejected it.
The People also raise the issue of withdrawal from the crime, but point out the facts are inconsistent with that defense. Withdrawal from conspiracy to commit murder or from aiding and abetting the murder would have required that defendant notify the other participants of his intention to withdraw and do everything in his power to prevent the murders. (People v. Navarro (2021) 12 Cal.5th 285, 307 (Navarro) [conspiracy]; People v. Fayed (2020) 9 Cal.5th 147, 178-179 [aiding and abetting]. The jury was not instructed on this defense and there is no evidence in the record that would have supported instruction on the issue. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055 [there must be substantial evidence supporting instruction].) Defendant does not claim otherwise.
Accordingly, we reject defendant's claim that the only reasonable inference the jury could have drawn from the evidence was that he freed Rodolfo with the intent to help him escape, thereby negating elements necessary to support his conviction based on conspiracy, felony murder, or aiding and abetting and entitling him to reversal of the conviction. While we do not know which theory or theories the jurors relied on, as discussed next, in finding the kidnapping-murder special circumstance true, the jurors necessarily found that defendant intended to kill Rodolfo.
II. Instructional Error-Felony Murder and Independent Felonious Purpose A. Legal Standard
We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "[Instructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury" (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Lemcke (2021) 11 Cal.5th 644, 655), and jurors are presumed to have understood and followed the trial court's jury instructions (People v. Thomas (2023) 14 Cal.5th 327, 382 (Thomas); People v. Sandoval (2015) 62 Cal.4th 394, 422).
Generally, we evaluate claims of instructional error under Watson, which provides that "'an error [under state law is] harmless unless it is "reasonably probable" the outcome would have been different in the absence of the error. [Citation.] As a general matter, this test applies to "'"incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error."'" [Citation.]'" (People v. Schuller (2023) 15 Cal.5th 237, 251.) However, we evaluate errors of federal constitutional magnitude under Chapman, which "'requires reversal unless the error is "harmless beyond a reasonable doubt."'" (Schuller, supra, at p. 251.) "Chapman review applies to instructional errors that 'misdescribe[]' [citation] an element of the charged offense or are otherwise 'incomplete and misleading' [citation] with respect to the findings necessary to prove an element of the offense. [Citation.] The key inquiry is whether the instruction operated to 'preclude[] the jury from making a finding' [citation] on any fact necessary to establish an element of the offense." (Ibid.)
People v. Watson (1956) 46 Cal.2d 818 (Watson).
Chapman v. California (1967) 386 U.S. 18 (Chapman).
B. Analysis
1. Independent Felonious Purpose Rule
Under the independent felonious purpose rule, "'To prove a felony-murder specialcircumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.'" (People v. Nieves, supra, 11 Cal.5th at p. 466, quoting People v. Mendoza (2000) 24 Cal.4th 130, 182.) "[T]he independent felonious purpose rule is not an element of the special circumstance, on which a court must instruct in every case in which a felony murder special circumstance has been alleged. [Citation.] The rule 'merely clarifies the scope of the requirement that the murder must have taken place "during the commission" of a felony.' [Citations.] From this we have concluded that a trial court has no duty to instruct on the independent felonious purpose rule 'unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony.' [Citations.] Put in affirmative terms, a court has a duty to instruct the jury, on its own motion, that the felony cannot have been merely incidental to the murder when there is evidence from which the jury could have inferred that the defendant did not have an independent felonious purpose for committing the felony." (Brooks, supra, 3 Cal.5th at pp. 117-118.)
Section 190.2, subdivision (a)(17)(M), provides, "To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder." (Italics added.) As discussed herein, the jury in this case was instructed on multiple theories and the felony murder theory did not require the jury to find intent to kill. As a result, the jury was instructed on the independent felonious purpose rule with respect to kidnapping-murder special circumstances, pursuant to CALCRIM No. 730.
2. Omission of Independent Felonious Purpose Rule from Felony Murder Instruction
In supplemental briefing, defendant argues that the independent felonious purpose rule also applies to felony murder liability. He claims that Rodolfo's kidnapping was merely incidental to the murder and, therefore, the court erred when it failed to instruct the jury that it must find he had an independent felonious purpose for commission of the kidnapping. Although he acknowledges that the cases cited therein pertain to felonymurder special circumstance findings rather than felony murder liability, defendant relies on Montelongo to argue that following the recent amendments to felony murder pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.), "felony murder and felony murder statutes now 'criminalize the same conduct[,]' strongly impl[ying] that the same requirements need to be proven for both." (Quoting People v. Montelongo (2020) 55 Cal.App.5th 1016, 1024.) However, the specific issue addressed in Montelongo was whether the felony murder statute was unconstitutionally vague, and the court did not hold that the independent felonious purpose rule applies to felony murder. (People v. Brown (2012) 54 Cal.4th 314, 330 ["cases are not authority for propositions not considered"].)
Defendant recognizes he did not object, but relies on the principle that the "failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected." (People v. Mitchell (2019) 7 Cal.5th 561, 579.) If meritorious, his claim would affect his substantial rights. (See Brooks, supra, 3 Cal.5th at p. 119 [Chapman standard applies to failure to instruct on independent felonious purpose rule].) Therefore, we reach the merits of his claim, notwithstanding his failure to object.
Very recently, in Hardin, the California Supreme Court reiterated, "We have explained why the law treats robbery murder as more culpable than simple murder. The special circumstance is limited to those defendants who commit 'a "willful, deliberate and premeditated" murder "during the commission" of a robbery or other listed felony' rather than 'when the defendant's intent is not to steal but to kill and the robbery is merely incidental to the murder.' (People v. Green (1980) 27 Cal.3d 1, 61.) The law treats as particularly egregious a murder 'in cold blood in order to advance an independent felonious purpose, e.g., who carried out an execution-style slaying of the victim of or witness to a holdup, a kidnaping, or a rape.' (Ibid.) '[T]he purpose of this special circumstance is to make eligible for the most severe punishment those defendants who escalate a serious felony into a murder, thereby attempting to deter such escalation.' (People v. Mora and Rangel (2018) 5 Cal.5th 442, 520 (conc. &dis. opn. of Liu, J.).)" (People v. Hardin (2024) 15 Cal.5th 834, 860.) The high court's recent and continued recognition of the legislative distinction between felony murder and felony-murder special circumstances undermines defendant's argument, which relies on erasure of that distinction. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197-198 ["'Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.'"].)
In any event, assuming without deciding that the instruction should be given in felony murder cases, "a trial court has no duty to instruct on the independent felonious purpose rule 'unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony.'" (Brooks, supra, 3 Cal.5th at pp. 117-118.) We are unpersuaded that substantial evidence would support the instruction in this case. The kidnappings stretched over two days and three locations, and were motivated by a drug debt one or both victims owed. We do not agree that under the circumstances of this case, a reasonable trier of fact could conclude the kidnappings were merely incidental to the subsequent murders more than 24 hours later.
Furthermore, as discussed next, the jury received instruction on the independent felonious purpose rule with respect to kidnapping-murder special circumstances, which it found true, and neither the prosecutor nor defense counsel addressed the issue during closing argument. This strongly suggests "The point was a nonissue at trial." (People v. Hardy (2018) 5 Cal.5th 56, 102.)
3. Prejudice
Even if we assume error, however, it was harmless beyond a reasonable doubt. (Brooks, supra, 3 Cal.5th at p. 119.) With respect to the kidnapping-murder special circumstance, the jury was instructed, in relevant part, "[T]he People must prove that the defendant intended to commit kidnapping independent of the killing. If you find that the defendant only intended to commit murder and the commission of the kidnapping was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved." Therefore, in finding the kidnapping-special circumstance true as to both Rodolfo and Reyes, the jury necessarily found the kidnappings were not merely incidental to the murders.
In Brooks, the court explained, "Although the requirement of an independent felonious purpose is not an element of the felony-murder special circumstance [citation], we believe the legal principle is not one with which jurors would be familiar in the absence of an instruction." (Brooks, supra, 3 Cal.5th at p. 118.) Therefore, where the court has a duty to give the instruction, its omission is prejudicial unless, beyond a reasonable doubt, the error did not affect the jury's finding. (Id. at p. 119.)
Defendant resists this conclusion and claims the instruction did not cure the error. As we understand defendant's argument, he contends that assuming the jury first decided defendant murdered Rodolfo under a felony murder theory, which did not require jurors to find intent to kill, a reasonable juror moving on to the special circumstance instruction could have disregarded the independent felonious purpose portion of the instruction as inapplicable. This argument is untenable. As previously stated, "'Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions.'" (Thomas, supra, 14 Cal.5th at p. 382.) Nothing in the record counsels against the routine application of this general presumption.
III. Advisement on Right to Testify
A. Procedural Background
Next, defendant claims the trial court misadvised him concerning his right to testify or not. In discussing scheduling during the prosecution's case-in-chief, defense counsel told the court, "My client has to decide if he is going to testify." Later that day, the court advised defendant of his right to testify or not, as follows with the alleged error italicized:
"THE COURT: .. I want to also advise your client now, and he will have time to think about his rights. [¶] But, Mr. Pena, I want to advise you that in this trial, it's your absolute constitutional right to testify if you choose to do so. You also have the absolute right not to testify in your case. That's a decision that you must make in consultation with your attorney .... [¶] Do you understand your right to testify if you so choose?
"DEFENDANT PENA: Yes, Your Honor.
"THE COURT: And do you also understand you have the right not to testify?
"DEFENDANT PENA: Yes, Your Honor.
"THE COURT: Okay. I just wanted to make that known to you. [¶] And then, [defense counsel], I will give you an opportunity to talk to your client once the People have closed their case before he makes that decision."
Several days later, defense counsel told the court, "I've been informed by my client that he wishes to testify."
Although defendant concedes there is no authority for the proposition that the trial court had a duty to advise him on his right to testify or not, he claims that having undertaken to do so, the trial court was obligated to advise him correctly. He contends that the decision to testify or not belonged to him exclusively and in telling him to make the decision in consultation with his attorney, the court misadvised him. On this record, we find no merit to defendant's claim.
B. Legal Principles
"A criminal defendant has the right to testify at trial, 'a right that is the mirror image of the privilege against compelled self-incrimination and accordingly is of equal dignity.' (People v. Barnum (2003) 29 Cal.4th 1210, 1223; see People v. Nakahara (2003) 30 Cal.4th 705, 717.) 'The defendant may exercise the right to testify over the objection of, and contrary to the advice of, defense counsel.'" (People v. Duong (2020) 10 Cal.5th 36, 55, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1332.) "Absent an express conflict, '"a trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel's trial strategy ...."'" (Duong, supra, at p. 55, quoting People v. Bradford (1997) 14 Cal.4th 1005, 1053 (Bradford).) Thus, "A trial court has no duty to give such advice or seek an explicit waiver, unless a conflict with counsel comes to its attention." (People v. Enraca (2012) 53 Cal.4th 735, 762.)
C. Analysis
Defendant elected to testify at trial and his testimony provided the basis for his defense of duress to the kidnapping charges. It also served to distance defendant from major involvement in the crimes and to explain some of the damaging evidence against him, including his text exchange with Salvador P. concerning the lighter and fuel.
Consequently, rather than asserting his constitutional right to testify was violated, defendant's claim implies either that he was unaware he could elect not to testify or that trial counsel required him to testify against his wishes, neither of which is borne out by the record. First, there is no indication of any conflict between defendant and his counsel on this issue and, therefore, the court was not required to advise him. To the contrary, the record affirmatively reflects defendant's decision to testify.
Second, we find no fault with the portion of the court's advisement challenged by defendant. The court was clear that defendant had the absolute right to testify and the absolute right not to testify, and the record is equally clear that defendant chose to testify and defense counsel deferred to his client. We reject defendant's assertion that the statement he must make the decision "in consultation with [his] attorney" either misled him or led his attorney to make the decision for him. The record is devoid of any support for the contention that the decision was made by counsel and in conflict with defendant's wishes, and it would be an abdication of counsel's duty to his client if counsel did not discuss the matter with him at all or provide any professional guidance on the matter.
Defendant contends the proposition that the right to testify "'must be exercised with caution and good judgment, and with the advice and under the direction of competent trial counsel'" (Bradford, supra, 14 Cal.4th at p. 1053) is no longer valid following the decision in McCoy v. Louisiana (2018) 584 U.S. 414 (McCoy). In McCoy, the trial court allowed defense counsel to enter a guilty plea over his client's objection. (Id. at p. 428.) The high court held this was a violation of the defendant's Sixth Amendment right and the error was structural, necessitating reversal. (McCoy, supra, at p. 428.) McCoy does not support defendant's apparent contention that counsel plays no role in the matter. To the contrary, the court explained, "Counsel, in any case, must still develop a trial strategy and discuss it with her client, [citation], explaining why, in her view, conceding guilt would be the best option. In this case, the court had determined that McCoy was competent to stand trial, i.e., that McCoy had 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.' [Citations.] If, after consultations with [counsel] concerning the management of the defense, McCoy disagreed with [counsel's proposal to concede McCoy committed three murders, it was not open to [counsel] to override McCoy's objection. [Counsel] could not interfere with McCoy's telling the jury 'I was not the murderer,' although counsel could, if consistent with providing effective assistance, focus his own collaboration on urging that McCoy's mental state weighed against conviction." (Id. at pp. 423-424, fn. omitted.)
It has long been the law in California that defense attorneys may not prevent their clients from testifying. (People v. Robles (1970) 2 Cal.3d 205, 214-215.) McCoy, as defendant concedes, did not address the constitutional right to testify (McCoy, supra, 584 U.S. at p. 420), but in any event, the case did not hold that defense counsel plays no role in the matter at all and may not provide any advice (id. at pp. 423-424). Critically, as discussed, nothing in this record suggests that counsel overrode defendant's wishes and forced him to testify (id. at p. 428) or that defendant did not comprehend he had the choice in the matter.
IV. Denial of Motion for New Trial
A. Procedural Background
Finally, after the verdicts were returned, defendant filed a motion for a new trial pursuant to section 1181, subdivision 5, which provides that the court may grant a new trial for prejudicial misconduct by the prosecutor. The basis for the motion was the prosecutor's representation that defendant lied when he said he did not call Salvador P. after he fled from Heliodoro and Gerardo in the orchard. Defense counsel subpoenaed Salvador P.'s cell phone records, postverdict, and argued that the records showed calls between defendant and Salvador P., which the prosecutor should have been aware of.At the hearing, the trial court observed that the prosecutor was relying on the extraction from defendant's cell phone records and neither party had Salvador P.'s cell phone records, concluding, "So it's tough to argue that [the prosecutor] was attempting to mislead the jury." After further argument, the court concluded that defense counsel failed to demonstrate that the records could not have been produced at trial with reasonable diligence and that if the evidence had been introduced at trial, it would have affected the verdict.
In the motion, counsel also argued that the detective who testified did not complete his training. However, defendant does not challenge the admission of the evidence on appeal, thereby waiving that issue. (People v. Hovarter (2008) 44 Cal.4th 983, 1029.)
On appeal, defendant cites United States v. Blueford (9th Cir. 2002) 312 F.3d 962, a prosecutorial misconduct case, as analogous and argues that the prosecutor presented incomplete evidence based on an extraction from defendant's cell phone. He also cites In re Jenkins (2023) 14 Cal.5th 493 (Jenkins) for the proposition that the prosecution has an affirmative duty to disclose exculpatory evidence.
The People take the position that the trial court did not abuse its discretion in denying the new trial motion because defendant failed to demonstrate due diligence in obtaining the records and there was no prejudice in any event. They note it is not clear whether defendant's claim is premised on a Brady violation, newly discovered evidence or prosecutorial misconduct, but state the claim fails regardless of the theory.
In reply, defendant asserts that the prosecutor was required to disclose Salvador P.'s call information under Brady and Jenkins, and that the failure to do so violates the rule that the prosecutor "may not knowingly present false evidence and must correct testimony 'that it knows, or should know, is false or misleading.'" (People v. Wilson (2020) 56 Cal.App.5th 128, 158, quoting People v. Morrison (2004) 34 Cal.4th 698, 716.)
B. Forfeiture
Defendant moved below for a new trial under section 1181, subdivision 5, based on prosecutorial misconduct, and the trial court addressed that ground, albeit summarily, and then addressed the grounds of newly discovered evidence and harm. For the first time on appeal, defendant frames his claim as a Brady violation. (Jenkins, supra, 14 Cal.5th at p. 508 ["Under Brady and its progeny, securing a conviction by failing to disclose material exculpatory evidence violates due process."].) "Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena K.); accord, People v Romero (2008) 44 Cal.4th 386, 411.) "'"[N]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it."' [Citations.] 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.'" (Sheena K., supra, at pp. 880-881; accord, Romero, supra, at p. 411.)
'"[Discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.'" (SheenaK., supra, 40 Cal.4th at pp. 887-888, fn. 7.) This case does not present circumstances warranting deviation from the generally applicable principle. Defendant's failure to raise the issue of a Brady violation in the trial court forfeits appellate review of the claim. (People v. Williams (2015) 61 Cal.4th 1244, 1284; People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Therefore, we confine our analysis to the claims addressed in the trial court in response to defendant's section 1181 motion.
C. Legal Principles
Postconviction, the trial court may grant a motion for a new trial in certain circumstances, including "when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury" (§ 1181, subd. 5), and "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial" (id., subd. 8). "'"A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact." [Citation.] "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety."' (People v. Silveria and Travis (2020) 10 Cal.5th 195, 306.) '[T]o establish reversible prosecutorial misconduct a defendant must show that the prosecutor used "'deceptive or reprehensible methods'" and that it is reasonably probable that, without such misconduct, an outcome more favorable to the defendant would have resulted.' (People v. Caro (2019) 7 Cal.5th 463, 510.)" (Navarro, supra, 12 Cal.5th at p. 332.) "'"Conduct by a prosecutor that does not reach that level nevertheless constitutes misconduct under state law, but only if it involves the use of deceptive or reprehensible methods to persuade the court or jury."'" (People v. Ramirez (2022) 13 Cal.5th 997, 1122, quoting People v. Armstrong (2019) 6 Cal.5th 735, 795.)
With respect to newly discovered evidence, "'"In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: '"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."'"'" (People v. O'Malley (2016) 62 Cal.4th 944, 1016-1017, quoting People v. Howard(2010) 51 Cal.4th 15, 43; accord, Miranda-Guerrero, supra, 14 Cal.5th at pp. 27-28.) "'"[T]he trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable."'" (In re Masters (2019) 7 Cal.5th 1054, 1082, quoting People v. Delgado (1993) 5 Cal.4th 312, 329.)
"'[T]he trial court has broad discretion in ruling on a new trial motion . . .,' and its 'ruling will be disturbed only for clear abuse of that discretion.' [Citation.] In addition, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.'" (People v. Verdugo (2010) 50 Cal.4th 263, 308; accord, People v. O'Malley, supra, 62 Cal.4th at p. 1016.) "'"[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background."'" (People v. Delgado, supra, 5 Cal.4th at p. 328; accord, People v. Howard, supra, 51 Cal.4th at p. 43.)
D. Analysis
After defendant testified that he escaped Heliodoro and Gerardo in the orchard and then repeatedly called Salvador P., the prosecutor called Deputy Goins as a rebuttal witness. Based on a Cellebrite records extraction from defendant's cell phone, Goins testified there was an 11-second incoming call to defendant's phone from Salvador P.'s phone at 7:08 p.m. The prosecution's theory was that the murders occurred after 9:00 p.m. because Heliodoro's phone was in the area of the orchard at 9:12 p.m. Therefore, in response to the prosecutor's questions, Goins testified that there were no calls to Salvador P.'s number at or near 9:12 p.m. In light of this testimony, the prosecutor subsequently told the jury during closing that defendant lied about calling Salvador P.
After the verdicts, defense counsel subpoenaed Salvador P.'s phone records, which showed seven outgoing calls from Salvador P.'s phone to defendant's phone between 9:17 p.m. and 9:36 p.m. Given that the prosecutor's argument was based on Deputy Goins's testimony about defendant's cell phone records extraction, the court found no basis for arguing prosecutorial misconduct. On review, we find no support for a claim that the prosecutor engaged in deceptive or reprehensible conduct by misstating the evidence or misleading the jury with respect to the extraction evidence that was admitted or Goins's testimony about that extraction. As such, the trial court did not abuse its discretion in rejecting that ground. Further, although defendant does not pursue this ground on appeal and, therefore, waives the claim (People v. Hovarter, supra, 44 Cal.4th at p. 1029), the trial court did not abuse its discretion in concluding defendant failed to show that "'he could not, with reasonable diligence, have discovered and produced [the evidence] at the trial'" or that a "'"'a different result [would be] probable on retrial'"'" (Miranda-Guerrero, supra, 14 Cal.5th at pp. 27-28).
Whether viewed as prosecutorial misconduct or newly discovered evidence, the evidence in question was not exculpatory. Rather, the parties' dispute over whether or not defendant called Salvador P. went to defendant's credibility in general and we are not persuaded this evidence was pivotal to the jury's assessment. To the contrary, even on this cold record, defendant's evasiveness during his interrogation and during cross-examination is evident. Detective Ruiz testified that defendant lied repeatedly during interrogation, changing his story as he was challenged. Examples included initially saying he did not know Heliodoro or the victims, he did not have Heliodoro's phone number, and he was not at the Manchester Road residence; expressing surprise about the homicide investigation; denying any involvement at all; and repeatedly changing his story about handling the bat. Years later, defendant also testified that Heliodoro tied him up at the California Street residence, but at the time of interrogation, he made no mention of what would presumably have been a very recent and memorable event.
Moreover, defendant's testimony that he was an unwilling participant in the events and fled from Heliodoro and Gerardo in the orchard to avoid being killed stood in stark contrast to the evidence of his voluntary participation. Evidence of the latter included his failure to alert the police or anyone else of Rodolfo's and Reyes's confinement, despite the fact the victims were held for more than 24 hours in two locations before they were killed and he was safely in his own home during part of that time; his continued voluntary interaction with Heliodoro, Gerardo, and Rangel despite having been permitted to go home sometime early Sunday morning; his texts to Salvador P. regarding a gas can and a lighter; his willing return to the California Street residence the night of the murders; and his placement of calls to Rangel and possibly Gerardo immediately after purportedly fleeing for his life.
In short, there is not a reasonable probability of a different verdict had the prosecutor refrained from arguing that defendant lied about calling Salvador P. sometime after 9:00 p.m. or had the jury been aware of evidence that Salvador P received incoming calls from defendant's phone at 8:23 p.m. and 8:29 p.m. and made outgoing calls to defendant's phone between 9:17 p.m. and 9:36 p.m. (Miranda-Guerrero, supra, 14 Cal.5th at p. 28; Navarro, supra, 12 Cal.5th at p. 332.) The absence of any discernible prejudice forecloses defendant's claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, Acting P J., SNAUFFER, J.