Summary
In People v. Rodriguez (Feb. 25, 2020, F074250) (nonpub. opn.) (Rodriguez), this court affirmed a judgment of conviction against Michael Chalillo Medrano (defendant) for his role in a murder.
Summary of this case from People v. MedranoOpinion
F074250
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. AARON RIGO RODRIGUEZ et al., Defendants and Appellants.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Rigo Rodriguez. Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant Michael Chalillo Medrano. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF159394C & BF159394A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Rigo Rodriguez. Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant Michael Chalillo Medrano. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendants Aaron Rigo Rodriguez and Michael Chalillo Medrano are serving prison terms of life without the possibility of parole (LWOP) for committing first degree murder under special circumstances. The crime was found to be gang related and carried out pursuant to a conspiracy partially devised by Rodriguez, who had been tasked with eliminating an alleged defector and informant, i.e., the victim. Medrano was the actual killer.
Although defendants were quickly identified as suspects, the investigation was challenging. Police spoke to numerous witnesses whose stories conflicted and changed over time. Defendants' girlfriends eventually implicated them in the murder, and Medrano's girlfriend led police to a third accomplice who confessed and testified against them at trial. This appeal is fact-intensive, so the evidence will be summarized in detail.
Medrano and Rodriguez both allege federal constitutional error based on the holdings of People v. Aranda (1965) 63 Cal.2d 518 (Aranda), Bruton v. United States (1968) 391 U.S. 123 (Bruton), and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). There are additional claims regarding evidentiary rulings, an alleged instance of prosecutorial misconduct, and other miscellaneous alleged trial errors. As to those issues, there are no grounds for reversal. However, defendants present valid sentencing claims based on Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), which gives trial courts discretion to strike firearm enhancements, and Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), which eliminated most prior prison term enhancements under Penal Code former section 667.5, subdivision (b). (All subsequent undesignated statutory references are to the Penal Code.) We affirm the judgments but remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2014, shortly after 10:30 p.m., Delano police officers found the dead body of Johnny Holguin near 13th Avenue and Clinton Street. The 48-year-old victim had sustained multiple gunshot wounds. An autopsy confirmed the decedent's recent use of methamphetamine.
The victim was a former Norteño gang member. According to several witnesses, he dropped out of the gang a few months prior to his death. From speaking with his family members, police learned the victim was at a "dope house" on Belmont Street (the Belmont house) immediately prior to the shooting. His body was discovered approximately one block away from that address.
The primary occupant of the Belmont house was a woman named Julie. However, one of the victim's daughters informed police that a person named "Suspect" also lived there. The daughter had spoken to Julie by phone several times on the night of the incident. In one of those conversations, after the victim had been shot, Julie claimed to be at the Delano Gardens apartment complex with her friends Victor and "Solo" or "Suspect." When police searched for "Suspect" in their "record system for monikers," they learned it "was a moniker used by [defendant] Aaron Rodriguez," who was also known as "Solo."
On October 21, 2014, police conducted the first of several interviews with Julie. She confirmed the victim had stopped by the Belmont house on the night of the shooting. Julie and her friend, Victor, were with him just minutes before he died. She and Victor left the house to run an errand and the victim departed on foot in the opposite direction. Soon afterwards, they heard gunfire.
Julie claimed to have last seen the victim walking toward the corner of Belmont Street and 12th Avenue. As the interview progressed, she described being the last person to exit the Belmont house and hearing Victor say that "'a car came for Johnny.'" Julie "didn't see the car," but Victor had allegedly described it as an "Explorer [or] Expedition."
When asked about Rodriguez, Julie said he visited the Belmont house on a regular basis but lived with his girlfriend in Porterville. She denied Rodriguez was present on the night of the shooting. According to her initial story, Rodriguez had stopped by the house at around 3:00 p.m. to retrieve his tattooing equipment before leaving town with his girlfriend.
In the early morning hours of October 23, 2014, police arrested defendants Medrano and Rodriguez, as well as Rodriguez's girlfriend, Janette, during a traffic stop outside of the Delano Gardens apartments. The incident reportedly involved "gun and gang charges" unrelated to the Holguin murder, but the basis for taking Rodriguez's girlfriend into custody is not entirely clear from the record. Unlike most of the people involved in this case, Janette had no criminal history and, notwithstanding her relationship with Rodriguez, she did not associate with gang members.
Police questioned Janette regarding the subject matter of the arrest. At the conclusion of the interview, as she was being taken to jail, Janette volunteered to provide information about a separate incident. She then tearfully recounted the following events.
Janette awoke on the morning of October 17, 2014, to discover she had missed several phone calls from Rodriguez. He had been trying to reach her since midnight. When she called him back, Rodriguez asked to be picked up from a house on 13th Avenue in Delano "'as soon as possible.'" Janette obliged and drove from Porterville to the specified location. Upon meeting up with Rodriguez, she moved into the passenger seat and let him drive her car.
Rodriguez told Janette, "[S]ome guy got shot last night ... and ... I need to destroy this phone." He removed the SIM card from his mobile phone, broke it apart, and threw the pieces out the car window. Rodriguez said he had spent the night with a friend because "'that guy that got shot was last seen leaving the house,'" i.e., the Belmont house. Next, Rodriguez lowered his voice and whispered a confession about his role in the killing.
Referring to the victim as "the dog," Rodriguez told Janette "they" had wanted the dog dead because "he snitched on somebody." Rodriguez had been ordered to facilitate the murder, and he claimed responsibility for planning it out. An opportunity presented itself when the victim showed up at the Belmont house and began "crying to Julie about his granddaughter." Rodriguez, who was there when the victim arrived, called "the homie" to report "that the dog was ready to be picked up." However, Rodriguez soon learned the victim had made arrangements to get a ride from his daughter, so Rodriguez "called his homie" and said, "[T]he dog pound is gonna pick him up[,] it's not gonna happen." When the daughter failed to appear, Rodriguez called the person back and said, "[T]he dog is still here[,] he's still here."
After making his last phone call, Rodriguez urged Julie to leave the house with him, saying, "'Julie let's go get the water. Let's go.'" Janette was admittedly confused by this part of the story, but she repeated what Rodriguez had told her: "When he was walking to get the water, he said he heard gunshots. He said he heard six, seven gunshots. And he ran to see ... who it was. And he said he seen the guy on the [ground]. And Aaron's, like, 'I can't believe he did it right here on the corner.'"
The Belmont house did not have running water, so "getting water" was part of Julie's daily routine. She would bring empty containers to her mother's apartment in Delano Gardens, fill them up, and take them back home. In Julie's first police interview, she claimed to have been on her way to get water when the shooting occurred but said "[the] only people who were walkin' out there was me and Victor."
Subsequent to making his confession, Rodriguez met up with defendant Medrano. With Janette still present in the vehicle, Medrano and Rodriguez openly discussed the murder. Janette heard Medrano say, "'I just got off the car and I—I shot that fool in the head.'" Medrano claimed to have fired "six [or] seven" rounds. These details were significant because the victim was in fact shot six times, including twice in the head, but police had not publicly disclosed that information.
Medrano's statements indicated that a female had driven him to the Belmont house. He told Rodriguez, "'That bitch [was] going to leave me and I told her to wait.'" Medrano had apparently lured the victim toward the woman's car by saying, "'[Y]our daughter sent me to pick you up.'"
After learning of Rodriguez's involvement in the murder, Janette attempted to break up with him. His reaction frightened her. She told the police he had said, "'What you're gonna go snitch on me? You're gonna go snitch on me? Watch. Something's gonna fucking happen to you if you do, bitch.'"
Unaware of Janette's disclosures, Rodriguez agreed to be interviewed by police. He was confident and talkative during the first hour of questioning, delivering monologues on topics ranging from his history with the Norteños to the ups and downs of his relationship with Janette. He equivocated on his status as an active gang member, saying he was active but no longer participated in criminal activity: "I associate. Put it that way. I associate. ... I'm allowed to come around, put it that way." The detective asked if that meant he was "in good standing" with the Norteños, and he replied, "Exactly. Exactly."
Rodriguez explained how he essentially became homeless after breaking up with Janette earlier that year; they had only recently begun to "patch things up." He claimed to be living "in the streets" but admitted to occasionally staying at the Belmont house with Julie, who was a longtime friend. When asked about the murder, Rodriguez said he was in Porterville with Janette the entire night. The alibi matched Julie's initial statements to police about Rodriguez stopping by the house to pick up his belongings and then leaving with his girlfriend.
Rodriguez's demeanor changed when the police suggested they might question Janette about his alibi. He became agitated and defensive, saying, "I know how this goes detective. I mean the thing is my girlfriend doesn't, you know what I mean? And I'm not saying she knows something, [what] I'm saying is she can easily be twisted and turned up to where she don't know—and I don't wanna be looking like a damn liar."
While one detective continued to interrogate Rodriguez, a second detective left the room, ostensibly to "go ask the girl" if Rodriguez was lying about the alibi. A few minutes later, the detective returned and said, "The girlfriend says he was not there." Rodriguez stuck to his alibi for a little while longer before offering to tell "the truth." He then stated, "When I got out of prison last year, I dropped out. Okay. I dropped out. Swear to God, I dropped out." The detectives seemed underwhelmed, and Rodriguez said they were "missing the point." Although his supposed dropout status was still a secret, the Norteños allegedly viewed him as a "question mark," meaning someone whose commitment to the gang was in doubt. Therefore, according to Rodriguez, he "wasn't close enough" to any active members to be entrusted with information about a gang murder.
By the end of the interview, Rodriguez had revised his alibi: "[Julie] called me to help her out with the water. ... Uh, when I showed up, she was on the verge of leaving. Um, me and her friend were walking. We were gonna go to [Julie's boyfriend's] house .... Uh, he had a dolly to carry the jugs in.... [¶] ... [¶] [W]hen I walked up, [the victim] ... walked that way, to the—to, uh, like that house across the street. And he walked straight.... [¶] ... [¶] Because there was a car waiting for him. And then all of a sudden, we took off. And I go, 'Who was that?' She says, 'Oh, that's just Johnny.'"
Rodriguez claimed he, Julie, and her friend (Victor O.) had already walked "around the corner" when they heard gunshots. They abandoned their plan to get the dolly and "went straight to [Julie's] mom's house," i.e., Delano Gardens, approximately eight blocks south of the Belmont house. Once there, they "hung out" until Rodriguez started receiving text messages from "Jay" informing him of rumors about his involvement in the shooting. Jay was Rodriguez's former coworker and the boyfriend of one of the victim's daughters. Upon learning of the accusations, Rodriguez left Delano Gardens and walked to a friend's house on 13th Avenue, where he spent the night.
Defendant Medrano also submitted to police questioning. He denied any involvement in the shooting and claimed to have been in Bakersfield for most of the day, i.e., October 16, 2014. Police had arrested him that morning on an out-of-state warrant and transported him to the Kern County jail. He was released in the afternoon but had to wait several hours for a ride home. His girlfriend, Diana T., picked him up sometime "around 9:00 at night" and drove him to Delano, stopping along the way for food. Medrano estimated they arrived at Diana's apartment in Delano Gardens at approximately 10:00 p.m. At that point, his alibi became less coherent.
Medrano said he "chilled" at Diana's apartment until approximately 3:00 a.m. and then traveled to Bakersfield with someone named "Veronica" (he was unable to provide a last name or contact information). His time with Veronica was cut short when a cell phone mishap resulted in him being "caught" by Diana. Medrano told the detectives, "[S]he found out I was with another girl and I had to come back and explain myself to her." Veronica drove Medrano back to Delano Gardens, and he got to Diana's apartment at around "1:00 or 2:00 in the morning."
On the same day as defendants' arrest, after questioning Janette, Rodriguez, and Medrano, police conducted a followup interview with Julie and also spoke to Victor O. Julie again claimed Victor was the only person with her at the time of the shooting. However, while retelling her initial story, Julie abandoned the narrative and admitted she was lying. More specifically, she alleged Rodriguez had accompanied her and Victor on their walk to Delano Gardens.
When asked why she had lied, Julie said she felt scared and intimidated. She cried several times during the interview, often while expressing her fear of Rodriguez. According to her changed story, Rodriguez stopped by the Belmont house in the afternoon to retrieve a personal item and then left with his girlfriend, but he returned after dark. There was a rear entrance through which Rodriguez came and went, and he had stayed in the "back room" while Julie and Victor socialized with Johnny Holguin in the front living room. Rodriguez had known the victim was there, and Julie suspected he was somehow involved in the murder.
Julie's second interview corroborated some of Janette's information regarding Rodriguez's alleged confession. Julie said Rodriguez had been "anxious" to leave the house right before the shooting: "[H]e was rushing me out[,] like rushing me[,] like hurry up let's go—let's go—let's go—let's go—let's go—let's go get the water[,] like rushing me to get water." Meanwhile, a vehicle pulled up outside and, according to what Victor had told her, an unidentified male approached the residence. Victor allegedly recognized this person as someone who had visited Rodriguez on prior occasions. Julie claimed there were only two people who visited Rodriguez at the Belmont House: "Michael [Medrano] and Chris [Hernandez]."
Julie exited the house in time to see Medrano entering the rear passenger door of a Jeep Cherokee or similar-looking sport utility vehicle (SUV). Despite only seeing him from behind, Julie was certain of the man's identity. She emphasized, "I am not wrong," and also said, "I swear, I swear, I swear, I know that it was Michael." Julie saw the victim go "right up to the car," but he eventually "walked away and didn't get in the car." The victim proceeded east on 12th Avenue toward Clinton Street, and the vehicle drove north on Belmont Street toward 13th Avenue. At the conclusion of her interview, Julie identified Medrano from a photographic lineup.
Victor's account, as told to police on October 23, 2014, differed from Julie's story. He admitted using methamphetamine with Julie and the victim on the night of the shooting, but he denied the part about Rodriguez being inside the house. The victim had complained about getting into an argument with his "wife" and mentioned that it had something to do with his granddaughter. The victim eventually called his daughter for a ride, but the person who showed up was a man who allegedly identified himself as "Daniel." Victor claimed this person had spoken to him from the driver's seat of what "looked like an Expedition," saying, "'I'm here to pick up the old man.'"
Victor and Julie heard gunfire as they were walking north on Austin Street on their way to borrow a dolly. They immediately turned around and went to Julie's mother's apartment in Delano Gardens. According to Victor, Rodriguez met up with them a few blocks south of the Belmont house and said, "'You guys take forever.'" When asked to explain Rodriguez's sudden appearance, Victor said, "[H]e was somewhere over there, I guess, he was somewhere over there and we were going that way and he was just gonna meet up with us and just keep on going ... to [Julie's] mom's." The detective wanted to know, "Where did he come from?" and Victor replied, "He was at his friend's I guess."
On October 24, 2014, police interviewed the victim's daughter, Brianna, and her then boyfriend, "Jay." Brianna claimed to have heard rumors that her father was killed by "two guys and a chick." The male perpetrators were allegedly identified as "'Frankie' and 'Suspect.'" The rumored involvement of "Frankie" was also mentioned during Jay's interview.
Jay lived with Brianna, the victim, and the victim's girlfriend. He was acquainted with Rodriguez from a previous job. Rodriguez was a tattoo artist, and Jay had recently spoken to him about getting a tattoo. Approximately one or two days prior to the shooting, Rodriguez visited Jay at home to discuss the tattoo. During their conversation, Rodriguez pulled out a handgun and asked Jay for help procuring ammunition. Jay apparently led Rodriguez to believe he could assist him, and Rodriguez later sent him text messages asking for bullets of a certain caliber, saying he "'needed them ASAP.'" Although Jay had access to bullets, he never gave any to Rodriguez and became wary of him after learning of the victim's death.
During Rodriguez's first interview, he admitted exchanging text messages with Jay about bullets. Rodriguez claimed Brianna's discovery of those messages sparked the rumors of his involvement in the shooting. He denied visiting Jay at home and said it was Jay who had brought up the topic of bullets. In response, Rodriguez had sought to obtain .22-caliber ammunition for a gun previously owned by his late grandfather. Rodriguez said the gun was now in his father's possession, at which point detectives reminded him that he had claimed to be estranged from his parents. The detectives inquired, "[W]hy'd you ask for .22 caliber bullets for a gun that your dad has when you don't talk to your dad?" Rodriguez answered, "That's my own reason."
After being interrogated at the police department, Medrano and Rodriguez were transported to the Kern County jail. The following evening, October 24, 2014, Medrano made a telephone call to his girlfriend, Diana, which was recorded. Diana told him police officers had searched her apartment earlier in the day, and Medrano said, "[S]omebody's talking about some shit they shouldn't be talkin' about." Later in the conversation, Medrano complained about a person named "Pancho" and Pancho's failure to post bail for Janette, referring to her as "the homie's girl." Medrano said that if the roles were reversed, he would employ any means necessary to "get the bitch outta here." Diana told him she had chastised Pancho during a recent conversation, telling Pancho, "'Like Michael said ... you asked him to do something and he did it? ... Well fuck, you can't even show the same love back?'"
According to the People's gang expert, "Pancho" is the nickname of a "higher ranking Norteño" named Francisco Martinez. Diana testified that Pancho is also known as "Frankie." Another person frequently mentioned in Medrano's conversations with Diana was "Cyclone," who multiple witnesses identified as a Norteño gang member named Christopher Hernandez, also known as "Baby Cyclone."
On October 25, 2014, Diana visited Medrano in jail. Their conversation was recorded. Medrano again complained about Pancho's failure to post bail for Janette, expressing concern Janette might have already "started to sing." He also spoke ill of Rodriguez, saying, "I feel like he's just gonna—he's gonna sell me [out] or something .... [¶] ... [¶] ... I think he's gonna—he's gonna snitch ...." "[T]his fool ain't no gang banger really. ... [T]he only reason why I talk to him [is] because P[a]ncho. [¶] ... [¶] ... That's why I feel like P[a]ncho led me into the blind and ... put me somewhere I shouldn't have been."
With further regard to Janette, Medrano told Diana: "[Rodriguez] doesn't want—Pancho to come bail her out because he knows P[a]ncho's gonna come and tell her straight up like bitch, you better woo—woo—woo, just keep your fucking mouth shut. ... This fool wants her just to get out and that's it. ... It don't work like that though. [¶] ... [¶] ... I told him I was like, 'Fool your girl even wants to keep on like slipping and talking fool, I'll have her touched too.'" Medrano claimed to have issued a warning to Janette when they were taken into custody: "I had told her ... 'Loose lips sink ships, you know what I mean?'"
On December 29, 2014, Rodriguez had a "debriefing interview" with a jail classification officer. The interview was conducted at Rodriguez's request as part of his official defection from the Norteño gang. He discussed his history with the gang, confirmed his moniker was "Suspect," and revealed information about the gang's hierarchy, politics, and leadership personnel. Rodriguez also volunteered information about the Holguin murder, claiming to have heard the victim was killed for betraying the Norteños.
Rodriguez claimed to have been told the victim and his son-in-law—both active Norteños at the time—were arrested on drug charges. The victim allegedly "threw the blame off on [his son-in-law]" and then dropped out of the gang. Making matters worse, the victim told police "who they get the dope from in Delano," which further angered the gang. Rodriguez cited two sources for this information: a former cellmate and his local "squad leader."
On January 6, 2015, Rodriguez and his legal counsel met with homicide detectives and a deputy district attorney. Rodriguez requested the meeting, apparently with the hope of avoiding charges in this case. The record contains a summary of the interview, but the trial court granted a defense motion to exclude any evidence of his statements.
Rodriguez reportedly accused Medrano of killing the victim and denied any complicity in the murder. He also claimed to have spoken with Francisco Martinez, i.e., Pancho/Frankie, at Delano Gardens on the night of the shooting. Pancho allegedly told him Medrano had been instructed to stab the victim four times, which was supposed to be his punishment for snitching on four people. Rodriguez informed Pancho that Medrano had "gone above and beyond on his own."
Rodriguez said Medrano was driven to the Belmont house in a Ford Explorer and came inside to speak with him prior to the shooting. Following their arrest, Medrano allegedly identified the driver as a woman named "Ann" and mentioned a second passenger named "Chris." Medrano had told Ann and Chris "that they were going to buy dope," and Ann later "'freaked out' to the point [where] she was going to leave him and he had to tell her not to leave."
On January 14, 2015, Medrano's girlfriend, Diana, was questioned at the Delano police department. Due to an alleged equipment malfunction, the interview was not recorded. Police arranged for another meeting, telling Diana that because she had been "crying a lot," they hadn't understood all of her statements. The second interview was conducted and recorded on January 20, 2015.
Diana acknowledged picking up Medrano from jail on the night of the shooting and driving him to Delano. She said "somebody was calling him" on their way home, and Medrano "took off" after they arrived at her apartment complex, i.e., Delano Gardens. Diana's description of these events is difficult to follow on the recorded interview, but she mentioned seeing Rodriguez "out there in the front" and claimed both of them eventually returned to her apartment.
Diana more clearly described a prior conversation with someone named "Ann" or "Annmarie" (the names were used interchangeably). One day after the shooting, Annmarie confided in her that she had driven Rodriguez and Medrano to the Belmont house. Diana quoted her as saying, "'We were supposed to go to Aaron's house and I don't know what the heck happened ..., they just got out of the car and then, ... [t]hey just shot him.'" In a subsequent conversation, Medrano admitted to Diana that he "was there" with "Aaron and Ann."
During the same interview, Diana said Rodriguez and Medrano both carried guns. She explained, "[T]hey're gang guns. They—they belong to the gang. [¶] ... [¶] ... So once you use them[,] the gang gets rid of them." Diana had seen Rodriguez in possession of multiple firearms and claimed to have witnessed a group of men deliver a gun to him at the Belmont house a few days prior to the shooting. At trial, she testified one of those men was Pancho.
On January 21, 2015, the police, acting on information provided by Diana, located Annmarie Ojeda at a motel in Earlimart. She was questioned that afternoon and again the following day. Ojeda confessed to being an unwitting participant in the crime. According to her story, an acquaintance named "Josh" had called her to request a ride for two of his friends. Ojeda was already driving to Delano, so she agreed to "do him a favor." Josh said his friends would be waiting at a bus stop outside of Delano Gardens.
Detectives made an audio recording of the interview at Ojeda's motel, but the recording was subsequently lost or destroyed, which was explained to the jury at trial. Ojeda was formally interviewed the next day at the Delano police department, and that second interview was documented in a video recording.
Ojeda followed Josh's instructions and picked up two Hispanic males in her 1998 Ford Explorer. The front passenger door was broken, so both men sat in the back seats. Ojeda recognized them—allegedly from once having seen them together in Earlimart—but they were basically strangers. The man who sat behind the driver's seat did all the talking. When detectives inquired about his identity, Ojeda said, "I think his name was Michael."
Michael asked Ojeda to drive them to the Belmont house, indicating it would be an interim stop on the way to another destination. She drove there and parked across the street, at which point Michael exited, walked to the residence, and went inside. He was gone for over 30 minutes, which caused Ojeda to become impatient. Two other men came out of the house before Michael finally emerged and walked back to the vehicle. He reentered the Explorer and gave Ojeda driving instructions, directing her north, around a corner, and then south before saying, "'Turn around ..., let me talk to somebody that's right there.'" Michael lowered his window and said something to a pedestrian "to make him come closer." He then exited the vehicle and shot the man, firing approximately "five or six rounds."
Michael got back into the Explorer and yelled, "'Go—go'"; the other passenger remained "very calm" and "very quiet." Ojeda was initially "shocked and speechless" but began screaming as she drove away. A few blocks later, she stopped near a convenience store and ordered the men to get out, which they did. She then drove back to Earlimart. The next day, Ojeda took the Explorer to a car wash and allegedly found bullets in the back seat. Police were unable to verify her discovery of bullets and a search of the vehicle yielded no inculpatory evidence.
At the conclusion of Ojeda's second interview, she was shown two sets of photographs, each containing six images. The first set included a picture of Medrano. After examining the photos for approximately 45 seconds, Ojeda pointed to Medrano and said, "Yeah, he looks familiar." She circled his picture, identifying him as the shooter and the person she had been calling "Michael."
Ojeda spent approximately 23 seconds looking at the lineup containing Rodriguez's picture before saying, "I'm not sure." A few seconds later she said, "Yeah, I think—he looks a little bit familiar," and then circled the image of Rodriguez. Earlier in the interview, Ojeda had recalled the nonshooter having tattoos on his head: "[Y]ou could see the tattoos through his fade [haircut].... So I remember he had tattoos on his sides right here and some on the back." Although not visible in the photo lineup, Rodriguez did have a large tattoo across the back of his head. However, there was no evidence of him having tattoos on the sides of his head.
On March 5, 2015, the Kern County District Attorney (DA) filed a criminal complaint accusing Medrano, Ojeda, and Rodriguez of crimes related to the shooting of Johnny Holguin. Four days later, the authorities conducted additional interviews with Julie and Rodriguez. Citing information provided by "people in the vehicle," which in reality meant Ojeda's selection of Rodriguez's photo from a lineup, the lead detective pressed Julie to admit Rodriguez was not with her at the time of the shooting. Julie was steadfast in her refusal, at one point telling the detective, "By me saying he wasn't there I would be lying to you."
In Rodriguez's interview, the same detective tried to get him to admit he was Ojeda's second passenger. Rodriguez denied the allegation and said, "[I will] be straight up with you. It was that guy, Chris Hernandez. They call him Baby Cyclone, okay. He was in that car." Rodriguez accurately noted that Hernandez "has a tattoo on his head like me." However, his story changed yet again, and in the third version Rodriguez placed himself inside the Belmont house for several hours leading up to the shooting, "in the backroom sitting there watching TV." He had previously said Julie called him for help with the water claimed to have arrived at the house just as the victim was leaving.
Rodriguez said Pancho had told him the story behind the murder. The DA's investigator asked if Pancho "[called] the hit on Holguin," and Rodriguez replied, "I don't think he called it but someone else called it. [¶] ... [¶] Uh, Evil." "Evil" was the street name of a person reputed to be one of the highest ranking Norteños in Delano.
Rodriguez repeated what he had said in previous interviews: the victim betrayed his son-in-law after both of them were arrested on drug charges and also told police the identity of their "dope" supplier. Allegedly, the supplier was "Evil." This story was consistent with information Diana had provided two months earlier. She claimed to have heard the victim was killed because "he fucked over Evil." Furthermore, Medrano had made references to "Evil" during his recorded jail calls. At trial, Diana testified Medrano had told her Evil ordered the victim's murder because the victim was dealing drugs without paying "taxes" to the gang. Medrano was told "to follow orders, and he had to go do that if he wanted to get on [Evil's] good side."
On March 22, 2015, Rodriguez made a recorded jail call to Janette. She was aloof and asked why his attorney had recently tried contacting her. Rodriguez said he was troubled by "all the statements people are making against me. [¶] ... [¶] Even you." Janette replied, "Like what? 'Cuz I said the truth?" That led to the following exchange:
"[RODRIGUEZ]: [The attorney] said that I, I had something to do with that. Like I, I set it up, I, I don't know, I don't know where that came from, but whatever.
"[JANETTE]: Really?
"[RODRIGUEZ]: I didn't say that ....
"[JANETTE]: Ok, I don't want to talk about it then. Ok.
"[RODRIGUEZ]: Ok, well I'm just letting you know that right there is what's going to get it done.
"[JANETTE]: Alright, just forget about me then."
Rodriguez continued to deny ever saying "anything like that," but Janette's responses did not support his denials. She became emotional, and Rodriguez said, "Don't cry. ... I already know they made you say that for their, their, 'cuz you were in jail and you were scared, ok. I know this. I know that's not you. But the thing is, I, I was high that day, ok. I was on drugs." Rodriguez may have been referring to his alleged confession, but Janette apparently thought he was talking about the murder. She said, "Is that my fault, Aaron? Is that my fucking fault what you fucking did?" Rodriguez expressed confusion, and Janette told him, "Aaron, don't act stupid. You know the life you wanted at that time, don't act stupid."
In June 2015, the DA filed a consolidated information charging Medrano, Ojeda, and Rodriguez with murder (§ 187; count 1), active participation in a criminal street gang (§ 186.22, subd. (a); count 3), and conspiracy to commit murder (§§ 182, subd. (a)(1), 187; count 4). Medrano was additionally charged with carrying a loaded firearm as an active gang member (§ 25850, subd. (c)(3); count 2). Rodriguez was additionally charged with making criminal threats against Janette (§ 422; count 6) and using force or fear to dissuade her from testifying against him (§ 136.1, subd. (c)(1); count 5).
Count 1 included special circumstance allegations of lying in wait and gang-murder. (§ 190.2, subds. (a)(15), (22).) Counts 1, 4, and 5 included gang and firearm enhancement allegations pleaded pursuant to sections 186.22, subdivision (b), and 12022.53, subdivision (d). Rodriguez was further alleged to have served five prior prison terms within the meaning of former section 667.5, subdivision (b).
The firearm allegations against Medrano were added in a second amended information filed on June 29, 2016.
Pursuant to a plea bargain, the charges against Ojeda were dismissed in exchange for her testimony against Medrano and Rodriguez. As part of the agreement, she admitted to being an accessory to murder (§ 32). The case went to trial in May 2016.
The trial evidence clarified the timeline of events. On October 15, 2014, the day before the shooting, Medrano borrowed Diana's car to drive Rodriguez to Porterville to meet up with Janette. This was Janette's first time meeting Medrano. They went back to Delano in separate cars. Janette drove Rodriguez in her vehicle, but both cars stopped in Earlimart while Medrano made contact with someone at a hotel. Later that evening, at Diana's apartment in Delano Gardens, Janette tried methamphetamine for the first time. She and Rodriguez stayed the night and were in Diana's apartment the next day when Medrano was arrested.
On the day of the shooting, at approximately 12:00 p.m., probation officers came to Delano Gardens in search of a third party. They spotted Christopher Hernandez (Cyclone/Baby Cyclone) coming out of Diana's apartment and contacted him about a different matter. While dealing with Hernandez, the officers saw Medrano and soon discovered he had an outstanding warrant from Wisconsin. Medrano was arrested and transported to the Kern County jail in Bakersfield. However, "the office in Wisconsin had closed for the day," and, due to a lack of "paperwork," "the jail refused to take him." Medrano was released at approximately 3:40 p.m.
Meanwhile, in Delano, Janette dropped off Rodriguez at the Belmont house and drove home to Porterville. She needed to get back in time for a late afternoon work meeting. Diana testified to picking up Medrano from jail "between 7:00 and 9:00 p.m." She estimated the drive from Bakersfield to Delano took 35 minutes. It was unclear whether her estimate included their stop at a gas station to get food, but she did say they ate "on the road." When they arrived at Delano Gardens, Diana went up to her apartment and Medrano "stayed in the parking lot." Based on low-resolution surveillance footage from nearby buildings, the shooting occurred at approximately 10:18 p.m. Therefore, Medrano had sufficient time to commit the murder.
All of the witnesses who were questioned by police gave inconsistent testimony at trial. Consequently, the jury saw and/or heard most of the recorded interviews. For example, Jay testified about Rodriguez asking him for bullets but denied seeing Rodriguez with a firearm, claiming to have only seen a tattoo gun. Jay was impeached with his interview statements, which described the item as a chrome-colored semiautomatic handgun of a particular caliber, decorated with red tape or a red bandana. The last detail was noteworthy because Diana had told the police Medrano and his fellow gang members spray painted and/or decorated their guns for identification purposes. She described Medrano's gun as having "a red bandana around it."
Julie was arrested for refusing to appear at trial. On the witness stand, she stated, "I don't want to testify." Nevertheless, she testified to seeing Medrano get into the passenger seat of an SUV behind the driver just before the victim was killed. She maintained Rodriguez was with her at the time of the shooting. However, Victor testified Rodriguez did not meet up with them until after the shooting, alleging they had crossed paths with him approximately two blocks south of the Belmont house on their way to Delano Gardens.
Janette claimed to have difficulty remembering what she had said during her recorded interview. Her memory problems were especially acute with regard to details tending to incriminate Rodriguez. However, she did testify to hearing Rodriguez tell Medrano, "'I told you, fool, to wait outside, but you came inside the house ....'" Janette had better recall of Medrano's statements, and she testified to hearing him say he "got off the car, went up to that guy, and shot him ... [¶] ... [¶] [in] the head." Janette also "heard him say that the girl that was driving him was going to leave him when he shot that guy[,] and he yelled out, 'You better wait. If, not, I am going to shoot you too.'"
The People's case included testimony by a gang expert and other law enforcement officials. This evidence confirmed, inter alia, the victim had been incarcerated at a pretrial facility a few months prior to his death and had a cellmate whom Rodriguez identified as a source of information about the murder. The victim went into protective custody after telling jail officials he had "snitched" and was being threatened by the inmates in his "pod." A further summary of the gang evidence is provided in our Discussion, post.
Trial counsel for Medrano conceded the fact of his gang affiliation. Medrano's defense strategy was to attack the credibility of Diana, Janette, and Ojeda. Counsel attempted to portray Diana as a "scorned" lover who had falsely accused Medrano out of spite. As Diana explained in her second police interview, she broke up with Medrano after learning "he was calling other girls" from jail. At trial, she acknowledged there were additional reasons for the breakup: "He was putting me down to other friends [in jail with him at the time], telling them he was just using me [for transportation and a place to stay]."
Rodriguez's defense case focused on the identity of Ojeda's second passenger, arguing the nonshooter accomplice was actually Christopher Hernandez. The defense evidence included photographs of Hernandez and of the tattoos on the side and back of his head. Ojeda stood firm on her identification of Rodriguez, but defense counsel argued it was because she was afraid of jeopardizing her plea bargain. Counsel also highlighted numerous discrepancies in Ojeda's testimony. The defense further argued Rodriguez was a gang dropout at the time of the incident and thus had no motive to harm the victim. In response to the Christopher Hernandez theory, the People argued Rodriguez was guilty of murder as an accomplice and coconspirator regardless of whether he was a passenger in Ojeda's vehicle.
The jury deliberated for over nine hours. Medrano was convicted as charged and all related factual allegations were found true. Rodriguez was acquitted of making criminal threats but convicted on the remaining counts. With regard to count 5 (witness intimidation), the jury rejected the allegation of force/fear and convicted him under subdivision (b)(1) of section 136.1 rather than subdivision (c)(1). All other factual allegations were found true. Sentencing details are provided in the final part of this opinion.
DISCUSSION
I. Aranda/Bruton Claim #1
A. Background
During the defense case-in-chief, Rodriguez's trial attorney questioned Detective Larcellus Scott about his interview with Julie on March 9, 2015, i.e., the one wherein Julie was pressed to admit Rodriguez was not with her at the time of the shooting. This line of questioning culminated as follows:
"Q. Throughout this interview you were confronting her with the statement that Ms. Ojeda provided you?
"A. At which point?
"Q. At various points throughout this interview.
"A. Well, that, and remember I interviewed Aaron Rodriguez earlier in that day. And he told me Medrano was in the car so—"
Medrano's attorney interrupted to request a sidebar. Following an unreported conference, the trial court gave an admonition: "Ladies and gentlemen of the jury, I am striking the witness's last answer, which means it's not in evidence. You are to disregard it. You are not going to consider it for any purpose nor discuss it during your deliberations. So that is a very strong admonition not to do that." A recess followed, during which Medrano's counsel moved for a mistrial based on the jury's exposure to testimony given "in direct violation of Aranda-Bruton."
The People opposed the motion, faulting Rodriguez's attorney for "leading [the witness] down that road" and arguing the curative instruction was sufficient to eliminate prejudice. Rodriguez's counsel admitted "leading [the witness] a little bit," but he joined in Medrano's motion. The trial court found Detective Scott acted in good faith and noted his testimony did not allege Rodriguez was actually in the car or had personal knowledge of Medrano being in the car. Accordingly, and based on the trial court's confidence "in the jury's ability to comply with [its] orders," the motion was denied.
B. Medrano's Claim
Medrano alleges a prejudicial violation of his right to confront adverse witnesses and the right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The People concede error under the Sixth Amendment, contest the unfair trial claim, and dispute prejudice under either theory. We agree with the People.
"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.) This case does not involve a traditional Aranda/Bruton scenario because Detective Scott referenced statements Rodriguez had made while denying responsibility for the victim's death. In other words, Rodriguez's statements were not self-incriminating. Also, Aranda/Bruton problems ordinarily arise "when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant" (People v. Capistrano (2014) 59 Cal.4th 830, 869), but here it was defense counsel who elicited the testimony. Nevertheless, the stricken remark clearly infringed upon Medrano's right of confrontation. (See Crawford v. Washington (2004) 541 U.S. 36, 53-54, 68 (Crawford); People v. Anderson (1987) 43 Cal.3d 1104, 1123 ["Bruton and Aranda use the broad term 'statement' and the narrow term 'confession' interchangeably, and neither expressly nor impliedly limits its reach to the latter"].) Therefore, the People have appropriately conceded error.
It is unnecessary to discuss Medrano's unfair trial claim because violations of the right to a fair trial and the right of confrontation are both assessed for prejudice under the standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). A federal constitutional error requires reversal unless it can be deemed harmless beyond a reasonable doubt. (Id. at p. 24; People v. Reese (2017) 2 Cal.5th 660, 668, 671.) In the Aranda/Bruton context, "'if the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.'" (People v. Burney (2009) 47 Cal.4th 203, 232; accord, Harrington v. California (1969) 395 U.S. 250, 254.) Several of Medrano's claims fail for lack of prejudice, so we take this opportunity to detail the veritable mountain of evidence against him.
One week after the shooting, Janette told police she had heard Medrano admit to killing the victim. Medrano's purported statements included the number of shots fired—a fact the police had not publicly disclosed—and the involvement of a female driver, which proved to be true. On the same day as Janette's interview, Julie told police she had seen Medrano outside of her home a few minutes before the victim was killed. Julie positively identified Medrano from a photographic lineup and again at trial.
The next day, October 24, 2014, other witnesses told police about the rumored involvement of "Frankie" and "Suspect," who were subsequently identified as Pancho and Rodriguez. Later that night, Medrano was recorded talking to Diana about getting Pancho to bail Janette out of jail. When Diana told Medrano the police had already searched her house, he said, "[S]omebody's talking about some shit they shouldn't be talkin' about."
At trial, defense counsel argued there was no evidence of Medrano being "within the circle of people who knew Johnny Holguin was at Julie's house." However, during Medrano's recorded conversations with Diana, he mostly talked about Julie, Victor, Rodriguez, Janette, Pancho, and Cyclone. Medrano worried aloud that Rodriguez was going to "snitch" and Janette was already "singing." He said, "[W]hatever spots [the police are] hitting is because [of] her right now[,] she's talking. That's why I'm saying that we need to get her out of here. That's the only reason why I'm in here right now is because of her. Just talking."
Medrano did not use people's last names, but he said Victor was the "brother-in-law" of Cyclone, i.e., Christopher Hernandez. At trial, Victor admitted Hernandez's sister was his girlfriend at the time of the shooting. It was thus assumed, and Rodriguez's counsel even argued, Medrano was referring to Victor O.
Medrano argues Janette's interview statements were unreliable because she was "under duress" when she made them. The jury heard the same argument, which was based on her cross-examination testimony. She responded affirmatively when asked, "[W]ould [you] have basically said anything to get out of [custody]?" and "Did you feel any pressure to say certain things so that you could go home?" However, those questions and answers provided only superficial support for the defense argument. Janette's testimony on redirect clarified the surrounding circumstances:
"Q. There were two interviews the day you got arrested. Right?
"A. Yes.
"Q. One of them was asking you about the reason for the arrest. And then, after they left, didn't you call them back to ask to speak with them further?
"A. Yes.
"Q. And then that's when you told them about the shooting?
"A. Yes.
"Q. So they didn't ask you about the shooting until you told them you knew something. Is that fair to say?
"A. Yes.
"Q. Were you hoping that you would be able to get out of custody if you told the detectives something that was helpful for them?
"A. Yes.
"Q. You didn't think it was helpful to tell them lies, did you?
"A. No."
Janette explained, both during her interview and at trial, that the secret had been weighing on her conscience. She told the detectives, "I was just thinking to myself, like, that's not right. That's not right. These past couple days has been killing me. It's been killing me." At trial, she testified, "[W]hat they did, it was wrong, and I didn't—I just needed to get it out of my chest and tell somebody what I heard."
The recording of Janette's interview is arguably the most compelling evidence in the case. She recounts in detail everything she heard Rodriguez and Medrano say, and the detectives maintain a calm and generally passive demeanor. The video does not support the suggestion of Janette being manipulated or coerced into making her specific allegations. Furthermore, Janette faced no charges at the time of trial and had no apparent incentive to testify against Medrano. She could have easily denied remembering his statements and/or what she had told police 18 months earlier, which is basically how she testified with regard to Rodriguez.
The evidence showed Medrano also confessed to Diana. In her January 2015 interview, Diana told police Medrano admitted being "there" with "Aaron and Ann." At trial, she testified Medrano admitted shooting the victim pursuant to orders issued by "Evil," whom she knew to be a Norteño "shot caller." Diana had independent knowledge about the gang and its members, in part because her brothers were Norteños.
Medrano continues to portray Diana as a scorned lover, alleging she "had a significant axe to grind against [him]." But the record provides little support for the theory of Diana falsely accusing him out of spite. Their relationship lasted only "two or three months" and she sounded nonchalant when telling detectives, "I still talk to him but I left him because I was—I was there for him. I was seeing him, I was visiting him. I would put money on his books but he was calling other girls so I was like, I don't need that." She also maintained contact with Medrano for at least two months after the interview.
Another person to implicate Medrano was Annmarie Ojeda. An admitted accomplice and witness to the murder, Ojeda identified Medrano as the shooter during police questioning and again at trial. Her testimony constituted additional direct evidence of Medrano's guilt and further rendered cumulative the hearsay attributed to Rodriguez about Medrano being "in the car."
Medrano contends "Ojeda's trial testimony was riddled with lies and inconsistencies," which is not an unfair statement. Ojeda seemed to be concealing the true identity of "Josh," i.e., the person who had arranged for her to drive Medrano and Rodriguez to the Belmont house. She testified "Josh" was a Norteño gang member and claimed to be afraid of him. Ojeda denied knowing Diana, which made little sense given Diana's instrumental role in helping the police locate her. Ojeda also gave dubious testimony about her ability to see Rodriguez's head tattoo after previously alleging the nonshooter had worn a hood. Still, regardless of how poorly she may have come across on the witness stand, the fact remains Ojeda identified Medrano from a photographic lineup, and specifically as the shooter, at the time of police questioning.
The People argued Medrano made another confession in a recorded visitation call with an unidentified female on April 25, 2015. Compared to earlier recordings, Medrano's demeanor was uncharacteristically serious as he discussed his likely prison sentence and the prosecution's witnesses, including Diana and Julie. The visitor asked, "What are they saying?" and Medrano responded with details about the shooting. The woman then said, "Why?" and the inflection in her voice permits the inference she was asking Medrano why he did it. He somberly replied, "The time of the moment," then paused and said, "I be telling myself like fuck if I could take everything back[,] as in like go back, where would I go? You know what I'm saying? Like where would I move to if I could just go all the way back. I should have never left where I was at...."
The conversation ended with Medrano tallying the number of adverse witnesses and his visitor asking why he wasn't "point[ing] it back [at them]." He answered, "[M]y fingers don't know how to point. [¶] ... [¶] ... I'm putting up a fight but I'm not a liar though." The last statement is exemplary of Medrano's failure to deny guilt during conversations about his accusers. He frequently complained about Diana (e.g., "I'm mad right now because she told the cops that it was me") and admitted he had "no alibi."
Finally, there was evidence of attempted witness tampering, which implies consciousness of guilt. (People v. Edelbacher (1989) 47 Cal.3d 983, 1007; see People v. Merriman (2014) 60 Cal.4th 1, 45.) In October 2014, Medrano admitted to warning Janette, "Loose lips sink ships." He then made efforts to have Pancho bail Janette out of jail and persuade her to "keep [her] fucking mouth shut." Medrano further admitted to telling Rodriguez he would have Janette "touched" if she kept "talking."
In April 2015, Medrano was recorded making statements about Diana and Julie during a visitation call. He said, "[T]hey want [them] to go to court, you know what I mean? ... I can't have them come." On the same date, he told a different visitor, "I do need some people not to show up." A week later, while speaking to someone else about Diana, he said, "Watch, that bitch is going to be on the news." According to the People's gang expert, being "on the news" is slang for being killed.
Medrano's trial attorney characterized his statements as braggadocio or "puffing." However, Diana and Ojeda both testified to actual instances of witness intimidation. In February 2016, Diana sought police assistance after someone contacted her by calling her cousin. When the cousin handed her the phone, Diana heard a voice she recognized as Medrano's say, "'If you keep going to court, you already know what's going to happen, you fucking bitch.'" In approximately May 2016, at or near the beginning of trial, Ojeda encountered Medrano on an inmate transport bus. She testified Medrano warned her to keep quiet "if [she] knew what was best for [her]." He then told a group of female inmates that she was a "snitch" and instructed them to "take care of [her]," which Ojeda interpreted to mean beat her up.
In summary, Medrano's Sixth Amendment rights were violated when Detective Scott made an errant remark about Rodriguez having said he was "in the car" on the night of the shooting. However, the independent proof of Medrano's guilt was overwhelming and the improper extrajudicial statement was cumulative of other direct evidence. Therefore, the error was harmless. (People v. Burney, supra, 47 Cal.4th at p. 232.)
C. Rodriguez's Claim
Rodriguez cannot assert a confrontation claim based on Detective Scott's testimony about his own statements. (See People v. Alvarez (1968) 268 Cal.App.2d 297, 305.) However, he contends the trial court erred by refusing to declare a mistrial. "In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard. [Citation.] 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]'" (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)
Rodriguez alleges Detective Scott's testimony suggested he "was either in Ojeda's SUV with Medrano or was in on the plan to assassinate Johnny Holguin." Put differently, he contends "[a] reasonable juror most likely would have concluded that the only reason Rodriguez could have known that Medrano was in the car is that he (Rodriguez) was in the car with him or, at the very least, was in on the plan to kill Johnny." The problem with this argument is that it ignores the evidence before the jury at the time of the motion.
Detective Scott was specifically asked about his interview with Julie "on March 9, 2015, at approximately 4:30 p.m. at the Delano Police Department." His stricken testimony was as follows: "I interviewed Aaron Rodriguez earlier in that day. And he told me Medrano was in the car ...." (Italics added.) If, as Rodriguez contends, the jury ignored the trial court's admonition and scrutinized the improper testimony, then surely the jury realized it had already heard a recording of the subject interview.
In his March 9, 2015, interview, Rodriguez proclaimed his innocence and denied being a passenger in Ojeda's vehicle. Therefore, it is irrational to assume the jury interpreted Detective Scott's stricken remark as suggesting Rodriguez had admitted or implied otherwise. Detective Scott had already given unequivocal testimony on this topic:
"[PROSECUTOR]: During that March 9th interview, did Mr. Rodriguez try to point the finger at somebody by the name of Christopher Hernandez?
"[DETECTIVE SCOTT]: Yes, he did.
"[PROSECUTOR]: In what context?
"[DETECTIVE SCOTT]: He told me that Chris Hernandez was the other occupant of the vehicle driven by Annmarie Ojeda.
"[PROSECUTOR]: Was he trying to say that he wasn't in the car, it was Chris instead of him?
"[DETECTIVE SCOTT]: Yes."
An audio recording of the March 9, 2015, interview was played for the jury. Rodriguez's statements about Medrano were edited out, but the jury heard his allegations regarding Christopher Hernandez. The editing makes it seem as though Rodriguez might have been relying on statements made by Hernandez's brother, but the jury also heard Rodriguez say he received information about the murder from Pancho. Thus, the jury was already aware Rodriguez had professed to know the identities of Ojeda's passengers. Whatever inferences jurors drew from Rodriguez's purported knowledge of Christopher Hernandez being "in the car" were presumably the same as those it might have drawn from learning Rodriguez had also said Medrano was "in the car." Therefore, Rodriguez cannot demonstrate the type of prejudice required for a mistrial. (See People v. Franklin (2016) 248 Cal.App.4th 938, 955 ["While '[a] witness's volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice' [citation], 'a motion for mistrial should be granted only when "'a party's chances of receiving a fair trial have been irreparably damaged.'"' [Citation.] Moreover, it is only in the 'exceptional case' that any prejudice from an improperly volunteered statement cannot be cured by appropriate admonition to the jury. [Citations.]"].)
Detective Scott and the DA investigator also confronted Rodriguez with Ojeda's statements regarding the identities of her passengers. Toward the end of the interview, he asked, "Did she tell you where they went [after the shooting]?" The investigator replied, "Where you guys went after?" Rodriguez said, "No. Where she took [edited] Hernandez? Where did she say that?" The investigator responded, "She didn't say she took [edited] Hernandez anywhere. She said she took [edited] you back to the Gardens I believe, right? I don't recall (unintelligible)." Since the jury had seen Ojeda's interview and knew she had identified Medrano and Rodriguez, it was obvious the gaps in the recording contained references to Medrano. A few minutes later, Rodriguez said he believed the perpetrators "went to Diana's house" after the shooting. This further weakens Rodriguez's argument regarding the jury's likely interpretation of the stricken testimony.
D. Aranda/Bruton Claim #2
Rodriguez moved in limine to exclude the following excerpt from Diana's recorded police interview:
"DETECTIVE SCOTT: ... Has [Medrano] talked to you about Holguin's murder? ...
"[DIANA]: Kind of.
"DETECTIVE SCOTT: What did he kind of say?
"[DIANA]: That he knows he's probably gonna get caught up for that.
"DETECTIVE SCOTT: Did he say why he might get caught up for that?
"[DIANA]: Because he was there.
"DETECTIVE SCOTT: He told you that? Did he tell you who was with him?
"[DIANA]: Aaron and Ann."
The People argued the evidence was admissible in its "complete context" under the hearsay exception for statements against a declarant's penal interest. Rodriguez's trial counsel disagreed and argued for exclusion "under Aranda-Bruton." The trial court ruled in favor of the People, finding (1) the statements attributed to Medrano were against his penal interests and (2) the surrounding circumstances provided adequate indicia of reliability. On appeal, Rodriguez maintains the reference to "Aaron and Ann" was inadmissible under state and federal law.
Hearsay, meaning an out-of-court statement used to prove the truth of the matter asserted, is generally inadmissible. (Evid. Code, § 1200; People v. McCurdy (2014) 59 Cal.4th 1063, 1108.)
"Evidence Code section 1230 provides in relevant part: 'Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule 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.'" (People v. Dalton (2019) 7 Cal.5th 166, 207.)The proponent of such evidence must show "'"that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character."'" (Ibid.) "We review a trial court's decision as to whether a statement is against a defendant's penal interest for abuse of discretion." (People v. Lawley (2002) 27 Cal.4th 102, 153.)
The relevant facts are analogous to those in People v. Cortez (2016) 63 Cal.4th 101. There, the defendant Norma Cortez was jointly tried with a male codefendant on charges arising from a drive-by shooting. The trial court admitted a recording of a police interview with the codefendant's nephew, who was a nonparty witness. During his interview, the nephew repeated incriminating statements the codefendant had made during a private conversation. The codefendant told his nephew he committed the crime with a woman "'in her car,' and that she 'was the one driving' and 'he was the one shooting.'" (Id. at pp. 107-108.) "At first, [the nephew] said he could not remember the woman's name. Asked whether her name was 'Stephanie,' 'Sylvia,' 'Nancy,' 'Mickey,' 'Martha,' or 'Norma,' he said, 'Norma. I think it's Norma.' He then confirmed [the codefendant] had 'said her name.'" (Id. at p. 108.)
The trial court in Cortez admitted the interview under Evidence Code section 1230 over an objection that the codefendant's statements regarding Cortez's participation in the crime were inadmissible. The California Supreme Court upheld the ruling. The codefendant's statements were "unquestionably nontestimonial," which meant the defendant had no grounds to allege a violation of her Sixth Amendment confrontation rights. (People v. Cortez, supra, 63 Cal.4th at p. 129.) Thus, pursuant to Cortez, a codefendant's nontestimonial incriminating statements do not implicate Aranda/Bruton principles. (Cortez, at p. 129; People v. Gallardo (2017) 18 Cal.App.5th 51, 68-69.)
For Sixth Amendment purposes, "[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Sanchez, supra, 63 Cal.4th at p. 689.) They are typically made in formal proceedings "or in response to structured police questioning." (People v. Smith (2005) 135 Cal.App.4th 914, 924.) Rodriguez concedes Medrano's statements to Diana were not testimonial. Furthermore, he acknowledges we are bound by the holding of Cortez (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and explains his Sixth Amendment claim is being raised "to preserve the issue for federal review." We accept the concession and, in light of Cortez, reject his Sixth Amendment claim on the merits. (See People v. Cortez, supra, 63 Cal.4th at p. 129, citing Davis v. Washington (2006) 547 U.S. 813, 824 and quoting People v. Geier (2007) 41 Cal.4th 555, 603 ["the confrontation clause applies only to testimonial hearsay statements and not to [hearsay] statements that are nontestimonial"].)
As for the state law claim, two of the three prerequisites for admissibility are undisputed. Rodriguez concedes Medrano's decision not to testify at trial made him legally unavailable, and he acknowledges the presumptive reliability of Medrano's statements to Diana. (See Evid. Code, § 1230; People v. Greenberger (1997) 58 Cal.App.4th 298, 335 ["the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures"].) The only issue is whether Medrano's reference to "Aaron and Ann," i.e., Rodriguez and Ojeda, can reasonably be interpreted as disserving of Medrano's own penal interests.
Evidence Code section 1230 "does not apply to collateral assertions within a declaration against penal interest—i.e., any portion of a statement that is not itself specifically disserving to the declarant's interests." (People v. Valdez (2012) 55 Cal.4th 82, 144.) However, "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." (People v. Grimes (2016) 1 Cal.5th 698, 716.) "Ultimately, courts must consider each statement in context in order to [determine] ... [w]hether the statement, even if not independently inculpatory of the declarant, is nevertheless against the declarant's interest ...." (Ibid.)
Read together and in context, Medrano's statements disclosed a concern and/or expectation he would "get caught up" in the Holguin murder investigation because "he was there" with "Aaron and Ann." Rodriguez contends Medrano's identification of his accomplices was not specifically disserving of his penal interests, so the trial court "should have admitted Medrano's statement regarding his own presence while excluding his statement regarding the presence of Rodriguez and Ojeda." This argument closely resembles the one rejected in Cortez. Defendant Cortez argued the codefendant's identification of her within his own admissions of guilt did "nothing more than indicate that he 'was accompanied by' her, and 'nothing about who accompanied [him] made him more or less culpable in the shooting.'" (People v. Cortez, supra, 63 Cal.4th at p. 126.)
As Cortez explains, "'[e]ven statements that are on their face neutral may actually be against the declarant's interest.'" (People v. Cortez, supra, 63 Cal.4th at p. 127.) For example, saying "'"I hid the gun in Joe's apartment" may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. "Sam and I went to Joe's house" might be against the declarant's interest if a reasonable person in the declarant's shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam's conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarant's interest.'" (Ibid., quoting Williamson v. United States (1994) 512 U.S. 594, 603.)
In Cortez, the California Supreme Court found no abuse of discretion in the trial court's interpretation of the codefendant's statements as disserving of his penal interests, including those identifying his accomplice. The defendant presumably "knew that, by identifying her, he was increasing the likelihood that evidence connecting him to the shooting would be found." (People v. Cortez, supra, 63 Cal.4th at p. 127.) The only notable distinction between Cortez and this case is defendant Cortez had already been arrested for the shooting when her codefendant made his incriminatory statements. (Ibid.) However, Cortez stands for the broader principle that disclosing the identity of an accomplice may be found disserving of the declarant's penal interests if such information "'might have enabled the authorities to better investigate his wrongdoing.'" (Ibid., quoting U.S. v. Moses (3d Cir. 1998) 148 F.3d 277, 280-281.)
Medrano believed in the adage, "Loose lips sink ships." Telling Diana he "was there" when the shooting occurred was plainly disserving of his penal interests. It is also reasonable to infer he should have known that by identifying his accomplices, "he was increasing the likelihood that evidence connecting him to the shooting would be found." (People v. Cortez, supra, 63 Cal.4th at p. 127.) The risk became a reality when Diana betrayed Medrano's confidence and repeated his statements to homicide detectives. Not only did this help connect him to a conspiracy with Rodriguez, it led police to an accomplice who turned state's witness and testified against him at trial. Given the overall circumstances, we cannot say the trial court abused its discretion by concluding Medrano's identification of Rodriguez and Ojeda was specifically disserving of his penal interests.
Even if Rodriguez could demonstrate an abuse of discretion, we would reject the claim for lack of prejudice. Generally, the admission of evidence in violation of state law is reviewed under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Fuiava (2012) 53 Cal.4th 622, 671.) The Watson standard would apply in this instance, and Rodriguez would need to show it is "reasonably probable that a result more favorable to [him] would have been reached in the absence of the error." (Watson, supra, at p. 836.)
Rodriguez argues the evidence of Medrano's statement increased the likelihood of the jury accepting the People's "main theory" of his guilt, i.e., that he was the second passenger in Ojeda's vehicle. He assumes the jury rejected the People's alternative theory of him being absent from the crime scene but liable as a coconspirator and aider and abettor. Rodriguez contends "there is nothing in the record to suggest" the jury adopted the alternate theory. Likewise, he submits "[t]he most obvious and most likely way the jurors reached the conclusion that Rodriguez was guilty ... was that he was an aider and abettor who was in the car and thus present at the time the shooting occurred."
Toward the end of its deliberations, the jury submitted the following question: "Do you need to be present to be guilty of 'Lying In Wait'[?]" Since all evidence indicated Medrano was the shooter, the question undoubtedly pertained to Rodriguez. Hence, the record strongly indicates the jury rejected the theory of Rodriguez being inside the vehicle. Pursuant to Rodriguez's own argument, if the jury did not believe he was one of Ojeda passengers, then it is not reasonably probable the verdicts would have been different but for the admission of Medrano's statement.
Since Ojeda was a key witness against both defendants, the People had little choice but to defend her testimony as best they could, which may be why the prosecutor stood behind the "main theory." However, as Rodriguez explains elsewhere in his briefing, convincing the jury of his presence in Ojeda's vehicle was a hard sell. She did not display confidence when identifying him from the photographic lineup, merely saying, "[H]e looks a little bit familiar." Although she recalled the nonshooter having "tattoos on his sides right here [motioning to the left side of her head] and some on the back," this did not entirely match Rodriguez's appearance. Rodriguez had a large tattoo on the back of his head. Chris Hernandez—Cyclone—had a tattoo on the back of his head and a long horizontal tattoo on the left side of his head.
On the witness stand, Ojeda backed herself into a corner by claiming to have seen Rodriguez's tattoo when he entered her vehicle but also saying the hood of his sweatshirt was pulled up over his head. When confronted with the discrepancy, she clumsily altered her testimony regarding when and how she had noticed the tattoo. Photographs and other circumstantial evidence demonstrated the plausibility of Christopher Hernandez being Ojeda's second passenger. Moreover, the defense theory explained why Victor O. had denied recognizing the people in Ojeda's vehicle and contradicted Julie's story about when they had met up with Rodriguez. Victor was in a relationship with Christopher Hernandez's sister and thus had a motive to conceal Hernandez's alleged involvement in the murder.
Given the weaknesses of the People's "main theory" and the inference arising from the jury's question, Rodriguez's prejudice argument is untenable. The alternate theory of him orchestrating the murder from inside the Belmont house aligns with his confession to Janette and is firmly supported by the record. To recap the evidence, Rodriguez showed consciousness of guilt by lying to police about being in Porterville on the night in question. (See People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669-1670 [false exculpatory statements to ward off suspicion imply consciousness of guilt].) He then offered two variations of a second alibi, which placed him at or inside the Belmont house while the victim was present. Approximately one week prior to the shooting, a witness saw Pancho deliver a gun to Rodriguez at the Belmont house. A few days later, Rodriguez attempted to obtain bullets from Jay and said he "'needed them ASAP.'"
The morning after the shooting, in a conversation with Janette, Rodriguez confessed to being a coconspirator and explained his role in planning the crime. His only response to the confession evidence is to argue Janette "felt pressured to say certain things to Detective Scott." We have already explained why the argument is unavailing. Furthermore, while awaiting trial, Rodriguez contacted Janette to complain about what she had told the police. The jury's verdict on count 5 confirms it viewed this phone call and/or Rodriguez's prior warning to Janette not to "snitch on [him]" as constituting witness intimidation, which also implied consciousness of guilt. (People v. Edelbacher, supra, 47 Cal.3d at p. 1007.) For these reasons, we conclude Rodriguez's claim not only fails on the merits but also for lack of any possible prejudice.
II. Diana's Stricken Testimony re: "The Gun Charge"
A. Background
As discussed, the victim was killed on October 16, 2014. On October 23, 2014, Medrano and Rodriguez were arrested together outside of Delano Gardens. The arrest occurred during a traffic stop, and "a loaded, short-barreled rifle" was reportedly seized during a search of the vehicle. Because the incident was unrelated to the shooting, Medrano moved in limine to "exclude any and all evidence regarding his and [Rodriguez's] arrest for possession of firearms." The trial court excluded evidence of the gun but ruled admissible the fact of the arrest and other surrounding circumstances.
During Diana's trial testimony, the prosecutor asked about statements she made to detectives regarding a conversation with Ojeda. Diana gave a nonresponsive answer: "I recall saying [Medrano] was with [Rodriguez] the day that they got arrested for the gun charge." Medrano's attorney requested a sidebar, after which the trial court said, "Ladies and gentlemen of the jury, with regard to an objection, I am going to sustain that. And I am striking the witness's last response. The last response she gave, I am striking that. The jury will disregard that and treat it as if it had not been spoken. It is not evidence now."
The curative instruction was followed by a recess. Outside the presence of jurors, Diana was admonished to "[n]ever refer to that day or that incident again." Next, the trial court asked defense counsel if they believed any further admonitions were required. Both attorneys replied, "No."
B. Law and Analysis
"Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured." (People v. Martin (1983) 150 Cal.App.3d 148, 163.) "Moreover, it is only in the 'exceptional case' that any prejudice from an improperly volunteered statement cannot be cured by appropriate admonition to the jury." (People v. Franklin, supra, 248 Cal.App.4th at p. 955; accord, People v. Seiterle (1963) 59 Cal.2d 703, 710.) Despite these settled principles, Medrano alleges the stricken testimony caused incurable prejudice and violated his constitutional right to due process and a fair trial. Rodriguez joins in his claim.
We question whether this issue was even preserved for appellate review. (See People v. Burgener (2003) 29 Cal.4th 833, 886 [failure to object on federal constitutional grounds at trial results in forfeiture].) If defendants believed they had suffered incurable prejudice, it was incumbent upon them to move for a mistrial. "[A] defendant who receives a curative admonition, but who makes no other objection and seeks no other action, may not complain on appeal." (People v. Chatman (2006) 38 Cal.4th 344, 368.) An appellant "may not argue that the court should have granted a mistrial he did not request" (ibid.), which is essentially what is happening here. Assuming, arguendo, the claim was not forfeited, we conclude the incident was harmless.
With exception of the alleged "gun charge," the admissibility of the arrest evidence is undisputed. The jury was fully aware Rodriguez and Medrano were arrested together, outside of Delano Gardens, one week after the shooting. Furthermore, as defendants generally concede, the jury knew the murder weapon was never recovered and the arrest was unrelated to the homicide.
Although watered down by exceptions, a general rule of exclusion applies to evidence "that the defendant possessed a weapon that could not have been the one used in the charged crime." (People v. Sanchez (2019) 7 Cal.5th 14, 55; accord, People v. Homick (2012) 55 Cal.4th 816, 876-877 [stating the historical rule and discussing exceptions].) "[S]uch evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.) However, any error in this regard is harmless if the jury would have reached the same conclusion based on other properly admitted evidence. (People v. Riser (1956) 47 Cal.2d 566, 577-578; cf. People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 414-415 [erroneous admission of hearsay on a collateral issue deemed harmless because "properly admitted" statements by another witness "conveyed the same information"].)
Medrano's opening brief argues his possession of a gun "right around the time of [the victim's] death" was "an enormously consequential piece of information." In his reply brief, he admits overlooking a segment of Janette's interview wherein she claimed to have seen him brandish a firearm on two separate occasions, both of which were closer in time to the murder than the date of his arrest. The jury also heard admissible evidence of Diana telling police Medrano carried a particular handgun. In addition, jurors heard Medrano claim ownership of a firearm on a recorded jail call. He was speaking in code, but the People's gang expert translated the jargon and Medrano's trial attorney concurred with the interpretation during closing argument. Lastly, as detailed earlier in the opinion, there was overwhelming evidence of Medrano's use of a firearm to kill the victim. Therefore, he was not constitutionally prejudiced by the stricken testimony.
The admissible evidence tending to show Rodriguez's propensity to carry guns was extensive. Diana's police interview and trial testimony provided an eyewitness account of Pancho's delivery of a firearm to Rodriguez at the Belmont house one week prior to the shooting. Diana also claimed to have seen Rodriguez "with plenty of guns before," including a "9" and "a little shotgun." She testified to his possession of a gun during a different traffic stop, i.e., one unrelated to the claim on appeal: "I have seen Aaron with a gun .... I was giving him a ride one time, and we got pulled over and they had a gun."
Another witness, Jay, told police Rodriguez was holding a pistol during their conversation about bullets, which occurred within 48 hours of the shooting. Rodriguez admitted asking Jay for bullets but told a dodgy story about wanting the ammunition for a gun possessed by his estranged father. For purposes of this claim, the believability of his excuse is less important than his admitted involvement with firearms.
The victim's daughter, Brianna, had a hostile encounter with Rodriguez outside of Delano Gardens approximately two days after the shooting. She testified: "He got off of his car and he opened the trunk and he—well, to me it looked like a shotgun and he pointed it at me ...." On cross-examination, she clarified Rodriguez did not actually point the object at her.
Janette said Rodriguez told her he had a gun. She never saw it, but she did "remember seeing bullets." Given Janette's statements and those of the other witnesses, Diana's reference to "the gun charge" was eclipsed by more direct and probative evidence of Rodriguez being "the sort of person who carries [guns]." (People v. Riser, supra, 47 Cal.2d at p. 577.) Based on the properly admitted evidence alone, "the jury would have concluded that [he] possessed firearms." (Ibid.) Therefore, the incident was harmless.
III. Admissibility of Evidence re: Medrano's Willingness to Plea Bargain
A. Background
Medrano's jail calls were incriminating in a variety of ways. In addition to the examples we have provided, he acknowledged being a "Northerner" and boasted of his status inside the jail, e.g., "I'm running the whole unit." He admitted threatening and/or assaulting other inmates. He also tried to arrange for gang members to smuggle "weed" into the facility.
Medrano occasionally expressed to friends and family his desire to plea bargain. He had a relative who worked in the DA's office, and he was hopeful she could "pull the strings." Defense counsel argued such evidence should be excluded, and a motion was made to redact the following conversations:
"[MEDRANO]: I'm trying to get 20 years, fool. I already asked the lawyer, like, give me 20 years. Give me 25, give me 30 with no L though. Just—I wanna—I wanna do half of that. Well, I already got a strike, fool. And I'm a registered gang member but I wanna get 20 years without the L, fool. I'll get out, like, in 17, 15 years. But they ain't goin' for none of that shit, fool.
"[VISITOR]: With that you're coming out. You know you're coming out.
"[MEDRANO]: Yeah, I'll be coming out. I'll be cool, fool, you know what I mean? At least with that—fool—I could do a program in there or whatever and come out, like, in 15 years or something like that, you know what I mean?"
"[VISITOR]: I hope like something changes and God gives you a chance because I don't want this for you.
"[MEDRANO]: I know. ... I just pray that—I just want 20 years, 25 without the L, though; not with the life, just 25 years."
"[MEDRANO]: Damn, fool. I'm hoping—I'm hoping I beat this shit, fool. We already offered them 25, fool, and they thought about it and then they're like, 'Nah,' and then this time, fool[—]
"[VISITOR]: Yeah.
"[MEDRANO]: ... I'm gonna try to ask for 15, fool. I'm gonna keep pushing it because I know, fool, they're not gonna wanna go to trial...."
"[VISITOR]: [I]f they offer you like 15 fool—you better hop on that.
"[MEDRANO]: Oh, ASAP, bro.
"[VISITOR]: ASAP.
"[MEDRANO]: I already banged it on Norte fool, it's either—it's either—nothing more than 25, fool. You know what I mean? I don't wanna take nothing—if it—if it's more than 25, fuck it. We're gonna go to trial. [¶] ... [¶] ... But if th—if it's—if it's from 20 and down without the L, let's ride, fool. But 25 with the L? Nah I'm cool. No L, fool.
"[VISITOR]: Throw strikes n [sic] shit in there, too.
"[MEDRANO]: They can give me two s—they can give me another strike if they want. I don't give a fuck. [¶] ... [¶] ... Just nothing with a L, though. [¶] ... [¶] If they give me ten with an L, though, I'll take it ASAP because every ten years I'll go in front of the review board and shit."
The trial court, citing People v. Magana (1993) 17 Cal.App.4th 1371, ruled the statements were admissible as voluntary disclosures made outside the context of formal plea negotiations. A defense objection based on Evidence Code section 352 was overruled, but the trial court granted a related defense request to admit evidence showing Medrano believed he was facing the death penalty or life in prison. On appeal, Medrano contends the trial court's ruling violated his constitutional right to due process and a fair trial.
B. Law and Analysis
Two statutes make evidence of plea bargaining inadmissible in most situations: section 1192.4, which applies to guilty pleas "not accepted by the prosecuting attorney and approved by the court," and Evidence Code section 1153, which bars evidence of withdrawn pleas and "offer[s] to plead guilty to the crime charged or to any other crime ...." However, these statutes do not apply to statements made outside the context of "bona fide plea negotiations." (People v. Magana, supra, 17 Cal.App.4th at p. 1376; see People v. Leonard (2007) 40 Cal.4th 1370, 1404 ["defendant's in-court outburst declaring that he was guilty" was an unsolicited admission falling outside the scope of Evid. Code, § 1153].) "Bona fide plea negotiations include statements made to the trial court and to the prosecuting attorney because those are the participants in a plea bargain[,]" but not statements made to nonparticipating third parties. (Magana, supra, at p. 1377.)
In Magana, which involved charges of first degree murder and attempted murder, the defendant's stated willingness to accept a 10-year plea deal, as documented in letters to his "home boys," was held admissible. (People v. Magana, supra, 17 Cal.App.4th at pp. 1374-1377.) The appellate court reasoned "there is no need to protect the defendant's voluntary disclosures about the bargaining process made to third persons uninvolved and unnecessary to the plea negotiations. Those communications are not part of the bona fide plea negotiations as they cannot be seen as an attempt to influence the court or the prosecutor to accept a particular offer." (Id. at p. 1377.)
In fairness to Medrano, the Magana case is easily distinguishable. There, defense counsel did not preemptively seek to exclude the evidence and the trial court was not called upon to evaluate it under Evidence Code section 352. Indeed, the trial court believed the prosecutor committed misconduct by questioning the defendant about the letters on cross-examination. (People v. Magana, supra, 17 Cal.App.4th at p. 1375.) Moreover, unlike in this case, the Magana defendant's expressed willingness to accept a hypothetical but unrealistic 10-year deal for the attempted murder of an infant in a multivictim shooting was "not a statement by an individual seriously interested in a plea bargain." (Id. at p. 1377.) That being said, we do not agree with Medrano's assertions of error and prejudice.
Medrano claims the trial court abused its discretion under Evidence Code section 352. This statute requires evidence to be excluded if its "probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Ibid.) Undue prejudice refers to "'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.'" (People v. Scheid (1997) 16 Cal.4th 1, 19; accord, People v. McCurdy, supra, 59 Cal.4th at p. 1095.)
Discretionary rulings concerning the admission of evidence "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The burden is difficult to carry, and findings of abuse are uncommon. If reasonable minds could reach opposite conclusions on the propriety of admitting the evidence, the ruling will ordinarily be affirmed.
Medrano argues evidence of his willingness to plea bargain was inherently prejudicial because, he assumes, most lay jurors believe an innocent man would never plead guilty to a crime he didn't commit. First, Medrano's briefing does not substantiate this assumption. Second, the jury was not considering the philosophical question of whether any innocent person would ever falsely admit guilt, but rather the inferences to be drawn from a then 24-year-old defendant's willingness, in light of the evidence against him, to accept a prison term of 25 years when he faced the risk of punishment by death or a life sentence.
In any event, the claim surely fails on the issue of prejudice. Contrary to Medrano's assertions, "[a] trial court's determinations under Evidence Code section 352 do not ordinarily implicate the federal Constitution, and are reviewed under the 'reasonable probability' standard of People v. Watson." (People v. Gonzales (2011) 51 Cal.4th 894, 924; accord, People v. Cudjo (1993) 6 Cal.4th 585, 611.) "In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.)
Medrano says the prosecutor used the evidence "to advance a consciousness of guilt inference during closing argument." He fails to support this statement with a record citation. It is more accurate to say the prosecutor briefly noted his statements while discussing the contents of each jail call. If Medrano's prejudice argument is based on the likelihood of unwarranted consciousness of guilt inferences, we have already highlighted properly admitted excerpts from the jail calls from which the same inferences were inevitably drawn. Pursuant to our earlier summary of the evidence of Medrano's guilt, which we discussed in the context of a Chapman analysis, and the relative weakness of his defense case, it is not reasonably probable the outcome would have been different but for the evidence of his willingness to plea bargain.
IV. Admissibility of Evidence re: Defendants' Prior Convictions
This claim concerns the trial court's admission of evidence relating to the gang charges.
Section 186.22 prohibits active participation in a criminal street gang, as set forth in subdivision (a), and includes sentencing enhancement provisions, which are found in subdivision (b). The elements of the offense are: "First, active participation ..., in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) The enhancements apply when a felony is committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).) Additionally, pursuant to section 190.2, subdivision (a)(22), the crime of murder is punishable by death or LWOP if the perpetrator "was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang."
"A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.'" (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33). In this case, the People introduced evidence of eight predicate offenses committed by six different people, including Medrano and Rodriguez. This was done to prove the existence of the Norteño criminal street gang and other elements of the gang charges.
The predicate offenses evidence was ruled admissible but limited in scope to "the fact of conviction, the nature of the conviction, the [name of the party convicted], and as to each predicate, the association of the defendant with the relevant gang, [i.e.,] ... the Norteños or the northern gang." Consequently, the jury learned Rodriguez was convicted of second degree vehicle burglary in 2004 and of unlawful firearm possession in 2011. The jury learned Medrano suffered juvenile adjudications in 2006 for vehicle theft and grand theft, and a juvenile adjudication in 2008 for attempted burglary.
Rodriguez contends the probative value of his earlier convictions was marginal and substantially outweighed by the danger of undue prejudice. Although his claim is based on Evidence Code section 352, he argues the error violated his constitutional right to due process and a fair trial. Medrano joins in these arguments to the extent they apply to the evidence of his juvenile adjudications.
In People v. Tran (2011) 51 Cal.4th 1040, the California Supreme Court authorized the use of a defendant's prior convictions to prove the predicate offenses requirement of section 186.22. (Tran, at p. 1046.) A trial court may admit such evidence regardless of the prosecution's ability to rely on offenses committed by other gang members. (Id. at pp. 1048-1049.) A defendant's criminal history can be "highly probative" of several elements the People must establish, including the gang's primary activities, a predicate offense, and the defendant's knowledge of a pattern of criminal activity by the gang's members. (Id. at pp. 1048, 1050.) Although section 186.22 requires proof of only two predicate offenses, trial courts have broad discretion to determine the number of separate incidents upon which the People may rely. (See, e.g., People v. Rivas (2013) 214 Cal.App.4th 1410, 1436 [no abuse of discretion in allowing proof of six predicate offenses]; People v. Hill (2011) 191 Cal.App.4th 1104, 1137-1139 [same; eight predicate offenses].)
In the interest of judicial economy, we will dispose of defendants' claims for lack of prejudice without addressing the question of error. "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) As our analysis will make clear, defendants' fundamental unfairness argument has no merit. If an abuse of discretion occurred, it is subject to review under the Watson standard.
Rodriguez complains of the jury learning he was "a former felon who was convicted of burglary and firearm-possession offenses in 2004 and 2011." The prejudice, he contends, flows from negative inferences likely drawn by jurors regarding his criminal propensities. Rodriguez is forgetting he provided a detailed summary of his criminal "career" during the March 9, 2015, interview with Detective Scott and the DA investigator. A recording of the interview was admitted as People's exhibit No. 112 and played for the jury.
During the interview, Rodriguez said his earliest conviction occurred in 2004: "I was arrested for receiv[ing] stolen property. [¶] ... [¶] ... It was a vehicle right there on, by the cemetery. [¶] ... [¶] [It] had the keys in it. ... I got convicted." Next, he discussed being on felony probation in 2005 and getting "caught with receiving stolen property" a second time: "I had like, [a] bag full of, like, Santa Claus. It had, like, some stereos and amps, and the cops pulled me over on a bike and they chased me, whatever." Rodriguez chronicled his "stint[s]" in various correctional facilities and explained how he became involved with the Norteños and developed a drug habit. While telling these stories, he admitted committing other crimes, e.g., "I went to Earlimart. Same thing happened there. I tried to take a car and I got caught."
Rodriguez described himself as "a petty criminal that has a drug problem." In an earlier interview, he had mentioned getting out of prison "last year," i.e., in 2013. These various admissions severely undermine his prejudice argument. Furthermore, Janette testified to his commission of domestic violence during their relationship, which presumably impacted the jury's view of his character. The 2011 predicate offense for gun possession, which predated the Holguin murder by three years, was not discussed in the interview. However, as we explained in relation to Diana's testimony about the "gun charge," there was extensive admissible evidence showing Rodriguez's possession of firearms within days of the shooting. For these reasons, plus the overall strength of the People's case in comparison to the defense case, it is not reasonably probable Rodriguez would have achieved a better outcome had the trial court excluded the predicate offenses evidence.
There was less admissible evidence concerning Medrano's criminal history. However, even without the evidence of his juvenile adjudications, jurors would have known of his criminal propensity because of the recorded jail calls. For example, while discussing his desire to get an elaborate gang tattoo, Medrano said he was holding off until he got to prison because he knew it could be used against him: "That's what they did last time. They're like take off your shirt. And when I did it, they seen this one. And that's what fucked me." During the same conversation, he mentioned having a "strike" and being a registered gang member. The jury also knew Medrano had an outstanding warrant at the time of the murder.
"[T]he inherent prejudice from a defendant's separate gang-related offense typically will be less when the evidence is admitted to establish a predicate offense in a prosecution for active participation in a criminal street gang, than when it is admitted to establish an intermediary fact from which guilt may be inferred." (People v. Tran, supra, 51 Cal.4th at p. 1048.) Medrano's juvenile adjudications fall into this category. "In addition, because the prosecution is required to establish the defendant was an active participant ... and had knowledge of the gang's criminal activities, the jury inevitably and necessarily will in any event receive evidence tending to show the defendant actively supported the street gang's criminal activities. That the defendant was personally involved in some of those activities typically will not so increase the prejudicial nature of the evidence as to unfairly bias the jury against the defendant." (Ibid.)
Medrano's predicate offenses were remote in time, occurring between six and eight years prior to the Holguin murder. The crimes themselves were less serious than the current charges, which also lessened the potential for prejudice. (See People v. Tran, supra, 51 Cal.4th at p. 1047.) Above all else, there was overwhelming proof of his guilt. Therefore, any error in admitting the predicate offenses evidence was harmless. V. Sanchez Error
In Sanchez, the California Supreme Court held that a gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert's personal knowledge or independently supported by admissible evidence. (Sanchez, supra, 63 Cal.4th at pp. 676, 684-685.) The Sanchez opinion was issued on June 30, 2016, by which point the People's gang experts had already testified to the contents of police reports about which they had no personal knowledge. In light of Sanchez, defendants moved for a mistrial. The People opposed the motions and sought permission to reopen their case.
The trial court denied the mistrial motions subject to the People's ability to substantiate the hearsay with admissible evidence. In making its ruling, the court observed the People's properly admitted evidence was "very strong against ... defendants" and such evidence had "nothing to do with the expert opinions." In the reopened phase of trial, the People elicited testimony from the individuals who had authored the subject reports. However, the extra testimony did not cure all of the hearsay errors. Defendants renewed their mistrial motions, but they were again denied.
A. Applicable Law
"Expert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant's membership in a gang; ... the 'motivation for a particular crime[—]generally retaliation or intimidation'; and 'whether and how a crime was committed to benefit or promote a gang.'" (People v. Hill, supra, 191 Cal.App.4th at p. 1120.) Prior to Sanchez, experts could recite out-of-court statements upon which they had relied in forming their opinions, even if the statements were otherwise inadmissible under the hearsay rule. Case law held such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert's "basis testimony" to be compliant with the hearsay rule and the requirements of Crawford. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
In Crawford, the Sixth Amendment right of confrontation was held to bar the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a previous opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 59.)
In Sanchez, it was determined a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which implicates the hearsay rule and the Sixth Amendment. (Sanchez, supra, 63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. ... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.)
Factual assertions are "case-specific" if they relate "to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Id. at pp. 680-681, 685.) Information contained in a police report is generally construed as testimonial because police reports "relate hearsay information gathered during an official investigation of a completed crime." (Id. at p. 694.)
The admission of testimonial hearsay is reviewed for prejudice under the Chapman standard. (See People v. Garton (2018) 4 Cal.5th 485, 507; People v. Perez (2018) 4 Cal.5th 421, 456; Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The admission of nontestimonial hearsay is a state law error, which is assessed for prejudice under Watson. (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Where there is a combination of federal and state law errors, the reviewing court applies the Chapman standard. (See Sanchez, supra, at p. 698; People v. Martinez (2018) 19 Cal.App.5th 853, 861 ["Because the instant case involves a mix of testimonial and nontestimonial hearsay, we will apply the federal standard"].)
B. Medrano's Claim
1. Additional Background
The People introduced evidence of six prior incidents involving Medrano. Some of the evidence consisted of hearsay that was repeated and/or supplemented in a PowerPoint presentation. The evidence was as follows:
a. May 25, 2008
Medrano, then age 17, was arrested with three other juveniles. Witness testimony confirmed some of the arrestees were Norteños. The People failed to prove two hearsay allegations. First, Medrano had allegedly admitted to gang membership or association ("'I back the North'"). Second, he was reportedly charged with misdemeanor trespassing (§ 602) and active gang participation (§ 186.22, subd. (a)).
b. May 27, 2008
On this date, Medrano and three other juveniles were arrested and charged with burglary. At least one of Medrano's accomplices was a Norteño. The People failed to verify the alleged underlying facts (stealing beer from a gas station and burglarizing/vandalizing cars) and additional charges of vandalism (§ 594, subd. (a)(1)), possession of stolen property (former § 496a), criminal conspiracy (§ 182, subd. (a)(1)), and active gang participation.
c. June 3, 2008
The People established the fact of Medrano's arrest with another juvenile Norteño gang member. The People failed to substantiate the related charge, which was vaguely described as "one of the gang's primary activities."
d. July 19, 2008
It was proven Medrano was arrested on this date with at least one other juvenile Norteño gang member. There was inadmissible hearsay regarding the charges: vehicle burglary, possession of stolen property, and conspiracy.
e. July 14 & September 4, 2014
A Delano police officer testified to investigating a report of a prowler in the early morning hours of July 14, 2014. Defense counsel's questioning on cross-examination established the suspect was Medrano. The officer further testified to arresting Medrano during a "follow-up investigation" on September 4, 2014, i.e., six weeks prior to the murder of Johnny Holguin. Medrano was taken into custody during a probation search conducted at the residence of a Norteño gang member. Medrano was photographed at the time of his arrest, and the People introduced admissible evidence of his various gang tattoos.
A PowerPoint slide contained unverified details about the July 2014 prowling incident: "The [reporting party] reported she locked herself inside the residence, her son was in the front yard, and the suspect, later identified as Medrano, was on the roof. Medrano jumped off the roof and was taken into custody. Medrano said he threw his cell phone and broke a window. [The arresting officer] conducted a series of [standard field sobriety tests], and formed the opinion Medrano was under the influence of a central nervous system stimulant." Medrano was allegedly charged with vandalism and being under the influence of a controlled substance.
f. September 30, 2014
Medrano was allegedly arrested 16 days prior to the Holguin murder and charged with second degree robbery (§§ 211, 212.5, subd. (c)) and carrying a concealed dirk or dagger (§ 21310). The victim reportedly identified Medrano as one of two perpetrators, both of whom the victim knew or believed to be gang members. Allegedly, the victim claimed Medrano had "reached into his waistband" in a manner suggesting he was armed. The other man "took the victim's phone and asked for the passcode. The victim asked for his phone back, but the suspect refused and walked away with the phone." When arrested, Medrano allegedly had a 10-inch "hunting style knife concealed within his waistband." As the People concede, these allegations were all based on testimonial hearsay.
2. Analysis
Medrano alleges three grounds for reversal: erroneous refusal to declare a mistrial, a violation of his constitutional right to due process and a fair trial, and a violation of his Sixth Amendment right of confrontation. The People appropriately concede error under the Sixth Amendment and recognize the applicability of the Chapman standard. Therefore, we need not address Medrano's two remaining claims, which the People do not concede.
Medrano correctly states his "gang membership was not in dispute. He admitted it throughout the many recorded conversations from jail and defense counsel conceded his gang membership in closing argument." Thus, he is not alleging prejudice insofar as the hearsay revealed his history of associating with other Norteños. Rather, he contends the jury may have convicted him "not on competent evidence that was admitted at trial," but based on inferences of his criminal propensity drawn from "numerous past crimes which were not actually in evidence."
The conceded fact of his Norteño membership is far more critical than Medrano would like to acknowledge. He relies on older cases wherein evidence of a defendant's criminal history was found to be prejudicial, but none of those cases involved gang charges. (People v. Allen (1978) 77 Cal.App.3d 924, 934-935; People v. Roof (1963) 216 Cal.App.2d 222, 225, 227; People v. Ozuna (1963) 213 Cal.App.2d 338, 342; People v. Figuieredo (1955) 130 Cal.App.2d 498, 505-506.) Medrano admitted membership in a criminal street gang. Such evidence can have "a highly inflammatory impact on the jury" and "creates a risk the jury will ... infer the defendant has a criminal disposition and is therefore guilty of the offense charged." (People v. Williams (1997) 16 Cal.4th 153, 193.) Where, as here, evidence of gang activity or membership is important to the issues of motive and intent, it can be introduced despite its prejudicial nature. (People v. Martinez (2003) 113 Cal.App.4th 400, 413; see People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) Given the properly admitted and uncontroverted evidence of Medrano's gang membership, the jury would have inevitably drawn criminal propensity inferences regardless of its exposure to the testimonial hearsay.
The fact of Medrano's repeated arrests was confirmed by admissible evidence. Therefore, any prejudice would have been based on the nature of those arrests, which mostly involved theft-related offenses committed six years prior to the Holguin murder. Furthermore, evidence of a prior arrest is "not as prejudicial as evidence of a prior conviction." (People v. Parsons (1984) 156 Cal.App.3d 1165, 1171.) Ultimately, the question is whether the jury's verdicts might have been different had it never seen/heard the inadmissible evidence. (See People v. Aledamat (2019) 8 Cal.5th 1, 3 [a Chapman analysis involves "examining the entire cause, including the evidence, and considering all relevant circumstances"].) There are no realistic scenarios in which a different outcome would have been possible. Incorporating by reference our prejudice analysis for Medrano's Aranda/Bruton claim, we conclude, for the same reasons, the Sanchez error was harmless beyond a reasonable doubt.
C. Rodriguez's Claim
1. Additional Background
a. March 10, 2009
On this date, during a traffic stop, Rodriguez allegedly admitted "he was a northerner from west side Delano. The Officer also found a clip board with gang indicia on it." The quoted testimony was ordered stricken and the People were not permitted to introduce corroborative evidence.
b. August 26, 2011
Rodriguez was not directly involved in this incident. According to the police report, a group of Norteño gang members were found in possession of a document containing a list of names, including Rodriguez's "name and moniker." Testimony in this regard was ordered stricken and the People were not permitted to introduce corroborative evidence.
c. September 18, 2011
On this date, Rodriguez was arrested for being a felon in possession of a firearm. Evidence of the corresponding conviction was admitted to prove one of the predicate offenses. Rodriguez's assertion of error is exclusively based on the People's failure to substantiate an allegation "that [he] was a registered northerner."
d. August 28, 2014
Rodriguez was arrested on this date while wearing a San Francisco 49ers hat. The arresting officer testified to the incident, and the People's gang expert testified Norteños identify with 49ers imagery. The gang expert initially testified to Rodriguez admitting his affiliation with the "North" when booked into jail, but that testimony was ordered stricken.
2. Analysis
Rodriguez joins in Medrano's Sanchez claim, but his prejudice analysis boils down to this statement: "[T]he question of his affiliation with the Nortenos at the time of the shooting was seriously called into question." (Italics added.) Rodriguez notes his self-described "dropout" status and essentially argues the hearsay made jurors less likely to believe he had, in fact, dropped out of the gang prior to the Holguin murder. However, pursuant to his own contentions, Rodriguez kept his dropout status a secret until his interview with Detective Scott on October 23, 2014, which occurred seven days after the shooting.
According to the People's gang expert and other witnesses, Norteños are forbidden from dropping out of the gang. Therefore, "dropouts are enemies to active Northern gang members." Dropouts are at risk of being attacked or even killed, which is why they are segregated from active members in custodial settings.
In the October 2014 interview, Rodriguez claimed to have dropped out of the gang "[w]hen [he] got out of prison last year," meaning some time in 2013. By his own admission, he continued to "associate" with the gang during the relevant time period. In subsequent interviews, he claimed to have dropped out earlier than 2013 but said he always denied his dropout status for safety reasons: "I don't want to be in line to get hit or anything or be, you know what I mean, fuck—fucked up everywhere I go, so I just deny it."
There was admissible evidence of Rodriguez's gang tattoos, including "a large 14 right in the middle of his back and another 14 on his left leg. He also has 'Northern' across the top of his back," plus "the Huelga bird on his wrist," "several five-point stars[,] which are a symbol of somebody with elevated status," and the letter "N" on the side of his neck, among others. He allegedly participated in a gang tattoo removal program in approximately 2013, but the multiple tattoos he still had in October 2014 gave the outward appearance of gang membership. Medrano noted this during a jail call with Diana, commenting on the "big fat 14 on his back" and the "birds everywhere."
Based on Rodriguez's admission of gang membership through approximately 2013, the risk of prejudice from hearsay concerning his status in 2009 and 2011 was de minimis. The only potential source of prejudice from Sanchez error was testimony concerning his August 2014 jail classification admission. However, this evidence was consistent with his statements on the night of his arrest. Rodriguez claimed to be maintaining the appearance of active membership for his own safety, since dropouts are often targeted for violence. This excerpt is illustrative:
"[RODRIGUEZ]: Listen, I said and nobody knows, because I stay[—]
"DETECTIVE SCOTT: So you're—so you're a dropout in your own mind. You—nobody knows you dropped out? Because you're still out there.
"[RODRIGUEZ]: Exactly. Exactly.
"DETECTIVE SCOTT: So, to other people you're still active?
"[RODRIGUEZ]: Exactly. [¶] ... [¶]
"DETECTIVE SCOTT: But you understand what we're saying though, right? In their—in their minds you're still active, so they[—]
"[RODRIGUEZ]: Oh, no, no, no, you're missing the point. You're missing the point. I'm telling you to—in their minds I'm a question mark ...."
Julie told the police Rodriguez hated dropouts. In the above-quoted interview, Rodriguez said, "Julie doesn't even know [about my dropout status]. For all Julie knows is I'm active."
Because Rodriguez admitted maintaining the outward appearance of active gang membership at the time of the murder, which was consistent with his association with gang members such as Medrano and Pancho, the Sanchez error was clearly harmless beyond a reasonable doubt. (Cf. People v. Calhoun (2019) 38 Cal.App.5th 275, 319 ["Any conceivable Sanchez error was harmless because the content of the [hearsay] was independently proven" through admissible evidence].)
VI. Alleged Prosecutorial Misconduct
Medrano seeks reversal based on a statement made during the People's rebuttal argument. He contends the prosecutor "misstated the reasonable doubt standard by likening it to a mere belief in [defendants'] guilt." Rodriguez joins in this argument. We reject the claim as meritless.
A. Background
The challenged statement is italicized below:
"[PROSECUTOR]: [I]f you have any doubts, listen to all the audio or certain interviews, whatever you have a question about. Go to that interview, listen to it, work together on it.
"It was my duty to prove this case beyond a reasonable doubt. That is the highest burden of proof. But it's not an impossible burden. It's the same user-friendly standard that's used in every criminal court across this country, in every state. And you have a jury instruction for beyond a reasonable doubt, and the Judge read it to you earlier. You will have that instruction to refer to.
"I am just asking you that if you believe the defendants are guilty but you are not sure if I have proven this case beyond a reasonable doubt, I want you to ask yourselves why you believe the defendants are guilty if I didn't prove the case beyond a reasonable doubt. I thank you for your time.
"[DEFENSE COUNSEL]: Your Honor, I am going to object to that last—
"THE COURT: Well, let's clarify they ultimately must find them guilty beyond a reasonable doubt.
"[PROSECUTOR]: You must find them guilty beyond a reasonable doubt. And I am asking that you find them both guilty beyond a reasonable doubt as to all charges. Thank you.
"THE COURT: And I didn't mean to suggest that you must find them guilty. In other words, only if they are proved beyond a reasonable doubt
are they guilty. If it is not proved beyond a reasonable doubt, they are not guilty. That's the correct answer." (Italics added.)
B. Law and Analysis
"It is improper for the prosecutor to misstate the law, and in particular to attempt to reduce the People's burden of proof beyond a reasonable doubt." (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno (2014) 60 Cal.4th 659, 667.)
Furthermore, "arguments of counsel 'generally carry less weight with a jury than do instructions from the court.'" (People v. Mendoza (2007) 42 Cal.4th 686, 703.) "When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.'" (People v. Osband (1996) 13 Cal.4th 622, 717.) Here, the jury was correctly instructed on the reasonable doubt standard and presumption of innocence, and it was cautioned, "If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions." There is no reason to believe the jury was misled by the prosecutor's statement or disregarded the pattern instructions on reasonable doubt.
VII. Cumulative Error
Defendants allege cumulative error.
Under the cumulative error doctrine, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844; accord, In re Avena (1996) 12 Cal.4th 694, 772, fn. 32 (dis. opn. of Mosk, J.).) The "litmus test is whether defendant received due process and a fair trial. Accordingly, we review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence." (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349, overruled on other grounds in People v. Whitmer (2014) 59 Cal.4th 733, 739-742.) Rodriguez argues the Chapman standard should apply, but we conclude defendants' respective claims fail even under Chapman.
Medrano has demonstrated Sixth Amendment errors based on Aranda/Bruton principles and under the holding of Sanchez. We have rejected his prosecutorial misconduct claim on the merits. We found no error in the admission of evidence regarding his willingness to plea bargain and alternatively concluded the alleged error was harmless. The alleged abuse of discretion as to the predicate offenses evidence was also determined to be harmless, and we found no infringement upon his right to a fair trial with regard to Diana's testimony about the "gun charge." Having assessed the cumulative effect of the actual and potential errors, we find no basis for reversal.
Rodriguez has identified a set of plainly harmless errors under Sanchez. His prejudice argument with regard to the predicate offenses evidence is equally unavailing. Rodriguez has failed to show error with regard to the denial of his mistrial motion in connection with Medrano's Aranda/Bruton claim. He has failed to establish error with regard to the admission of Medrano's statement against penal interest, and his joinder in Medrano's prosecutorial misconduct claim also fails on the merits. Likewise, we found no infringement upon his right to a fair trial with regard to Diana's "gun charge" testimony. Having assessed the cumulative effect of the actual and potential errors involving Rodriguez, we find no basis for reversal.
VIII. Rodriguez's Claim re: Allegedly Ambiguous Verdicts
The clerk's transcript shows the jury foreperson, as to Rodriguez only, filled out and signed the count 1 verdict forms for both first degree and second degree murder. Only the verdict of first degree murder was read aloud in court, whereupon the trial court interrupted the clerk and said, "Counsel, I need a sidebar." Following an unreported conference, the clerk read the verdicts on the remaining counts. When all verdicts had been read, the trial court asked if defense counsel wanted to poll the jury. Rodriguez's attorney said yes, and each juror individually confirmed as true the verdicts recited by the clerk.
The trial court later explained what had happened:
"I did call a sidebar when the clerk was reading Mr. Rodriguez's verdict form because I had noticed that after they found Mr. Rodriguez guilty of the charged offense[,] first degree murder[,] and then made all the true findings, they proceeded to also find him guilty of the lesser included offense of second degree murder and made the requested findings or the suggested findings true on that and they didn't do that for Mr. Medrano. I have no idea why they went ahead and did it for Mr. Rodriguez, but it would be inconsistent with their guilty verdict on first degree. [¶] So you all agreed the Clerk need not read that."
After making these statements, the judge asked Rodriguez's attorney if he agreed, and counsel said "Yes, Your Honor." The prosecutor also said yes. The judge then said, "I will confirm the clerk is directed to record none of those verdicts," meaning the verdict of second degree murder and related findings.
Rodriguez begins his argument by quoting section 1162: "[N]o judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment is given against him on a special verdict." Next, he cites People v. Tilley (1901) 135 Cal. 61 for the principle that a "verdict must be regarded as insufficient" if it is "susceptible of a different construction than that of guilty of the crime charged." (Id. at p. 63.) This is followed by several pages of discussion about factually inapposite cases. (E.g., People v. Soto (1985) 166 Cal.App.3d 428, 435-436 [jury found defendant "'not guilty of murder as charged in count I'" but "'[fixed] the degree of the offense as murder in the second degree'" on the same verdict form].) In short, Rodriguez contends the jury's verdict on count 1 was ambiguous and the ambiguity necessitates a reduction of his conviction to the lesser included offense, i.e., second degree murder.
It is not unprecedented for a jury to return guilty verdicts on both a greater and lesser included offense. If the trial court becomes aware of the mistake before the verdicts are recorded, it may direct the jury to deliberate further and "'come back with one or the other of [those] verdicts.'" (People v. Wissenfeld (1951) 36 Cal.2d 758, 766.) The Wissenfeld opinion authorizes such a procedure but does not say it is mandatory. Assuming, arguendo, Rodriguez could establish error by the trial court, his proposed remedy is contrary to the law.
"Conviction of a lesser included offense is an implied acquittal of the offense charged when the jury returns a verdict of guilty of only the lesser included offense." (People v. Moran (1970) 1 Cal.3d 755, 763.) Here, in contrast, the jury found Rodriguez guilty of first degree murder and also filled out the verdict form for second degree murder. "When the jury expressly finds [a] defendant guilty of both the greater and lesser offense, ... there is no implied acquittal of the greater offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling ...." (Ibid.; accord, People v. Milward (2011) 52 Cal.4th 580, 589.) The sufficiency of the evidence is undisputed, so there are no grounds for reversal.
Had the dual verdicts on count 1 gone undetected and been recorded, the appropriate remedy would be reversal and dismissal of the conviction of the lesser included offense. (People v. Moran, supra, 1 Cal.3d at p. 763; People v. Chan (2005) 128 Cal.App.4th 408, 421.) This further illustrates the flaw in Rodriguez's argument. --------
IX. Sentencing Issues
Medrano was sentenced to LWOP based on the murder conviction and special circumstance findings, plus an indeterminate term of 25 years to life based on a firearm enhancement imposed pursuant to section 12022.53, subdivisions (d) and (e)(1). Sentences imposed on the remaining counts were stayed pursuant to section 654. Medrano now alleges his LWOP sentence is unconstitutional. He also seeks relief under Senate Bill 620 in relation to the firearm enhancements.
Rodriguez was sentenced to LWOP based on the murder conviction and special circumstance findings, plus an indeterminate term of 25 years to life under section 12022.53, subdivisions (d) and (e)(1), plus a determinate term of 14 years calculated by the upper term of three years for count 5 (witness intimidation); a five-year gang enhancement under section 186.22, subdivision (b)(1); and multiple one-year prior prison term enhancements under former section 667.5, subdivision (b). Sentencing on all remaining counts was stayed. Rodriguez joins in Medrano's Senate Bill 620 claim and also seeks relief pursuant to Senate Bill 136 in relation to the prison priors.
A. Cruel and Unusual Punishment
Section 190.2, subdivision (a) requires a sentence of death or LWOP when a defendant's commission of murder involves "special circumstances," e.g., lying in wait (id., subd. (a)(15)). Medrano was 23 years old when he shot and killed the victim, and he argues section 190.2 is unconstitutionally punitive "because it deprives the sentencing court of the discretion to consider a defendant's youth and immaturity and to impose a sentence less than LWOP."
As used in the Eighth Amendment to the federal Constitution, the phrase "cruel and unusual punishments" refers to "'extreme sentences that are "grossly disproportionate" to the crime.'" (Graham v. Florida (2010) 560 U.S. 48, 59-60.) The California Constitution forbids cruel or unusual punishment (Cal. Const., art. I, § 17), which precludes a sentence that is "'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) Medrano's claim relies on cases dealing with the constitutional limits of punishment for juvenile offenders, including Miller v. Alabama (2012) 567 U.S. 460 (Miller).
The Miller case holds it is cruel and unusual to impose a mandatory sentence of LWOP for a homicide committed prior to the defendant's 18th birthday. Therefore, sentencing courts must be given discretion to consider the juvenile offender's age and youthful characteristics before imposing such punishment. (Miller, supra, 567 U.S. at p. 489.) However, Medrano was not a juvenile when he murdered Johnny Holguin.
Medrano argues the rationale of Miller is equally applicable to offenders who have reached the age of majority but are not yet "mature adult[s] with fully developed executive functioning." He concedes the judiciary has "drawn a bright line at the age of 18," but he urges us to forge a new path. (See, e.g., Roper v. Simmons (2005) 543 U.S. 551, 574 [stating "a line must be drawn," and "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood"]; People v. Edwards (2019) 34 Cal.App.5th 183, 186, 190-192, [upholding as constitutional sentences of 95 years to life and 129 years to life imposed against 19-year-old sex offenders]; People v. Perez (2016) 3 Cal.App.5th 612, 617 ["We decline ... to conclude the bright line of 18 years old in the criminal sentencing context is unconstitutional"].) We are not persuaded to break from precedent on this issue.
The Legislature has also established a dividing line with regard to youthful offenders. Section 3051 provides an opportunity for early release to most defendants serving life terms for crimes committed prior to the age of 26. (Id., subd. (b)(2)-(3).) This includes defendants who are serving "de facto" LWOP sentences, i.e., life terms with decades-long periods of parole ineligibility. (See People v. Scott (2016) 3 Cal.App.5th 1265, 1281-1282.) Section 3051 was enacted and later amended in response to Miller and its progeny. (People v. Perez, supra, 3 Cal.App.5th at p. 618; see In re Jenson (2018) 24 Cal.App.5th 266, 277.) However, the statute does not apply to defendants who are "sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age." (§ 3051, subd. (h).)
As stated in People v. Martinez (1999) 76 Cal.App.4th 489, "Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] This is not such a case." (Id. at p. 494.)
B. Senate Bill 620
Effective January 1, 2018, Senate Bill 620 amended section 12022.53. (Stats. 2017, ch. 682, § 2.) Pursuant to the amendment, trial courts may, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss [a firearm] enhancement otherwise required to be imposed ...." (§ 12022.53, subd. (h).) Defendants contend the legislation applies retroactively, and they seek to have the case remanded to allow the trial court to consider striking the firearm enhancements in the interests of justice.
Absent evidence to the contrary, it is presumed the Legislature intended a statutory amendment reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) The People concede the issue of retroactivity, which we accept as appropriate. (People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) However, the People argue remand is unwarranted "because there is no evidence the trial court would exercise its discretion to strike the firearm enhancements ... in light of the egregious facts [of the case] ... and the trial court's decision to sentence [defendant]s to the upper term for their convictions."
"Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court's intent, remand is required when the trial court is unaware of its sentencing choices." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The trial court's imposition of upper terms, without a more explicit indication of its unwillingness to grant leniency under any circumstances, does not justify speculation as to how it might exercise previously nonexistent discretion on remand. (Almanza, at pp. 1110-1111; compare People v. Robbins, supra, 19 Cal.App.5th at pp. 664, 679 [remanding in light of Senate Bill 620 despite defendant's sentence of LWOP plus 25 years to life] with People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [assuming trial court would not exercise discretion since it had described defendant as "'the kind of individual the law was intended to keep off the street as long as possible'"].) Based on the record in this case, we conclude a limited remand is appropriate.
C. Senate Bill 136
Rodriguez was found to have served five prior prison terms within the meaning of former section 667.5, subdivision (b). In his opening brief, Rodriguez alleged one of those enhancements was not proven at trial. The People conceded this issue but disputed whether it affected the original sentence. In light of recent legislation, the claim is now moot.
On October 8, 2019, Senate Bill 136 was signed into law. (Stats. 2019, ch. 590, § 1.) As a result, effective January 1, 2020, the one-year enhancement provided for in section 667.5, subdivision (b) is inapplicable to all prior prison terms except those served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). None of Rodriguez's prior prison terms were based on a sexually violent offense.
The parties contend, and we agree, Senate Bill 136 applies retroactively to cases not yet final on appeal. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.) Therefore, Rodriguez's case will be remanded with instructions to strike and dismiss the section 667.5 enhancements and conduct a new sentencing hearing.
The People allege the trial court "can consider all sentencing options" on remand. They are correct. "[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citations.]" (People v. Buycks (2018) 5 Cal.5th 857, 893.) However, the People are wrong in further arguing the trial court may impose up to a four-year prison term on count 5.
As pleaded, count 5 alleged a violation of section 136.1, subdivision (c)(1). The jury acquitted Rodriguez of that charge and found him guilty under section 136.1, subdivision (b)(1), which is a lesser offense. The People overlook this fact and argue, "The trial court mistakenly believed that three years was the 'upper term' for count V .... The upper term punishment for that offense is actually four years and the mid term is three years. (§ 136.1, subd. (c).)"
The trial court noted a similar mistake in the probation report regarding Rodriguez's actual conviction under count 5. It then sentenced him to the "upper term of three years" under section 136.1, subdivision (b)(1). Violations of section 136.1, subdivision (b) are punishable "by imprisonment in a county jail for not more than one year or in the state prison." Therefore, count 5 "is a wobbler, subject to a maximum punishment of three years in prison." (People v. Torres (2011) 198 Cal.App.4th 1131, 1146-1147.)
DISPOSITION
As to Medrano, the judgment is affirmed but the matter is conditionally remanded for a sentencing hearing with regard to the enhancements imposed under section 12022.53. On remand, the trial court shall determine whether any such enhancements should be stricken in accordance with sections 1385, subdivision (b), and 12022.53, subdivision (h). Any changes to defendant Medrano's sentence should be reflected in an amended abstract of judgment.
As to Rodriguez, the matter is remanded and the trial court is ordered to strike and dismiss all enhancements previously imposed under former section 667.5, subdivision (b). Rodriguez shall be resentenced accordingly, and in doing so the trial court shall determine whether any firearm enhancements should be stricken in accordance with sections 1385, subdivision (b), and 12022.53, subdivision (h). In all other respects, the judgment is affirmed. Upon resentencing, the trial court shall prepare an amended abstract of judgment for any changes in the original judgment and forward a copy to the Department of Corrections and Rehabilitation.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SNAUFFER, J.