California Court of Appeals, Third District, Sacramento
[CERTIFIED FOR PARTIAL PUBLICATION [*]]
APPEAL from a judgment of the Superior Court of Sacramento County No. 11F02676, Allen H. Sumner, Judge.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant, Vincent Rivera; Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant, Fred Huante.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
ROBIE, Acting P. J.
This case involves criminal convictions arising from two shootings separated by less than one month, both that were retaliation for stolen drugs. In the second shooting, Francisco (Frankie) Flores was killed. A jury found codefendants Vincent Rivera (the shooter) and Fred Huante guilty of first degree murder for Frankie Flores’s death. The jury also found
defendants guilty of, among other things, the attempted murders of Michael Flores, Aaron Amaro, and Paul Amaro. Both Rivera and Huante appeal, raising seven contentions.
We reverse Huante’s first degree murder conviction pursuant to People v. Chiu (2014) 59 Cal.4th 155 [172 Cal.Rptr.3d 438, 325 P.3d 972] (Chiu), in which our Supreme Court held “an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine.” (Id. at pp. 158-159.) On remand, the People may either accept a reduction of Huante’s conviction to second degree murder or retry the first degree murder charge under a proper theory. (See id. at p. 168.)
We reject defendants’ other challenges to the judgment. These other challenges relate to trial counsel’s effectiveness, the trial court’s decisions to excuse a juror and consolidate the two shootings for trial, alleged instructional error, alleged error in allowing Huante’s attorney to appear by speakerphone, and cumulative prejudice from the alleged errors. Defendants join in each other’s arguments to the extent the joinder benefits them.
FACTUAL AND PROCEDURAL HISTORY
Background for All Charged Crimes
Rivera and Huante committed the charged crimes as revenge for drugs that were robbed from Huante. The facts behind that robbery were as follows: In late February or early March 2011, brothers Michael Flores and Frankie Flores and others were hanging out in Frankie’s 1996 black Chevrolet Irnpala near a park, when Huante came up to Frankie Flores and asked if he wanted to buy cocaine. Huante showed Frankie Flores the cocaine, and the two exchanged telephone numbers.
Later, Frankie Flores told Michael Flores they were going to rob Huante of some drugs. They took their mother’s Trailblazer because Huante had seen Frankie’s black Chevrolet Impala. Michael Flores drove Frankie Flores and some others in the Trailblazer toward the park. Frankie Flores telephoned Huante, who then showed up with a half ounce of cocaine. Frankie Flores took the cocaine, pointed a gun at Huante, and then Michael Flores drove them away fast. As they fled, Michael Flores heard five gunshots behind them.
The Attempted Murders of the Amaro Brothers on March 27, 2011
On March 27, 2011, Paul Amaro was driving his 1996 black Chevrolet Impala with his brother Aaron Amaro in the front seat, when Paul heard a “loud noise.” Paul Amaro saw a man, whom he later identified as Huante in a photographic lineup, shooting at him and his brother. From a separate lineup, Paul Amaro identified Rivera as the driver of the car Huante was in. He did not know either Huante or Rivera. Paul Amaro had met Frankie Flores at a family party once and realized that ...