California Court of Appeals, Fourth District, Second Division
from the Superior Court of San Bernardino County No.
FVI901482. John M. Tomberlin, Judge. Affirmed in part and
reversed in part; remanded with directions.
Raymond Mark DiGuiseppe, under appointment by the Court of
Appeal, for Defendant and Appellant Jose Luis Perez.
Rebecca P. Jones, under appointment by the Court of Appeal,
for Defendant and Appellant Edgar Ivan Chavez Navarro.
Randall Bookout, under appointment by the Court of Appeal,
and H. Russell Halpern for Defendant and Appellant Pablo
D. Harris and Xavier Becerra, Attorneys General, Julie L.
Garland, Senior Assistant Attorney General, and Scott C.
Taylor and Kristen Kinnaird Chenelia, Deputy Attorneys
General, for Plaintiff and Respondent.
MODIFYING OPINION AND DENYING PETITION FOR REHEARING
opinion filed in this matter on October 25, 2017 is modified
page 11, in the third full paragraph, delete the sentence:
Chavez was driving Alvarado's pickup, with Rodriguez as
substitute the sentence:
was driving Alvarado's pickup, with defendant Chavez as
page 34, in the second full paragraph, delete the sentence:
drove one of the pickups to Victorville.
substitute the sentence:
rode along in one of the pickups to Victorville.
page 82, delete all of section XVIII.B.1, entitled
page 83, delete the subheading:
page 83, delete the sentence:
and alternatively, we also reject this contention on the
substitute the sentence:
assume, without deciding, that counsel for Sandoval and
Chavez did not forfeit their clients' present contention.
for this modification, the opinion remains unchanged. This
modification does not effect a change in the judgment.
Chavez's petition for rehearing is denied.
RAMIREZ P. J.
dealer identified only as “Max” owed money to a
group of other drug dealers for some methamphetamine that had
gone missing. He decided to ambush his creditors, tie them
up, rob them of any drugs and money they might have, and kill
delegated the actual commission of these planned crimes to at
least nine men. Some of them, including defendant Pablo
Sandoval, worked for him; others, including defendant Edgar
Ivan Chavez Navarro,  worked for a fellow drug dealer named
Eduardo Alvarado; and still others, including defendant Jose
Luis Perez, worked for (or with) another drug dealer named
Flor Iniguez. According to the prosecution's designated
gang expert, most, if not all, of the participants -
including all three of the defendants named in this case -
were members or associates of the Sinaloa drug cartel; the
victims were members or associates of a different cell of the
participants carried out the plan, but not flawlessly. One of
the victims, although shot in the face and chest, survived,
and he was able to provide information that led the police to
defendant Perez and to Sabas Iniguez (Flor Iniguez's
nephew). Perez gave statements to the police incriminating
himself. Iniguez testified at trial pursuant to a plea
were convicted of multiple first degree murders, with special
circumstances, as well as other crimes. They now appeal.
published portion of this opinion, we will hold that trial
counsel forfeited any objection to expert testimony to
case-specific hearsay, which is inadmissible under People
v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), by
failing to raise it below. Even though this case was tried
before Sanchez was decided, previous cases had
already indicated that an expert's testimony to hearsay
was objectionable. If anything, Sanchez narrowed the
scope of a meritorious objection by limiting it to
unpublished portion of this opinion, we will hold that there
was insufficient evidence to support the gang special
circumstance. We also hold that the trial court erred by
failing to instruct on the financial-gain special
circumstance. Hence, we will reverse these two special
circumstances. Otherwise, however, we find no prejudicial
OF DEFENDANTS' CONTENTIONS
appeal,  defendants raise the following
Insufficiency of the evidence:
There was insufficient evidence of first degree murder on a
Either robbery murder or kidnapping murder.
There was insufficient evidence that defendants had the
intent to kill, or, when applicable, that they acted with
reckless indifference to human life, to support any of the
There was insufficient evidence that a kidnapping or a
robbery was still underway when the shooting occurred to
support the kidnap-murder and robbery-murder special
There was insufficient evidence that the shooting occurred
during a period of lying in wait to support the lying-in-wait
There was insufficient evidence to support the financial-gain
There was insufficient evidence that defendants had the
intent to kill for purposes of the attempted murder of the
victim who survived.
There was insufficient evidence of asportation of two of the
victims to support the convictions of kidnapping them for
There was insufficient evidence to support the gang-related
convictions and allegations.
Erroneous admission of evidence:
trial court erred by admitting evidence that witness Iniguez
had been assaulted in jail.
trial court erred by admitting the gang expert's
testimony to case-specific hearsay.
Erroneous jury instructions:
jury was erroneously allowed to find defendants guilty or
premeditated first degree murder, as aiders and abettors,
under the natural and probable consequences doctrine.
jury was erroneously allowed to find defendants guilty of
conspiracy to commit attempted murder.
trial court failed to instruct on the financial-gain special
trial court failed to instruct that the multiple-murder
special circumstance, as to an aider and abettor, required
the intent to kill.
trial court failed to instruct on the escape rule for
purposes of felony murder.
trial court failed to instruct on the defense of duress.
Prosecutorial misconduct in closing argument:
prosecutor improperly argued:
felony-murder theory of attempted murder.
lying-in-wait theory of attempted murder.
theory of conspiracy to commit attempted murder.
prosecutor violated defendants' right to remain silent by
commenting on their failure to contradict witness
Sentencing error: The trial court erroneously failed to state
reasons for imposing the upper term for the crime of active
The Crime Scene.
23, 2009, around 10:30 p.m., a motorist on Highway 395 near
Victorville stopped because he saw a man “stumbling in
the middle of the road.” The man had been shot in the
forehead and in the chest. The motorist phoned 911.
the police responded, the victim gave his name as Luis
Romero. He told them that he and two other men had been
kidnapped in South Gate, driven to Victorville, robbed, and
shot. He identified the kidnappers as “Lalo” and
of Romero's blood led to a black Chevrolet Silverado
pickup truck that was parked a few blocks away. In it, the
police found the dead bodies of victims Alejandro Martin and
Eduardo Gomez. They had each been shot multiple times. Empty
cartridge casings showed that at least two guns had been
fired - a 9 millimeter and a.40 caliber.
hands and feet of the bodies were bound with zip ties. A set
of zip ties that Romero had managed to remove was also found
at the scene.
the pickup, there was a black hooded sweatshirt. After
defendant Sandoval was identified as a suspect, DNA from this
sweatshirt was tested and found to be his.
told the police that victims Martin and Gomez dropped him off
at a certain house on Center Street in South Gate. When he
went inside, he was taken captive and forced to phone the
others. The next day, they came to the house, where they,
too, were taken captive.
2, 2009, the police searched the house on Center Street. It
was associated with one Flor Iniguez. The living quarters
were upstairs, over a garage. The house was vacant. However,
the police found zip ties like those found on the victims.
They also found a box of latex gloves.
same day, based on what they learned at the house on Center
Street, the police also searched a house on California Street
in South Gate, also associated with Flor Iniguez. In a van
parked out front, they found approximately 70 pounds of
marijuana. While there, they encountered one Sabas Iniguez.
the house, the police found a card for a storage unit in
South Gate. On July 3, 2009, they went to the storage
facility. There they encountered defendant Perez, who was
driving a BMW. A search of the BMW turned up a loaded
video and sales records from a Target store in South Gate
showed that, on the day of the shooting, at about 12:40 p.m.,
three men - including defendant Perez and defendant Chavez -
bought a box of latex gloves identical to the one found at
the Center Street house.
phone records showed that on the day of the shooting,
defendant Sandoval made 24 calls from the vicinity of the
Center Street house. Additional calls made between 9:45 and
10:30 p.m. showed him going toward Victorville. Calls made
between 10:30 p.m. and midnight showed him coming back from
Testimony of Sabas Iniguez.
Iniguez, nicknamed “Junior, ” testified at trial
pursuant to a plea bargain. It called for him to plead guilty
to the same crimes as defendants were charged with and to
testify truthfully in this case, in exchange for a reduced
The formulation of the plan.
distributed drugs, including methamphetamine, cocaine, and
marijuana. He had several suppliers, including victim Romero.
Victim Martin was victim Romero's boss, and victim Gomez
was victim Martin's driver.
Iniguez was Iniguez's aunt. She worked for Romero as a
“mule, ” transporting drugs. Romero lived in
Mexico; whenever he visited the United States, he would stay
“Max” owed victim Martin money for
methamphetamine. Martin had sent “collectors” to
Max's home in Mexico. Max wanted to eliminate the debt
and also to get revenge on Martin and his people.
weeks before the shooting, Max held a meeting at a
Denny's. Max brought along defendant Sandoval; this was
the first time that Iniguez had ever met Sandoval. Sandoval,
in turn, brought along three men Iniguez did not know. They
were members of a gang called the Bell Gardens Locos. They
were referred to at trial as the “unknowns.”
Iniguez understood that Sandoval and the unknowns worked for
present at the meeting was Eduardo Alvarado, known as
“Lalo.” Alvarado was another one of Iniguez's
suppliers. Alvarado was accompanied by defendant Chavez and
one Cesar Rodriguez; they both worked for him.
most of the talking. The discussion included the fact that
“[s]omebody” owed a debt to the victims and that
“the debt needed to be handled....” During the
meeting, a plan was developed to “get” the
victims “[s]o the debt wouldn't have to be
paid.” To “collect extra, ” they would rob
the victims of money and drugs.
days before the shooting, Max held another meeting, at an El
Pollo Loco. This time, defendant Perez was also there. Perez
lived with Flor Iniguez and worked for her as her babysitter.
Until then, he had not been involved in the drug business.
discussed having all three of the victims come to the Center
Street house, where the participants would grab them and tie
them up. Iniguez and Perez were to act as “bait,
” because the victims knew them and would be
comfortable around them. They were told that they
“would have to go along with it, or else it was going
to be [them] along with [the victims]....”
The execution of the plan.
Sunday (i.e., two days before the shooting), Iniguez,
defendant Perez, defendant Sandoval, defendant Chavez,
Alvarado, Cesar Rodriguez, and the unknowns took up stations
at the Center Street house.
point, Iniguez left for a few hours. While he was away, he
got a phone call saying that Romero had arrived at the house
and had been tied up. When he got back, the others were
making Romero phone victim Martin and victim Gomez to get
them to come back to the house.
told Iniguez and defendant Perez to go out in front of the
house and wash Flor's black GMC pickup truck, so the
victims would feel comfortable. Meanwhile, two other
participants hid in the garage and two more waited in a
and Gomez arrived, in a black Chevrolet pickup truck. They
said hi and walked upstairs. The participants who had been
hiding ran up the stairs behind them and pushed them into the
house. There were sounds of fighting.
20 minutes later, someone told Iniguez and Perez to come
upstairs. All of the other participants were wearing latex
gloves. They had a shotgun and four handguns, including a
9-millimeter and a.40-caliber, which they “passed
around”; whoever was guarding the victims would hold a
participants relieved the victims of their cell phones and
took Martin's expensive watch. They blindfolded the
victims, zip-tied their hands behind their backs, and
duct-taped their feet together. For a while, the victims were
kept in separate bedrooms. Defendant Chavez and others then
brought them out to the living room and seated them on the
couch. Defendant Chavez, armed with a gun, acted as a guard.
ordered the victims to get money and drugs. Victim Martin
arranged for someone to bring 20 pounds of marijuana to the
house. He also arranged the pickup of $100, 000 in
Bellflower. Several participants left to get it, taking
victim Romero with them.
told everyone that after dark, they were going to take the
victims out of the house and drop them off somewhere.
started to get dark, Iniguez and defendant Perez were told to
drive Flor's pickup around the neighborhood and keep a
lookout. They circled the neighborhood several times. On one
pass, they saw victim Romero being walked down the stairs.
vehicles then left the Center Street house in convoy.
Alvarado was driving the victims' pickup, with defendant
Sandoval as his passenger. Sandoval was wearing a black
hooded sweatshirt. Presumably the victims were in the back of
that pickup, where their bodies were later found, but Iniguez
could not see inside because the windows were tinted.
Defendant Chavez was driving Alvarado's pickup, with
Rodriguez as his passenger. Two of the unknowns were in a
gold Chevrolet Tahoe.
and Perez, still in Flor's pickup, were told to follow
the others. However, they made a wrong turn and got separated
from the group. They had not yet caught up when they got a
phone call saying, “it's over with” and they
should go home.
Iniguez's direction, defendant Perez phoned Flor and
asked to borrow some money. Iniguez waited at a Denny's
while Perez went to pick the money up. When Perez got back,
he gave Iniguez $2, 000. Flor later said that the $100, 000
had been divided up among everybody who had been at the
Statements of Defendant Perez.
Perez made a series of statements to the police that were
admitted before his jury only.
Statements at the storage facility.
interviewed at the storage facility, Perez admitted knowing
that the shotgun in the BMW had been used at the Center
Street house, “[i]n the kidnapping that led to the
Statements at the police station on July 3.
3, 2009, the police interviewed Perez again.
said that he lived at the Center Street house along with
Flor, Flor's children, and Iniguez. Alvarado and Flor
were in the drug business.
admitted that he was at the Center Street house when the
victims were there. He also admitted that he personally
blindfolded and zip-tied victim Gomez. The other participants
in the crimes included Alvarado, defendant Chavez, and
Romero was his “good friend.” Romero worked for
victim Martin, selling drugs. The victims were driven away in
their own pickup. Flor's pickup and a third black pickup
were also used in the crimes. He claimed he did not know what
happened to the victims after they left the house.
Statements at the police station on July 6.
police interviewed Perez again on July 6, 2009.
time, Perez explained that Max's boss owed victims Martin
and Romero money for some drugs that had been lost. Romero
had threatened Max's boss, so Max's boss ordered Max
“to kill them.”
Saturday morning (i.e., three days before the shooting),
Iniguez told Perez that they were going to “get”
all three victims - “they were gonna kill ‘em,
... they were gonna take everything they had.”
Saturday night, the participants assembled at the house on
Center Street. Leaving aside Iniguez and Perez, they fell
into two groups. One group was led by Alvarado; it included
defendant Chavez and one of the unknowns. The other group
worked for Max and was led by defendant Sandoval; it included
three more unknowns. They had a shotgun and other guns.
to Perez, “[T]he reason for me to stay there was cuz...
[Sandoval] and them[, ] they wanted to kill him there.”
Flor, however, did not want the victims killed in her house.
She said she would give Perez and Iniguez “a little
money” just “for being there.” Also, Perez
admitted, he was hoping to get work from Sandoval.
Sunday, victim Romero arrived. Defendant Perez went
downstairs and told the others that Romero was there. They
ran upstairs, tied him up, and blindfolded him. Defendant
Chavez tied him up. He told them where some money was hidden.
Monday (i.e., one day before the shooting), the participants
made victim Romero call victims Martin and Gomez and get them
to come to the house.
afternoon, Iniguez and Perez were outside washing Flor's
pickup and two other “guys” were hiding in the
garage when victims Martin and Gomez arrived. As they walked
upstairs, the two guys ran up behind them, grabbed them, and
pushed them inside. Perez and defendant Chavez participated
in binding them.
forced victim Martin to make phone calls in an effort to get
drugs. At some point, the participants took Martin's
watch and Gomez's money. Alvarado and defendant Sandoval
left to consult with Max, then came back and said that they
were going to kill all three of the victims.
and Perez drove Flor's pickup around the block to keep a
lookout. Meanwhile, defendant Sandoval walked the victims
down to the victims' own pickup, one at a time, sat them
in the back seat, and tied them up. Sandoval told Perez,
“[I]f you say something... we're gonna do the same
thing we did to them to you and your family.”
the unknowns drove Sandoval and the victims to Victorville.
Alvarado and defendant Chavez followed in Alvarado's
pickup. Iniguez and Perez also followed, in Flor's
pickup. However, they got lost somewhere in Victorville.
Defendant Sandoval then phoned and said “they had
already killed ‘em.” He added that the unknown
who was driving shot them first, but Alvarado “went
back” and “made sure and shot them again.”
waited at a Denny's while Perez picked up $5, 000 from
Flor for both of them.
Testimony of Sandraluz Garcia.
Garcia was defendant Chavez's girlfriend at the time of
the crimes. Pursuant to a plea agreement, which required her
to testify truthfully in this case, she had pleaded guilty to
acting as an accessory after the fact, with a gang
told her that he and Alvarado were “involved in the
drug business.” They worked for the
“Chapos” drug cartel in Mexico. He also said that
Alvarado had stolen some money from the cartel and was on the
run from them.
testified that, sometime shortly after June 21, 2009, Chavez
said he was going dirt bike riding. She did not hear from him
for three days. The next time she saw him, he had a lot of
money. Later, she saw Alvarado wearing an expensive watch.
hearing that Alvarado had been arrested, Chavez told her that
they had to leave. He explained that Alvarado was in trouble
and was going to try to blame him for it. They went to
Stockton and then to Utah.
to Iniguez, “all the dope coming out of Mexico comes
through one of the cartels....” A cartel member is
supposed to work only with that cartel, though a lower-level
associate might work with another cartel “on the
Martin, and one “Gordo” were all cartel members.
They were each on the same level of the organization; they
did not work with each other. Defendant Sandoval reported to
was also a cartel member. Defendant Chavez reported to
time, Alvarado worked for Gordo. However, “right before
this whole incident happened, ” they had a falling-out,
and Alvarado started getting his drugs from Romero. Alvarado
sometimes also got drugs from Max.
himself sometimes bought drugs from Gordo and sometimes from
Romero. Romero reported to Martin, who reported to Nacho, the
“big boss” in Guadalajara.
Testimony of the gang expert.
Jeffrey Moran testified as an expert on criminal street
gangs. His qualifications are discussed further in part
testified that the Sinaloa drug cartel produces large amounts
of methamphetamine, cocaine, and marijuana and transports
them into the United States. Its primary purpose is the
distribution, transportation, and possession for sale of
drugs. The head of the cartel is “El Chapo”
Guzman. It has approximately 100, 000 to 150, 000
participants worldwide. It goes by several alternative names.
to Officer Moran, the Sinaloa cartel operates like a
franchisor, such as McDonald's. It is subdivided into
territories, which in turn are subdivided into cells. Each
cell “connect[s] up to somebody in the Sinaloa
cartel” but works independently of the other cells.
evidence of a pattern of criminal gang activity, the trial
court took judicial notice that Alvarado, Iniguez, and
Rodriguez had been convicted of murder, attempted murder, and
kidnapping, all committed on June 23, 2009 (i.e., the same
crimes as in this case). In Officer Moran's opinion, all
three men were either members or associates of the cartel.
2009, Ignacio “Nacho” Coronel, based in
Guadalajara, was the number three man in the Sinaloa cartel.
Defendant Chavez once told his girlfriend that Alvarado
worked for a drug cartel in Mexico called
“Chapos.” Also, Iniguez told the police that one
“Nacho, ” in Guadalajara, was “the big
boss” and, specifically, Martin's boss. Officer
Moran concluded that Max and the victims were all members of
one cell of the Sinaloa cartel and that Alvarado was a member
of a separate cell of the Sinaloa cartel.
Officer Moran's opinion, defendant Sandoval was also a
member of the cartel, based on the fact that he had direct
contact with Max and he was “calling the shots”
on the “hit.”
Chavez was either a member or an associate of the cartel,
because he worked for Alvarado.
Perez was a “low level associate” of the cartel.
This opinion was based on Perez's own statement that he
was “pretty much at the bottom” of the cartel,
which Officer Moran took to be an admission that he was, in
fact, in the cartel. It was also based on the fact that
Perez wanted to work for Sandoval and saw the crimes as a
kind of “audition.”
Officer Moran's opinion, the crimes in this case were
committed in association with the cartel.
were tried together, but Perez had a jury separate from
Sandoval and Chavez's jury.
defendant was found guilty on two counts of murder (Pen.
Code, § 187, subd. (a)), one count of premeditated
attempted murder (Pen. Code, §§ 187, subd. (a),
664)), three counts of kidnapping for ransom (Pen. Code,
§ 209, subd. (a)), three counts of kidnapping for
robbery (Pen. Code, § 209, subd. (b)(1)), and one count
of active gang participation (Pen. Code, § 186.22, subd.
connection with the murder counts, six special circumstances
were found true: financial gain (Pen. Code, § 190.2,
subd. (a)(1)), multiple murder (Pen. Code, § 190.2,
subd. (a)(3)), lying in wait (Pen. Code, § 190.2, subd.
(a)(15)), robbery murder (Pen. Code, § 190.2, subd.
(a)(17)(A)), kidnapping murder (Pen. Code, § 190.2,
subd. (a)(17)(B)), and gang-related murder (Pen. Code, §
190.2, subd. (a)(22)).
connection with all counts other than active gang
participation, an enhancement for the discharge of a firearm
by a principal in a gang-related crime causing great bodily
injury or death (Pen. Code, § 12022.53, subds. (d),
(e)(1)) and a gang enhancement (Pen. Code, § 186.22,
subd. (b)) were found true.
defendant was sentenced to a total of nine consecutive life
terms - five without the possibility of parole, three with a
minimum parole period of 25 years, and one with the
possibility of parole - plus three years.
SUFFICIENCY OF THE EVIDENCE
THE MURDERS WERE OF THE FIRST DEGREE
contends that there was insufficient evidence to support the
finding that the murders were in the first degree.
the sufficiency of the evidence to support a conviction is
challenged on appeal, we review the entire record in the
light most favorable to the judgment to determine whether it
contains evidence that is reasonable, credible, and of solid
value from which a trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citation.] Our review must
presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the
evidence. [Citation.]... [T]he relevant inquiry on appeal is
whether, in light of all the evidence, ‘any
reasonable trier of fact could have found the defendant
guilty beyond a reasonable doubt.' [Citation.]”
(People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
murder may be found to be in the first degree on several
alternative grounds, including, as relevant here, if it is:
(1) “willful, deliberate, and premeditated”; (2)
“committed in the perpetration of, or attempt to
perpetrate... robbery... [or] kidnapping”'; or ...