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People v. Perez

California Court of Appeals, Fourth District, Second Division

November 3, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
JOSE LUIS PEREZ et al., Defendants and Appellants.

         APPEAL 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 Sandoval.

          Kamala 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.

         ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

         THE COURT:

         The opinion filed in this matter on October 25, 2017 is modified as follows:

         1. On page 11, in the third full paragraph, delete the sentence:

         Defendant Chavez was driving Alvarado's pickup, with Rodriguez as his passenger.

         and substitute the sentence:

         Rodriguez was driving Alvarado's pickup, with defendant Chavez as his passenger.

         2. On page 34, in the second full paragraph, delete the sentence:

         He also drove one of the pickups to Victorville.

         and substitute the sentence:

         He also rode along in one of the pickups to Victorville.

         3. On page 82, delete all of section XVIII.B.1, entitled “Forfeiture.”

         4. On page 83, delete the subheading:

         2. Merits.

         5. On page 83, delete the sentence:

         Separately and alternatively, we also reject this contention on the merits.

         and substitute the sentence:

         We assume, without deciding, that counsel for Sandoval and Chavez did not forfeit their clients' present contention.

         Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment.

         Appellant Chavez's petition for rehearing is denied.

          OPINION

          RAMIREZ P. J.

         A drug 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 them.

         Max 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, [1] 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 same cartel.

         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 bargain.

         Defendants were convicted of multiple first degree murders, with special circumstances, as well as other crimes. They now appeal.

         In the 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 case-specific hearsay.

         In the 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 error.

         I

         SUMMARY OF DEFENDANTS' CONTENTIONS

         In this appeal, [2] defendants raise the following contentions regarding:

         1. Insufficiency of the evidence:

         a. There was insufficient evidence of first degree murder on a theory of:

         i. Premeditation.

         ii. Either robbery murder or kidnapping murder.

         iii. Lying-in-wait murder.

         b. 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 special circumstances.

         c. 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 circumstances.

         d. There was insufficient evidence that the shooting occurred during a period of lying in wait to support the lying-in-wait special circumstance.

         e. There was insufficient evidence to support the financial-gain special circumstance.

         f. There was insufficient evidence that defendants had the intent to kill for purposes of the attempted murder of the victim who survived.

         g. There was insufficient evidence of asportation of two of the victims to support the convictions of kidnapping them for robbery.

         h. There was insufficient evidence to support the gang-related convictions and allegations.

         2. Erroneous admission of evidence:

         a. The trial court erred by admitting evidence that witness Iniguez had been assaulted in jail.

         b. The trial court erred by admitting the gang expert's testimony to case-specific hearsay.

         3. Erroneous jury instructions:

         a. The jury was erroneously allowed to find defendants guilty or premeditated first degree murder, as aiders and abettors, under the natural and probable consequences doctrine.

         b. The jury was erroneously allowed to find defendants guilty of conspiracy to commit attempted murder.

         c. The trial court failed to instruct on the financial-gain special circumstance.

         d. The trial court failed to instruct that the multiple-murder special circumstance, as to an aider and abettor, required the intent to kill.

         e. The trial court failed to instruct on the escape rule for purposes of felony murder.

         f. The trial court failed to instruct on the defense of duress.

         4. Prosecutorial misconduct in closing argument:

         a. The prosecutor improperly argued:

         i. A felony-murder theory of attempted murder.

         ii. A lying-in-wait theory of attempted murder.

         iii. A theory of conspiracy to commit attempted murder.

         b. The prosecutor violated defendants' right to remain silent by commenting on their failure to contradict witness Iniguez's testimony.

         5. Sentencing error: The trial court erroneously failed to state reasons for imposing the upper term for the crime of active gang participation.

         II

         FACTUAL BACKGROUND

         A. The Crime Scene.

         On June 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.

         When 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 “Junior.”

         A trail 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.

         The 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.

         Inside 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.

         B. The Investigation.

         Romero 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.

         On July 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.

         That 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.

         Inside 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 shotgun.

         Surveillance 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.

         Cell 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 Victorville.

         C. Testimony of Sabas Iniguez.

         Sabas 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 sentence.

         1. The formulation of the plan.

         Iniguez 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.

         Flor 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 with Flor.

         One “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.

         A few 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 Max.

         Also 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.[3]

         Max did 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.

         A few 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.

         They 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]....”

         2. The execution of the plan.

         On 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.

         At one 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.

         Alvarado 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 parked car.

         Martin 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.

         About 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 gun.

         The 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.

         Alvarado 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.

         Alvarado told everyone that after dark, they were going to take the victims out of the house and drop them off somewhere.

         Once it 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.

         Four 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.

         Iniguez 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.

         At 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 house.

         D. Statements of Defendant Perez.

         Defendant Perez made a series of statements to the police that were admitted before his jury only.

         1. Statements at the storage facility.

         When 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 homicide.”

         2. Statements at the police station on July 3.

         On July 3, 2009, the police interviewed Perez again.

         Perez 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.

         He 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 defendant Sandoval.

         Victim 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.

         3. Statements at the police station on July 6.

         The police interviewed Perez again on July 6, 2009.

         This 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.”

         On 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.”

         On 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.

         According 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.

         On 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.

         On 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.

         That 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.

         Alvarado 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.

         Iniguez 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.”

         One of 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.”

         Iniguez waited at a Denny's while Perez picked up $5, 000 from Flor for both of them.

         E. Testimony of Sandraluz Garcia.

         Sandraluz 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 enhancement.

         Chavez 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.

         She 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.

         After 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.

         F. Gang Evidence.

         1. Iniguez's testimony.

         According 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 sly.”

         Max, Martin, and one “Gordo”[4] 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 Max.

         Alvarado was also a cartel member. Defendant Chavez reported to Alvarado.

         At one 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.

         Iniguez himself sometimes bought drugs from Gordo and sometimes from Romero. Romero reported to Martin, who reported to Nacho, the “big boss” in Guadalajara.

         2. Testimony of the gang expert.

         Officer Jeffrey Moran testified as an expert on criminal street gangs. His qualifications are discussed further in part VIII.A, post.

         He 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.

         According 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.

         As 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.

         As of 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.

         In 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.”

         Defendant Chavez was either a member or an associate of the cartel, because he worked for Alvarado.

         Defendant 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.[5] It was also based on the fact that Perez wanted to work for Sandoval and saw the crimes as a kind of “audition.”

         Also in Officer Moran's opinion, the crimes in this case were committed in association with the cartel.

         III

         PROCEDURAL BACKGROUND

         Defendants were tried together, but Perez had a jury separate from Sandoval and Chavez's jury.

         Each 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. (a)).

         In 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)).

         In 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.

         Each 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.[6]

         IV

         THE SUFFICIENCY OF THE EVIDENCE

         THAT THE MURDERS WERE OF THE FIRST DEGREE

         Perez contends that there was insufficient evidence to support the finding that the murders were in the first degree.

         “When 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.)

         A 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 ...


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