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People v. Mendez

Supreme Court of California

July 1, 2019

THE PEOPLE, Plaintiff and Respondent,
JULIAN ALEJANDRO MENDEZ, Defendant and Appellant.

          Superior Court Riverside County RIF090811 Edward D. Webster Judge

          Randall Bookout, under appointment by the Supreme Court, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland and Ronald S. Matthias, Assistant Attorneys General, Holly D. Wilkens, Meagan J. Beale, Michael T. Murphy, Ronald A. Jakob and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

          Justice Cuéllar authored the opinion of the Court, in which

          Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, Kruger, and Groban concurred.


          CUÉLLAR, J.

         This case concerns the murders of Michael Faria and Jessica Salazar. The People charged three members of a gang called North Side Colton with murdering Faria after he claimed allegiance to a rival gang called West Side Verdugo, and with murdering Salazar after she witnessed Faria's killing. The three gang members charged here were Joe “Gato” Rodriguez, Daniel “Huero” Lopez, and Defendant Julian Alejandro “Midget” Mendez. Mendez was tried jointly with Rodriguez and Lopez, but by a separate jury. Mendez was convicted and sentenced to death. This automatic appeal concerns him alone. We affirm.

         I. Background

         Among the most crucial evidence presented against Mendez at trial was testimony from two people: a friend of the accused, Samuel “Devil” Redmond, who pleaded guilty to first degree murder to avoid the death penalty; and a friend of the victims, Sergio Lizarraga. The following description of the crimes relies primarily on accounts from these two witnesses.

         A. The Murder of Michael Faria

         Redmond and Mendez had been friends since childhood and shared an apartment in Colton, California. At trial, Redmond testified about what happened on the night of the killings. He and Mendez drank alcohol and smoked methamphetamine in their apartment with Lopez, Mendez's eventual codefendant. The three men then set out in Redmond's SUV, a black Nissan Pathfinder, to meet up with friends living at a nearby Four Seasons apartment complex. There, they encountered Mendez's other eventual codefendant, Rodriguez, who suggested they meet some fellow North Side Colton gang members - specifically, Art “Rascal” Luna and his brothers - at their house on Michigan Street in Colton. When the four of them arrived, they saw Luna in a car with a “bunch of kids.” And walking along the street was another group of kids, whom Redmond estimated were 15 or 16 years old.

         Among this latter group were the murder victims in this case: Michael Faria and Jessica Salazar. With them were Lizarraga, Greg Frias, and David Flores. Lizarraga later provided the most detailed witness account of Faria's death. According to Lizarraga's testimony, he and his four companions saw a black SUV park across the street. The man who appeared to have been the driver emerged from the car and walked to the house. Two other men exited the SUV and struck up a conversation with Salazar. Faria and Flores were standing nearby. When Lizarraga beckoned them, they started to walk away. Then one of the two men said to Salazar, “I think I know you.” She turned around and started talking to him again.

         At that moment, the man who appeared to have been driving the SUV walked up to Lizarraga and Faria. Faria asked him, “Where are you from?” Without answering, the man put the question back to Faria. Faria answered, “I back[] up the West.” The man retorted, “Fuck the Westside. North [S]ide Colton.” That worried Lizarraga, who interpreted the back-and-forth as an escalating gang challenge. Seeking to calm the situation, Lizarraga tried to get between the man and Faria, telling the latter, “It's cool. Just chill out, walk away.” Then, as Lizarraga turned around, the man punched him in the face.

         Lizarraga persisted in trying to de escalate the situation. Moments later, he saw Flores being chased. At that point, Faria was still standing next to Lizarraga. But then a group of people descended on Faria and beat him to the ground. Lizarraga, having backed away, started running towards Faria. Someone grabbed Lizarraga by the shirt. Salazar intervened and told Lizarraga's would-be assailant, “No he's cool. He's not from the West.” The man let go. But before Lizarraga could do anything else, someone shot Faria. Lizarraga would later tell law enforcement that he was 75 percent sure Rodriguez shot Faria, but at trial he could not “remember any faces from that night.”

         Redmond testified that, after he alighted from the SUV, he saw Mendez, Rodriguez, and Lopez talking to Salazar. Redmond and Lopez began to walk towards Luna's house across the street, leaving Mendez and Rodriguez with Salazar and her friends. Moments later, Redmond heard an argument. Then, standing with Lopez and Luna, Redmond saw a fight break out and a crowd gathering. A chase involving Mendez and Rodriguez ensued. Redmond stayed put, but Lopez and Luna, the latter of whom had just been handed a gun by his younger brother, started walking towards the fray. Lopez quickly turned around and sprinted back. He told Redmond, “Hurry up. Let's go get Midget.” So the two men ran back to the SUV and started driving. Soon after, they saw Mendez and Rodriguez racing their way. Mendez was holding a gun.

         B. The Murder of Jessica Salazar

         Redmond also testified about the next few minutes, which resulted in a second killing. Once he, Lopez, Rodriguez, and Mendez were back in Redmond's SUV, they saw Salazar on the sidewalk “going hysterical, ” “crying, ” and “not knowing where to go.” Mendez directed Rodriguez to tell Salazar that she should get into the SUV, since they knew each other. Rodriguez did so, and she complied. Mendez told Redmond, “Drive. Get [us] out of here.” After stopping back at the Four Seasons, they entered the freeway and drove. Salazar, meanwhile, was “going nuts, ” crying, and asking repeatedly, “Why did you do that?”

         With fuel running low, Redmond pulled into a gas station. Although at trial his memory of what happened next was “foggy, ” Redmond recalled going to the bathroom with Mendez. Either Lopez or Rodriguez joined them, and the other stayed near the car with Salazar. Mendez said, “She's gotta die.”

         From there, they got back in the SUV and started driving again. Redmond drove for 20 to 30 minutes before coming upon a dirt road. They took it. Eventually, someone said, “I gotta take a piss.” Redmond pulled over, and the four men got out. The area was dark and deserted. “She's gotta die. She's gotta die, ” Mendez repeated. He urged Rodriguez to kill Salazar, saying, “You know her” and “[s]he's going to identify you.” Rodriguez refused. But when Mendez told him to “drag her out, ” Rodriguez pulled Salazar from the SUV. She panicked, crying, “Stop it” and “Don't.” Rodriguez got back in the SUV, leaving Mendez and Redmond alone with Salazar. Mendez was holding a gun, and Salazar was pleading for her life. Mendez told Redmond to hold her. But Salazar tripped. She fell, started to get up, raised her hands - and Mendez shot her.

         Moments later, someone saw a car approaching and said, “Come on, let's go.” Mendez responded, “No, I have to put two in her head.” He tried to shoot Salazar again, but the gun jammed. Seeing this, and wary of the oncoming car, Redmond said, “I'm leaving.” Mendez gave up on trying to clear the jam and got into the car with Redmond, Lopez, and Rodriguez. They drove off into the night.

         C. Aftermath

         Redmond further testified about what happened after he, Rodriguez, Lopez, and Mendez departed from the scene of Salazar's killing. They set out for Redmond and Mendez's apartment. During the drive, Mendez suggested burning the SUV to get rid of the vehicle, saying he wanted to ensure they “[c]an't tie it back to me.” Redmond responded, “You're fucking crazy. It's my truck. I paid for it.”

         When they arrived at the apartment, Mendez directed Redmond not to park in front of the building. Once inside, Mendez took everyone's shoes and clothing and put them in a bag. He also walked them through setting up alibis. Mendez suggested that Redmond and Lopez say that they were at a motel the whole night with two female friends. Mendez planned to say he was with his girlfriend at the apartment. It is unclear whether Rodriguez crafted an alibi. Several days later, Mendez's older brother told Redmond to switch the tires on his SUV with those from a white Isuzu Rodeo - an SUV similarly sized to Redmond's Nissan Pathfinder - which Redmond did. Mendez was later arrested driving the Rodeo, and its tires matched the tracks found near Salazar's body.

         D. Trial

         At the guilt phase of his trial, a jury found Mendez guilty of first degree murder for the killings of both Faria and Salazar. It also found true two special circumstances: that Mendez committed multiple murders under Penal Code section 190.2, subdivision (a)(3) and, as to the Salazar murder, that he killed a witness to prevent her testimony in a criminal proceeding under section 190.2, subdivision (a)(10).[1] Finally, the jury found three enhancements to be true. It found that Mendez personally discharged a firearm causing the deaths of both Faria and Salazar, within the meaning of section 12022.53, subdivision (d); that he personally discharged a firearm causing the deaths of both Faria and Salazar for the benefit of, at the direction of, or in association with a criminal street gang, within the meaning of sections 12022.53, subdivision (e), and 186.22, subdivision (b)(1); and that he committed both murders for the benefit of, at the direction of, or in association with a criminal street gang, within the meaning of section 186.22, subdivision (b)(1).

         At the penalty phase, the jury returned a death sentence against Mendez on the two counts of first degree murder, which the trial court imposed. The trial court also sentenced Mendez to 56 years to life in prison on the enhancements.

         II. Discussion

         Mendez mounts multiple challenges to his convictions and death sentence, which we consider in turn. None warrants reversal.

         A. The Gang Expert's Testimony

         A law enforcement gang expert named Jack Underhill testified at Mendez's trial. His testimony addressed gang culture, the rivalry between the two gangs involved in this case, and Mendez's prior contacts with law enforcement. Mendez argues that the trial court erred by permitting Underhill's testimony about Mendez's prior contacts with police, as well as his testimony about two other gang-related shootings. Mendez argues that these portions of Underhill's testimony were improper for two reasons. First, he argues they were irrelevant or, at the very least, substantially more unfairly prejudicial than probative. (See Evid. Code, §§ 350, 352.) Second, he contends they contained testimonial hearsay that, under our decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), was inadmissible.

         We begin by describing Underhill's testimony in some detail. Then we analyze the portion of his testimony chronicling Mendez's prior police contacts. On this record, we conclude the trial court did not abuse its discretion in finding this testimony relevant and its probative value not substantially outweighed by the risk of unfair prejudice. We further conclude Mendez failed to preserve his claim of Sanchez error arising from this portion of Underhill's testimony. As for Underhill's testimony about two other gang-related shootings, any error in admitting it was harmless under any standard.

         1. Facts

         Mendez and his codefendants stipulated that North Side Colton “is a criminal street gang... whose members have engaged in a pattern of criminal gang activity, including, but not limited to, murder, attempt[ed] murder, drive-by shooting, robberies, carjackings and witness intimidation.” They further stipulated that they “are, and were at all relevant times, members” of that gang. At trial, the People called Underhill as an expert witness on criminal gangs. Underhill was a 10-year veteran of the Colton Police Department possessing extensive experience with local gangs, including North Side Colton and West Side Verdugo.

         Underhill described how he and other officers tracked gang activity in the area. Specifically, he told the jury that officers regularly fill out reports called “S.M.A.S.H. cards” - which stands for “San Bernardino County Movement Against Street Hoodlums.” Whenever they contact gang members or suspected gang members, officers “briefly talk with them and try to find out exactly what their involvement” with the gang is. They also take a photo if necessary. Officers record the information on S.M.A.S.H. cards, which the police department collects and maintains. But Underhill admitted that anyone reading a S.M.A.S.H. card is “at the mercy” of whichever officer filled it out in terms of accuracy.

         Underhill also described various aspects of gang culture. He explained how gangs often have characteristic hand signs and tattoos that members use to identify themselves. They also induct new members through various forms of initiation. Underhill further explained that gangs tend to establish themselves in certain geographic areas - what gang investigators call “turf.” Given this emphasis on turf, simply asking, “Where are you from” is a direct challenge in gang culture. Because gangs are particularly concerned with earning “respect” - which, according to Underhill, is more about instilling fear - such challenges demand an immediate reply. And violent acts committed by one gang against another demand an even more violent response.

         Underhill then chronicled for the jury the longstanding rivalry between Mendez and his codefendants' gang (North Side Colton) and Faria's gang (West Side Verdugo). Underhill explained that those two gangs shared “a well known hatred that's been going on for years due to numerous incidents.” One of those incidents was the 1994 murder of North Side Colton member Jesse “Sinner” Garcia. Another such incident was the July 1998 murder of Cindy Rodriguez - the mother of Mendez's codefendant, Joe “Gato” Rodriguez.

         Faria - the first victim in this case - was killed on February 4, 2000. After confirming that Underhill had heard Lizarraga's testimony about the Faria killing, the People asked Underhill to evaluate Lizarraga's description of what was said at the start of the fatal encounter. In Underhill's opinion, the back-and-forth that ensued after Faria asked “Where are you from” meant that “the situation [wa]s escalating” and getting “[m]ore and more dangerous.” Killing Faria would “build[] a reputation in the gang world that North Side Colton will do this kind of thing... in hopes that other gangs will fear them.” For that reason, Underhill agreed that the Faria shooting was “committed for the benefit of, at the direction of, [and/or] in association with... members of North Side Colton.” Underhill further opined that there was “no doubt in [his] opinion that [Salazar] was killed because she could identify” the gang members who shot Faria, basing that view in part on Redmond's testimony “that Mendez said the girl had to die.” So the Salazar shooting was also, in Underhill's opinion, committed for the benefit of, at the direction of, and in association with members of North Side Colton.

         Underhill went on to chronicle five contacts Mendez had with police in the years before the Faria and Salazar murders. Those contacts were documented on a “gang board” displayed to the jury. Underhill was not present for those contacts, and the officers who were present did not testify at trial. The People first asked Underhill whether officers from his department encountered Mendez on May 1, 1994 while investigating the shotgun killing of a rival gang member John Rojas. Underhill told the jury that Mendez was present for the murder and that detectives questioned him about it. Mendez allegedly admitted the following to the investigating officers: he “heard two or three shotgun blasts, ” “saw the victim on the ground, ” and fled the scene in a car with the alleged shooter - Art Luna's brother, Daniel “Chato” Luna.

         Four days later, Underhill continued, a police officer stopped a car with Mendez inside. Also in the car were Daniel Luna (Rojas's alleged killer), Jesse Garcia (who would be gunned down just weeks later), and a third member of North Side Colton. Seven days after that, Underhill asserted Mendez was found by other officers “riding in a stolen [car] after a long high speed chase” that ended with the car crashing into a police vehicle. Two other members of North Side Colton were in the stolen car with Mendez. The investigating officer filled out a S.M.A.S.H. card about the incident, on which Mendez purportedly drew gang graffiti and admitted being a member of North Side Colton with the gang moniker “Midget.” According to Underhill, “Daniel Luna was charged with the murder of Rojas, ” but Mendez “was not charged with any crime in any way relating to the shooting of Rojas.” Underhill further asserted that law enforcement never made a connection between the Rojas and Garcia killings.

         Underhill next relayed to the jury a fellow officer's account of an alleged drive by shooting that occurred on December 7, 1995. That officer heard multiple gunshots and saw a car in the “immediate vicinity driving ten miles per hour.” The officer pulled the car over. A member of North Side Colton was driving, and Mendez was in the passenger seat. Inside the car, Underhill continued, the officer found “a fully-loaded.22 caliber handgun in the center console, ” along with a “fully loaded M1.30 caliber carbine, a loaded SKS 7.62 high-powered rifle, a loaded 12-gauge shotgun and a.38 caliber revolver” in the trunk. The barrel of the shotgun, according to Underhill's description of the officer's account, “was still warm to the touch.” The officer patted down Mendez and found a live.22-caliber round in Mendez's pants pocket, along with two more such rounds on the ground nearby.

         Finally, Underhill told the jury about another contact Mendez had with police on a street corner in October 1996. Mendez, according to Underhill, told the officers on scene that he was a member of North Side Colton.

         2. Analysis of the Gang Expert's Testimony Chronicling Mendez's Prior Police Contacts

         On this record, the trial court did not commit reversible error by letting Underhill tell the jury that other officers had previously: (1) questioned Mendez after Rojas's murder and obtained an admission that he fled the scene in the same car as the alleged killer, a fellow North Side Colton member; (2) stopped a car in which Mendez was again riding with Rojas's alleged killer; (3) found Mendez with North Side Colton members in a stolen car that crashed into a police vehicle after a high-speed chase; (4) stopped Mendez and a fellow North Side Colton member driving suspiciously near an apparent drive-by shooting and discovered an arsenal of guns inside the car; and (5) had a conversation with Mendez during which he admitted being a member of North Side Colton.

         Testimony about these five prior police contacts was relevant, and the trial court did not abuse its discretion in declining to find that the probative value of this testimony was substantially outweighed by the risk of unfair prejudice. (See Evid. Code, §§ 350, 352.) By showing Mendez's “commitment to” North Side Colton, this testimony was relevant to proving the charged gang enhancements and, relatedly, to explaining Mendez's motive for committing the murders. (People v. Valdez (2012) 55 Cal.4th 82, 131.) We recognize that gang-related evidence “creates a risk the jury will improperly infer the defendant has a criminal disposition” and that such evidence should therefore “be carefully scrutinized by trial courts.” (People v. Carter (2003) 30 Cal.4th 1166, 1194 (Carter).) But on this record, Mendez's prior police contacts had considerable probative value. Taken together, they tended to show Mendez actively involved himself in the gang's criminal activities, rather than just passively claimed the gang among his peers. What's more, the trial court “properly instructed the jury on the limited purposes for which it was admitting the gang evidence.” (Id. at p. 1196.) So under our precedents, we cannot say the trial court abused its discretion. (See, e.g., ibid.; People v. Williams (1997) 16 Cal.4th 153');">16 Cal.4th 153, 192 [holding that the trial court did not abuse its discretion in admitting gang evidence, including testimony that the defendant led a meeting between two gangs where they planned to kill rival gang members]; People v. Gutierrez (2009) 45 Cal.4th 789, 819-820 [holding that the trial court did not abuse its discretion in admitting gang evidence, including notes to fellow gang members recovered in defendant's cell that contemplated the intimidation and murder of prosecution witnesses].)

         Mendez makes, and we reject, another argument about Underhill's testimony. Mendez contends that, under our decision in Sanchez, the trial court erred by letting Underhill testify about Mendez's prior police contacts. Like this case, Sanchez involved testimony from a gang expert. (Sanchez, supra, 63 Cal.4th at p. 670.) What we recognized in Sanchez is that an expert witness may rely on hearsay in explaining the basis for his or her “general knowledge” about “matters ‘beyond the common experience of an ordinary juror.' ” (Id. at p. 676, quoting People v. McDowell (2012) 54 Cal.4th 395, 429.) An expert may also “rely on information within [his or her] personal knowledge” and “give an opinion based on a hypothetical including case specific facts that are properly proven” by other admissible evidence. (Sanchez, at p. 685.) “What an expert cannot do, ” we held in Sanchez, “is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.) And if, in a criminal case, 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.” (Ibid.)

         The People concede that much of Underhill's testimony about Mendez's prior police contacts amounted to testimonial hearsay under Sanchez. But given the specific circumstances of this case, we conclude Mendez failed to preserve his claim of Sanchez error as to that portion of Underhill's testimony.

         The relevant facts are as follows. Counsel for Mendez's codefendant (Lopez) lodged a hearsay objection to Underhill's proposed testimony about Lopez's prior police contacts. Those contacts were documented on a gang board similar to the one used in connection with Underhill's testimony about Mendez. This led the trial court to acknowledge that Lopez's attorney had “a good point about the hearsay, ” and to indicate that it would allow this aspect of Underhill's testimony only with “proper foundation.” In response, the prosecutor represented to the court and the defendants that “every one of those officers is available to be called as a witness” if need be - but suggested they “allow the gang expert to testify essentially to what's [on the gang boards] rather than have a parade of uniforms come in here one after the other.” In light of that representation, the trial court informed Lopez's attorney that whether the percipient-witness officers would testify was thus “your choice.” Mendez's counsel was present throughout this discussion. But he elected not to make a hearsay or confrontation clause objection.

         At a subsequent hearing, Mendez's attorney went through his client's gang board with the trial court. He reiterated for the record “a general objection to the board, ” but then clarified that his “objection [wa]s that it's highly prejudicial” - not that the information, if admitted only through the expert, would be inadmissible hearsay. Mendez's attorney and the trial court then went through each police contact documented on Mendez's gang board one by one. The prosecutor again represented that the on-scene officers were under subpoena and available to testify. At no point did Mendez's attorney make a hearsay or confrontation clause objection.

         After Mendez's attorney left the courtroom because of another obligation, Lopez's attorney informed the trial court he would stipulate to foundation and allow Underhill to testify about his client's prior police contacts. Lopez's attorney agreed that having the expert testify about the contents of the board “would avoid having the [on-scene officer] come forward and bring in some more juicy details like they always do.” The trial court described that as a “tactical reason” for not persisting in making a hearsay objection.

         Later in the proceedings, the trial court noted that it had “allowed hearsay” and “[n]obody has objected to anything on the [gang] boards.” Mendez's attorney was present for that remark but did not challenge the trial court's assertion. Nor did he attempt to lodge a hearsay or confrontation clause objection.

         So even though we did not decide Sanchez until well after Mendez's trial, the trial court made clear it would sustain a hearsay objection to Underhill's testimony about Mendez and his codefendants' prior police contacts. And the prosecutor represented that, if such an objection were made, the officers with firsthand knowledge of those contacts were available to take the stand. That matters. Those officers could (at the very least) have testified as percipient witnesses to their own observations and relayed to the jury Mendez's own out-of-court admissions. (See Evid. Code, § 702 [allowing lay witnesses to testify only to matters about which they have personal knowledge]; id., ยง 1220 [allowing out-of-court admissions by an opposing party to be ...

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