United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
is currently in state prison serving a sentence of
thirty-eight years for his conviction for three counts of
residential robbery in concert, two counts of first degree
burglary, and one count each of carjacking, felon in
possession of a firearm, extortion, criminal threats,
dissuading a witness, and conspiracy. He filed the instant
habeas petition challenging the conviction. As discussed
below, the Court finds the claims to be without merit and
recommends the petition be DENIED.
stands convicted of three counts of residential robbery in
concert, two counts of first degree burglary, and one count
each of carjacking, felon in possession of a firearm,
extortion, criminal threats, dissuading a witness, and
conspiracy. (Doc. 16 at 10.) He is serving an aggregate
prison sentence of thirty-eight years. Id.
Fifth DCA noted that the case primarily concerned the
admissibility of evidence in light of and People v.
Sanchez (2016) 63 Cal.4th 665, which was decided while
the appeal was pending. People v. Lopez, 2018
Cal.App. Unpub. LEXIS 7177, at *1 (Cal.App. 5th Dist. October
19, 2018). Petitioner further alleged ineffective assistance
of counsel and sentencing error on appeal. Id. The
Fifth DCA concluded that the Sanchez claims had
merit and warranted reversal of the gang participation
convictions and related enhancements, and that Petitioner was
subject to retrial on those charges. Id. at *1-2.
The Fifth DCA additionally concluded that three duplicative
counts of conviction for first degree robbery must be vacated
and dismissed, and the remaining verdicts would stand.
Id. at *2. Accordingly, the Fifth DCA affirmed in
part, reversed in part, and remanded for further proceedings.
filed the instant habeas petition on May 9, 2019. (Doc. 1.)
Respondent filed its answer on August 6, 2019. (Doc. 16.)
Court adopts the Statement of Facts in the Fifth DCA's
Defendant was charged in a consolidated information with
offenses committed against three victims during two separate
incidents. As to events involving J.A. (victim 1), he was
accused of first degree robbery in concert (Pen. Code,
§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A);
counts 1 & 8); carjacking (§ 215, subd. (a); count
2); residential burglary (§§ 459, 460, subd. (a);
count 3); carrying a loaded firearm as an active gang member
(§ 25850, subd. (c)(3); count 4); possession of a
firearm by a convicted felon (§ 29900, subd. (a); count
6); and active participation in a criminal street gang
(§ 186.22, subd. (a); count 7). Codefendants James
Delacruz, Adrian Hernandez, and Frank Simental were also
charged in counts 1-4 and 7-8. Count 5 alleged a violation of
section 422 (criminal threats) by codefendant Hernandez only.
Gang enhancement allegations (§ 186.22, subd. (b)) were
included in counts 1, 2, 3, 6, and 8. Firearm enhancement
allegations (§ 12022.53, subds. (b), (e)(1)) were
included in counts 1, 2, and 8.
As to events involving T.C. (victim 2) and M.L. (victim 3),
defendant and codefendant Delacruz were charged with first
degree robbery in concert (counts 9-12); extortion of victim
2 by threat of injury (§§ 518, 519; count 13);
residential burglary (count 14); carrying a loaded firearm as
an active gang member (count 15); making criminal threats
against victim 2 (count 16); attempting to dissuade a witness
(victim 2) by means of force or fear (§ 136.1, subd.
(c)(1); count 17); conspiracy to commit robbery (§ 182,
subd. (a)(1); count 18); and active participation in a
criminal street gang (count 19). Gang enhancement allegations
were included in counts 9-14 and 16-18. Firearm enhancement
allegations were included in counts 9-12 and 18.
Defendant was further alleged to have suffered a prior strike
and serious felony conviction (§§ 667, subds. (a),
(c)-(j), 1170.12, subds. (a)-(e)) and to have served two
prior prison terms (§ 667.5, subd. (b)). The recidivism
allegations were found true in a bifurcated bench trial.
Defendant and codefendant Delacruz were jointly tried on the
remaining charges before separate juries in August and
September 2015. Codefendants Hernandez and Simental
reportedly pleaded out of the case in July 2015.
Victim 1 lived at an apartment complex in Delano. On July 12,
2014, four male intruders kicked open his front door and
entered the residence. One person stood near the doorway
while another roamed the apartment. The other two men,
respectively armed with a knife and a gun, accosted the
victim and demanded money and a vehicle. After threatening
him with bodily harm, they took $40 in cash and the keys to a
truck owned by his friend, M.Q., which was parked outside.
The group departed with the money, the keys, and the
victim's cell phone, warning they would kill him if he
reported the incident.
Frightened by the ordeal, the victim remained in his living
room for an extended period of time. When he finally looked
outside, he saw the truck was missing. He borrowed a
neighbor's phone to call M.Q. and told him about the
robbery. M.Q. came to his apartment and, once there, called
911. During the call, the dispatcher asked if any of the
perpetrators' identities were known. M.Q. relayed this
question to the victim and repeated his answer to the
dispatcher: "Israel Lopez." Later that day, while
speaking with Officer Leonel Santos of the Delano Police
Department, victim 1 again referred to defendant by name and
identified him from a photographic lineup as the gunman.
On July 13, 2014, police located M.Q.'s truck along a
road near the county border. Codefendant Hernandez was seen
walking away from the vehicle. He was accompanied by two
females, including a woman named Lisa Esparza. They were
questioned and released, but police arrested Hernandez and
defendant later that afternoon. Victim 1 identified Hernandez
from a photographic lineup the same day. One of
Hernandez's shoes was later matched to an imprint found
on the victim's apartment door.
On July 15, 2014, victim 1 provided a detailed account of the
robbery in a video-recorded interview with Michael Strand, a
Delano police officer and gang investigator. He again claimed
to have recognized defendant, identifying him by name, and
said he saw one of the other robbers in his neighborhood the
following day, July 13. The victim provided a physical
description of this person, estimating he was 20 years old,
and stated a relative had told him his name was James
Delacruz. Victim 1 later identified codefendant Delacruz,
then age 18, from a photographic lineup.
Victim 1 also told Officer Strand the defendant was a reputed
"Northerner," i.e., a Norteño gang member.
He denied any personal involvement with gangs and claimed he
knew defendant from childhood but had not seen him since
their days of attending elementary school together. The
latter assertion was untrue. Defendant, then age 30, was
nearly 11 years younger than him and could not have been his
schoolmate in grade school.
In a subsequent interview, victim 1 admitted to having had a
tense encounter with defendant a decade earlier, circa 2004.
At the time, defendant mistakenly believed victim 1 was a
gang member who had moved into the area "to run the
North." Defendant pulled a knife on him and said,
"if anybody takes over Delano it's going to be
[me]." Third parties intervened, and the
misunderstanding was peacefully resolved.
On July 31, 2014, victim 1 attended a preliminary hearing and
testified against Delacruz, Hernandez, and defendant. He
identified Delacruz as the lookout, Hernandez as the person
with the knife, and defendant as the gunman. During the
hearing, defendant allegedly glared at him and either he or
Hernandez made a slashing gesture across his throat. Victim 1
later told Officer Strand that defendant's brother,
Adrian Garner, tried to intimidate him in the courthouse
hallway. Garner had allegedly "made an aggressive
gesture" and, while looking at victim 1, "put a
scalpel on his face." In August 2014, fingerprints
lifted from M.Q.'s stolen truck were matched to Lisa
Esparza and codefendant Simental. Simental was charged on
August 29, 2014.
In September 2014, during a recorded conversation with
Officer Strand, victim 1 claimed an anonymous caller had
instructed him to prepare a notarized letter retracting his
allegations against defendant. He was also told not to return
to court. The caller warned that he and his family members
would be killed if he disobeyed.
In July 2015, victim 1 was jailed for failure to comply with
a trial subpoena. When he testified the following month, he
proved to be a reluctant and dubious witness. Victim 1 denied
knowing defendant or recognizing him as one of the robbers.
He also denied implicating him in earlier stages of the case.
Portions of his testimony were impeached and refuted by the
recorded police interviews, a transcript of the 911 call, and
through the testimony of Officers Santos and Strand. Amid
further conflicting testimony, victim 1 confirmed
defendant's involvement in the robbery.
On cross-examination, victim 1 acknowledged two notable
details. Besides the truck and his own property, the robbers
had stolen a tablet computer belonging to one of his
relatives, A.A. They had also asked him, "Where is the
dope?" As will be explained, the portrayal of victim 1
as a drug dealer was an important part of the defense case.
On or about July 13, 2014, another home invasion robbery
occurred in Delano. The victims did not initially report the
crime. However, in one of his conversations with Officer
Strand, victim 1 mentioned being told "there had been
another home invasion by the same people." On August 20,
2014, Officer Strand located victim 2 and questioned him
about the rumored incident.
Officer Strand made an audio recording of his first meeting
with victim 2. Victim 2 confirmed he was robbed and, when
asked who did it, said, "[S]ome guy named Isr[ael] and
uh, 3 of his friends. [¶] ... [¶] ... I didn't
report it or anything like that. He said don't report it.
And now these guys, they don't mess around, so I was
afraid of a bullet." He noted one of the robbers,
"some kid," had pointed a gun at his head.
Following a brief conversation at his home, victim 2
accompanied Officer Strand to the police station for a
video-recorded interview. According to his statements, the
incident occurred on a Sunday morning, around 8:00 a.m., and
began with someone attempting to kick open his front door. He
looked out a window and saw people walking away. Minutes
later, a female friend inside the apartment, victim 3,
unlocked or opened the front door and the intruders came
inside. He suspected victim 3 knew the perpetrators and
implied she must have been complicit in the robbery since she
had opened the door.
When the robbers entered the apartment, one of them pointed a
revolver at victim 2. Defendant, although not the gunman,
"did all the talking." He instructed both victims
to keep their heads down and told victim 2, "'You
work for us now.'" Victim 2 interpreted this to mean
defendant was under the mistaken impression that he was a
drug dealer. The robbers looked through the residence and
left with a cell phone and a laptop computer.
The robbers attempted to mask themselves with their shirts,
but victim 2 recognized defendant and caught a glimpse of
another person's face. He had met defendant on prior
occasions and told Officer Strand, "There's just no
mistaking him." Victim 2 described defendant as
"kind of stocky[, ] like he lifts weights," and
noticeably older than the other robbers, whom he
characterized as "youngsters, [in their] early
Victim 2 identified codefendant Delacruz from a photographic
lineup. However, when identifying the person he knew as
"Israel," he selected a photograph of
defendant's brother, Adrian Garner. The record describes
defendant and his brother as having similar facial features
but different physiques. According to testimony by Officer
Strand, defendant's brother was approximately
"five-foot-six" and had a "medium to thin
build." Defendant was five inches taller and "built
heavy like a weight lifter."
In October 2014, Officer Strand contacted victim 2 to conduct
additional photographic lineups. Victim 2 became upset,
making references to "Northerners" and saying
"this wasn't supposed to happen." He refused to
cooperate further, but apparently identified another
eyewitness to the crime, S.R.
At trial, victim 2 testified to most of the facts set forth
in his police interviews. He added details regarding two
female witnesses, S.R. and R.R., and claimed to now believe
S.R. had been responsible for opening his apartment door
prior to the robbery. Victim 2 further testified that S.R.
had introduced him to someone named Israel a few days prior
to the incident. She later warned him, based on her
conversations with Israel, that "some guys ... are going
to probably rob you." (Full capitalization omitted.)
After being asked to look at defendant and Delacruz in court,
victim 2 denied recognizing them. He admitted defendant has a
"stocky build" and "look[s] like he lift[s]
In December 2014, Officer Strand located and interviewed S.R.
at her home. Her account of the incident began in early July
2014, when she was staying at victim 2's apartment as a
guest. Defendant came to the residence approximately one week
prior to the robbery. S.R. answered the door and was
surprised to see defendant, whom she knew but had not seen
since he was a boy. Defendant was nine years younger than her
and had been a childhood friend of her late brother-in-law.
Defendant told S.R. he was looking for victim 2 and that her
presence "put a wrench in [his] program." He then
explained victim 2 was rumored to be dealing drugs. S.R. knew
of defendant's gang ties and had a general understanding
or belief that Northerners "tax" drug dealers. S.R.
assured him victim 2 was merely a user, not a dealer. He
replied, "'Well, ... just make sure he know, you
know, don't be sellin' nothin', 'cause if I
find out he's sellin' somethin', then I'm
gonna come back.'"
Victim 2 came home in the middle of S.R.'s conversation
with defendant. She introduced them to each other and victim
2 went inside, leaving S.R. and defendant alone on the front
porch. Next, defendant told S.R. he needed money and asked if
she could broker a loan from victim 2. She spoke with victim
2 and he agreed to lend defendant $40. At S.R.'s
insistence, defendant left his iPod as collateral. He repaid
the loan within 48 hours, and she returned his iPod. The
robbery occurred a few days later.
Recalling the crime, S.R. said she was awakened by the sound
of someone pounding on the apartment door. Victim 2 looked
outside and made a remark about "gangsters runnin'
up the alley." Victim 3 and a third woman, R.R., were
also present. A few minutes later, S.R. exited the apartment
and saw four or five people making a "b[ee]line"
for the door. She recognized defendant and told him,
"Don't you dare hurt [victim 2]." Defendant
said "it wasn't his call, but he wasn't going to
hurt him," and proceeded into the apartment. She
remained outside until the group exited. They
"scattered" while fleeing the scene.
When S.R. went back inside, she found her purse upturned and
discovered her cell phone was missing. Angered by the theft
of her new phone, she ran out of the apartment in pursuit of
the robbers. She "chased [defendant] down" and
demanded her phone. He said to her, "'Come on-come
on, just be [quiet]. Just don't be loud. Don't be
crazy. ... We'll go get your phone right now.'"
S.R. walked with him "down to the end of the
street" and saw people "scattering in and out of
[a] house." She recognized three people from the
robbery. Defendant went up to one of them and said,
"'Give her back her phone, '" which he did.
S.R. was later told that victim 3 "was step-sister to
one of the people that were involved." The information
came from an "older Northerner" with whom S.R. had
discussed the robbery. She believed the information to be
credible given this person's status. He told her the
robbery "wasn't ordered by some bigger Northern
person[;] it was them acting out on their [own]" because
the big Northerners "don't do home invasions, ...
that's not their thing anymore." He also claimed to
have heard there was "somebody that was feeding [them]
information from the inside," referring to victim 3 or
According to Officer Strand's testimony, victim 3's
step-brother is a "well documented" Norteño.
Moreover, he was with defendant at the time of his arrest,
just hours after the robbery. Officer Strand interviewed
victim 3 but apparently obtained no fruitful information. She
did not testify at trial.
At the conclusion of his interview with S.R., Officer Strand
asked her to review a series of photographs and tell him if
she recognized "anybody from the invasion." S.R.
verbally identified defendant and pointed to his picture, but
she declined to circle the photo or confirm her
identification in writing. She explained the reluctance:
"[Defendant] knows who all was there, 'cause I was
there. He knows I was there, and, you know, if-if I'm
being, um, subpoenaed to court to go to some trial, or
anything like that, that's gonna put me in a bad
S.R. was later jailed for failing to comply with a trial
subpoena. When she took the witness stand, her testimony
closely tracked the story told to Officer Strand, but nearly
all details tending to incriminate defendant were omitted or
revised. In particular, she claimed defendant's
assistance in recovering her stolen phone occurred because he
happened to be in the neighborhood at the time, not because
he was involved in the robbery. She denied ever having
implicated him in the crime.
Unbeknownst to S.R., Officer Strand had secretly recorded
their conversation. She did not learn of the recording's
existence until it was used to impeach her testimony at
trial. The entire interview was played for the jury,
including S.R.'s statements during the lineup procedure.
Nevertheless, she maintained defendant was not involved in
the robbery and that she had fortuitously met up with him
while chasing the actual perpetrators. In another new twist,
she described those individuals as being "flamed
up," i.e., dressed in red clothing. Defendant, in
contrast, allegedly "looked like he was going to
R.R. was the last witness to be contacted by Officer Strand.
A friend and neighbor of victim 2, she acknowledged being
present during the robbery and identified defendant from a
photographic lineup. Months later, shortly before her trial
appearance, she received death threats in connection with the
case. The first threat was made by an anonymous caller. The
second threat came from a person who showed up at her house
as she was leaving for court.
At trial, R.R. testified to leaving the apartment with S.R.
just before the robbers entered and waiting outside until
they departed. The four intruders attempted to mask
themselves with their shirts, but she saw enough of
defendant's face to identify him. When she went back
inside the apartment, victim 2 was shaking with fright.
Victim 3 "was acting calm," but seemed upset over
the purported theft of her MP3 player.
R.R. described defendant as having a large chest, and she
responded affirmatively when asked if he "was bigger
than the rest of them." She testified he wore red, and
claimed the other three had on white T-shirts. Unlike the
other witnesses, R.R. identified defendant in court as one of
the robbers. The reporter's transcript indicates
defendant was "shaking his head no" when R.R. made
Post-arrest Statements and Jail
On July 13, 2014, defendant was arrested at the home of a
friend named Kendall Pile. Those present included codefendant
Hernandez, Lisa Esparza, and the step-brother of victim 3. A
search of the residence uncovered a loaded revolver. Pile
denied ownership of the gun or prior knowledge of its
Defendant made the following statements to police during the
booking process, in the presence of codefendant Hernandez:
"Sir, this is crazy, whoever did this better tell the
truth. Everyone knows I don't steal cars. That's not
my thing.... [¶] ... [¶] [M]y mom should have let
me borrow the damn car. ... If she would have let me borrow
the car, I would not be here right now. [¶] ... [¶]
"... I was at my house with my brother Adrian Garner,
and he told me that someone had called him and told him I had
an hour to return the truck. ... I know I would have returned
the truck. I was planning on going to who I think I knew had
the truck and return it. And whoever said it was me that took
the truck probably saw me in the area of where it happened
and automatically thought it was me, and they must have got
me confused with someone else." At some point defendant
turned to Hernandez and asked, "[Do] you know anything
about what's going on?" When Hernandez did not
respond, defendant called him "lame." He also
predicted Hernandez would "PC up," i.e., enter
protective custody, when he arrived at the county jail.
Defendant made several recorded telephone calls from jail,
many of which were played for the jury. On July 21, 2014, he
called his wife and was informed the police had come to his
family's home to take pictures of their car. He said,
"[T]hey must have video of-of the car, which is good. If
they have video of the car, then they're gonna see that
I-that wasn't me. [¶] ... [¶] Plus I was
with you all that whole day." (Italics added.) The
People argued the italicized statement was an attempt to
manufacture one of several conflicting alibis for the robbery
of victim 1.
On July 24, 2014, defendant spoke with Kendall Pile about
testifying on his behalf: "Hey man, you know I'm
going to need you for my defense brother because they're
trying to say that-remember we went over there and dropped
them fools off? They're trying to say that I
fucking-that-that I got out of the car .... But I need you to
be my-I mean you're my witness, boy. I never even got out
of the God damn car." Pile agreed, saying he would
"tell the truth[, ]" "[b]ecause you didn't
get out of the car fool. You were right in the car the whole
time." Later that evening, defendant spoke to his wife
about the case: "[I]t's all circumstantial evidence,
baby. They didn't even caught me in possession of
anything .... [¶] ... [¶] For one, I didn't do
nothing. I've got a good defense, dude, because, like I
said, I got all of you guys-witness testified that
I'm-that I-that I was at home... [¶] ... [¶] I
got a alibi. I was at home."
On July 25, 2014, defendant spoke to A.A., a relative of
victim 1. Although she referred to him as her uncle during
the call, victim 1 testified they are second cousins. A.A.
told defendant she was very upset over the theft of her
tablet computer from victim 1's apartment. Defendant
proclaimed his innocence: "Your uncle is lying .... I
swear to God ... when I went over there, look, I dropped
somebody off over there .... When he looked out the window,
he seen me. And he's lyin'-he's lyin' about
all this ...."
Defendant told A.A. that he and Kendall Pile drove
codefendants Delacruz and Hernandez to victim 1's
apartment but left before anything happened. He became aware
of the incident after victim 1 contacted a third party, who
in turn called defendant's brother and said "they
wanted their truck back." Allegedly, Hernandez later
claimed victim 1 had agreed to loan him the truck for one
hour and called the police when he failed to return it on
A.A. asked defendant if the reason he was in jail was because
of the incident involving victim 1. He confirmed it was, and
she said, "I thought it was with-with [victim 2]
[¶] ... [¶] [w]ith the white guy." Defendant
replied, "No. It was ... for home invasion and ...
carjacking." A.A. had been surprised to learn of the
allegations regarding victim 1, "because everybody was
saying that it was ... with some white boy [victim 2]."
Defendant referred to victim 2 as a "white guy"
during his trial testimony, but denied knowing what A.A. was
talking about at the time of the call. During closing
argument, the People noted the significance of A.A. alluding
to defendant's involvement in the robbery of victim 2.
On August 8, 2014, defendant spoke to his mother about
obtaining work records corresponding to "the date that
... the thing supposedly took place." The next day, he
called his wife and told her "Frankie," i.e.,
codefendant Simental, had been "busted." He asked
his wife to look up the charges against Simental, and she
reported it was felony possession of a controlled substance.
Defendant reacted by saying, "Oh, is that ....
That's it?" Simental was later charged with the
robbery of victim 1, but he had not been identified as a
suspect at the time of this call.
On August 10, 2014, defendant called A.A. and further accused
victim 1 of lying about his involvement in the robbery. He
claimed victim 1 held a grudge against him over an incident
from years earlier. Defendant told A.A. to speak with
"Ivan" about what had happened at the "Travel
Inn" between him, victim 1, and the truck owner, M.Q.
From August 3-13, 2014, defendant made multiple calls to
Deputy Christian Melero of the Kern County Sheriff's
Department. Defendant was a confidential informant for the
sheriff's department, and Deputy Melero was his primary
"handler." During one of the calls, defendant asked
the deputy for help negotiating a "deal" with the
prosecutor. Declaring himself to be a "gang
expert," defendant said he was willing to do
"whatever it takes ... to get myself out of this
situation." He added, "I ain't with this gang
bullshit but I, I mean, so whatever it takes ...whatever he
wants to know about whatever ... I know there, all there is
to know about everything."
On August 13, 2014, Deputy Melero told defendant he had
talked to the prosecutor and there would be no deal. The main
problem, according to the deputy, was victim 1 had already
testified against him at the preliminary hearing. Defendant
asked, "What did they say if the victim doesn't,
doesn't go to court, didn't go to court
anymore?" Deputy Melero said it didn't matter, and
he ended the conversation by saying, "[Y]our people
gotta fuckin' tell this dude, I'm telling you, they
got to tell this fuckin' dude to put that shit on paper
somehow. [¶] ... [¶] ... Either you gotta tell your
defense attorney or he's gotta fuckin' tell somebody
man 'cause that [¶] ... [¶] ... shit needs to
be put on paper 'cause that shit ain't looking good
bro, I'm telling you." Within minutes of this call,
defendant contacted his family members and asked for their
help obtaining a notarized statement from victim 1 retracting
Officer Strand served as the People's gang expert. He
attested to the existence of a criminal street gang called
the Norteños and opined defendant was an active member
at the time of the robberies. We provide a detailed summary
of the gang evidence in our Discussion, post.
Beginning in approximately 2012, defendant earned money as a
confidential informant for the Kern County Sheriff's
Department. The arrangement required him to make
"controlled buys" of illegal narcotics. Such
purchases were made under police supervision and typically
documented with a hidden recording device. From May 2014
until his arrest two months later, defendant was also
employed by a farm labor contractor as a field worker.
Defendant testified on his own behalf. His version of events
was an amalgam of three alibis outlined in the jail calls. On
July 11, 2012, the day before the first robbery,
Kendall Pile allegedly drove defendant, Delacruz, and
Hernandez to victim 1's apartment. Delacruz and Hernandez
were dropped off for the purpose of buying drugs. When they
knocked on the victim's door, someone inside looked out
the window and may have seen defendant in the car. Pile and
defendant drove away, not waiting to see if Hernandez and
Delacruz were let into the apartment. This testimony
accounted for the jail call with Pile and their statements
about defendant being "in the car the whole time."
Defendant denied victim 1's story about their alleged
argument in 2004. He testified the first encounter of any
significance was at a motel in 2005, when defendant and a
person named Ivan attempted to rob victim 1 and M.Q. of
illegal drugs. In defendant's words: "A friend and I
got wind that there was some individuals breaking down dope,
a lot of dope, and a lot of meth, and so we went, and so we
staked the place out a little bit, and sure enough, we saw
[M.Q.] exit the room ...." They ambushed M.Q. in the
parking lot, then "escorted him back to the motel room
where we witnessed [victim 1] breaking down 20 pounds of
meth." Instead of stealing the entire stash as they had
planned, Ivan only took eight pounds and negotiated a
"business deal" with them. "[F]rom that point
on, Ivan purchased his meth from [M.Q.]." The testimony
suggested M.Q. was connected to the Sinaloa drug cartel.
In 2012 or early 2013, defendant ran into M.Q. and victim 1
again at the home of another drug dealer named Mike. Mike
"was waiting for his connection to come drop off some
dope," and the suppliers turned out to be them. The
ensuing transaction involved a pound of methamphetamine.
In 2014, defendant attempted to "get closer" to
victim 1, hoping to eventually make a controlled buy and
receive a payout from the sheriff's department. He
implemented the plan by allegedly having codefendant Delacruz
buy narcotics from victim 1 on multiple occasions. On July
11, 2014, defendant "was trying to see if [victim 1]
[w]ould sell drugs to Adrian Hernandez as well, so
[defendant] could get closer to [M.Q.] for the purpose of
informing Christian Melero that these people were selling
The defense produced a sign-in sheet from defendant's
farm labor employer to prove he worked on July 12, 2014, the
date of the robbery. The document showed a 6:00 a.m. arrival
time, but, unlike defendant's sign-in sheet from the
previous day, it did not indicate the hour of his departure.
Defendant testified to working from 6:00 a.m. to 2:30 p.m.,
and arriving home at approximately 3:30 p.m. His sister,
Cynthia Estrada, provided corroborating testimony. She
attested to driving defendant to and from the job site,
working beside him from 6:00 a.m. to 2:30 p.m., and also
eating lunch with him during a 30-minute break.
Defendant's former brother-in-law, Humberto Ortiz,
testified to seeing defendant and his sister leave for work
around 5:00 a.m. and return home between 3:30 and 4:00 in the
M.Q. called 911 at 2:31 p.m. on July 12, 2014, to report the
robbery of victim 1. Therefore, if defendant was at work from
6:00 a.m. to 2:30 p.m., he could not have participated in the
crime. However, defendant's testimony adopted as true his
statements to police about learning of the robbery from his
brother. As told at trial, victim 1 and/or M.Q. had called a
third party and instructed that person to contact defendant
or his brother "and tell them that if they didn't
bring the truck back within the hour, they were going to call
the cops." Defendant further explained, "I was
going to ask my mom if I could use the car, so I could go
look for Adrian Hernandez wherever he was, but she
wouldn't let me use her car. She said, you have nothing
to do with whatever they are saying, so just stay your butt
home, and that's what I did."
According to victim 1's trial testimony, he waited at
least one hour before calling M.Q. to inform him about the
stolen truck, and more time elapsed before M.Q. came over and
called 911. Based on defendant's work alibi, he would
have been at his job site when the victims issued their
one-hour deadline, not at home asking his mother for
permission to use her car. He supposedly arrived home at 3:30
p.m., a full hour after the victims had reported the
incident to police. Defendant's testimony did not account
for this discrepancy.
Defendant also failed to explain why, in the earliest jail
calls, he claimed to have been at home with his wife the
entire day. He testified to working six days that week,
alleging his only day off was Sunday, July 13, 2014. The
initial alibi could not have been in reference to July 13,
however, because he testified to spending most of Sunday at
the home of Kendall Pile and also visiting someone who lived
near victim 2 (see post).
Defendant's alibi for the second robbery generally
matched the trial testimony of S.R. To give further context
to S.R.'s story, defendant testified as follows:
"[M]y friend Kendall Pile, he told me that he knew a
female [i.e., witness R.R.] who lived down the street that
could get some dope from somebody who lived behind her [i.e.,
victim 2]. [¶] ... [¶] ... [M]e and my friend
Kendall went over there, and I went over there to see the
purpose of this guy selling drugs, and I gave [R.R.] some
money behind the alley, and she came back with some dope. And
I said okay, bingo, here's somebody selling [who I can
report to Deputy Melero]."
Following the alleged transaction with R.R., defendant
attempted to make direct contact with victim 2:
"[S]ince I had already gained information that [victim
2] was selling drugs, I went over there to go see if I could
buy some, you know, so that I can inform that to [Deputy
Melero]. When I knocked on the door, [S.R.] answered. And I
know [her]. She was my childhood friend, my childhood best
friend's sister-in-law, so it surprised me, oh, [S.R.],
you're here? You know, that's when I started asking
her, hey, does this guy sell drugs? You know what I mean?
Trying to buy some. [¶] ... [¶]
"... I had lied to her, and I told her I was there on
behalf of the Northerners, right, which is my way of hiding
the fact that I'm over there for the sheriff's
department. And I [asked if victim 2] was selling drugs? She
told me no, he doesn't sell drugs, he uses drugs, and he
has a lot of females over here and stuff like that .... So I
was, like, I tried to get it out of her some other way, and
say, well, here, I got an iPod, and do you think he can give
me some drugs. He doesn't have any drugs, and he
[sic] left and came back with $40 cash."
On July 13, 2014, defendant visited Kendall Pile "early
in the morning" to help him "do stuff around his
house." Pile lived on the 1300 block of 9th Avenue.
Later, the two of them went to see someone who lived near
victim 2, close to the 1300 block of 11th Avenue.