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Lopez v. Sherman

United States District Court, E.D. California

November 1, 2019

ISRAEL LOPEZ, Petitioner,
v.
STU SHERMAN, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         I. PROCEDURAL HISTORY

         Petitioner 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.

         The 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. Id.

         Petitioner filed the instant habeas petition on May 9, 2019. (Doc. 1.) Respondent filed its answer on August 6, 2019. (Doc. 16.)

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

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.
Prosecution Case
Counts 1-8
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.
Counts 9-19
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 20s."
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] weights."
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 possibly R.R.
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 situation ...."
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 work."
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 the identification.
Post-arrest Statements and Jail Calls
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 existence.
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 time.
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 his allegations.
Gang Evidence
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.
Defense Case
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.
Counts 1-8
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 drugs."
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 afternoon.
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).
Counts 9-19
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. Defendant's ...

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