P. v. Munoz

Filed 10/20/17 P. v. Munoz CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCOS MUNOZ,
Defendant and Appellant.
B275732
(Los Angeles County
Super. Ct. No. BA358733)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Anne H. Egerton, Judge. Affirmed.
Victor J. Morse under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

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Marcos Munoz appeals from the judgment entered on his
conviction for first degree murder, with firearm and gang
enhancements, contending the trial court violated his
constitutional right to due process by allowing the prosecution to
admit hearsay evidence, and insufficient evidence supported the
gang enhancement finding. We conclude the trial court erred in
admitting hearsay but the error was harmless beyond a
reasonable doubt. We reject Munoz’s contention that the gang
enhancement was unfounded. Therefore, we affirm.
BACKGROUND
On August 17, 2004, Paul Plascencia, Munoz’s cousin and a
member of the Alley Tiny Criminals street gang, a subset of the
Harpys street gang, was shot and killed by an unknown
assailant. Munoz told police Plascencia may have been killed by
a Harpys member.
On September 28, 2004, Munoz, himself a member of the
Rockwood street gang, drove around in Los Angeles for two hours
in his Chevrolet Astro van, looking for members of Harpys, whom
he intended to shoot in retaliation for the killing of Plascencia.
When Munoz turned eastbound from Catalina Street onto 23rd
Street he saw standing on the south side of the street men he
took to be Harpys. He stopped, exited the van, and fired six
rounds at the men with a .38 Colt revolver, killing Michael
Castillo. Munoz shouted, “That’s what you get for fucking with
us, motherfucker,” then got back in the van and drove eastbound
to the end of 23rd and turned left onto Vermont Avenue, getting
away.
Police found two expended lead, .38 caliber, non-hollow
point bullets at the scene but no shell casings.

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Munoz ultimately left the vehicle at 14808 Studebaker
Road in Los Angeles, where it was seen a month later by Los
Angeles Police Detective Stanley Evans.
Nearly five years later, on July 4, 2009, Los Angeles Police
Officer Abel Barboa observed Munoz hovering around a security
screening area at Los Angeles International Airport. Munoz said
he believed his ex-wife was being held hostage, and he was going
to be killed. Barboa took Munoz to Harbor General Hospital,
where he was held two days for psychiatric observation pursuant
to Welfare and Institutions Code section 5150 (a “5150 hold”).
Munoz was released from Harbor General on July 6, 2009.
Three hours later, Los Angeles Police Officer Shauna Saliz
encountered him as he ran through traffic in the middle of the
street outside the hospital. He was disoriented and panicking,
waving his arms and yelling. He said, “They’re trying to kill me.
There’s a black SUV. The Mexican Mafia is out to kill me.” Saliz
saw no SUV. Munoz rambled to himself and pointed to a Cadillac
and said there might be people armed with guns inside. Saliz
took Munoz back to Harbor General, where he was readmitted for
psychiatric observation.
The next day, on July 7, 2009, Munoz was again released.
He then went to a police station and confessed to the Castillo
murder and two other shootings.
Munoz first told Detective Julian Pere he committed a
murder in October or November of 2004 on Beverly Boulevard
and Normandie Avenue in Los Angeles, shooting an 18th Street
gang member five times with a .38 caliber Smith & Wesson
revolver. He said he committed another murder around the same
time at 25th Street and Vermont Avenue, firing six rounds at a
Harpys member and striking him once. Finally, Munoz told Pere

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that in December 2004 he fired four rounds with a nine-
millimeter handgun at 18th Street members at Bonnie Brae and
Third Street.
Police were able to confirm that a shooting had occurred on
Beverly in October 2004, as Munoz described, but were unable to
confirm a shooting occurred on Bonnie Brae in December 2004.
As to the shooting on 25th Street around the same time, police
inferred Munoz meant the Castillo murder.
The Castillo case was assigned to Detectives Charles
Geiger and Vince Carreon who, having no prior knowledge of the
case, familiarized themselves with the circumstances of the
murder before interviewing Munoz. During the interview, which
was recorded, Munoz said he shot a Harpys member one time in
the back between 9:00 and 11:00 p.m. “on 25th Street and
Vermont.” “Or 24th,” he said, “three blocks” south of the 10
freeway. He shot six times at four men, one of whom was
wearing a white jersey, and a woman, missing all but one of
them. He knew he struck one of the men, and was later told it
was the one wearing a dark jacket. He said the shooting occurred
on the south side of the street “between October—it was right
after my cousin got killed” (which was on Aug. 17, 2004), “[it]
could have been September, October” of 2004, between 9:00 or
10:00 p.m. Munoz said he drove to the scene in his blue Astro
van, going east from “a little small street” west of Vermont
Avenue, traveling toward Vermont. When asked whether there
was anything about the van that would stand out, Munoz said it
had chrome rims. He identified the ammunition as copper
jacketed hollow points and the gun as a .38 caliber Colt revolver,
which after the shooting he “gave . . . back to the hood,” “[p]assed
it back.” He said he did not say anything at the time of the

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shooting, but if he had said anything it would have been
“Rockwood.”
After the interview, Geiger and Carreon drove with Munoz
to the scene of the murder. They drove south on Catalina Street,
turned left on 25th, and continued east to Vermont. When
Munoz indicated they were on the wrong street, they repeated
the procedure on 24th Street and then again on 23rd. Munoz
identified 23rd Street as the scene of the crime and indicated that
after the shooting he continued east on 23rd, turned left onto
Vermont, and got on the 10 freeway three blocks away.
Munoz was charged with having personally used and
discharged a firearm to commit first degree murder for the
benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a),
12022.53, subds. (b), (c) & (d).) It was further alleged he had
incurred one prior serious or violent felony conviction. (Pen.
Code, §§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d).) He pleaded
not guilty and denied the special allegations.
Munoz was tried three times, the first two trials resulting
in jury deadlock and mistrial.
At the third trial, Richard Castillo, the victim’s brother,
testified that around 10:00 p.m. on September 28, 2004, a lone
gunman exited a blue Astro van with “nice rims” at his house on
the south side of 23rd Street and fired six shots at four men and a
woman, killing his brother with one shot in the back. The man
shouted, “That’s what you get for fucking with us, motherfucker,”
then got back in the van and sped eastbound to the end of 23rd
and turned left onto Vermont Avenue.
Jorge Ramos, who witnessed the Castillo murder, testified
that immediately before the shooting a male voice “screamed out,

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‘Where you guys from?’ or in Spanish, ‘where you vatos from?’”
which he described as “a gang claim.”
Officer Philip Zalba testified as a gang expert. He opined
that Munoz was a Rockwood member, based on his moniker
(“Demon”), statements, and tattoos, and Rockwood and Harpys
were rivals. Zalba testified that Rockwood’s primary activities
were assaults with deadly weapons, extortion, robbery,
vandalism, and narcotics sales. When posed a hypothetical
question based on the facts of the case, he opined that the
shooting was committed in association with and for the benefit of
the gang. Zalba explained that a drive-by shooting of a rival gang
member in that gang’s territory benefits a gang by elevating its
reputation for violence, which tends to instill fear in the
community so that members of the community become less likely
to challenge the gang or call or cooperate with police when they
witness a crime.
The defense was false confession.
Munoz contended he was delusional when he confessed to
the Castillo murder. Dr. Jack Rothberg, a forensic psychiatrist,
testified that when he interviewed Munoz he made fantastic,
illogical, and delusional statements about his two 5150 holds and
the 2009 confession. He was concerned that vehicle traffic in his
neighborhood meant he had been targeted for assassination for
having suggested to police that Harpys killed Plascencia.
Dr. Rothberg also testified that jail records disclosed Munoz
believed he was being gassed in his cell, and occasionally
complained that people inserted probes into him. The
prosecution offered no objection to admission of this evidence.
Dr. Rothberg opined that when Munoz confessed to the Castillo
murder he suffered from a psychosis that caused delusions. He

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was out of touch with reality, and perceived events that did not
actually occur.
Dr. Rothberg also testified that jail mental health
personnel reported Munoz was alert and “oriented times four,”
his thought process was linear and goal-directed, and he suffered
from no psychosis.
Dr. Sanjay Saghal, a forensic psychiatrist testifying for the
prosecution, stated he interviewed Munoz in 2014. He opined
Munoz may have had “some degree of psychotic thinking” when
he confessed to the Castillo murder in 2009, likely the result of
methamphetamine abuse, but the data was insufficient to
determine to what degree it affected his interactions with others.
Saghal observed that Munoz was coherent, communicative, and
linear in his thought during his 2009 confession, rather than
disoriented, confused or disorganized, which weighed against him
being psychotic at the time. That he had been released from
Harbor General the day of his confession suggested he was not
psychotic at the time.
Saghal then testified at some length, over the defense’s
hearsay objections, about records generated by mental health
personnel while Munoz was in jail. For example, he said that on
July 10, 2009, jail personnel reported Munoz “had no need for
mental health treatment,” as “he was communicative, calm, and .
. . suitable for the general population.” He testified that absence
of a diagnosis of psychosis in the jail records indicated that “yet
another clinician close to the date in question of the interview
with police didn’t think he was psychotic,” and jail personnel
recommended general population placement and provided no
mental health diagnosis. Saghal testified that a mental health
evaluator at the jail reported she wanted to “ ‘rule out a Cluster B

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personality disorder,’ ” which meant that she offered no diagnosis
but suspected Munoz suffered from an antisocial personality
disorder. However, she reported that he was “communicative and
straightforward.”
During closing argument, the prosecutor argued that Dr.
Rothberg’s opinion was unreliable because he spent only “one and
a half hours with the defendant. Compare that with the staff at
Harbor U.C.L.A. who had constant observation the entire time he
was there” and who diagnosed Munoz with “ ‘[m]alingering,
antisocial personality disorder, no primary psychosis.’ ” The
prosecutor also argued that jail personnel had provided a similar
diagnosis: “ ‘personality disorder . . . no primary psychosis.’ ” Dr.
Rothberg, the prosecutor argued, “completely disagreed with
every single medical professional that was involved in this case.”
“Who’s in a better position to render an opinion about the
defendant’s mental state on July 7, 2009? A hour-and-a-half
interview a year and a half later? Or constant medical attention
the entire time in Harbor U.C.L.A.?”
The jury found Munoz guilty of first degree murder and
found the firearm and gang allegations to be true. He was
sentenced to 25 years to life in prison, doubled under the “Three
Strikes” law, plus consecutive terms of 25 years to life for the gun
enhancement and five years for the felony conviction
enhancement, for a total of 80 years to life. The trial court stayed
imposition of any sentence for the gang enhancement.
Munoz timely appealed.
DISCUSSION
I. Hearsay
Munoz contends the trial court prejudicially erred when it
allowed Drs. Rothberg and Saghal to offer hearsay testimony

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about the content of his Harbor General and jail psychiatric
records.
Hearsay evidence is a statement made by a witness not
testifying at the hearing and offered to prove the truth of the
matter asserted. (Evid. Code, § 1200, subd. (a).) Hearsay is
inadmissible unless an exception applies. (Evid. Code, § 1200,
subd. (b).)
Here, Drs. Rothberg and Saghal testified at length about
psychiatric records generated by Harbor General and jail mental
health personnel. They testified that Harbor personnel
concluded Munoz’s perception was reality based, and he suffered
no lasting psychosis other than antisocial personality disorder.
They testified that jail personnel found Munoz to be alert and
oriented with linear and goal-directed thought processes,
suffering no psychosis and having no need for mental health
treatment.
This testimony repeated numerous statements made
outside the hearing by mental health personnel and was offered
solely to prove their truth—that Munoz suffered from no lasting
psychosis. This was all inadmissible hearsay. An expert may not
“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.” (People v. Sanchez (2016) 63
Cal.4th 665, 686.) “When any expert relates to the jury case-
specific out-of-court statements, and treats the content of those
statements as true and accurate to support the expert’s opinion,
the statements are hearsay. It cannot logically be maintained
that the statements are not being admitted for their truth.” (Id.
at p. 686.)

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Respondent argues the doctors’ testimony was admissible
because Munoz’s psychiatric records were business records. We
disagree.
“Evidence of a writing made as a record of an act, condition,
or event is not made inadmissible by the hearsay rule when
offered to prove the act, condition, or event if: [¶] (a) The writing
was made in the regular course of a business; [¶] (b) The writing
was made at or near the time of the act, condition, or event; [¶]
(c) The custodian or other qualified witness testifies to its
identity and the mode of its preparation; and [¶] (d) the sources of
information and method and time of preparation were such as to
indicate its trustworthiness.” (Evid. Code, § 1271, subd. (a)-(d).)
A trial court has wide discretion in determining whether a
qualified witness possesses sufficient personal knowledge of the
identity and mode of preparation of documents for purposes of
the business records exception. (Aguimatang v. California State
Lottery (1991) 234 Cal.App.3d 769, 797 & fn. 28.) Indeed, “any
‘qualified witness’ who is knowledgeable about the documents
may lay the foundation for introduction of business records—the
witness need not be the custodian or the person who created the
record.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 324.)
Thus, a qualified witness need not be the custodian, the person
who created the record, or one with personal knowledge in order
for a business record to be admissible under the hearsay
exception. (See id. at p. 322.)
Munoz’s psychiatric records were never authenticated or
admitted into evidence, and nothing in the record suggests Dr.
Rothberg or Saghal had particular knowledge about the identity
or mode of their preparation. Although they testified about how

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psychiatric records are prepared generally, they knew nothing
specifically about Munoz’s records.
Respondent makes no attempt to explain how the
testimony of Drs. Rothberg and Saghal falls under the business
records exception. He merely notes that the trial court relied on
the exception in overruling Munoz’s hearsay objection, and
argues that because Munoz failed to complain about the court’s
invocation of the exception at trial he cannot complain about it
for the first time on appeal. Respondent offers no authority to
support this argument other than an unexplained citation to
People v. Braxton (2004) 34 Cal.4th 798, which held only that “a
party may not challenge on appeal a procedural error or omission
if the party acquiesced by failing to object or protest under
circumstances indicating that the error or omission probably was
inadvertent.” (Id. at p. 813.) But respondent offers no
explanation how the trial court’s error—its expressed rationale
for overruling Munoz’s hearsay objection—could have been
inadvertent. It was not; it was simply wrong. To preserve an
evidentiary claim on appeal a defendant need do no more at trial
than make a timely, properly grounded objection.
Respondent argues the hearsay was admissible because
Munoz “opened the door” to it by eliciting hearsay testimony from
Dr. Rothberg. We disagree. “By allowing objectionable evidence
to go in without objection, the non-objecting party gains no right
to the admission of related or additional otherwise inadmissible
testimony. The so-called ‘open the door’ or ‘open the gates’
argument is ‘a popular fallacy.’ ” (People v. Gambos (1970) 5
Cal.App.3d 187, 192.)
But the error was harmless under any standard. (See
Chapman v. California (1967) 386 U.S. 18, 24 [reversal is

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required under the federal Constitution unless the error was
harmless beyond a reasonable doubt]; People v. Watson (1956) 46
Cal.2d 818, 836 [state law error requires reversal only if it is
reasonably probable that the error had an effect on the verdict].)
The hearsay to which Drs. Rothberg and Saghal testified
was to the effect that in 2009 Munoz suffered from no psychosis
other than was induced by methamphetamine use, which
undermined his false confession defense. But the jury already
knew that Munoz’s mental impairment was at most intermittent.
He was admitted to Harbor General twice on 5150 holds and was
twice discharged, indicating mental health personnel twice
determined he was not so impaired as to pose a danger to himself
or others.
Further, as Dr. Saghal testified, even a delusional person
can tell the truth. No evidence suggested Munoz’s mental
impairment affected his ability to tell the truth to police. During
his confession he was coherent and communicative and linear in
his thinking. He accurately described a crime that had occurred
five years prior. Although he got two details wrong—the street
on which the shooting took place and type of ammunition used—
he correctly identified the time of the shooting; the general
location and route he took to and from it; the vehicle used, down
to its rims; the type of gun used; the number and gender of
victims; the number of shots fired; and the number of injuries.
And he was able to drive police directly to the scene at 23rd
Street after bypassing two false locations at 25th and 24th
streets.
Munoz offers no explanation how the jury could believe his
purportedly delusional state produced a false confession that

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exactly described the Castillo murder, and we can conceive of
none.
We conclude Dr. Rothberg’s and Saghal’s testimony was
harmless beyond a reasonable doubt.
II. Gang Enhancement
Munoz contends the jury’s true finding on the gang
enhancement was unfounded. We disagree.
A “gang enhancement applies to one who commits a felony
‘for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members.’ (Pen. Code,
§ 186.22, subd. (b)(1).) ‘In addition, the prosecution must prove
that the gang (1) is an ongoing association of three or more
persons with a common name or common identifying sign or
symbol; (2) has as one of its primary activities the commission of
one or more of the criminal acts enumerated in the statute; and
(3) includes members who either individually or collectively have
engaged in a “pattern of criminal gang activity” by committing,
attempting to commit, or soliciting two or more of the
enumerated offenses (the so-called “predicate offenses”) during
the statutorily defined period.’ ” (People v. Sanchez, supra, 63
Cal.4th at p. 698.)
“The standard of appellate review for determining the
sufficiency of the evidence supporting an enhancement is the
same as that applied to a conviction. [Citations.] Like a
conviction unsupported by substantial evidence, a true finding on
a gang enhancement without sufficient support in the evidence
violates a defendant’s federal and state constitutional rights and
must be reversed. [Citations.] [¶] ‘In considering a challenge to
the sufficiency of the evidence to support an enhancement, we

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review the entire record in the light most favorable to the
judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] We
draw all reasonable inferences in favor of the verdict, and
presume the existence of every fact the jury could reasonably
deduce from the evidence that supports its findings. [Citations.]
[¶] The court may not, however, “ ‘go beyond inference and into
the realm of speculation in order to find support for a judgment.
A finding . . . which is merely the product of conjecture and
surmise may not be affirmed.” ’ [Citations.] “ ‘[E]vidence which
merely raises a strong suspicion of the defendant’s guilt is not
sufficient to support a conviction. Suspicion is not evidence; it
merely raises a possibility, and this is not a sufficient basis for an
inference of fact.” ’ [Citation.] Indeed, ‘[a] trier of fact may rely
on inferences to support a conviction only if those inferences are
“of such substantiality that a reasonable trier of fact could
determine beyond a reasonable doubt” that the inferred facts are
true.’ ” (People v. Franklin (2016) 248 Cal.App.4th 938, 947-948.)
Munoz contends no evidence undermined the obvious
motive for the Castillo murder—personal revenge. He argues no
evidence suggested his fellow gang members were aware of the
Castillo murder or participated in it. He is incorrect. First,
Officer Zalba testified that a murder committed under the
circumstances here would be intended to benefit the Rockwood
gang by enhancing its status in the community. (See People v.
Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209 [expert opinion
about such behavior admissible to support a gang enhancement].)
Second, Jorge Ramos and Richard Castillo testified the shooter

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shouted gang slogans, which constitute a challenge in gang
culture. Specifically, Castillo testified the shooter shouted,
“That’s what you get for fucking with us,” the plural pronoun
suggesting the shooting was committed on behalf of several
persons, not just on behalf of the shooter, i.e., for personal,
solitary revenge. Finally, Munoz admitted in his 2009 confession
that he obtained the gun from the Rockwood gang, and after the
shooting gave it back to them. The jury could reasonably infer
from this evidence that the gang participated to some extent in
the crime, and could further reasonably conclude Munoz
committed the murder intending to benefit the gang.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CHANEY, Acting P. J.
We concur:
JOHNSON, J.
LUI, J.

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