P. v. Barrera

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Filed 7/12/19 P. v. Barrera CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO ESCOBAR BARRERA et al.,
Defendants and Appellants.
C085232
(Super. Ct. No. P15CRF0067)
Defendants Roberto Barrera and Raul Gonzalez, along with Nalana Omega,
Danielle Weed, and Daisy Garcia, paid a visit to Pete Thomas one night. They took
several items of his property and left him with a fatal stab wound to the chest. Garcia
later went to the police and revealed part of what happened that night, although she did
not witness the actual killing. A jury found defendants Barrera and Gonzalez guilty of

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first degree murder (Pen. Code, § 187, subd. (a)) and the trial court sentenced each to 25
years to life in prison.1
On appeal, defendants contend the trial court erred when it: (1) refused to permit
the defense to call a juror as a witness or to declare a mistrial; (2) admitted evidence of
Gonzalez’s gang involvement; (3) failed to investigate potential juror misconduct; (4)
admitted a recording of a conversation in the transport van; (5) declined to instruct on
mistake of fact; and (6) instructed that exculpatory evidence from an accomplice required
corroboration. Finally, they contend there was cumulative error. We find no prejudicial
error.
In supplemental briefs, defendants contend they are entitled to the ameliorative
benefits of Senate Bill No. 1437 (Stats. 2018, ch. 1015), which altered the definitions of
malice and first and second degree murder. Senate Bill No. 1437 also established a
procedure by which defendants convicted of felony murder, as defendants were here, may
petition the trial court to vacate the murder conviction. We find defendants’ bid for relief
under Senate Bill No. 1437 is limited to this procedure.
We affirm the judgments.
FACTS
Pete Thomas and his brother Byron lived on 26 acres outside of Placerville.2
Byron and his son lived in a house on the property, while Pete lived in a camp trailer.
Both Byron and Pete were retired. Pete used methamphetamine and was addicted to it.
1 Omega and Weed were convicted of murder after separate trials. Their convictions are
on appeal. (People v. Omega (June 21, 2019, C085437) [nonpub. opn.] and People v.
Weed (May 2, 2019, C085254) [nonpub. opn.].) All three cases were tried on the theory
of felony murder.
2 Because the Thomas brothers share a last name, we refer to them by their first names.

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Pete was kind-hearted and helped other people. One of those people who came by
and sometimes stayed with Pete was codefendant Weed. The last time Byron saw his
brother, Pete was driving off with Weed. Weed had written Pete letters while she was in
jail. Byron had a good relationship with Pete but conflict arose over some of Pete’s
friends who were drug users. Byron would not allow them to stay on the property. Pete
and Byron eventually had a falling out over Pete’s friends.
Pete owned several guns, including a Glock handgun. He also had a coin
collection, jewelry, a laptop computer, and a cell phone. He had a car he lent to others.
On February 3, 2015, one of Pete’s friends came to Byron’s house and told him
something had happened to Pete. The friend had already called 911. Byron went to the
trailer and saw Pete on the couch with his eyes open. He knew at once that Pete was
dead. Pete had his hand under his shirt clenching another wadded-up shirt in an apparent
attempt to apply pressure to a bleeding wound, a small incision on his chest made by a
knife with a thin blade. He had bled to death from the stab wound.
Officers searched the trailer and found no knife or other weapons near the body.
Pete’s computer, cell phone, and the keys to his car were missing. The police collected
two drinking glasses and a Styrofoam cup on the table by the couch for DNA analysis.
Alonso Aguilar, a detective with the sheriff’s office, knew Daisy Garcia through a
family connection. Garcia had a narcotics problem and had reached out to him in the past
when she had brushes with the law. On February 8, 2015, she reached out to Aguilar via
Facebook to talk to him about a homicide. Aguilar was on vacation in Mexico and
unaware of Pete’s murder. He called Garcia when he returned and she told him she had
information about a murder near Placerville. Aguilar spoke to a supervisor who asked
him to arrange a meeting among Aguilar, Garcia, and Detective Netashia Perez.
Garcia had a drug problem (methamphetamine and later heroin) beginning when
she was 14 years old. She had been living in a drug flop house. She used
methamphetamine every day and sold drugs to support her habit. Garcia had grown up

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with Gonzalez and Barrera and considered them close friends. Gonzalez was dating
Nalana Omega and they had moved into the flop house.
Omega talked about burglarizing houses to get money for drugs. Omega
mentioned an old man; she referred to him as a “chomo,” a child molester. A few days
before the killing, Garcia went with Gonzalez and Omega as they stole a car. Later,
Gonzalez and Omega came by and emptied bags of jewelry and coins on the floor of
Garcia’s room. Garcia could not stand what was happening and went to Lake Tahoe for a
few days where she partied and used drugs.
After she returned to the flop house, on January 31, 2015, Garcia was in her room
with Gonzalez, Omega, Barrera, and a man she believed was Gonzalez’s uncle; all except
Barrera were using methamphetamine. Omega was taking pictures of herself posing with
a gun. The group left and dropped off Gonzalez’s uncle. Omega talked about picking up
a girl who was the only one who knew where the old man lived. Omega had a revolver
and Gonzalez had a shotgun. They put the guns in the back of the car. They went to pick
up codefendant Weed outside a liquor store.
Weed talked about the old man having “hella stuff” and guns. She mentioned a
Glock and said she would point out its location with her eyes. When she said she was
going to kill him, Gonzalez said no one was getting killed. Weed described the man’s
property so they could steal it.
Before they reached Pete’s, they stopped and Gonzalez got the guns from the back
of the car. At Pete’s, Barrera stayed in the car and Gonzalez handed him the shotgun and
told him to keep guard. The others went inside and used drugs with Pete. Gonzalez
wanted to buy methamphetamine and Pete called someone to arrange a sale. Garcia
drank some iced tea.

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Weed walked around the trailer looking for jewelry and putting it in her pockets.
The conversation turned to the Glock. Pete did not want to take it out or sell it, but when
Garcia returned from the restroom he had it out. Gonzalez asked Garcia to get Barrera.
She went to the car and told Barrera that Gonzalez wanted him. She stayed in the car.
Weed made trips to the car with Pete’s laptop computer, a jewelry box, a box of
quarters, and a gun or two. Later, Weed, Gonzalez, Omega, and Barrera ran to the car.
Weed had a glove on and was holding a knife. Omega took the knife and wrapped it in a
sweater. Gonzalez said, “What did that crazy bitch do?” “Why the fuck did you do
that?” They left Pete’s house and stopped at a house where Omega took the sweater
inside and returned without it. Gonzalez told Garcia that Weed had stabbed the man. A
few days later, Weed admitted to Garcia that she had stabbed Pete.
The People offered a variety of evidence to corroborate Garcia’s testimony.
Jeremy Gannon was a former drug dealer who had sold drugs to Pete. On January 31,
2015, Pete called him asked the price for half an ounce of methamphetamine; it was not
just for himself. Gannon agreed to meet him at Bucks Bar for the purchase; he waited
hours but Pete never showed up. Gannon called Pete that night and the next day, but
there was no answer. Cell phone records confirmed these calls.
Charles Hernandez testified about the flop house he owned. Garcia had lived there
for six months before the killing. Omega and Gonzalez harassed her and tried to muscle
their way into her room. Barrera was a regular visitor. Hernandez observed the group
bringing in “stuff” in duffle bags.
Efren Zamora, Gonzalez’s godfather, testified he was with the group that night.
He claimed he did not see any guns. He had told a detective he had a bad feeling about
what they were going to do and had them drop him off before they went elsewhere.
The police conducted a number of searches and found a variety of property
consistent with burglaries. A search of a Honda registered to Gonzalez revealed
ammunition, pocket knives, jewelry, challenge coins, and a check made out to Paul

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Sweeney. A search of Barrera’s residence disclosed honey oil, marijuana, ammunition,
and a gun. During a traffic stop of Gonzalez, Omega, and two others, the police found a
Glock handgun in Omega’s purse. A backpack in the car contained a revolver, checks,
ammunition, and jewelry. There was a shotgun in the attic of the flop house. A trunk
contained several bags of jewelry. Garcia helped Detective Perez find the car driven the
night of the killing, a silver two-door Hyundai registered to Efren Zamora.
DNA analysis revealed a profile matching Pete’s on one of the glasses taken from
the trailer. A second glass had four contributors and no further analysis could be made.
Weed’s DNA profile was consistent with a major contributor to the DNA on the
Styrofoam cup and Omega could not be excluded as a minor contributor.
An investigator from the district attorney’s office reviewed calls that Omega made
from jail. Omega called a number associated with Gonzalez 23 times. According to the
investigator, the calls were to a man with whom Omega was involved romantically and
the theme of the calls was getting her out on bail. Omega told the man she had taken the
gun case for him so he would not have to go to jail.
A recording device captured a conversation among Weed, Omega, Gonzalez, and
Barrera as they were being transported in a van to the courthouse. The contents of this
tape recording are discussed more fully post. Omega was recorded saying, “Hey, we
went there for a sack period. Just stick with that.” Barrera claimed he was not there, but
Gonzalez contradicted him and Omega said they all were there and that the prosecution
had their DNA and multiple statements to that effect.

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Gonzalez testified in his defense. His version of events that night was similar to
Garcia’s, except he denied there were any guns or any discussion of a burglary or theft.
Gonzalez claimed they went to Pete’s solely to buy drugs.3 He did not see Weed make
trips to the car with Pete’s property. When he, Omega, and Barrera left Pete’s, Weed
stayed behind. Gonzalez saw Pete by the door when Weed left the trailer. He heard
Weed say she cut Pete. Gonzalez admitted he had lied extensively when first
interviewed.
DISCUSSION
I
Refusal to Allow the Defense to Call a Juror as a Witness
or Declare a Mistrial
Defendants contend the trial court erred in not allowing the defense to call a sitting
juror as a witness and then not declaring a mistrial as provided for in Evidence Code
section 704, subdivision (b).4 They further contend they were denied effective assistance
of counsel because counsel failed to bring section 704 to the trial court’s attention.
A. Background
At the end of court one day while she was on the stand, Garcia told an investigator
one of the jurors knew at least one of the defendants. She recognized him from
somewhere although she was not sure where, but she was 100 percent certain she had
seen him with the defendants. The investigator told the court he was walking Garcia to
his car when she said it did not matter, they were going to get off anyway. She said Juror
No. 2 knew them; he was either a friend or family. She was 100 percent sure.
3 This appears to be the same explanation as Omega’s use of the slang term “went for a
sack.” Gonzalez confirmed to the prosecutor on cross examination that the truth was
defendants only went to Pete’s the evening of the murder to buy a “sack of dope.”
4 Undesignated statutory references are to the Evidence Code.

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After some discussion, the defense expressed concern that singling Juror No. 2 out
for questioning might affect his impartiality. Counsel suggested excusing him and the
court asked how since the juror had done nothing wrong. The defense indicated they
would want to call him as a witness to attack Garcia’s credibility. Garcia claimed she
was 100 percent certain the juror knew defendants and the juror would take the stand and
say otherwise. The court responded the juror could not be a witness.
The prosecutor argued there was no relevance to the juror’s testimony and the
defense responded he was relevant to Garcia’s credibility. The prosecutor claimed the
defense was getting into collateral cross-examination. The defense wanted to use
Garcia’s presumably false claim that Juror No. 2 knew defendants as an example of
Garcia creating facts out of thin air. After further discussion, it was agreed that the court
would question the entire jury to ask if any juror recognized anyone in the courtroom.
There was no affirmative response from any juror.
B. Analysis
Section 704 addresses the calling of a juror as a witness:
“(a) Before a juror sworn and impaneled in the trial of an action may be called to
testify before the jury in that trial as a witness, he shall, in proceedings conducted by the
court out of the presence and hearing of the remaining jurors, inform the parties of the
information he has concerning any fact or matter about which he will be called to testify.
“(b) Against the objection of a party, a juror sworn and impaneled in the trial of an
action may not testify before the jury in that trial as a witness. Upon such objection, the
court shall declare a mistrial and order the action assigned for trial before another jury.
“(c) The calling of a juror to testify before the jury as a witness shall be deemed a
consent to the granting of a motion for mistrial, and an objection to such calling of a juror
shall be deemed a motion for mistrial.
“(d) In the absence of objection by a party, a juror sworn and impaneled in the trial
of an action may be compelled to testify in that trial as a witness.”

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Defendants contend that because the People objected to calling Juror No. 2 as a
witness, the court was required under subdivision (b) of section 704 to declare a mistrial.
However, that contention is not accurate. Under the statutory scheme, the nature and
admissibility of the juror’s testimony must first be established. (§ 704, subd. (a).) If a
criminal defendant could trigger the mistrial provisions of the statute without first
establishing that the juror’s testimony was admissible, a defendant could automatically
obtain a mistrial simply by proposing, without any basis, to call a juror as a witness,
knowing the People would properly object. That is not--and cannot be--the law.
The People contend the trial court properly excluded Juror No. 2’s testimony
under section 352, finding its minimal relevance was substantially outweighed by the
potential for prejudice and confusion. Defendants argue that the trial court did not
exclude the testimony of Juror No. 2 under section 352 but under the mistaken belief that
a sitting juror could not be a witness in the same case. We observe that the prosecutor
did raise section 352 as a basis to exclude the proposed testimony, arguing it was
impeachment on a collateral matter. He argued Garcia may have been mistaken rather
than lying, and if Juror No. 2 denied knowing the defendants here, as the parties assumed
he would, resolution would require a mini-trial on who was telling the truth, Garcia or
Juror No. 2.
Thus, the issue of section 352 was squarely before the trial court. Even assuming
the court based its ruling on an erroneous assumption that jurors could not be witnesses,
we review the court’s decision, not its rationale. “A ‘ruling or decision, itself correct in
law, will not be disturbed on appeal merely because given for a wrong reason. If right
upon any theory of the law applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its conclusion. [¶] . . . [¶] In
other words, it is judicial action, and not judicial reasoning or argument, which is the
subject of review; and, if the former be correct, we are not concerned with the faults of
the latter.’ [Citation.]” (People v. Dawkins (2014) 230 Cal.App.4th 991, 1004.)

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The defense wanted to call Juror No. 2 as a witness to impeach Garcia’s
credibility, but the issue of whether she correctly identified Juror No. 2 as known to
defendants was clearly a collateral matter. “A court has substantial discretion under
Evidence Code section 352 to exclude evidence on collateral issues.” (People v. Hayes
(1992) 3 Cal.App.4th 1238, 1248.) While the issue of Garcia’s credibility was the key
issue at trial, there was already abundant evidence raising concerns about her memory
and inconsistent statements. Both defense counsel cross-examined her at length about
inconsistencies between her trial testimony and her testimony at the preliminary hearing
about the events the night of the killing, such as who had guns, her drug use that night,
whether Gonzalez told Barrera to stand guard, and other details. Counsel also questioned
Garcia about her statements to detective Perez that her mind had blocked out certain
memories from that night and that she saw Omega throw the knife Weed used out of the
car window. It was undisputed that Garcia had a significant drug problem. In the days
before the killing she was using methamphetamine every day and she had partied and
used drugs in Lake Tahoe for two days immediately before the killing.
There was other evidence before the jury also undercutting Garcia’s credibility.
At the time of trial, she was in custody on a violation of probation stemming from petty
theft and possession of heroin. She admitted she had sold drugs and had helped Omega
and Gonzalez steal a car. She had used child support money to buy drugs, and had prior
convictions for auto theft and elder abuse. She acknowledged she did not recall much of
what happened that night of the killing.
Thus, Garcia’s alleged statement that she was certain Juror No. 2 knew
defendants, even if proven false in a mini-trial, was of limited probative value and was
highly cumulative. The limited probative value in no way justified the consumption of
time hearing the testimony of the juror and Garcia, not to mention additional testimony
from other witnesses called to corroborate or impeach the anticipated conflicting
testimony. The trial court did not abuse its discretion in refusing to permit the defense to

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call Juror No. 2 as a witness. “The trial court has broad discretion to exclude
impeachment evidence under Evidence Code section 352. [Citation.] Although wide
latitude should be given to cross-examination designed to test the credibility of a
prosecution witness, ‘[t]he statute empowers courts to prevent criminal trials from
degenerating into nitpicking wars of attrition over collateral credibility issues.’
[Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863, 946.)
Defendants contend the court’s ruling deprived them of due process, confrontation
rights, and a fair trial. Limitations on cross-examination or impeachment violate these
federal constitutional rights only where “a reasonable jury might have received a
significantly different impression of the witness’s credibility.” (People v. Quartermain
(1997) 16 Cal.4th 600, 624.) As we have already discussed at length, that was not the
case here. Defendants argue that Garcia was unworthy of belief due to her drug use,
inconsistent statements, and motive to assist the prosecution, but fail to explain how one
more example of an incorrect statement would have changed the jury’s perception,
particularly given the abundant evidence corroborating her testimony.
Because we find no error in the exclusion of Juror No. 2’s testimony, defendants’
claim of ineffective assistance also fails. “To secure reversal of a conviction upon the
ground of ineffective assistance of counsel under either the state or federal Constitution, a
defendant must establish (1) that defense counsel’s performance fell below an objective
standard of reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable result absent counsel’s
shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.” (Strickland v. Washington
(1984) 466 U.S. 668, 697.) As the juror’s testimony was properly disallowed, citing to
section 704 would not have resulted in a more favorable outcome for defendants.

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II
Admission of Gonzalez’s Gang Involvement
Defendants contend it was prejudicial error to admit evidence of Gonzalez’s prior
involvement with gangs. The People concede the error but argue the admission of this
evidence was harmless because its mention was brief, it was outdated information and
explained by Gonzalez, and it was never mentioned by the prosecution.
A. Background
Gonzalez moved in limine to exclude any evidence of his alleged gang affiliation
in the past. The People indicated they did not plan to admit such evidence in their case-
in-chief, but it would potentially be relevant if Gonzalez choose to testify. The defense
argued the evidence should be excluded under section 352. The trial court granted
Gonzalez’s motion to exclude but indicated it would revisit the issue should it become
relevant.
Before Gonzalez testified, the parties discussed what evidence could be used to
impeach him. Counsel specifically asked about questioning Gonzalez about his gang
membership years ago. The defense argued it was not relevant because there was no
evidence this crime was gang related. The prosecutor argued it was relevant to
Gonzalez’s repeated burglaries. The trial court ruled the gang evidence admissible.
Gonzalez was 22 years old at the time of the crime and 25 at trial. When he took
the stand, his counsel elicited on direct that he had two misdemeanor convictions and had
been involved with the Sureño gang when he was 13, 14, and 15 years old. He ceased
involvement at 15 when he found out his girlfriend was pregnant. The prosecutor did not
cross examine on this issue, and the only other mention of Gonzalez’s gang involvement
was a brief mention of it by his counsel in closing argument.
B. Analysis
“In cases not involving the gang enhancement, we have held that evidence of gang
membership is potentially prejudicial and should not be admitted if its probative value is

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minimal.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) “Gang evidence should
not be admitted at trial where its sole relevance is to show a defendant’s criminal
disposition or bad character as a means of creating an inference the defendant committed
the charged offense.” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Here,
evidence of Gonzalez’s prior gang involvement was not relevant to prove “identity,
motive, modus operandi, specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.” (Hernandez, at p. 1049.) We agree with the
parties that it was error to admit the gang evidence.
Defendants argue that if the gang evidence had been excluded, the jury may have
resolved the credibility contest between Garcia and Gonzalez in favor of the defense.
They argue admitting this evidence violated their federal constitutional rights and was
state evidentiary error.
“California courts have long recognized the potentially prejudicial effect of gang
membership.” (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) In Albarran, the
gang evidence included gang graffiti of threats to kill police officers, defendant’s tattoo
showing allegiance to the violent prison gang the Mexican Mafia, and descriptions of
other gang members and their crimes. (Id. at pp. 220-221.) During closing argument, the
prosecutor made a number of references to Albarran’s gang involvement, including that it
made his alibi unbelievable. (Id. at p. 222.) The appellate court found the admission of
the gang evidence was constitutional error. “This case presents one of those rare and
unusual occasions where the admission of evidence has violated federal due process and
rendered the defendant’s trial fundamentally unfair. Given the nature and amount of this
gang evidence at issue, the number of witnesses who testified to Albarran’s gang
affiliations and the role the gang evidence played in the prosecutor’s argument, we are
not convinced beyond a reasonable doubt that the error did not contribute to the verdict.”
(Id. at p. 232.)

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We find Albarran distinguishable. Here, the references to Gonzalez’s limited past
gang involvement was brief and minimal and did not render the trial fundamentally
unfair. The evidence was that Gonzalez had been involved with a gang in the past when
he was a young teenager; there was no evidence of continued involvement or association,
and he testified he left the gang when he learned he was going to be a father. There was
no evidence about gangs in general and no inflammatory evidence of gang crimes. The
prosecutor made no mention of Gonzalez’s gang involvement in closing argument and
did not rely on it to attack Gonzalez’s credibility or in any other way.
Nor do we find prejudicial state evidentiary error. It is not likely the jury was
influenced by the gang evidence in accepting Garcia’s account of the events of January
31, 2015. The key issue was whether the group went to Pete’s to steal his property.
Garcia’s testimony that the plan was theft or robbery was corroborated by evidence
defendants and Omega had stolen other property. Gonzalez’s testimony to the contrary
was undercut by his many lies to the police. Absent the gang evidence, it is not
reasonably probable that a result more favorable to defendants would have been reached.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
III
Failure to Investigate Potential Juror Misconduct
Defendants contend it was reversible error not to conduct an inquiry into possible
juror misconduct. Defendants contend the trial court should have inquired whether Juror
No. 2, who was a prison counselor, could set aside his specialized knowledge in deciding
this case.
A. Background
After the recording of the conversation in the transport van was played to the jury,
Juror No. 2 told the bailiff that he had heard “a moniker” that was not in the transcript.
With the agreement of the parties, the court instructed the jurors that the audio was the
actual evidence, not the transcript.

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After the trial court ruled evidence of Gonzalez’s gang involvement was
admissible, defense counsel raised the concern that Juror No. 2 would use his special
knowledge about gangs while the jury was deliberating. Counsel raised Juror No. 2’s
comment that he heard “a moniker” on the recording and asked the court to inquire if the
juror thought he heard something gang related, arguing there was the potential for jury
contamination.
The court indicated it would be improper to question a juror about his
interpretation of the evidence. The court noted that all three counsel chose to leave Juror
No. 2 on the jury knowing his job and job description. The court declared that unless the
juror committed misconduct, became ill, or otherwise could not act as a juror, there was
no basis for any inquiry.
B. Analysis
Juror No. 2 had 15 years of experience in the prison system, first as a correctional
officer and now as a correctional counselor, a captain’s level position. His wife, brother,
and uncle were correctional officers. Because apparently he was the only one who heard
the “moniker” on the tape, defendants contend the reasonable inference is that he formed
an opinion as to what was said on the tape based on his specialized knowledge obtained
while working in prisons. They argue that if he related that opinion to other jurors, it
would be misconduct.
“When a trial court is aware of possible juror misconduct, the court ‘must “make
whatever inquiry is reasonably necessary” ’ to resolve the matter. [Citation.] It must do
so, however, only when the defense comes forward with evidence that demonstrates a
‘strong possibility’ of prejudicial misconduct. [Citation.]” (People v. Hayes (1999) 21
Cal.4th 1211, 1255.) “When a court is informed of allegations which, if proven true,
would constitute good cause for a juror’s removal, a hearing is required.” (People v.
Barnwell (2007) 41 Cal.4th 1038, 1051.)

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“It is not improper for a juror, regardless of his or her educational or employment
background, to express an opinion on a technical subject, so long as the opinion is based
on the evidence at trial. Jurors’ views of the evidence, moreover, are necessarily
informed by their life experiences, including their education and professional work. A
juror, however, should not discuss an opinion explicitly based on specialized information
obtained from outside sources. Such injection of external information in the form of a
juror’s own claim to expertise or specialized knowledge of a matter at issue is
misconduct.” (In re Malone (1996) 12 Cal.4th 935, 963.)
Defendants failed in the trial court to make a showing of possible juror misconduct
required to trigger a mandatory inquiry, and thus the trial court was not required to hold a
hearing. Merely because a juror may have heard a word on a correctly admitted piece of
evidence is not reason to query the juror. Jurors are permitted to closely examine the
evidence; in fact, they are expected to do so. Defendants’ assertion that Juror No. 2
necessarily relied on specialized knowledge obtained from his work in the prison system
to decipher the “moniker” heard on the tape is pure speculation, even if we assume Juror
No. 2’s use of the term “moniker” refers to a gang term. (See People v. Fernandez
(2012) 208 Cal.App.4th 100, 107 [“moniker” is nickname given to gang member].) The
trial court listened again to the tape and determined there were two possibilities for the
term Juror No. 2 heard. One was Omega saying, “They set us up, they set us up.” The
court thought she may have said, “They set us up, Homes.” The court did not articulate
specifics of the second possibility it heard.
“The court does not abuse its discretion simply because it fails to investigate any
and all new information obtained about a juror during trial.” (People v. Ray (1996) 13
Cal.4th 313, 343.) That Juror No. 2 heard something the others could not make out does
not indicate he used any specialized knowledge; he might simply have more acute
hearing. Nor does the fact that he ascribed gang undertones to what he heard indicate an
improper use of specialized knowledge. While correctional officers probably have

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greater knowledge of and familiarity with gang terms than the ordinary juror, such
knowledge is no longer particularly specialized given the prevalence of what was once
exclusively gang terminology in popular culture. Over two decades ago, it was noted: “In
newspapers, on television, and in rap music, gang culture has merged into popular
culture.” (Christo Lassiter, The Stop and Frisk of Criminal Street Gang Members (1995)
14 Nat’l Black L.J. 1, 58, fn. 13.)
Defendants provided no information to raise any suspicion that Juror No. 2 would
act inappropriately during deliberations. Rather, the fact that he disclosed that he heard
something on the tape that was not in the transcript indicates he approached his job as a
juror conscientiously. During voir dire, Juror No. 2 affirmed that he would decide the
case solely on the facts and evidence presented. He stated that nothing in his background
as a correctional officer would make it difficult for him to be fair. At the beginning of
the trial, the court instructed the jurors their verdict “must be based only on the evidence
presented during the trial and the law as I provide it to you.” Defendants offer nothing to
suggest that Juror No. 2 did not follow this instruction.
IV
Admission of Recorded Conversation in the Van
Defendants contend the trial court abused its discretion in admitting the recorded
conversation in the transport van. They contend the recording should have been excluded
under section 352 because its probative value was substantially outweighed by the danger
of prejudice and confusion. In particular, they contend a remark by Omega was
ambiguous and they were unable to cross-examine her as to its meaning.
A. Background
Prior to trial, Barrera moved to sever his case from those of Gonzalez, Weed, and
Omega or to exclude their extrajudicial statements. Gonzalez moved to sever his and
Barrera’s case from those of Weed and Omega or to exclude their extrajudicial

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statements. The court granted the severance motion and counsel stipulated to individual
trials for Weed and Omega and a joint trial for Gonzalez and Barrera.
The People moved to admit statements made when the four defendants were being
transported to court in a van. During that conversation Omega said they were “just there
for a sack,” meaning at Pete’s trailer to secure drugs. Barrera responded he was not
there, but Gonzalez called him a fool and said they had them there and that Barrera had
“drank the lemonade.” Omega said there were two statements that they were all there
plus DNA and fingerprints. Barrera stayed silent. The People contended the statements
were admissible against Omega and Gonzalez as admissions of a party and against
Barrera as adoptive admissions.
The trial court found it was “classic adoptive admission under Evidence Code
section 1221.” It granted the People’s motion to admit the evidence and would instruct
the jury with CALCRIM No. 357.
At a later proceeding, the defense argued the recorded conversation should be
excluded under section 352. Although the basis for admitting it as an adoptive admission
by Barrera was to show he was at Pete’s trailer, that fact was not disputed. There was
potential prejudice because there was no opportunity to question Omega about what she
said and what she meant. The People argued the conversation proved a conspiracy,
starting with Omega’s statement to stick to the story that we were just there to buy a sack.
The court noted Omega’s statement about buying a sack and “just stick to that” “has a lot
more connotation than we were just there to buy a sack.” The court affirmed its prior
ruling.
An edited version of the tape was played to the jury. The relevant portion of the
tape is as follows:
“Nalana Omega: Hey--we just went there for a sack period. Just stick with that.
“Raul Gonzalez: I know.
“Nalana Omega: And I don’t want to talk no more.

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“Raul Gonzalez: I know.
“Nalana Omega: And my lawyer is taking care of it. Like, he told me (inaudible)
my favor.
“Roberto Barrera: [in Spanish] I wasn’t there.
“Raul Gonzalez: (Inaudible) I know, I’m just saying they do have you there. You
can say what you want to fool, but [in Spanish] don’t you remember that you drank the
lemonade . . . you drank.”
Omega goes on to say they have DNA from the cups, statements from Garcia, and
fingerprints.
B. Analysis
Defendants’ argument focuses on Omega’s statement, “Hey--we just went there
for a sack period. Just stick with that.” They contend the statement is ambiguous.
Omega could have been simply stating the truth (and defendants’ defense) that they went
to Pete’s solely to buy drugs, or she could have been suggesting a concocted story to
avoid culpability. Defendants contend this ambiguity may have confused the jury and
because they had no opportunity to question Omega about her meaning, the jury may
have punished them for guilt by association.
This argument is unavailing. Defendants appear not to understand the nature of an
adoptive admission and they do not contest the admissibility of Omega’s statement as
such. This case is similar to People v. Jennings (2010) 50 Cal.4th 616, where the
defendant challenged the admission of statements made during a joint interview as
violating his right of confrontation under Crawford v. Washington (2004) 541 U.S. 36,
Bruton v. United States (1968) 391 U.S. 123, and People v. Aranda (1965) 63 Cal.2d 518.
In rejecting this argument, our Supreme Court stated: “ ‘Moreover, it is well
settled that an adoptive admission can be admitted into evidence without violating the
Sixth Amendment right to confrontation “on the ground that ‘once the defendant has
expressly or impliedly adopted the statements of another, the statements become his own

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admissions, and are admissible on that basis as a well-recognized exception to the
hearsay rule.’ ” [Citation.]’ [Citation.] ‘Being deemed the defendant’s own admissions,
we are no longer concerned with the veracity or credibility of the original declarant.
Accordingly, no confrontation right is impinged when those statements are admitted as
adoptive admissions without providing for cross-examination of the declarant.’
[Citation.] Stated another way, when a defendant has adopted a statement as his own,
‘the defendant himself is, in effect, the declarant. The “witness” against the defendant is
the defendant himself, not the actual declarant; there is no violation of the defendant’s
right to confront the declarant because the defendant only has the right to confront “the
witnesses against him.” [Citations.]’ [Citation.]” (People v. Jennings, supra, 50 Cal.4th
at pp. 661-662.)
Both defendants adopted Omega’s statement about sticking to the story that they
were only seeking drugs from Pete, either by saying “I know” (Gonzalez) or remaining
silent (Barrera); the law treats their adoption as if each defendant themselves made the
admission. Any ambiguity in this evidence was an issue for the jury to resolve. (People
v. Midkiff (1968) 262 Cal.App.2d 734, 740.) Of course, defendants could aid the jury in
resolving any ambiguity by explaining what the statement meant in their view either
through testimony or argument of counsel. But the fact that the statement could be
interpreted in different ways was not grounds to exclude it.
V
Failure to Instruct on Mistake of Fact
Defendants contend the trial court erred in failing to instruct the jury on mistake of
fact. (CALCRIM No. 3406.) They assert there was evidence to support the instruction
because they did not believe they were going to Pete’s to rob him; they intended only to
buy drugs. They contend they were mistaken as to the reason for going to Pete’s that
night.

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During the conference on jury instructions, the defense requested CALCRIM No.
3406, explaining that defendants were under the mistaken belief they were going to
Pete’s trailer to purchase methamphetamine. The trial court responded that theory was
covered in the instructions for robbery and burglary, interpreting the defense argument to
mean that defendants did not have the necessary intent for the charged crimes. The
prosecutor added that defense counsel was confusing mistake of fact with defendants’
mental state. He argued the “real defense” was that defendants did not form the intent to
commit burglary or robbery, it was not about mistaken facts. The parties then discussed a
need to modify the instruction, but the court declined to give the instruction at all because
“it just becomes too cumbersome for one thing.” The court found the defense theory was
adequately covered by the instructions on specific intent, burglary or robbery.
The classes of persons who are incapable of committing crimes include those
“who committed the act . . . charged under an ignorance or mistake of fact, which
disproves any criminal intent.” (Pen. Code, § 26, class Three.) “[T]he particular
‘defense’ of mistake of fact requires, at a minimum, an actual belief ‘in the existence of
circumstances, which, if true, would make the act with which the person is charged an
innocent act.’ [Citations.]” (People v. Lawson (2013) 215 Cal.App.4th 108, 115.) “For
general intent crimes, the defendant’s mistaken belief must be both actual and reasonable,
but if the mental state of the crime is a specific intent or knowledge, then the mistaken
belief must only be actual.” (Ibid.)
Defendants’ alleged mistake of fact was that they believed they were going to
Pete’s only to buy drugs; in other words, they were mistaken about the evening’s goal.
But the jury was adequately instructed that Gonzalez and Barrera had to have a specific
intent to commit, aid and abet, or conspire to commit murder, robbery, or theft to be
guilty. The instructions told the jury a defendant could be guilty of aiding and abetting
only if he “intended to aid and abet the perpetrator in committing the crime.” To prove
defendant was a member of a conspiracy, the People had to prove “defendant intended to

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agree and did agree with one or more of the other defendants or coparticipants to commit
Robbery or Burglary.” To prove guilt under the theory of felony murder, the People had
to prove “defendant intended to commit, or intended to aid and abet the perpetrator in
committing, or intended that one or more of the members of the conspiracy commit
robbery or burglary.”
Whether Weed and Omega had a different intent is irrelevant. As the instructions
made clear, only defendants’ intent was at issue. There was no evidence to support a
mistake of fact instruction.
VI
Instructing that Exculpatory Evidence from an Accomplice Requires Corroboration
Defendants contend the instructions erroneously and prejudicially told the jury that
the exculpatory portions of Garcia’s testimony required corroboration.
A. Background
The trial court instructed the jury pursuant to CALCRIM No. 334, that if it found
Garcia was an accomplice, it could rely on her testimony to convict defendants only if her
testimony was supported by other evidence that connected defendants to the crime. The
court also instructed in the language of CALCRIM No. 301, as then constituted: “Except
for the testimony of Daisy Garcia, which requires supporting evidence if you decide she
is an accomplice, the testimony of only one witness can prove a fact. Before you
conclude that the testimony of one witness proves a fact, you should carefully review all
of the evidence.”5
5 CALCRIM No. 301 was revised in September 2017. It now reads: “[Unless I instruct
you otherwise,] (T/the) testimony of only one witness can prove any fact. Before you
conclude that the testimony of one witness proves a fact, you should carefully review all
evidence.”

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While Garcia provided evidence that the group intended to steal from Pete that
night, she also gave evidence that was favorable to defendants. For example, she had told
law enforcement that Gonzalez and Barrera had “nothing to do with it.” She thought they
were going only to party, smoke dope, and maybe buy drugs. She never heard Barrera
discussing robbing anyone. There was no such discussion in the car before they picked
up Weed. Gonzalez objected when Weed said she was going to kill someone. Pete did
not object when Weed pocketed his property.
B. Analysis
Penal Code section 1111 places a restriction on the use of accomplice testimony to
convict a defendant. “A conviction can not be had upon the testimony of an accomplice
unless it be corroborated by such other evidence as shall tend to connect the defendant
with the commission of the offense . . . .” (Id., § 1111.) The reason for this rule is that
“an accomplice has a natural incentive to minimize his own guilt before the jury and to
enlarge that of his cohorts.” (People v. Brown (2003) 31 Cal.4th 518, 555.) That concern
is not present when the accomplice’s testimony favors defendant. “Because an
accomplice does not ordinarily stand to benefit from providing testimony on behalf of the
defendant, his or her statements are not necessarily suspect.” (People v. Guiuan (1998)
18 Cal.4th 558, 567.) Therefore, the instruction on accomplice testimony applies only to
accomplice testimony that tends to incriminate the defendant. (Id. at p. 569.)
Defendants contend the two instructions given as recited above and taken together,
told the jury that Garcia’s entire testimony, exculpatory as well as incriminating, required
corroboration if the jury found she was an accomplice. Defendants rely on People v.
Smith (2017) 12 Cal.App.5th 766. In Smith, the trial court gave instructions similar to
those here and the appellate court found the instruction requiring supporting evidence for
the testimony of an accomplice was error because it required corroboration even for the
accomplice’s exculpatory evidence. (Id. at p. 780.) The court found the error prejudicial
because the need for corroboration of the accomplice’s testimony became a point of

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disagreement and the hold-out juror was dismissed in part because other jurors believed
this juror was unwilling to follow the court’s instruction on the need for corroboration.
(Id. at p. 781.)
The People contend the instructions, taken as a whole, informed the jury that
corroboration of an accomplice’s testimony was necessary only to use that testimony to
convict defendant. “ ‘[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction or from a
particular instruction.’ ” (People v. Carrington (2009) 47 Cal.4th 145, 192.) Further, the
People argue any error was harmless because the exculpatory portions of Garcia’s
testimony were corroborated by the testimony of Gonzalez and a defense witness who
testified that Garcia told him Gonzalez and Barrera had nothing to do with the crime;
they just went to buy dope.
Defendants do not dispute that there is evidence corroborating Garcia’s
exculpatory testimony. Rather, they contend the jury would not have found such
evidence to be “supporting evidence” because the instruction on the use of accomplice
testimony told the jury “supporting evidence must tend to connect the defendant to the
commission of the crime.” The evidence supporting Garcia’s exculpatory testimony
naturally did not tend to connect defendants to the crime.
We reject this argument. “Jurors are presumed to be intelligent persons capable of
understanding and correlating jury instructions. [Citation.] An erroneous instruction
requires reversal only when it appears that the error was likely to have misled the jury.
[Citations.]” (People v. Brock (2006) 143 Cal.App.4th 1266, 1277.) Had the jurors
believed that CALCRIM No. 301 required supporting evidence for Garcia’s exculpatory
evidence, they would have understood that under CALCRIM No. 334 supporting
evidence must tend to connect defendants to the crime only if such evidence is used to
convict defendant. This is not a case like Smith where there is evidence of juror

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confusion over the corroboration requirement. Any error in instructing the jury as to the
corroboration requirement for Garcia’s testimony was harmless.
VII
Cumulative Error
Defendants contend the multiple errors were cumulatively prejudicial. We have
rejected most of defendants’ claims of error. We have found error only in the admission
of the gang evidence and possibly instructional error as to the accomplice corroboration
requirement.
“A claim of cumulative error is in essence a due process claim and is often
presented as such [citation]. ‘The “litmus test” for cumulative error “is whether
defendant received due process and a fair trial.” ’ [Citation.]” (People v. Rivas (2013)
214 Cal.App.4th 1410, 1436.) We are satisfied this trial was fair beyond any doubt,
although error did occur.
VIII
Senate Bill No. 1437
In supplemental briefs, defendants contend their convictions must be reversed
because they are entitled to the ameliorative benefits of Senate Bill No. 1437 which
became effective January 1, 2019. Senate Bill No. 1437 amended the felony murder rule
“to ensure that murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
The bill amended Penal Code section 189 to provide that a participant in the
perpetration or attempted perpetration of certain felonies, including robbery or burglary,
“in which a death occurs is liable for murder only if one of the following is proven: [¶]
(1) The person was the actual killer. [¶] (2) The person was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of murder in the first degree. [¶]

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(3) The person was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.” (Pen. Code,
§ 189, subd. (e); as amended by Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also added a procedure for persons convicted of felony
murder to petition the sentencing court to have the murder conviction vacated and to be
resentenced. New Penal Code section 1170.95 places three conditions on such a petition.
“(1) A complaint, information, or indictment was filed against the petitioner that allowed
the prosecution to proceed under a theory of felony murder or murder under the natural
and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree
or second degree murder following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could be convicted for first degree or second degree murder. [¶] (3)
The petitioner could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (Id., § 1170.95, subd.
(a); added by Stats. 2018, ch. 1015, § 4.)
The sentencing court reviews the petition to determine if petitioner has made a
prima facie showing for relief and appoints counsel if petitioner so requests. If petitioner
makes a prima facie showing, the court issues an order to show cause. (Pen. Code,
§ 1170.95, subd. (c).) The court then holds a hearing to determine if petitioner is entitled
to relief. The burden of proof is on the prosecution to prove beyond a reasonable doubt
that petitioner is ineligible for resentencing. (Id., subd. (d).) “If petitioner is entitled to
relief pursuant to this section, murder was charged generically, and the target offense was
not charged, the petitioner’s conviction shall be redesignated as the target offense or
underlying felony for resentencing purposes.” (Id., subd. (e).)
Defendants contend that since their convictions were not final when Senate Bill
No. 1437 became effective, it applies retroactively to them under the rule of In re Estrada
(1965) 63 Cal.2d 740: “[W]here the amendatory statute mitigates punishment and there
is no saving clause, the rule is that the amendment will operate retroactively so that the

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lighter punishment is imposed.” (Id. at p. 748.) They contend retroactive application of
Senate Bill No. 1437 means that the trial court misinstructed on the elements of felony
murder. They assert this error was prejudicial because there was evidence from which
the jury could find each defendant was not a major participant nor acted with reckless
disregard of human life. They contend their murder convictions must be reversed.
In People v. Martinez (2019) 31 Cal.App.5th 719 (Martinez), Division 5 of the
Second District recently considered how Senate Bill No. 1437 applies to a defendant
convicted of felony murder whose conviction was not final when Senate Bill No. 1437
became effective. The court concluded that such a defendant “must file a [Pen. Code]
section 1170.95 petition in the trial court to seek retroactive relief under Senate Bill
1437.” (Martinez, at p. 729.)
The Martinez court relied upon two California Supreme Court cases it found
addressed analogous circumstances. (Martinez, supra, 31 Cal.App.5th at p. 725.) In
People v. Conley (2016) 63 Cal.4th 646 (Conley), defendant had been sentenced under
the three strikes law to an indeterminate term of 25 years to life and appealed. While his
appeal was pending, voters passed the Three Strikes Reform Act of 2012 (Proposition
36); two days later the appellate court issued its decision. Defendant petitioned for
rehearing asking the court to remand to the trial court for resentencing. (Conley, at pp.
654-655.) Defendant argued that since his judgment was not yet final, he was entitled to
rely on the rule of Estrada and to be automatically resentenced without complying with
the provisions of Proposition 36 (§ 1170.126, subd. (b)) that required filing a petition and
the trial court’s determination of his risk to public safety. (Conley, at pp. 655-656.)
Our Supreme Court rejected defendant’s argument. It held the post-conviction
procedure of section 1170.126 was the exclusive means of relief for three reasons. First,
unlike the statute at issue in Estrada, Proposition 36 was not silent on the issue of
retroactivity, but directly addressed the issue in section 1170.126. (Conley, supra, 63
Cal.4th at p. 657.) Second, resentencing under Proposition 36 was contingent on the

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court’s evaluation of defendant’s dangerousness and an automatic resentencing would
eliminate that requirement. (Id. at pp. 658-659.) Third, Proposition 36 established a set
of disqualifying factors that the prosecution had to plead and prove. Proposition 36 “does
not address the complexities involved in applying the pleading-and-proof requirements to
previously sentenced defendants precisely because the electorate did not contemplate that
these provisions would apply. Rather, voters intended for previously sentenced
defendants to seek relief under section 1170.126, which contains no comparable
pleading-and-proof requirements.” (Id. at pp. 660-661.)
In People v. DeHoyos (2018) 4 Cal.5th 594, the court reached a similar result as to
the retroactivity of Proposition 47 (The Safe Neighborhoods and Schools Act) to nonfinal
cases on direct appeal. “Proposition 47 redefined several common theft- and drug-related
felonies as either misdemeanors or felonies, depending on the offender’s criminal
history” and provided a procedure for petitioning for resentencing similar to that of
Proposition 36, including a determination of defendant’s risk of dangerousness. (Id. at
pp. 597, 598-599.) Like Proposition 36, Proposition 47 was not silent on the issue of
retroactivity, but contained detailed provisions that drew no distinction between those
serving final or nonfinal sentences and resentencing was dependent on the court’s
assessment of defendant’s risk of dangerousness. (Id. at p. 603.) While Proposition 47
did not create new sentencing factors, other indicia of legislative intent showed the
resentencing scheme provided was the exclusive remedy. (Ibid.)
The Martinez court found that the “analytical framework animating decisions in
Conley and DeHoyos is equally applicable here. Like Propositions 36 and 47, Senate Bill
1437 is not silent on the question of retroactivity. Rather, it provides the retroactivity
rules in [Pen. Code] section 1170.95. . . . That the Legislature specifically created this
mechanism, which facially applies to both final and nonfinal convictions, is a significant
indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on
direct appeal.” (Martinez, supra, 31 Cal.App.5th at p. 727.)

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Defendants contend Conley and DeHoyos are distinguishable because the new
laws in those cases required the trial court to make a finding as to defendant’s risk of
danger to the public safety and no such finding is required under Senate Bill No. 1437.
The Martinez court rejected this argument. “While defendant is correct that [Pen. Code]
section 1170.95 does not require a dangerousness inquiry, neither Conley nor DeHoyos
holds that inquiry was the indispensable statutory feature on which the result in those
cases turned. To the contrary, Conley notes ‘[o]ur cases do not “dictate to legislative
drafters the forms in which laws must be written” to express an intent to modify or limit
the retroactive effect of an ameliorative change; rather, they require “that the Legislature
demonstrate its intention with sufficient clarity that a reviewing court can discern and
effectuate it.” ’ ” (Martinez, supra, 31 Cal.App.5th at p. 728.)
The Martinez court found the provision of a detailed mechanism for resentencing
in Penal Code section 1170.95 was sufficient legislative intent that such mechanism was
the exclusive means of seeking relief under Senate Bill No. 1437. We find its reasoning
persuasive and follow it.
Defendants contend that such result leaves them without a remedy until their
appeals are final. They argue this result is anomalous because defendants pending trial or
whose judgments are final have an immediate remedy. The Martinez court noted that a
defendant who believes he has a particularly strong case for relief could move to stay his
pending appeal to seek immediate relief in the trial court. (Martinez, supra, 31
Cal.App.5th at p. 729.) We express no opinion as to whether such immediate relief is
appropriate for either defendant in this case.

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DISPOSITION
The judgments are affirmed.
/s/
Duarte, J.
We concur:
/s/
Raye, P. J.
/s/
Robie, J.

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