P. v. Flores

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Filed 6/26/20 P. v. Flores 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DAMIAN LUIS FLORES et al.,
Defendants and Appellants.
C080799
(Super. Ct. No. 13F07733)
Defendants Hector Lorenzo Caballero and Damian Luis Flores appeal from their
convictions of murder committed to benefit a gang, conspiracy to shoot at an inhabited
dwelling, and conspiracy to intimidate a witness. They raise numerous claims of error:
prejudice from remarks made by a judge before trial, gang expert testimony based on
testimonial hearsay, admission of unduly prejudicial gang evidence, insufficiency of the
evidence, instructional errors, improper answer to a jury question, and juror misconduct.
They also ask us to remand for the trial court to exercise its recently-granted discretion to

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strike firearm and serious felony prior conviction enhancements and to convene a hearing
on their ability to pay fines and fees imposed on them.
We affirm the judgment.
FACTS AND PROCEEDINGS
The murder
On November 24, 2013, Caballero and Flores were at Flores’s mother’s home in
Galt drinking beer with friends. The group included Hector Ojeda, Omar Melendrez, and
Jose Rodriguez. Caballero and Flores belonged to the Varrio Ghost Town gang (VGT), a
street gang affiliated with the Norteño street gang. Ojeda and Melendrez were also
Norteños.
When the alcohol ran out, Ojeda drove Caballero, Flores, and Melendrez to a
liquor store to buy more. On the way back to Flores’s mother’s home, Caballero told
Ojeda to stop at Harvey Park. Harvey Park is in a predominantly Sureño neighborhood.
Ojeda dropped the three off at the park, and then he began driving around the block.
Around that time, two men were separately returning to their apartments.
Caballero, Flores, and Melendrez approached the first man and asked if he was a gang
banger. He said he was not. The three then approached the second man and asked if he
was Sureño or a gang member. He said no. They asked him if he knew any Sureños, and
if he did, to tell them the park “belongs to us.”
Angel Long and her boyfriend, the victim, were smoking in Long’s car in front of
the victim’s house. They both noticed the group of three men walking toward the
neighboring apartments, and then toward them. The victim told Long the three were
looking for trouble. After Long and the victim got out of the car, the three approached
them, yelling, “ ‘What’s up fool. What’s your name? Where you from? What set you
bang?’ ” Both the victim and Long said the victim did not bang. While Long kept saying

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the victim doesn’t bang, the victim pushed her away as Caballero drew a revolver and
shot him three times.
The three men ran from the area. They ran toward Ojeda, who pulled his car over,
and they jumped in. Flores and Melendrez told Ojeda that Caballero shot one of Jose
Rodriguez’s cousins. Flores nervously laughed as they talked about it. Caballero said he
had asked the man something and the man replied, “ ‘I’m not a bitch but I’ll fight you.’ ”
Caballero felt disrespected by the man’s remark, so he shot him.
The group returned to Flores’s mother’s home. Caballero and Flores had
numerous small blood stains on their sweatshirts. Both men took off their sweatshirts
and put them in the washing machine. Caballero pulled a .22-caliber revolver out of his
waistband and, carrying it in his hand, walked out to the backyard. He did not have the
gun when he returned.
Ojeda drove Caballero and Flores to Flores’s father’s home. Flores told Ojeda that
nothing would happen and not to say anything. Caballero told Ojeda not to be a snitch
and not to say anything about that night.
Ojeda, who became a witness for the People, testified that gang members will
resort to violence if they feel disrespected. They do this to make a name for themselves
and for their gang.
The victim died from his injuries. Two .22 caliber bullets were recovered from his
body. Another .22 caliber bullet was found at the crime scene. At trial, Long identified
Caballero as the shooter.
The conspiracies
Caballero and Flores were arrested and housed at the Sacramento County Jail.
Miguel Gollas, a Norteño for 18 years, was also in the jail after being arrested for a drug
offense. Gollas met Caballero, who went by the nickname “Lencho,” and the two talked
about living in Galt. Gollas told Caballero he was dating the sister of Angel Ordaz, who

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was also a Galt Norteño. Caballero told Gollas he was in jail because he shot a Sureño
after an argument.
Gollas was trying to make bail. Vidal Fabela, an influential Norteño inmate who
went by the name of Spider, asked if Gollas could do his “homey” a favor if he made bail
and got out. Gollas agreed, and Fabella told him that someone would approach him.
After Gollas’s meeting with Spider, Caballero asked Gollas if he could pass a note to
Ordaz when he was released. Gollas took the note.
Gollas read Caballero’s note. He recalled at trial that the note was to send a
message to those people who were “telling” and if possible, to shoot at their house and
make it look like the Sureños shot the house to intimidate the witnesses.
Gollas told correctional officers he wanted to pass some information about a
situation. The officers did not take the note. Instead, they moved him to a different
cellblock. Gollas hid the note in his rectum. He was upset the officers did not take it.
In his new cellblock, Gollas met Flores. They talked about Flores’s connection
with Caballero and how the two got into a confrontation with a Sureño who was shot.
Like Caballero, Flores asked Gollas to deliver a note to Ordaz. He gave the note to
Gollas.
Gollas read Flores’s note. The note was a message to those outside to get their
stories straight against what Jose Rodriguez was saying, and it was an instruction to move
the gun if they had not done so already. We will discuss the two notes in more detail
below.
Gollas decided not to pass the notes to Ordaz. He did not want to be incarcerated,
and he wanted to protect Ordaz, who was like a brother-in-law to him. He later met with
detectives and gave them the notes.

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Gang expert testimony
Sergeant Christie Lynn of the Sacramento County Sheriff’s Department testified
as an expert in Hispanic gangs. She relied on percipient witness testimony and police
reports to opine that Caballero and Flores were active Norteño gang members. Relying
on hypothetical facts that paralleled this case, she said the murder and the conspiracies to
intimidate witnesses and shoot at houses would have been committed to benefit the gang.
We will discuss Sergeant Lynn’s testimony in more detail below.
Judgment
A jury found Caballero guilty of first-degree murder, conspiracy to shoot at an
inhabited dwelling, and conspiracy to intimidate a witness by force or violence. (Pen.
Code, §§ 187, subd. (a); 182, subd. (a)(1)/246; 182 subd. (a)(1)/136.1, subd. (c)(1)
[statutory section references that follow are to the Penal Code unless otherwise stated].)
The jury found true firearm enhancements and allegations that Caballero committed the
crimes for the benefit of a criminal street gang. (§§ 12022.53, subds. (b)-(e)(1); 186.22,
subd. (b)(1).) In a bifurcated bench trial, the trial court found that Caballero had incurred
two prior strike convictions. (§§ 667, subds. (b)-(i); 1170.12.)
The court sentenced Caballero to a prison term of 145 years to life, calculated as
follows: 75 years to life for first-degree murder (25 years to life tripled for the strike
priors); a consecutive 25 years to life for the firearm enhancement; and a consecutive 45
years to life for conspiring to shoot at an inhabited dwelling (gang enhancement of 15
years to life tripled for the strike priors). The court imposed and stayed under section 654
a consecutive sentence of 25 years to life (third strike) for conspiring to intimidate a
witness.
The jury found Flores guilty of second-degree murder and conspiracy to intimidate
a witness by force or violence. (§§ 187, subd. (a); 182, subd. (a)(1)/136.1, subd. (c)(1).)
It acquitted him of conspiracy to shoot at an inhabited dwelling. The jury found true a

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firearm enhancement and the criminal street gang enhancement. (§§ 12022.53, subd.
(e)(1); 186.22, subd. (b)(1).) The court in the bifurcated bench trial found that Flores had
incurred a prior serious felony conviction which also qualified as a prior strike. (§§ 667,
subds. (a), (b)-(i); 1170.12.)
The court sentenced Flores to a prison term of 74 years to life, calculated as
follows: 30 years to life for second-degree murder (15 years to life doubled for the strike
prior); a consecutive 25 years to life for the firearm enhancement; a consecutive 14 years
to life for conspiring to intimidate a witness (gang enhancement of 7 years to life doubled
for the strike prior); and a consecutive five years for the serious felony prior.
DISCUSSION
I
Judge’s Improper Comments to Jury Panel
Defendants contend the trial court abused its discretion when it denied their
motion to dismiss a jury panel whose members may have heard another trial judge make
improper comments regarding the role of juries. They claim the court erred when it
refused to investigate whether jurors were exposed to the comments and refused to allow
counsel to question the potential jurors about the incident.
A. Background
Before voir dire began, counsel for Flores moved to dismiss a jury panel from an
earlier court day. Although the record is somewhat unclear, it appears that on that earlier
day, counsel was standing in the court hallway when he overheard Judge David Brown
address the panel of jurors who had been called to his courtroom that morning. At that
time, Judge Brown told the jurors that as a result of them appearing, the court will be able
to settle cases. Defense attorneys will peek into the courtroom to see if the jurors are
there, and then they will tell their clients to settle. Judge Brown also said that lawyers

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wondered whether the jurors would believe their clients. By appearing, jurors do a great
service “because now the attorneys can go settle and that’s what the court—that helps the
court process.”
Counsel had to appear in this case, so he asked another attorney not involved in
this case to continue listening to Judge Brown. That attorney reported that Judge
Brown’s comments were to the effect that “attorneys are looking into this room to see
that you are here. Their cases will resolve because they now know that you are here.
You are a very important part of our system because of that. [¶] And number two, that
attorneys will want you to believe what their clients have testified to or the evidence that
is presented.”
It is also unclear whether any of the potential jurors who heard Judge Brown’s
comments eventually ended up on the panel of jurors called for this trial.
In any event, counsel argued that Judge Brown’s comments tainted the panel. He
asserted the comments shifted the burden of proof by implying that jurors should not
believe defendants and their evidence, and that defense attorneys believe their clients are
guilty and should settle if jurors appear. Caballero joined Flores’s motion to dismiss the
panel.
The trial court denied the motion. It stated the panel members would be vetted in
voir dire, and that process would allow them ample opportunity to state whether
something they heard affected their ability to be fair. The court would not allow
questions about the incident to avoid bringing any more attention to it. The court would
allow questions about the panel members’ feelings about attorneys or if they had heard or
seen anything in the past that would affect their ability to be fair. It would ask the
members if anything had happened recently or in the past that affected how they thought
about attorneys, the courts, and the criminal justice system. The court believed these
questions would reveal any potential prejudice based on the incident.

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After ruling on the motion, the trial court addressed the prospective jurors. It
stated the defendants were presumed innocent and the People had to prove each element
of a crime and special allegation beyond a reasonable doubt. Jurors had to consider the
evidence impartially and apply the law as instructed. They had to be fair and impartial to
both sides in judging the facts.
Turning to voir dire, the court told the potential jurors they were to answer all
questions truthfully and completely. The court also asked the prospective jurors in the
audience to listen to the questions because if they entered the box, it would ask them if
they had any pertinent information for those questions.
Among its questions to the panel, the court asked, “[D]o any of you have any
belief or feeling toward any of the parties, the attorneys, or the witnesses that would
make it impossible or difficult for you to act fairly and impartially both as to the
defendants and the People in this case?” No prospective jurors indicated they did. The
court asked if the potential jurors had any strong feelings about the criminal justice
system that would make it difficult for them to be fair and impartial. None did.
The court further asked, “[H]as anything ever happened in your life, either
recently or in the past, that has affected how you think about attorneys, whether they are
prosecutors, defense attorneys, civil attorneys, the courts, or the criminal justice system in
general? Any strong feelings that would affect your ability to be a fair and impartial
juror?” No prospective juror responded.
Flores’s attorney also questioned the prospective jurors about bias against
attorneys. He stated:
“There’s also a bias against people like me not because [of my race] but because
I’m a defense lawyer. When you watch TV, movies, all of those things, they depict us as
evil characters. Characters who are willing to do anything to get their clients off. That
we’re in the backroom with a caldron and we’re looking for a piece of hair that you
dropped so we could put it in the pot and then all of a sudden you get into an auto

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accident. All this kind of stuff. All right, I’m exaggerating a little bit but you know and I
know we’re not depicted as the world[’s] best human beings.
“So and all I want to know is if you have a bias against defense lawyers. Like if
you sit around all the time going all those lazy defense lawyers, look at what they are
doing, see, that’s a bias. If that’s the way you feel about defense lawyers, let it out and
let me know by raising your hands. It’s okay. All right, no hands are raised. Okay.”
As jury selection continued and the parties used their peremptory challenges, the
trial court regularly asked the prospective jurors entering the box if they had any relevant
information regarding the previous questions from the court or the attorneys. No
prospective juror indicated any bias or problem with defense attorneys or that he or she
could not follow the law as instructed.
B. Analysis
Defendants contend the trial court abused its discretion by not investigating the
effect of Judge Brown’s comments. They argue Judge Brown committed misconduct by
instructing the jury panel as he did, and the trial court should have examined the potential
jurors to determine whether they had heard the judge’s comments and how those
comments affected their view of defendants and defense counsel. They assert the court’s
general questions were inadequate. They also argue that by limiting voir dire, the court
prevented defense counsel from examining any additional witnesses.
“ ‘[T]he conduct of voir dire is an art, not a science,’ so ‘ “[t]here is no single way
to voir dire a juror.” ’ (People v. Taylor [(1992) 5 Cal.App.4th 1299,] 1313, quoting
Mu’Min v. Virginia (1991) 500 U.S. 415, 451 [114 L.Ed.2d 493] (dis. opn. of Kennedy,
J.).)
“ ‘The Constitution . . . does not dictate a catechism for voir dire, but only that the
defendant be afforded an impartial jury.’ (Morgan v. Illinois (1992) 504 U.S. 719, 729
[119 L.Ed.2d 492], quoted in People v. Box [(2000)] 23 Cal.4th [1153,] 1179

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[disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn.
10].) The high court has ‘stressed the wide discretion granted to the trial court in
conducting voir dire in the area of pretrial publicity and in other areas of inquiry that
might tend to show juror bias.’ (Mu’Min v. Virginia, supra, 500 U.S. at p. 427 [trial court
is not required to ask content-based questions regarding pretrial publicity]; see also
People v. Taylor, supra, 5 Cal.App.4th at p. 1313.) Accordingly, ‘the trial court retains
great latitude in deciding what questions should be asked on voir dire,’ and ‘ “content”
questions,’ even ones that might be helpful, are not constitutionally required. (Mu’Min v.
Virginia, supra, at pp. 424, 425.) To be an abuse of discretion, the trial court’s failure to
ask questions ‘must render the defendant’s trial fundamentally unfair.’ (Id. at pp. 425-
426.) ‘Such discretion is abused “if the questioning is not reasonably sufficient to test the
jury for bias or partiality.” ’ (People v. Box, supra, at p. 1179.)” (People v. Cleveland
(2004) 32 Cal.4th 704, 737.)
Here, the trial court’s questioning was reasonably sufficient to test the potential
jurors for bias. The court asked if any of the potential jurors had feelings toward the
parties, counsel, or the justice system that would make it difficult to act fairly and
impartially. It asked whether anything had happened recently or in the past that affected
how they thought about attorneys, including defense attorneys, the courts, or the criminal
justice system. No one responded affirmatively to these questions. Even Flores’s
counsel asked whether the potential jurors had a bias against defense lawyers, and none
of the jurors responded affirmatively. Had the potential juror’s feelings about defendants,
defense counsel, or the justice system been affected by Judge Brown’s comments, it was
reasonable for the court to believe that the jurors would have raised those concerns in
response to these questions.
Defendants claim the trial court should have asked whether any of the potential
jurors had been present in Judge Brown’s courtroom when he made his comments and
then questioned those people separately. This assertion is not cognizable on appeal

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because defendants did not ask the trial court to take this action. (People v. Cleveland,
supra, 32 Cal.4th at p. 736.) Regardless, it was reasonable for the court to proceed as it
did so as not to highlight Judge Brown’s comments.
Defendants rely on People v. Carmichael (1926) 198 Cal. 534 (Carmichael)
[overruled on another ground in People v. Bittaker (1989) 48 Cal.3d 1046, 1086], as
authority for concluding the court’s questions to the jury were too general and thus an
abuse of discretion. Carmichael is distinguishable. In that case, the California Supreme
Court held that the trial court erred in preventing defense counsel from questioning
prospective jurors about whether they knew defendant’s prior jury had hung by a vote of
10 to two for guilty. The high court ruled that counsel’s proposed questions were proper,
as the jurors’ answers would tend to show the existence or nonexistence of actual bias.
(Carmichael, supra, 198 Cal. at pp. 542-543.)
The Carmichael court also held that the error was not cured by general
questioning or asking whether the potential jurors had talked with jurors or witnesses in
the former trial. (Carmichael, supra, 198 Cal. at pp. 544-545.) The court stated, “The
asking of a general question of a juror does not always direct his attention to all the
elements which go to make up the subject matter of the question.” (Id. at p. 545.)
In contrast with Carmichael, the specific questions that the trial court and defense
counsel here asked the potential jurors directed the jurors to the issue of concern, and
they did so without exposing them to Judge Brown’s potentially prejudicial remarks.
Going beyond general questions of bias, the court asked if the jurors had heard anything
recently or in the past that affected how they thought about defense attorneys or the
criminal justice system. Counsel directly asked if the jurors were biased against defense
attorneys. Balancing its questions to expose bias without creating it, the trial court did
not abuse its discretion by investigating the potential for bias from Judge Brown’s
remarks with the questions it asked or with the limitations it placed on voir dire.

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II
Evidentiary Issues
Defendants raise several arguments challenging the admission and sufficiency of
evidence. They assert (1) the court erred by admitting gang expert testimony that
consisted of testimonial hearsay; (2) the admission of the gang-related evidence was
unduly prejudicial and violated due process; (3) insufficient evidence supports
Caballero’s conviction of conspiracy to shoot at a residential dwelling; and (4)
insufficient evidence supports Flores’s conviction of conspiracy to intimidate a witness
by force.
A. Admission of Gang Expert’s Testimony
Caballero and Flores contend the trial court erred by admitting testimonial hearsay
evidence from Sergeant Lynn, the prosecution’s expert witness on gangs, in violation of
state hearsay law and the Sixth Amendment right of confrontation. Defendants claim the
error was prejudicial and requires us to vacate the gang enhancements and reverse the
judgments.
We agree that some of Sergeant Lynn’s testimony was testimonial hearsay that
violated People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), but much of it was not. Any
error in admitting the evidence was harmless, as ample nonhearsay evidence from
percipient witnesses and Sergeant Lynn established defendants’ gang affiliations and
motives beyond a reasonable doubt.
1. Background
The Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.)
authorizes additional punishment for criminal street gang members who commit gang-
related felonies. For this enhancement, the prosecution must show that the defendant
committed a felony “for the benefit of, at the direction of, or in association with any

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criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members[.]” (§ 186.22, subd. (b)(1).)
Under the statute, a criminal street gang is an ongoing association or group of
three or more persons that has as a primary activity the commission of serious felonies
listed in the statute. (§ 186.22, subd. (f).) The group also has a common name or
common identifying sign or symbol, and its members individually or collectively engage
in a “pattern of criminal gang activity.” (Ibid.) A pattern of criminal gang activity is the
commission or conviction of two or more of the listed felonies on separate occasions
within a period of three years or by two or more persons. (§ 186.22, subd. (e).)
To establish this enhancement here, the prosecution introduced evidence from
percipient witnesses and Sergeant Lynn to show that defendants were members of the
VGT, VGT was a Norteño criminal street gang as defined by the statute, and defendants
committed their crimes for the gang’s benefit to promote criminal conduct by gang
members.
Defendants’ acquaintances testified to defendants’ gang membership and contacts.
As mentioned above, Hector Ojeda testified that Caballero and Flores were members of
VGT, and VGT was affiliated with the Norteño street gang. Miguel Gollas learned that
Caballero was Spider’s gang homie. Michael Aldridge, who associated with Norteño
gang members in Galt, knew that Flores was a VGT gang member.
Jose Rodriguez, who was with defendants at Flores’s mother’s home the night of
the murder and was the victim’s cousin, testified that Flores was a VGT gang member.
Rodriguez also stated that when he hung out with Norteños, Caballero would sometimes
be there.
Christina Holguin, who dated Caballero before the murder, knew that Caballero
had been affiliated with Norteños. They were together the day after the murder when
Caballero told Holguin that the SWAT team was at his house. He felt he was going to be
arrested for his gang affiliation and tattoos and for the murder.

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Priscilla Azua, Caballero’s mother, testified that she knew Caballero was a
Norteño gang member.
Arresting and investigating officers testified as percipient witnesses to gang-
related contacts they had with defendants. As to Caballero, officers testified as percipient
witnesses to the following:
• In January 2008, Caballero was in a fight with some Sureños and chased them
with a tire iron. He said he “kicks it” with Norteños and had been jumped into a gang a
year earlier.
• In April 2008, Caballero was riding a bicycle while carrying a large baseball bat.
The bat’s handle was wrapped in electrical tape and “VGT” was written on the bat.
• In March 2009, officers detained Caballero who, along with his companions,
had silver spray paint on their fingertips. Officers found graffiti on several homes, cars,
and fences in the same color of paint. The graffiti was “XIV” and “VGT.”
• In June 2009, Caballero, then a resident at a county boys’ ranch, approached a
resident while making gang statements and attacked the resident. While restrained,
Caballero yelled “that’s the Norte way” and “On Norte.” “On Norte” meant his actions
were done for his gang.
• In May 2010, Caballero participated in a fight at the county juvenile hall
between groups of Norteños and Sureños.
• In January 2011, while in juvenile hall, Caballero told a resident that he was
teaching the other Norteños in the unit the gang’s structure and discipline, and that he
wanted to be incarcerated until the age of 25 so he could take what he learned in prison
back to the streets to teach the “little homies.”
As to Flores, officers testified as percipient witnesses to the following:
• In August 2005, officers detained Flores and a Norteño on a call of shots fired.
Flores’s companion said it was a gang-on-gang incident.

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• In April 2006, officers detained Flores who was possessing a knife. He admitted
being a Norteño to the officers. He had one dot tattooed on his right forearm and four
dots tattooed on his left forearm representing the number 14, a symbol commonly
associated with Norteños in Galt.
• In September 2006, an officer initiated a traffic stop of a car in which Flores,
known by the officer to be a VGT Norteño, was with two other Norteños.
• In October 2007, Flores and others went out to look for Sureños to confront.
Flores shot two men. He bragged to his friends that he shot two Sureños. Flores was
convicted of two counts of attempted murder and served six years in prison.
In her testimony, Sergeant Lynn explained the characteristics of the Norteño gang
and its subset, the VGT. Their common signs and symbols include the color red and the
number 14 on clothes and tattoos. 14 is a gang symbol because the letter “n” is the 14th
letter in the alphabet. Sureños are the Norteños common enemy. VGT’s criminal
activities include attempted murder and assault with deadly weapons. Reviewing photos
of defendants, Sergeant Lynn explained that their various tattoos indicated membership in
VGT and the Norteño gang.
Sergeant Lynn also testified about two predicate crimes to establish that VGT
qualified as a criminal street gang. She testified about these crimes based on her review
of police reports. No percipient witness testified concerning these crimes. One crime
concerned Diego Viona, a VGT Norteño. Viona was convicted of assault with a deadly
weapon. He and others confronted the victim in 2010 and stabbed him multiple times.
The gang enhancement was found true.
The second predicate crime concerned Joel Anaya, also a VGT Norteño. Anaya
was convicted of attempted murder for shooting at two Sureños in Harvey Park in 2011.
The gang enhancement was found true.

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Sergeant Lynn testified of the gang-related contacts with defendants by police
which the percipient witnesses had described. She discussed these events based on the
police reports filed on each.
She also testified of gang-related incidents involving defendants about which
percipient witnesses did not testify. These incidents included: (1) a March 2007 police
report describing how responding officers found Flores and other Norteños participating
in a gang fight; (2) an April 2007 police report noting that Flores was found in the
presence of Norteño members; (3) May and August 2007 police reports describing how
Flores was stopped in a vehicle with other Norteños; (4) a June 2007 police report
depicting how Flores was in the presence of a Norteño following a report of vandalism;
and (5) an October 2007 police report describing how Caballero was contacted in a
vehicle with fellow Norteños.
Based on the evidence she considered and her own experience, Sergeant Lynn
concluded that defendants were members of VGT.
She also opined, based on hypothetical facts that mirrored this case, that
defendants committed the crimes to benefit VGT and the Norteños. Norteños who go
into a Sureño neighborhood asking people where they are from and if they bang are
looking for a challenge. To them, a wrong answer means the person is aligning himself
or herself with the wrong gang and is being disrespectful. The gang members will
respond with threats or violence. By being in the Sureño neighborhood, the Norteños
were disrespecting the Sureños and showing they could go into the enemy’s claimed
territory and do whatever they wanted. Pulling out a gun and murdering a person who
disrespected them would benefit the gang by gaining respect from their enemies and
showing they were not afraid to take violence into enemy territory.
Similarly, sending notes from jail to threaten witnesses benefited the gang by
instilling fear and making sure no one told a story that the defendants did not want told.
Gang members facing charges will often attempt to intimidate witnesses to protect the

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gang member as well as the gang. Both hypotheticals, murder of a disrespectful citizen
and passing notes to intimidate witnesses, would, in Sergeant Lynn’s opinion, benefit the
gang as a whole.
2. Analysis
Defendants assert that Sergeant Lynn’s case-specific factual testimony, including
her description of the two predicate crimes, was beyond her personal knowledge, was
testimonial hearsay, and was thus inadmissible. They also contend the error was
prejudicial.
The hearsay rule does not bar an expert witness’s testimony concerning her
general knowledge in her field of expertise, even if technically hearsay. (Sanchez, supra,
63 Cal.4th at p. 676.) Gang experts may provide background testimony “about general
gang behavior or descriptions of the . . . gang’s conduct and its territory” and the gang’s
“history and general operations” when based on well-recognized sources in the expert’s
area of expertise. (Id. at p. 698.)
By contrast, an expert is “precluded from relating case-specific facts about which
the expert has no independent knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676,
original italics.) “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. If the case is one in which a prosecution
expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless
(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Id. at p. 686, original italics,
fn. omitted.)
Case-specific facts “are those relating to the particular events and participants
alleged to have been involved in the case being tried. Generally, parties try to establish

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the facts on which their theory of the case depends by calling witnesses with personal
knowledge of those case-specific facts. An expert may then testify about more
generalized information to help jurors understand the significance of those case-specific
facts. An expert is also allowed to give an opinion about what those facts may mean.
The expert is generally not permitted, however, to supply case-specific facts about which
he has no personal knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676.)
Here, most of the gang-related testimony on which Sergeant Lynn relied was
percipient witness testimony. Officers testified to six different gang-related events
involving Caballero and four events involving Flores in which they had personal
knowledge. Sergeant Lynn relied upon this testimony as well as the corresponding police
reports to conclude that defendants were members of the VGT gang. Admitting her
opinion based on percipient witness testimony did not violate hearsay rules or the
confrontation clause, as she could give an opinion about what those facts meant. (Evid.
Code, § 1220; Sanchez, supra, 63 Cal.4th at p. 676.)
Contrary to defendants’ arguments, Sergeant Lynn’s testimony regarding the two
predicate crimes was also admissible. Evidence of predicate crimes not involving the
defendants before us is not case-specific for purposes of Sanchez and can be admitted
through the expert witness’s testimony. (People v. Blessett (2018) 22 Cal.App.5th 903,
943-945, review granted Aug. 8, 2018, S249250; but see People v. Ochoa (2017)
7 Cal.App.5th 575, 582-583.)
Sanchez “defines case-specific facts to be facts ‘relating to the particular events
and participants alleged to have been involved in the case being tried.’ ([Sanchez, supra,
63 Cal.4th] at p. 676.) The predicate offenses used in this case do not fall within this
definition; they did not involve the particular events or participants involved in the case
being tried. Rather, they are historical facts related to the gang’s conduct and activities.
These facts pertain to the gang as an organization and are not specific to the case being
tried. They establish that the ‘organization, association, or group’ has engaged in a

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‘pattern of criminal gang activity’ and is thus a criminal street gang (§ 186.22, subd. (f))
irrespective of the events and participants in the case being tried. A predicate offense
and the underlying events are essentially a chapter in the gang’s biography. Thus, they
are relevant to a gang expert’s opinion about whether a group has engaged in a pattern of
criminal gang activity and is a criminal street gang under the statutory definition.
Moreover, predicate offenses are specific examples of the gang’s primary activities and
thus such evidence is relevant to the gang expert’s opinion about the primary activities of
the gang.” (People v. Blessett, supra, 22 Cal.App.5th at pp. 944-945, original italics.)
Because the predicate offenses evidence did not concern case-specific facts, the trial
court correctly admitted Sergeant Lynn’s testimony concerning the predicate crimes.
Sergeant Lynn, however, also relied on police reports of gang-related incidents
involving defendants that were not introduced by percipient witnesses. Four of these
incidents concerned Flores and one concerned Caballero. An expert cannot “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.” (Sanchez, supra,
63 Cal.4th at p. 686.) Moreover, police reports such as those Sergeant Lynn relied on are
testimonial where they “relate hearsay information gathered during an official
investigation of a completed crime.” (Id. at p. 694.) Admitting these case-specific
statements from the police reports violated defendants’ right of confrontation and state
hearsay rules.
At issue, then, is whether the court’s admission of Sergeant Lynn’s testimony
based in part on testimonial hearsay was prejudicial. We review violations of the
confrontation clause for prejudice under the harmless error standard of Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman). (People v. Capistrano
(2014) 59 Cal.4th 830, 873, overruled on another ground in People v. Hardy (2018)
5 Cal.5th 56, 104.) We ask if it is clear beyond a reasonable doubt that a rational jury

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would have reached the same verdict absent the error. (People v. Capistrano, supra,
59 Cal.4th at p. 873.)
The error in this case was harmless beyond a reasonable doubt. Without the
disputed evidence, the jury still would have found the defendants guilty of the charged
crimes, they were members of VGT, and they committed the crimes for the gang’s
benefit and with the intent to promote criminal conduct by gang members.
The record is replete with admissible evidence establishing that defendants were
members of VGT. Other Norteño gang members, acquaintances, and family members
testified without contradiction that defendants belonged to VGT and associated with
other Norteños. Both defendants had numerous VGT and Norteño tattoos.
As already described, percipient police testimony showed that both defendants
participated in gang-related activities. Caballero fought Sureños, spray-painted Norteño
symbols on property, attacked a boy’s ranch resident while declaring “the Norte Way,”
taught Norteño organization and discipline at the boy’s ranch, and participated in a fight
between Norteños and Sureños in juvenile hall. Flores was present at a gang-on-gang
shooting, he fired shots at a known Sureño residence looking for Sureños to confront,
possessed a knife while admitting to being a Norteño, and was present with two other
Norteños during a vehicle stop.
The admissible evidence also established that defendants committed the crimes for
the benefit of, or in association with the gang to promote criminal conduct by gang
members. Ojeda testified that gang members will resort to violence if they feel
disrespected to make a name for themselves and for their gang. That is what occurred
here. A group of VGT Norteños entered a Sureño neighborhood looking for a Sureño to
confront. After asking others if they were gang members, they confronted the victim.
The victim responded in a way that Caballero felt was disrespectful, and Caballero shot
him multiple times. After their arrests, they relied on other Norteño members inside and
outside of jail to prevent others from testifying against them, and they directed those

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members to use violence if necessary. The uncontradicted percipient testimony, along
with Sergeant Lynn’s expert opinion, showed that the crimes promoted further criminal
conduct by VGT members by increasing their reputation and community members’ fear
and by protecting the gang’s members.
We have no reasonable doubt that a rational jury would have returned the same
verdicts had the testimonial hearsay evidence been excluded. Any error in not excluding
that evidence was harmless.
B. Prejudicial Nature of Evidence of Flores’s Gang Activities
Flores raises an additional ground for challenging the admission of the police and
expert witness testimony regarding his prior gang activities: the evidence was unduly
prejudicial under Evidence Code section 352. Denying an in limine motion by Flores, the
trial court ruled the gang evidence was admissible and not unduly prejudicial under
Evidence Code section 352. The court admitted the evidence for the limited purposes of
showing motive and intent and for establishing the gang enhancement. The evidence
could not be used as disposition or bad character evidence.
Flores contends the trial court abused its discretion, as the gang evidence was
prejudicially cumulative, was improper bad character evidence admitted in violation of
his due process rights, and was inadmissible to establish motive.
We find no basis to reverse the trial court’s ruling.
Evidence Code section 352 authorizes a trial court in its discretion to “exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code,
§ 352.) A court’s ruling under Evidence Code section 352 “ ‘ “must not be disturbed on
appeal except on a showing that the court exercised its discretion in an arbitrary,

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capricious or patently absurd manner that resulted in a manifest miscarriage of justice.
[Citations.]” ’ ” (People v. Williams (2008) 43 Cal.4th 584, 634-635.)
“ ‘The prejudice that [Evidence Code] section 352 “ ‘is designed to avoid is not
the prejudice or damage to a defense that naturally flows from relevant, highly probative
evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of
“prejudging” a person or cause on the basis of extraneous factors. [Citation.]’
[Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.) In other words, evidence
should be excluded as unduly prejudicial when it is of such nature as to inflame the
emotions of the jury, motivating them to use the information, not to logically evaluate the
point upon which it is relevant, but to reward or punish one side because of the jurors’
emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of
the substantial likelihood the jury will use it for an illegitimate purpose.’ (Vorse v.
Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.)” (People v. Doolin (2009) 45 Cal.4th
390, 439.)
Gang evidence can be prejudicial, but its probative value often outweighs its
prejudicial effect. “Although evidence of a defendant’s gang membership creates a risk
the jury will improperly infer the defendant has a criminal disposition and is therefore
guilty of the offense charged—and thus should be carefully scrutinized by trial courts—
such evidence is admissible when relevant to prove identity or motive, if its probative
value is not substantially outweighed by its prejudicial effect. (People v. Williams (1997)
16 Cal.4th 153, 193.)” (People v. Carter (2003) 30 Cal.4th 1166, 1194.)
“In cases not involving the gang enhancement, . . . evidence of gang membership
is potentially prejudicial and should not be admitted if its probative value is minimal.
[Citation.] But evidence of gang membership is often relevant to, and admissible
regarding, the charged offense. Evidence of the defendant’s gang affiliation—including
evidence of the gang’s territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, rivalries, and the like—can help prove identity, motive, modus

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operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt
of the charged crime. [Citations.] To the extent the evidence supporting the gang
enhancement would be admissible at a trial of guilt, any inference of prejudice would be
dispelled . . . .” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050, original
italics.)
Flores contends the evidence was prejudicial because it was cumulative, it
consisted of propensity evidence, and it was inadmissible to establish motive. As to the
first argument, Flores asserts that because the prosecution introduced more gang evidence
than was necessary to establish the gang enhancement, the evidence became prejudicially
cumulative. He claims the enhancement could have been proven by expert testimony
alone regarding his tattoos and admissions to police of his gang membership, rendering
evidence of his numerous other police contacts, associations with gang members, and
prior offenses duplicative.
We disagree with this argument. “The prosecution need not sap the force of its
case by presenting only the most antiseptic evidence, even in the face of a defense offer
to stipulate. [Citations.] A fortiori, where, as here, the prosecution must convince the
fact finder, beyond reasonable doubt, of charges and allegations the defendant has not
conceded, it need not sanitize its case by presenting only enough evidence to meet bare
legal sufficiency.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1138, disapproved on
another ground by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
We recognize “the state has a strong interest in prompt and efficient trials, and that
interest permits the nonarbitrary exclusion of evidence, including ‘when the presentation
of the evidence will “necessitate undue consumption of time.” ’ [Citation.] Accordingly,
neither the prosecution nor the defendant has a right to present cumulative evidence that
creates a substantial danger of undue prejudice [citation] or that unduly consumes the
court’s time [citation].” (People v. Williams (2009) 170 Cal.App.4th 587, 611.)

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“[N]o bright-line rules exist for determining when evidence is cumulative . . . .”
(People v. Williams, supra, 170 Cal.App.4th at p. 611.) The term “has a substantive
meaning, and the application of the term must be reasonable and practical.” (Ibid.) “The
plain meaning of cumulative as ‘repetitive’ or ‘additional’ [citations] obviously implies in
this context that other evidence on the point at issue has already been introduced. . . . [¶]
. . . To be cumulative imports that something of like effect is already shown.” (People v.
Filson (1994) 22 Cal.App.4th 1841, 1850, disapproved on another ground in People v.
Martinez (1995) 11 Cal.4th 434, 452.) However, “[e]vidence that is identical in subject
matter to other evidence should not be excluded as ‘cumulative’ when it has greater
evidentiary weight or probative value.” (People v. Mattson (1990) 50 Cal.3d 826, 871.)
The trial court did not abuse its discretion in concluding the gang evidence was not
cumulative. The evidence was relevant to establishing the gang enhancement, and thus
its prejudicial impact could not outweigh its probative value. The prosecution could also
rely on the evidence in addition to Flores’s tattoos and prior admissions because the
evidence carried greater probative value than those matters. It demonstrated that Flores’s
loyalty to the gang was longstanding and so strong he would commit violent acts on its
behalf.
Moreover, Sanchez required the prosecution to introduce percipient witness
testimony to prove the gang enhancement. Relying on an expert witness to make that
showing would have been more efficient, but, as already mentioned, the law now forbids
the admission of testimonial hearsay by experts to prove the point. Sanchez requires
prosecutors to introduce more evidence, which will occupy more of the court’s time.
In this case, the gang-related testimony did not prejudicially consume the court’s
time. The percipient witnesses’ testimony is recorded in only 30 pages of transcript and
is limited in its scope. The expert witness’s testimony on the predicate crimes and the
other incidents on which she relied also took only minimal time. Under these

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circumstances, we cannot say the trial court abused its discretion by admitting the
evidence over an objection that it was cumulative.
Flores next contends the gang evidence was propensity evidence admitted in
violation of his due process rights. He argues the evidence of police contacts was unduly
prejudicial because it suggested Flores had a bad character, and the evidence could lead
to the jury punishing him for uncharged criminal acts.
We disagree with these arguments, too. Admitting criminal propensity evidence
where not allowed by statute does violate due process, but the police testimony was
expressly not admitted as character evidence. The trial court admitted it only for the
limited purpose of establishing motive and intent under Evidence Code section 1101,
subdivision (b), and for establishing the gang enhancement. The “routine application of
state evidentiary law does not implicate defendant’s constitutional rights.” (People v.
Brown (2003) 31 Cal.4th 518, 545, fn. omitted.) The trial court also limited the use of the
evidence, instructing the jurors they “could not conclude from this evidence that the
defendant is a person of bad character or that he has a disposition to commit crime.”
(CALCRIM No. 1403.) We presume the jury followed this instruction, and no evidence
suggests otherwise. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Flores, however, claims the evidence was not admissible to show intent or motive.
The trial court did not abuse its discretion by admitting the gang evidence to establish
motive. Flores’s gang activity, including his prior shooting of Sureños, was relevant and
sufficiently like the present crime to establish that his and Caballero’s motives in this
shooting were to benefit their gang. The probative value of that evidence outweighed
whatever emotional bias the evidence may have engendered in the jurors. The court did
not err in admitting the evidence.

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C. Sufficiency of the Evidence of Conspiracy to Shoot at a Dwelling
Caballero contends insufficient evidence supports his conviction of conspiracy to
shoot at an inhabited dwelling. He argues the information charged him with conspiring
to shoot at Jose Rodriguez’s house as one of the overt acts of the conspiracy, but the note
on which the prosecution relied to prove this crime directed people to shoot at someone
else’s house, not Rodriguez’s. We conclude substantial evidence supports the verdict.
1. Background
The information alleged that one of Caballero’s overt acts of conspiracy was
giving Gollas the note which “in summary, stated that an anonymous person needed to
deliver a ‘message’ to witness Jose Rodriguez’ house, shooting it.”
Gollas testified about the note. He said, “I was in my cell bored so it said just—
not word by word but in regards to send a message out to those people. They are
saying—they are telling. And if possible shoot at the house and make it seem like it was
Southsiders obtaining to shoot the house to intimidate the witness.”
Gollas read the note to the jury, and the note was introduced into evidence.
Caballero states in his opening brief that “that kid” referenced in the note is Rodriguez.
The underlines were written by Caballero; they do not indicate missing text. The note
reads in full:
“I’m writing this at the last minute so real quick straight to it. People present that
night need to step up and start telling the truth. And that is that that kid is a liar and is
just making shit[.] Everyone was drinking that night feel and I left early around 8:00
clock you know what I mean so that needs to be said and Damian never left his house __.
“Next you know Lil Hec [Little Hector] is now trash so fuck him[.] As far as I
know he aint lieing [sic] and tryna [sic] to make shit up trying to implicate. But he might
start so if it is possible and only if he starts talking he needs to be warned that. That is
not in his familys [sic] best interest __ Something will need to be done to make sure he

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stays quiet __ Maybe a message to his house by an annoynomous [sic] person shooting
it. Scrap tags etc. Imagination will be needed so it cannot be traced to homies or us.
“Speak with my dad about this and only those you feel you can trust to do the right
thing feel me that kids [sic] a liar who’s to be recognized as one[.] At the least the people
there that night dont [sic] recall to [sic] well because they were drunk and that individual
was the one most drunk feel me.
“But people must not go overboard with what they say you know they can’t get
caught up in lie’s[.] Also __ Ernie made a statement to police I have not seen a copy of it
yet so this person must be treated accordingly until further notice.
“And Damian’s niece Bianca pretty much told on us. Matching a police
description [and] lieing [sic] and saying we were wearing clothes we werent [sic]. She’s
just tryna [sic] save her man piece of shit.
“Please handle delicately and let my dad know when this reaches you.”
As Gollas read the note to the jury at trial, the prosecutor sought to establish the
identify of “this other Hector[.]” Defense counsel objected, and the court sustained the
objection. The identify of Little Hector was not established at trial. At the time of the
shooting, Jose Rodriguez was a VGT Norteño and went by the name of “Silent.”
Asked in relation to Flores’s note what it meant to send a message to the witnesses
to change their statements, Gollas said, “Pretty much do whatever it takes to get them
[defendants] out of the situation. I mean, pretty much whatever it takes.”
Sergeant Lynn, the gang expert witness, testified concerning the concept of
snitches in Hispanic gang culture. Essentially, gang members do not snitch. By
snitching, a member was turning on his life and his gang family. A member who snitches
was putting himself in harm’s way and should expect “a beatdown or . . . some other”
assault in retaliation.
Convicting Caballero of conspiracy to shoot at an inhabited dwelling, the jury
found that, as an overt act of the conspiracy, Caballero gave Gollas a note “which, in

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summary, stated that an anonymous person needed to deliver a ‘message’ to witness Jose
Rodriguez’s house, shooting it[.]”
2. Analysis
“To assess the evidence’s sufficiency, we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt. [Citation.] The record must disclose
substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and
of solid value—such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.)
“ ‘A conviction of conspiracy requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof of the commission of
an overt act “by one or more of the parties to such agreement” in furtherance of the
conspiracy.’ (People v. Morante (1999) 20 Cal.4th 403, 416, quoting Pen. Code, § 184.)
‘Criminal conspiracy is an offense distinct from the actual commission of a criminal
offense that is the object of the conspiracy.’ (Morante, at p. 416.) Other than the

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agreement, the only act required is an overt act by any of the conspirators, not necessarily
the defendant, and that overt act need not itself be criminal. (People v. Russo (2001)
25 Cal.4th 1124, 1135.)” (People v. Smith (2014) 60 Cal.4th 603, 616, original italics.)
Here, the information specifically alleged that one of the overt acts was
Caballero’s directive in his note to deliver a message to “Jose Rodriguez’s house,
shooting it[.]” A rational jury could interpret the note to direct, or not to direct, someone
to shoot at Rodriguez’s home. The note can be read to suggest that someone shoot at
Little Hector’s house if he starts talking and to keep him quiet. There is no evidence in
the record suggesting Rodriguez was Little Hector.
However, a rational juror could also interpret the note to suggest shooting at
Rodriguez’s home. After Caballero suggested shooting at the house, he asked the
recipient to “[s]peak with my dad about this and only those you feel you can trust to do
the right thing feel me that kids [sic] a liar who’s to be recognized as one[.]” In light of
Sergeant Lynn’s expert testimony that gang members will retaliate against snitches, the
jurors reasonably could have inferred that Caballero’s directive to speak with his father
about shooting at the house and doing “the right thing” to recognize Rodriguez as a liar
was a directive to shoot at Rodriguez’s house.
Gollas’s testimony strengthened this interpretation. He remembered the note as
directing its readers to send a message to those who are telling and, if possible, shoot at
the house to intimidate the witness. He said a direction to send a message to witnesses to
change their statements meant the readers were to do whatever it took to get the
defendants out of trouble. The jurors, understanding a gang’s likely retribution against
snitches and Caballero’s directive to do whatever it takes to free the defendants, including
doing “the right thing” against Rodriguez, could have reasonably interpreted the note to
direct the readers to shoot at Rodriguez’s home. Substantial evidence supports that
interpretation and Caballero’s conviction.

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D. Sufficiency of the Evidence of Conspiracy to Intimidate a Witness
Flores contends insufficient evidence supports his conviction of conspiracy to
intimidate a witness by force or violence. He claims the evidence does not show that
anyone agreed with him to intimidate witnesses, nor does the evidence show that the
conspiracy was to prevent or dissuade a witness from testifying, as prohibited by section
136.1. At most, it shows he attempted to influence witnesses, a misdemeanor under
section 137.
1. Background
The information alleged that Caballero and Flores conspired with each other and
with other persons to intimidate a witness by force or violence, actions prohibited by
section 136.1, subdivision (c)(1). The information alleged the conspiracy’s overt acts
were the following:
1. Vidal Fabela (Spider) told Gollas that Gollas needed to do a favor and would
be approached later with instructions;
2. Caballero gave Gollas a note which directed someone to deliver a message to
Rodriguez’s house, shooting it; and
3. Flores gave Gollas a note which further detailed steps to be taken to intimidate
Rodriguez.
The evidence supported the first two alleged overt acts. As to the third, the note
Flores gave to Gollas read in relevant part:
“Get at Lorenzo ‘Smiley’ as well as yourself to get at all the lil [sic] homies to let
them know that night I did not leave the house and talk to Big Hector ‘silent’ to ask what
Lencho [Caballero] wants them to tell the investigators[.] We need them to make it seem
like the fool who is telling ‘Jose Rodriguez’ is lying and he was drunk and wasn’t in his
right mind because his statement . . . is the one that’s kind of strong. If the homies all say

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the same story it proves that the snitch ‘Jose Rodriguez’ is lying. And my bro nos were
[sic] that thing is at ‘gun’; to get it out of there already if they haven’t.”
2. Analysis
To prove that Flores conspired to violate section 136.1, the prosecution had to
show that Flores agreed with someone to prevent or dissuade or attempt to prevent or
dissuade Rodriguez from testifying using force, a threat of force, or violence. (§ 136.1,
subd. (c)(1).) Flores contends there is insufficient evidence to establish that he entered
into an agreement to intimidate, or that his note intended to instigate witness intimidation
as opposed to merely influencing a witness.
We turn first to the issue of agreement. “Evidence is sufficient to prove a
conspiracy to commit a crime ‘if it supports an inference that the parties positively or
tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a
conspiracy may be inferred from the conduct, relationship, interests, and activities of the
alleged conspirators before and during the alleged conspiracy. [Citations.]’ [Citation.]”
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)
The parties “need not expressly agree at all: ‘To prove an agreement, it is not
necessary to establish the parties met and expressly agreed; rather, “a criminal conspiracy
may be shown by direct or circumstantial evidence that the parties positively or tacitly
came to a mutual understanding to accomplish the act and unlawful design.” [Citation.]’
[Citation.]” (People v. Johnson (2013) 57 Cal.4th 250, 264, original italics.)
By itself, Flores’s note does not indicate he and another person agreed to
intimidate witnesses by force. We disagree with the Attorney General’s assertion that
Flores’s note instructed Norteños on the street to intimidate Rodriguez. Nothing in
Flores’s note expressly attempts, or encourages others to attempt, to prevent or dissuade a
witness from testifying—by force or otherwise. Rather, it recognizes that gang members

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will talk with investigators, and it directs them on what they should say. It does not tell
them to use force to prevent Rodriguez from testifying.
The Attorney General argues a reasonable juror could interpret Flores’s note as an
attempt to prevent Rodriguez from testifying. The Attorney General claims Flores was
trying to show Rodriguez that he and Caballero had numerous Norteños ready to
contradict Rodriguez’s statements. The jury could view this as an intimidation tactic to
scare Rodriguez from testifying. Made in the gang context where a snitch is subject to
retaliation, the note, the Attorney General argues, could be viewed as an implicit threat to
Rodriguez that testifying would put him in danger.
This is too tenuous a link from which the jurors could infer an agreement to
intimidate Rodriguez by force against testifying. Instructing witnesses on how to testify
against Rodriguez is not an act of force against Rodriguez. The crime of intimidating a
witness under section 136.1, subdivision (c)(1), requires proof that the defendant
specifically intended to dissuade a witness from testifying by force or violence. (See
People v. Young (2005) 34 Cal.4th 1149, 1210.) A directive to gang members on how to
testify to contradict Rodriguez’s testimony, even in the context of gang culture’s history
of retaliating against snitches, does not establish that Flores had the specific intent to
direct others to intimidate Rodriguez by force or violence.
Expanding beyond the language of the note, the Attorney General argues the jury
could reasonably infer under all the circumstances that Flores agreed with Caballero to
intimidate Rodriguez by force. The Attorney General states, “Considering Flores’s and
Caballero’s criminal association with each other, their aligned interests, the similarity of
their notes, the use of the same middleman, the use of the same intended recipient, and
their history of covering up the crime together, the jury could reasonably infer they tacitly
agreed to intimidate Rodriguez.”
On this point, we agree with the Attorney General. Caballero and Flores belonged
to the same gang, committed the murder together, and covered it up together. Fellow

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Norteño Gollas spoke with Flores about his getting to know Caballero and the murder
Flores and Caballero committed. Learning that Caballero gave Gollas a note to take to
the outside, Flores, it is reasonable to assume, gained an understanding from Gollas of the
note’s content. Supporting Caballero’s message, Flores drafted his own note and directed
the gang members to learn from Caballero what he wanted them to say. Flores gave his
note to Gollas with the direction to deliver the note to the same person who would receive
Caballero’s note. The jury could reasonably find that Flores desired to present a unified
message from both he and Caballero to the gang members—intimidate Rodriguez and
rehearse your testimony.
Flores contends we cannot affirm his conviction for intimidating a witness because
we cannot determine whether the jurors based their verdict on a legally valid theory. The
instructions stated the jury could convict Flores if he conspired with Caballero, Fabela, or
Gollas. Flores claims Gollas as a matter of law could not be a participant in the
conspiracy because at the time he accepted Flores’s note, he was acting as a government
informant and not a coconspirator. Flores asserts we must reverse because we cannot
determine whether the jury unanimously found him guilty based on a conspiracy with
someone other than Gollas.
In this instance, whether Gollas was acting as a government informer is irrelevant.
Flores is correct that where only two persons are involved, “and one is a government
agent or informer, the other cannot be convicted of conspiracy.” (People v. Liu (1996)
46 Cal.App.4th 1119, 1128.) A government agent cannot have the requisite specific
intent. (Ibid.)
However, this rule does not apply where more than two people are members of the
conspiracy, and one of them is a government agent. “[T]he fact that one of a group of
alleged coconspirators secretly does not or legally cannot intend to commit the target
crime should not be a defense to conspiracy charges or prevent a conspiracy conviction
against the others, as long as there are at least two coconspirators involved whose mutual

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adherence to the common plan is genuine. [Citations.] [¶] [T]he feigned participation of
a false coconspirator or government agent in a conspiracy of more than two people does
not negate criminal liability for conspiracy, as long as there are at least two other
coconspirators who actually agree to the commission of the subject crime, specifically
intend that the crime be committed, and themselves commit at least one overt act for the
purpose of accomplishing the object of the conspiracy.” (People v. Liu, supra,
46 Cal.App.4th at p. 1131.)
Here, Caballero and Flores were members of the conspiracy to intimidate
Rodriguez. Substantial evidence supports the jury’s finding that both defendants agreed
to the commission of the crime, specifically intended the crime to be committed, and, by
passing along their notes, committed at least one overt act to further the conspiracy.
Thus, whether Gollas was acting as a government informant at the time he took Flores’s
note does not affect the fact that Flores conspired with Caballero.
Moreover, because there was only one conspiracy, there is no unanimity
requirement as to the theory of guilt. “The jury must agree on a ‘particular crime’
(People v. Diedrich [(1982)] 31 Cal.3d [263,] 281); it would be unacceptable if some
jurors believed the defendant guilty of one crime and other jurors believed her guilty of
another. But unanimity as to exactly how the crime was committed is not required.
Thus, the unanimity instruction is appropriate ‘when conviction on a single count could
be based on two or more discrete criminal events,’ but not ‘where multiple theories or
acts may form the basis of a guilty verdict on one discrete criminal event.’ (People v.
Perez (1993) 21 Cal.App.4th 214, 223.)” (People v. Russo, supra, 25 Cal.4th at
pp. 1134-1135.)
“Disagreement as to who the coconspirators were or who did an overt act, or
exactly what that act was, does not invalidate a conspiracy conviction, as long as a
unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit
some overt act in furtherance of the conspiracy. When two or more persons combine to

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commit a crime, the jury need not agree on exactly who did what as long as it is
convinced a particular defendant committed the crime regardless of what that defendant’s
precise role may have been.” (People v. Russo, supra, 25 Cal.4th at pp. 1135-1136.)
Here, substantial evidence supports the jury’s finding that Flores conspired with
Caballero to intimidate Rodriguez. Because there was only one conspiracy, we need not
inquire whether the jurors relied on a conspiracy with Gollas to uphold the verdict.
III
Jury Instructions
Flores contends the trial court’s instruction on the law of aider and abettor felony
murder was incorrect under recent amendments to the murder statutes, and both
defendants claim the court incorrectly instructed on conspiracy to intimidate a witness by
force. Flores’s claim must be addressed to the trial court and neither party suffered
prejudicial harm from the incorrect conspiracy instruction.
A. Instruction on Felony Murder Based on Natural and Probable
Consequences
The prosecutor argued that Flores was guilty of felony murder by aiding and
abetting the commission of a felony, the natural and probable consequence of which was
murder. The trial court instructed the jury accordingly. Flores contends his second-
degree murder conviction cannot stand because, under Senate Bill No. 1437 (Stats. 2018,
ch. 1015, § 2 (SB 1437)), aiders and abettors such as himself cannot be convicted of
murder under the natural and probable consequences theory. Flores argues SB 1437
applies retroactively to his case and requires this court to reverse his murder conviction.
Flores is not entitled to reversal from this court, as SB 1437 does not apply
retroactively on direct appeal. Rather, he must pursue the remedy SB 1437 provides to
him: He must file a petition under section 1170.95 in the trial court to obtain relief under
SB 1437. (In re Cobbs (2019) 41 Cal.App.5th 1073, 1080-1081; People v. Martinez

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(2019) 31 Cal.App.5th 719, 729-730.) Because Flores’s remedy is not with us, we will
not address the merits of his contentions under SB 1437.
B. Instructions on Conspiracy to Intimidate a Witness
Defendants correctly argue that when the trial court instructed on the crime of
witness intimidation by force or violence, it did not instruct on the force or violence
element. The error, however, is harmless beyond a reasonable doubt.
“Under established law, instructional error relieving the prosecution of the burden
of proving beyond a reasonable doubt each element of the charged offense violates the
defendant’s rights under both the United States and California Constitutions.” (People v.
Flood (1998) 18 Cal.4th 470, 479-480.) “[A]n instructional error that improperly
describes or omits an element of an offense . . . like the vast majority of other
constitutional errors, falls within the broad category of trial error subject to Chapman
review.” (Id. at pp. 502-503.)
There is no prejudice under Chapman when “the omitted element was uncontested
and supported by overwhelming evidence[.]” (Neder v. United States (1999) 527 U.S. 1,
17 [144 L.Ed.2d. 35].) Here, there was no dispute that Caballero’s note threatened
violence—shooting at an inhabited dwelling. Caballero knew the charged crime alleged
the use of force or violence, and he had an opportunity to present any evidence his
wished on the subject. He did not introduce any evidence contradicting the terms of his
note.
Moreover, despite the instruction’s omission, the jurors understood that to convict,
they had to find defendants intimidated the witness by force or violence because the
verdict forms so instructed them. Under these circumstances, we cannot find the
omission of the element of force or violence in the instruction on the witness intimidation
offense was prejudicial error under Chapman.

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IV
Jury Deliberations
Defendants raise two claims involving the jury’s deliberations. In the first, they
contend the trial court gave an erroneous response to a jury question. In the second,
Caballero asserts the jury mistakenly received a copy of the information and read and
considered its allegations of his prior convictions.
A. Response to Jury Question
Defendants claim the court gave a legally incorrect answer to jury question No. 5
regarding witness intimidation. We conclude the claim is forfeited and, alternatively,
trial counsel did not render ineffective assistance by not objecting.
1. Background
CALCRIM No. 2622, as provided to the jury, read as follows:
“The defendants are charged in Count Three with conspiracy to commit the crime
of intimidating a witness.
“To prove that the defendant is guilty of conspiracy to commit this crime, the
People must prove that defendants conspired to:
“1. Maliciously try to prevent or discourage Jose Rodriguez from attending or
giving testimony at trial.
“2. Jose Rodriguez was a witness.
“AND
“3. The defendant knew he was trying to prevent or discourage Jose Rodriguez
from attending or giving testimony and intended to do so.
“A person acts maliciously when he or she unlawfully intends to annoy, harm, or
injure someone else in any way, or intends to interfere in any way with the orderly
administration of justice.

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“As used here, witness means someone or a person the defendant reasonably
believed to be someone:
“• Who knows about the existence or nonexistence of facts relating to a
crime.”
During deliberations, the jury submitted the following question as its question
No. 5: “In the eyes of the law, does discreteting [sic] a witness or having/asking others to
change their stories, constitute witness intimidation?” By e-mail, the court told the
parties’ attorneys its initial thought was “ ‘to inform the jury that it is a factual
determination for the jury to decide’ ” and to refer them to the appropriate jury
instruction. The court asked counsel to discuss the matter with it the next day.
The following morning, the parties conferred in chambers. According to a settled
statement memorializing the hearing, Mr. Staten, counsel for Flores, appeared for Flores
and Caballero at the hearing. Mr. Staten agreed with the trial court’s assessment that the
jury question was a factual determination the jury had to decide. Although he discussed
the court’s proposed response, he did not object to it. All of the counsel present in the
meeting agreed with the court’s proposed response. None objected. The court noted in
the settled statement “there was, at the end of the day, no objection to the court’s
response to jury note number five.”
The court answered the jury question as follows: “Your question calls for a
factual determination that needs to be decided by the jury. Please refer to CALCRIM
2622 pertaining to witness intimidation.”
2. Analysis
Defendants claim the trial court’s answer to the jury question was incorrect. They
assert the question was one of law, and the court should have told the jurors that
discrediting a witness did not constitute witness intimidation under section 136.1.

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Mr. Staten, representing both defendants when the court considered the jury
question, did not object to the court’s response. A party’s failure to object to a trial
court’s response to a jury question forfeits the claim on appeal. “ ‘When the trial court
responds to a question from a deliberating jury with a generally correct and pertinent
statement of the law, a party who believes the court’s response should be modified or
clarified must make a contemporaneous request to that effect; failure to object to the trial
court’s wording or to request clarification results in forfeiture of the claim on appeal.’
[Citations.]” (People v. Boyce (2014) 59 Cal.4th 672, 699.)
Counsel not only did not object, he specifically agreed with the court’s response.
As a result, the claim is also forfeited under the doctrine of invited error. Defendants
forfeited the claim by specifically agreeing at trial to the court’s handling of the jury’s
question as the correct response. (People v. Harris (2008) 43 Cal.4th 1269, 1317.)
Defendants contend that counsel rendered ineffective assistance by agreeing to the
trial court’s answer to the jury question. We disagree. To establish ineffective assistance
of counsel, defendants must show both (1) deficient performance by trial counsel that fell
below an objective standard of reasonableness under prevailing professional norms, and
(2) a reasonable probability that they would have obtained a more favorable result but for
counsel’s alleged deficiencies. (Strickland v. Washington (1984) 466 U.S. 668, 687-688
[80 L.Ed.2d 674].)
Defendants cannot show that counsel’s agreement with the trial court fell below an
objective standard of reasonableness. Both the court and counsel reasonably determined
that answering the question risked thrusting the trial court into the jury’s role of
deliberating whether Caballero had intimidated witnesses. CALCRIM No. 2622 defined
the crime as maliciously trying to prevent or discourage a witness from giving testimony.
It was the jury’s fact-finding function to determine whether a defendant’s actions to
discredit a witness or have a witness change his or her story under the circumstances
amounted to a malicious attempt to prevent or discourage the witness from testifying.

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Counsel did not render ineffective assistance by agreeing that the jury’s question was a
question of fact which the jury was charged to answer.
B. Jury’s Reading of the Information
Caballero claims we must reverse his convictions because the jury committed
misconduct when, after mistakenly provided with a copy of the information, it considered
the information’s allegations of Caballero’s prior convictions as evidence against him.
He also contends the trial court violated Evidence Code section 1150 by admitting the
jury foreperson’s testimony explaining how the jury considered the priors.
We conclude the error was not juror misconduct and was harmless.
1. Background
The information alleged that Caballero had incurred two prior strike convictions
for assault with force likely to cause great bodily injury while participating in gang
activity. (§§ 245, subd. (a)(1); 186.22.) The allegations stated Caballero was eligible for
“a three-strikes life sentence[.]”
The trial court bifurcated trial on the allegations. It also ruled that Caballero’s
priors would not be presented to the jury either for their truth, due to the bifurcation, or
through the gang expert. The priors could be admitted only to impeach Caballero if he
testified. He did not testify.
As part of instructing on reasonable doubt, the court informed the jurors that the
existence of a criminal charge against the defendants was not evidence the charge was
true. The jurors were not to be biased just because the defendants had been arrested,
charged with a crime, or brought to trial.
After trial, the court discovered that an unredacted copy of the information had
been included with the jury verdicts that were given to the jury for deliberations. The
court convened a hearing to question the jury foreperson about the matter. The
foreperson stated that during deliberations, she read the information in its entirety and the

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jurors discussed it. Everyone had a chance to read it, ask questions about it, and talk
about it.
The jurors read the prior conviction allegations and discussed them, but “not in
great depth.” The foreperson stated, “We did discuss, you know, that they had prior
convictions and what had occurred during, you know—I’m sorry. We discussed these,
about how they were involved in other—these other charges, these other activities. [¶]
. . . [¶] And it came up a couple of times during the deliberations but we didn’t, like,
really focus on it, you know what I mean. We didn’t hype—I don’t want to say
hyperfocus, but we took that all into consideration while we were deliberating and
making [our] decision.”
The foreperson further stated, “The prior convictions were discussed during the
deliberations, and we discussed that they were previously—the convictions, they were
previously in prison, you know, because of those and there was gang-related activity.”
The foreperson said the jurors assumed that the prior convictions were based on
the contacts they had heard the police officers testify to in court. No one discussed
whether the alleged priors were based on information they had not heard at trial. That the
allegations used the word “strike” did not affect their decision “in any way and it wasn’t
discussed in any detail.”
The foreperson stated the jurors assumed that Caballero had been convicted of the
priors alleged in the information. Asked if that was a factor that was discussed by the
jury in arriving at its verdict, the foreperson said, “I’d say we discussed it. When it came
down to really the hardcore deliberations, it was purely about what occurred regarding
this case specifically and not the priors. [¶] . . . [¶] So we based it all on the evidence
that we were given. The evidence that we heard in court.”
Following the foreperson’s testimony, the defendants moved for a new trial. The
trial court denied the motions. The court stated: “So there was an error here, an error of
ordinary error, so therefore prejudice must be demonstrated.

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“Given the strength of the evidence of the trial with regard to both defendants and
the fact that the jurors erroneously did read and did consider the charging document, does
not show that there is a reasonable probability of a more favorable outcome to the
defendants. There has been an insufficient showing of prejudice.
“The foreperson, Juror No. 12, testified that they assumed that the priors were the
priors that they heard in court. They did not recognize them as being different. They
based their verdict solely on the evidence presented in court.
“And I should point out for the record that the strike language that she was
questioned about in the prior allegations and the information, that language was not
discussed nor did it affect their decision.
“The Court is finding that there is also no showing that they used this information
of the prior acts in any way other than how they were instructed to use the evidence of the
prior acts. So there being an insufficient showing of prejudice, the motion for new trial is
denied . . . .”
2. Analysis
We review independently the trial court’s denial of a motion for new trial alleging
juror misconduct. (People v. Gamache (2010) 48 Cal.4th 347, 396 (Gamache).)
However, we accept the court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence. (Ibid.)
There is no dispute that providing the unredacted information to the jury during
deliberations was error. The jury should not have been allowed to consider extrinsic
evidence in reaching its verdict. (Gamache, supra, 48 Cal.4th at p. 396.) “The
requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’
goes to the fundamental integrity of all that is embraced in the constitutional concept of
trial by jury. . . . [¶] In the constitutional sense, trial by jury in a criminal case
necessarily implies at the very least that the ‘evidence developed’ against a defendant

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shall come from the witness stand in a public courtroom where there is full judicial
protection of the defendant’s right of confrontation, of cross-examination, and of
counsel.” (Turner v. Louisiana (1965) 379 U.S. 466, 472-473 [13 L.Ed.2d 424, citations
and fn. omitted.)
a. Juror misconduct
Caballero contends the error constituted jury misconduct. He argues a juror’s
failure to obey court instructions on the law constitutes misconduct, and the jurors here
violated the court’s instruction under CALCRIM No. 220, the reasonable doubt
instruction. Part of that instruction states: “The fact that a criminal charge has been filed
against the defendants is not evidence that the charge is true.” Caballero argues the jury
violated this instruction by considering the prior conviction allegations as evidence and
assuming them to be true.
Whether the error amounted to jury misconduct is consequential. “Juror
misconduct gives rise to a presumption of prejudice (People v. Leonard (2007) 40 Cal.4th
1370, 1425); the prosecution must rebut the presumption by demonstrating ‘there is no
substantial likelihood that any juror was improperly influenced to the defendant’s
detriment’ (People v. Clair (1992) 2 Cal.4th 629, 668; see People v. Marshall (1990)
50 Cal.3d 907, 949). In contrast, in the absence of misconduct, the burden remains with
the defendant to demonstrate prejudice under the usual standard for ordinary trial error.
(Clair, at p. 668; People v. Cooper [(1991)] 53 Cal.3d [771,] 836.)” (Gamache, supra,
48 Cal.4th at p. 397.)
The error was not misconduct. The California Supreme Court has “consistently
pardoned jurors for considering extrinsic evidence that finds its way into the jury room
through party or court error.” (Gamache, supra, 48 Cal.4th at p. 397.) This is true even
when the extrinsic evidence exposes the defendant’s prior convictions to the jury.
(People v. Jackson (1996) 13 Cal.4th 1164, 1213-1214 [court’s inadvertent submission of

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transcript to the jury that mentioned the defendant’s parole status and prior conviction
was ordinary error, not jury misconduct]; People v. Clair, supra, 2 Cal.4th at pp. 667-668
[court’s inadvertent submission of unredacted audio tape and recording of a conversation
that mentioned burglary and assault allegedly committed by the defendant was ordinary
error, not jury misconduct]; People v. Jordan (2003) 108 Cal.App.4th 349, 363-364
[inadvertent submission of a police report that disclosed the defendant was on parole for
robbery was ordinary error, not jury misconduct].)
Caballero nonetheless argues the error was misconduct because the jury violated
the reasonable doubt instruction by considering the prior conviction allegations to be true.
The California Supreme Court rejected this argument in Gamache. In that case, court
staff inadvertently gave the jury a videotape of a police interview that had not been
admitted into evidence. (Gamache, supra, 48 Cal.4th at pp. 395-396.) The defendant
claimed the jury’s viewing of the videotape constituted misconduct as it violated the
court’s instruction not to consider outside evidence, and the jury should have recognized
the videotape was not something they had seen during trial. (CALJIC No. 1.03.) (Id. at
p. 399.)
The Supreme Court disagreed and found the error to be ordinary error. “ ‘When
. . . a jury innocently considers evidence it was inadvertently given, there is no
misconduct.’ ” (Gamache, supra, 48 Cal.4th at p. 398, quoting People v. Cooper, supra,
53 Cal.3d at p. 836.) In contrast, the high court has found juror misconduct “where a
juror actively or passively obtains information about a case from outside sources.” (Id. at
p. 398, original italics.)
Despite the jury instruction not to consider outside evidence, the Gamache court
held that the placement of the tape in the jury room “suggested to the jurors it was
something they were supposed to have . . . . The jurors were not lawyers, nor were they
privy to any stipulations the parties might have made about what could or could not be
taken into the jury room. They thus had little reason to think the . . . videotape was

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‘outside’ evidence they should not consider. . . . [T]his was ordinary error. Accordingly,
no presumption of prejudice applies.” (Id., 48 Cal.4th at p. 399.)
Similarly, here, the placement of the unredacted information in the jury room
suggested to the jurors that the information was something they were supposed to have
and consider. They were unaware of the trial court’s ruling that prohibited the parties
from introducing evidence of the priors or that the priors would be tried in a bifurcated
hearing. Because the information was submitted along with the jury verdicts, the jurors
reasonably could have concluded the court had permitted them to consider the
information as part of their deliberations.
Caballero claims that, unlike the jury in Gamache that had little reason to think the
evidence was from outside and thus could apply the jury instruction prohibiting it, his
jury was aware from CALCRIM No. 220 that it should not consider the filing of a
criminal charge as evidence that the charge is true, and the jury violated that instruction.
We are not convinced the jury would have necessarily understood CALCRIM
No. 220 to apply to prior conviction allegations in these circumstances. CALCRIM No.
220 is the reasonable doubt instruction. In context, it applies to the case the jury is
adjudicating, not other convictions. It reads:
“The fact that a criminal charge has been filed against the defendants is not
evidence that the charge is true. You must not be biased against the defendants just
because they have been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption
requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I
tell you the People must prove something, I mean they must prove it beyond a reasonable
doubt unless I specifically tell you otherwise.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt.

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“In deciding whether the People have proved their case beyond a reasonable
doubt, you must impartially compare and consider all the evidence that was received
throughout the entire trial. Unless the evidence proves the defendants guilty beyond a
reasonable doubt, they are entitled to an acquittal and you must find them not guilty.”
The instruction says nothing about prior convictions. It tells the jury not to be
biased against defendant due to his being arrested, charged, and brought to trial, and it
directs the jury to consider all the evidence that was received throughout the entire trial to
determine reasonable doubt. The jurors could have reasonably understood this directive
to refer to the current charges against Caballero, not his prior convictions.
In addition, the jury had heard most of the information before. The court read the
information to the jurors at voir dire without mentioning the priors, and thus the jury
could have reasonably believed the information, provided to them during deliberations,
was part of the evidence they could consider. We cannot conclude on this record that
jurors who read the information that was inadvertently provided to them violated
CALCRIM No. 220 and committed misconduct thereby.
Caballero argues that by granting the defendants’ motions to bifurcate the trial of
their prior convictions from the trial of the charged offenses, the trial court “necessarily
must have found that undue prejudice would accrue to the defendants if the motion were
denied.” Not so. “We recognize that the trial court had effectively determined that the
references were unduly prejudicial. That determination—which we shall treat as sound—
was simply an assessment that any benefit promised was not worth the cost threatened. It
was not a decision that any harm would necessarily arise.” (People v. Clair, supra,
2 Cal.4th at pp. 668-669.)
b. Evidence Code section 1150
Having concluded the error did not amount to juror misconduct, we turn to review
the record to determine if the error was prejudicial as ordinary error. Before doing so, we

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must first define the record. Caballero claims the trial court erroneously admitted the
foreperson’s testimony regarding the allegations’ effect on the verdicts, in violation of
Evidence Code section 1150. He also asserts his trial counsel rendered ineffective
assistance by not objecting to the foreperson’s testimony.
Evidence Code section 1150 limits a court from admitting evidence of a juror’s
thought processes when a party challenges a verdict’s validity. Subdivision (a) of that
statute states: “Upon an inquiry as to the validity of a verdict, any otherwise admissible
evidence may be received as to statements made, or conduct, conditions, or events
occurring, either within or without the jury room of such a character as is likely to have
influenced the verdict improperly. No evidence is admissible to show the effect of such
statement, conduct, condition, or event upon a juror either in influencing him to assent to
or dissent from the verdict or concerning the mental processes by which it was
determined.”
“This statute distinguishes ‘between proof of overt acts, objectively ascertainable,
and proof of the subjective reasoning processes of the individual juror, which can be
neither corroborated nor disproved . . . .’ [Citation.] ‘This limitation prevents one juror
from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’
mental processes or reasons for assent or dissent. The only improper influences that may
be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those
open to sight, hearing, and the other senses and thus subject to corroboration.’
[Citations.]” (People v. Steele (2002) 27 Cal.4th 1230, 1261.)
“The rule prohibiting impeachment of a verdict by examining the jurors’ mental
processes is one of substantive law. The jurors’ deliberations, ‘ “their expressions,
arguments, motives and beliefs represent that state of mind which must precede every
legal act and is in itself of no jural consequence.” ’ [Citations.] ‘Thus, the rule renders
the jurors’ subjective thought processes immaterial and of no jural consequence.’ ”
(People v. Steele, supra, 27 Cal.4th at pp. 1263-1264, quoting People v. Hill (1992)

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3 Cal.App.4th 16, 30, overruled on another point in People v. Nesler (1997) 16 Cal.4th
561, 582, fn. 5.)
Evidence Code section 1150 applies to appellate courts that review the record
independently from a denial of a new trial motion. (See People v. Danks (2004)
32 Cal.4th 269, 298, fn 9, 301-302.) Because evidence that violates Evidence Code
section 1150 is “of no jural consequence” and irrelevant, a party is not required to object
at trial to preserve this contention on appeal. (People v. Johnson (2013) 222 Cal.App.4th
486, 494.)
Much of the foreperson’s testimony was inadmissible under Evidence Code
section 1150. It concerned the jurors’ thought-processes and assumptions upon reading
and discussing the priors. Thus, in reaching our decision, we do not consider whether the
jurors assumed the priors were the gang offenses testified to in court, whether the word
“strike” affected their decision, whether the jurors assumed the prior conviction
allegations were true, and whether the jurors disregarded the priors when reaching their
verdicts.
The foreperson’s admissible testimony, which we may consider under Evidence
Code section 1150, consisted of the following: The unredacted information was shared
with all the jurors. The foreperson read it and the jurors discussed it. They discussed the
prior conviction allegations and how the defendants were involved in these prior
activities, but they did not discuss the allegations in great depth. They discussed that the
defendants were previously in prison because of the convictions and that there was gang-
related activity. The jurors discussed that the defendants had been convicted of the
priors.
c. Prejudice
Generally, the “[e]rroneous admission of other crimes evidence is prejudicial if it
appears reasonably probable that, absent the error, a result more favorable to the

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defendant would have been reached.” (People v. Felix (1993) 14 Cal.App.4th 997, 1007-
1008; People v. Watson (1956) 46 Cal.2d 818, 836-837.)
The evidence against Caballero was so strong that it was not reasonably probable
he would have received a more favorable result had the jury not read and discussed the
prior conviction allegations. The victim’s girlfriend and eyewitness identified Caballero
as the shooter. Flores and Melendrez told Ojeda after the shooting that Caballero had
shot someone. Caballero admitted to Ojeda that he shot the victim because he felt
disrespected. He later admitted to Gollas in jail that he was incarcerated because he had
shot a Sureño.
Shortly after the murder, Caballero was seen with a .22 caliber revolver—the same
caliber as the bullets found in the victim’s body and at the crime scene. Caballero further
revealed his consciousness of guilt after the murder by washing his bloody sweatshirt,
discarding the revolver, and telling Ojeda not to be a snitch.
Once in jail, Caballero directed his Norteño cohorts to support his alibi without
“go[ing] overboard,” that “something will need to be done” to stop a witness from
testifying against him, and to send “maybe a message to his house by an anonymous
person shooting it.” Caballero emphasized, “Imagination will be needed so it cannot be
traced to homies or us.”
Under these facts, we cannot say it was reasonably likely that Caballero would
have received a more favorable verdict had the jury not read and discussed the
information’s prior conviction allegations.
V
Sentencing Claims
Both defendants raise claims against their sentencing. Both ask us to remand for
the trial court to consider striking the firearm enhancements under Senate Bill No. 620,
and Flores asks us to remand for the trial court to consider striking his enhancement for a

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serious felony prior under Senate Bill No. 1393. Both defendants also ask us to remand
under People v. Dueñas (2019) 30 Cal.App.5th 1157, for the trial court to consider
whether they can pay the fines and fees imposed on them. We reject each argument.
A. Senate Bill Nos. 620, 1393
Defendants’ sentences include firearm enhancements of 25-years-to-life imposed
under section 12022.53, and Flores’s sentence includes a serious felony prior
enhancement of five years imposed under section 667, subdivision (a). Defendants ask
us to remand so the trial court may consider exercising its discretion granted by recent
legislation to strike the enhancements.
Prior to 2018, the superior court was barred from striking those enhancements. On
January 1, 2018, Senate Bill No. 620 (SB 620) became effective. (Stats. 2017, ch. 682,
§§ 1-2.) That measure vested the court with discretion to strike firearm enhancements
imposed under section 12022.53. (§ 12022.53, subd. (h).)
On January 1, 2019, Senate Bill No. 1393 (SB 1393) became effective.
(Stats. 2018, ch. 1013, §§ 1-2.) That law vested the court with discretion to strike
enhancements for prior serious felony convictions imposed under section 667. (§§ 667,
subd. (f)(2); 1385, subd. (b)(1).)
Both SB 620 and SB 1393 apply retroactively to defendants, as they became
effective before this case is final. (People v. Garcia (2018) 28 Cal.App.5th 961, 973;
People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
Remand, however, is not automatic. We need not remand if the “record shows
that the trial court clearly indicated when it originally sentenced the defendant that it
would not in any event have stricken a firearm enhancement.” (People v. McDaniels
(2018) 22 Cal.App.5th 420, 425; see People v. Jones (2019) 32 Cal.App.5th 267, 272-
273.) We review the trial court’s statements and sentencing decisions to see if the court
clearly indicated its intent not to strike the enhancement if it had the discretion to do so.

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We agree with the Attorney General that the trial court indicated by its statements
and sentencing decisions that it would not have stricken the firearm and serious felony
prior enhancements. The court stated, “Mr. Caballero and Mr. Flores, in this case you
looked for, you hunted for somebody, and . . . you killed him in cold blood, so for that
you are going to spend the rest of your lives in prison.” The court imposed consecutive
sentences on all nonstayed offenses and did not strike any of defendants’ prior
convictions.
These statements and decisions indicate the trial court would not have stricken the
enhancements if it had the discretion to do so. Striking the enhancements would increase
the chances that defendants could be paroled during their lifetimes due to the completion
of their sentences or reductions to their terms by postconviction relief or retroactive
legislative changes. (See People v. McDaniels, supra, 22 Cal.App.5th at p. 427.) The
court made clear its intent that defendants not be paroled and that their sentences not be
shortened.
This record thus discloses that the trial court would not strike the firearm and
serious felony prior enhancements if given the opportunity to do so under SB 620 and SB
1393. We will not remand for these purposes.
B. Dueñas
The trial court imposed restitution and parole revocation fines and various fees.
Defendants contend the court erred in doing so without first determining their ability to
pay, a requirement announced in Dueñas, supra, 30 Cal.App.5th 1157. There, the court
held that it was a violation of the defendant’s right to due process to impose a restitution
fine and court operations and facilities assessments without first determining the
convicted defendant’s ability to pay. (Id. at p. 1168.)
Citing Dueñas, defendants contend the case must be returned to the trial court for
a hearing on their ability to pay the fines and fees ordered by the trial court and that his

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argument has not been forfeited on appeal. The Attorney General, on the other hand,
argues, among other things, that defendants forfeited this assertion of error.
We need not decide the forfeiture issue because we hold that Dueñas was wrongly
decided regarding the issue of hearings on the ability to pay fines and fees before they are
ordered by the trial court.
Dueñas held that “due process of law requires the trial court to conduct an ability
to pay hearing and ascertain a defendant’s present ability to pay before it imposes court
facilities and court operations assessments under []section 1465.8 and Government Code
section 70373.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held
“that although []section 1202.4 bars consideration of a defendant’s ability to pay unless
the judge is considering increasing the fee over the statutory minimum, the execution of
any restitution fine imposed under this statute must be stayed unless and until the trial
court holds an ability to pay hearing and concludes that the defendant has the present
ability to pay the restitution fine.” (Ibid.)
The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois
(1956) 351 U.S. 12 [100 L.Ed. 891] (Griffin), which itself rested on the “ ‘constitutional
guaranties of due process and equal protection’ ” and struck down a state practice of
granting appellate review only to individuals who could afford a trial transcript. (Griffin,
at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate
court cases have illustrated, the authorities Dueñas cites involving the right of access to
courts are inapplicable because the imposition of the fine and assessments at issue in
Dueñas and in this proceeding do not deny defendants access to the courts. (People v.
Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, No. S258946;
People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019)
39 Cal.App.5th 917, 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039
(conc. opn. of Benke, J.).)

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Griffin also stated broadly, “There can be no equal justice where the kind of trial a
man gets depends on the amount of money he has.” (Griffin, supra, 351 U.S. at p. 19.)
Another line of cases relied upon by Dueñas is related by this “principle of ‘equal
justice’ ” and prohibits imprisonment based on the failure to pay criminal penalties where
the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-
662, 664 [76 L.Ed.2d 221]; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110;
see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1168.)
These authorities prohibiting incarceration for indigence alone are also
inapplicable because the fine and assessments at issue in Dueñas and this appeal subject
an indigent defendant “only to a civil judgment that she [or he] cannot satisfy.” (Dueñas,
supra, at p. 1167; People v. Hicks, supra, 40 Cal.App.5th at p. 326, review granted;
People v. Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra,
3 Cal.3d 100, our Supreme Court granted a petition for writ of habeas corpus only to
discharge the petitioner from his imprisonment resulting from his inability to pay the fine
and penalty assessment imposed as a condition of probation, but it did not relieve him
from any obligations in his probation order. (Id. at p. 117.) The court explained, “[W]e
do not hold that the imposition upon an indigent offender of a fine and penalty
assessment, either as a sentence or as a condition of probation, constitutes of necessity in
all instances a violation of the equal protection clause.” (Id. at p. 116, italics added.) In
other words, “Dueñas does more than go beyond its foundations; it announces a principle
inconsistent with them.” (People v. Hicks, supra, 40 Cal.App.5th at p. 327, review
granted.)
Further, “the fundamental policy question presented in Dueñas is a nettlesome
one—namely, under what circumstance is it appropriate to require criminal defendants,
many of whom are people of little or no means, to pay assessments that help defray the
costs of operating the court system and restitution fines that pour into a statewide fund
that helps crime victims?” (People v. Hicks, supra, 40 Cal.App.5th at p. 328, review

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granted.) This “is a question to which . . . the federal and California Constitutions do not
speak and thus have left to our Legislature.” (Id. at p. 329, review granted.)
We join those authorities that have concluded that the principles of due process do
not supply a procedure for objecting to the fines and assessments at issue in Dueñas and
in this proceeding based on the present ability to pay. (People v. Hicks, supra,
40 Cal.App.5th at p. 329, review granted; People v. Aviles, supra, 39 Cal.App.5th at
p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced
this broad rule, Dueñas was wrongly decided, and defendants’ claims pursuant thereto is
without merit.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.

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MAURO, J., Concurring and Dissenting.
I fully concur in the majority opinion except for part V, subpart B of the
Discussion, pertaining to fines, fees and assessments, as to which I dissent.
The parties note that defendants were sentenced in November 2015, and
that minimum fines, fees and assessments had been requested, but the trial court imposed
fines well above the minimum. In People v. Dueñas (2019) 30 Cal.App.5th 1157, the
court held it is improper to impose certain fines or assessments without determining
defendant’s ability to pay. (Id. at pp. 1168, 1172.) Although some courts have
subsequently criticized Dueñas’s legal analysis (see, e.g., People v. Hicks (2019)
40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable
precedent. Until the California Supreme Court has had an opportunity to resolve the
current split in authority, I would remand the matter to give the trial court an opportunity
to consider defendants’ ability to pay the imposed fines and assessments.
MAURO, J.

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RENNER, J., Concurring and Dissenting.
I concur in all parts of the Discussion except the majority’s analysis in part V,
subpart A. As to part V, subpart A, I dissent.
I disagree with the majority’s conclusion that the trial court clearly indicated when
it originally sentenced defendants that it would not have stricken the firearm
enhancement imposed under Penal Code section 12022.53 or the prior serious felony
conviction enhancement imposed under Penal Code section 667, subdivision (a) had it
been possible to do so at the time of this sentencing.
The court’s broad statement that defendants were “going to spend the rest of
[their] lives in prison” is potentially suggestive, but the record nevertheless does not
clearly indicate that the court would not have exercised its discretion to strike or dismiss
these enhancements. Moreover, “ ‘[d]efendants are entitled to sentencing decisions made
in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court
which is unaware of the scope of its discretionary powers can no more exercise that
“informed discretion” than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant's record.’ ” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand appropriate because the record did not
clearly indicate the court would have imposed the same sentence had it been aware of the
full scope of its discretion after a change in the law].)
Accordingly, I would remand for the trial court to exercise its informed discretion
as to whether to strike the enhancements.
_________________________
RENNER, J.

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