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Filed 6/6/14 P. v. Molina CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR DAVID BETANCES MOLINA,

Defendant and Appellant.

 A136914

 (Contra Costa County

 Super. Ct. No. 50809020)

Following a 2008 indictment, and an extended period during which criminal

proceedings were suspended due to doubts about his competency to stand trial, the trial of 

defendant Hector David Betances Molina commenced in late May 2013. The jury 

convicted him of three counts of first degree murder; one count of second degree murder; 

two counts of attempted murder; one count of conspiracy to commit murder and assault 

with a deadly weapon; and one count of participation in a criminal street gang. The jury 

also found true a number of enhancement allegations relating to defendant’s personal use 

of a firearm, his personally inflicting great bodily injury, and his gang connections for all 

but one of the offenses. The trial court sentenced defendant to state prison for an 

aggregate term of 169 years and four months, to be served consecutive to a term of life 

without the possibility of parole. 

Defendant asserts three arguments on appeal: (1) substantial evidence does not 

support the trial court’s decision that he was competent to stand trial; (2) the trial court 

abused its discretion when it excluded testimony from defendant’s mother regarding 

defendant’s credibility; and (3) two of his four murder convictions must be reversed 
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because there is no substantial evidence from which a reasonable jury could conclude that 

defendant “perpetrated, aided and abetted, or conspired to commit” the two offenses. We 

conclude that none of these arguments has merit, and we affirm. 

BACKGROUND

It will not be necessary to recapitulate the trial record of more than 4,000 pages. 

Defendant directly challenges only two of his nine convictions. He does not challenge 

the gang-related count and enhancements, evidencing that he does dispute his gang 

membership or that a number of crimes were committed “with the specific intent to 

promote, further, or assist in any criminal conduct” by a criminal street gang (Pen. Code, 

§ 186.22, subd. (b)). The evidence in connection with the two challenged murder counts 

will be recounted when the merits of defendant’s attack are considered at a later point in 

this opinion. A narrative encompassing the unchallenged convictions may therefore be 

reduced to the following:

According to the prosecution’s gang expert witness and former gang members, by 

2007, the VFL and ML Sureño gangs were encountering hard times. Gang members 

were breaking the prohibition on killing other members, and successive leaders were 

forced to leave the country. Following an informal amalgamation, VFL and ML 

members sought to boost their waning prestige with a strategy of killing rival Norteño

gang members. Defendant was a member of VFL and one of the members hunting down 

Norteños. 

Defendant went hunting on the night of December 22, 2007. Defendant was one 

of a number of Sureños who hid behind a fence until some Norteños came into view and 

then opened fire. Defendant killed Antonio Cintron (count one) and attempted to kill 

Adrian Espinoza (count two) and Neil Wixon (count three). Defendant was also 

convicted of conspiring to kill (count four) and engaging in gang activity (count five). 

On February 16, 2008, defendant was driving one of the two vehicles full of 

Sureños. When a suspected Norteño was found, defendant told the others to “get that 

motherfucker.” Other gang members got out and killed Luis Perez (count seven).
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Defendant was arrested on February 27, 2008, and was never thereafter out of 

custody. While in custody, defendant had a number of telephone calls with his mother

and the then VFL leader. The calls were recorded. During the conversation, defendant 

made a number of statements that could be construed as confessing to murder. Defendant 

also made a number of incriminating statements—including that he had shot Antonio 

Cintron—to a VFL member who had agreed to become a police informant. The 

informant also testified that two other gang members identified defendant as Cintron’s 

murderer. 

February 27 was also the day on which homeless bystander Lisa Thayer was killed 

(count eight) when she was caught between Sureños firing at the occupants of a passing 

car. 

On April 26, 2008, Rico McIntosh was shot on the streets of San Pablo. Before he 

died of his wounds (count nine), McIntosh told police that he had been shot by the 

Hispanic male occupants of a vehicle. McIntosh was killed by VFL members in the 

mistaken belief he was a Norteño. 

Defendant did not testify in his own behalf. The only witnesses called for the 

defense were: (1) Adrian Espinoza, who testified that he was unable to identify who shot 

him; (2) a private investigator, who testified that Espinoza gave him a version of the 

shooting that differed from his trial testimony; and (3) Dr. Carol Walser, who testified to 

defendant’s low I.Q. and lifelong impaired cognitive functions which placed him “at the 

mental retardation level.”

REVIEW

Substantial Evidence Supports The Trial Court’s

Determination That Defendant Was Competent To Stand Trial

State and federal constitutional law require a defendant to understand the 

proceedings against him and to be able to assist in his defense. (People v. Elliott (2012) 

53 Cal.4th 535, 582-583; Godinez v. Moran (1993) 509 U.S. 389, 396.) “Under 

California law, a person is incompetent to stand trial ‘if, as a result of mental disorder or 
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developmental disability, the defendant is unable to understand the nature of the criminal 

proceedings or to assist counsel in the conduct of a defense in a rational manner.’ ” 

(People v. Young (2005) 34 Cal.4th 1149, 1216, quoting Pen. Code, § 1367, subd. (a); 

accord, People v. Rogers (2006) 39 Cal.4th 826, 846-847.) A defendant is incompetent 

to stand trial if he or she lacks a sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding, and a rational as well as a factual 

understanding of the proceedings against him. (Drope v. Missouri (1975) 420 U.S. 162, 

171; Dusky v. United States (1960) 362 U.S. 402.)

A defendant is presumed competent unless by a preponderance of the evidence he 

proves that he is not competent. (Pen. Code, § 1369, subd. (f); People v. Lawley (2002) 

27 Cal.4th 102, 131.) An appellate court conducts a deferential standard of review to 

determine whether substantial evidence supports the trial court’s finding. (People v. 

Dunkle (2005) 36 Cal.4th 861, 885; People v. Marshall (1997) 15 Cal.4th 1, 31.)

Here, at the conclusion of a three-day evidentiary hearing, the trial court ruled that 

defendant was competent to stand trial. The ruling is thoughtful indeed; it takes up 11 

pages in the reporter’s transcript and appears to have been prepared in advance and read 

into the record. Extensive excerpts deserve quotation:

“Defendant’s claim of incompetency rests almost exclusively on the testimony of 

Dr. Patricia Spivey . . . . She testified that it was her opinion that the defendant is unable 

to understand the nature of the proceedings, that is, unable to understand what a trial is all 

about. She further opined that he suffers from an ongoing and long-term learning 

disability, which probably accounts for this inability on his part to understand. [¶] Her 

opinion with regard to defendant having a learning disability of some sort appears to me 

to be well-supported. [¶] In my opinion these mental deficits which appear to have 

existed from youth probably qualify him as developmentally disabled as that term is used

in Penal Code 1367 and 1370.1. [¶] . . .[¶]

“The real issue in this case . . . is not whether . . . Mr. Molina is developmentally 

disabled or mentally disordered. The real question that I’m facing is whether as a result 

of whatever mental deficits he has, he is rendered unable to understand what’s going on 
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in trial. That’s really the key thing that I’ve been called upon to decide in this matter. 

[¶] Dr. Spivey admitted that her opinion that defendant’s mental deficits would keep him 

from being able to understand what’s going on in trial is based primarily on the results of 

a CAST . . . more particularly, on the results of that portion of the test which is designed 

to determine whether . . . the person taking the test knows the roles of various participants 

in trial. . . .

“The defendant scored poorly on the test. For a number of reasons, however, I 

seriously question the reliance that Dr. Spivey placed on the results of this text. For one 

thing, the test assumes there is only one correct answer to each of the test questions. . . . 

[¶] . . . [¶] . . .Then too, absent evidence of malingering, the test accepts as true any ‘I 

don’t know’ response that may be given to any question. [¶] But just because a person 

says he or she doesn’t know does not necessarily mean that is, in fact, the case. There is 

evidence, for example, that the defendant . . . sometimes says that he doesn’t know 

something when, in fact, he does.” 

“Additionally, his . . . ‘I don’t know’ responses to such questions as: What does a 

judge do, what does a prosecutor do, et cetera, should not have been accepted at face 

value, . . . given the fact that only a couple of months earlier defendant gave responses on 

tests administered by Mr. Juan Velasquez . . . demonstrating that he, in fact, knew very 

well the role of such individuals. Dr. Spivey explains this disparity . . . as being the 

function of defendant’s retention limitations. [¶] This explanation is not . . . satisfactory. 

It’s hard to believe that a person such as defendant, who knew as far back as 2008 and as 

recently as August 2011 that a witness was a person who saw the crime would no longer 

be able to remember this two months later in November of 2011 and think instead that a 

witness was a member of the jury. [¶] As Dr. Solomon pointed out, a person with so 

great a retention limitation as this would be expected to manifest all manner of other 

difficulties which, in fact, were not exhibited by defendant. [¶] . . .[¶]

“Above my reservations about the value of the CAST-MR results in this case and 

the negative opinion this has on the weight I am prepared to give Dr. Spivey’s opinion 

testimony, there is the matter of other evidence presented in this case. I’m referring 
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primarily to the video interview conducted of the defendant by the police in 2008 and the 

. . . phone conversations defendant had with his mother and others shortly thereafter 

while he was in jail, and also to some extent the more recent observations of the 

defendant made by his jailers. [¶] I find this other evidence very revealing as to whether 

defendant would be able to understand what goes on at a trial and . . . assist his counsel in 

providing a defense at such trial.

“First of all, I call your attention to the very early portion of that interview where 

the defendant not only states expressly that he understands his Miranda rights, that is his 

right to remain silent, . . . the fact that anything he says might be used against him, his 

right to an attorney and the right to have an attorney appointed free of charge. Not only 

does the defendant expressly say that he understands this matter, but he demonstrated 

this. He demonstrated the fact he understood these rights, or at least the right to remain 

silent, by identifying it as one of the Miranda rights even before the police told him what 

the Miranda rights consist of.

“Additionally, . . . he actually invoked his right to remain silent towards the end of 

the interview when it became clear . . . to him that the police were not buying his story. 

Such a person would clearly understand his right not to be compelled to testify at trial and 

would appreciate the circumstances when such right should be exercised. . . .

“Now turning to the interview of a whole . . . [¶] . . . [D]uring the course of the 

interview it’s clear that Mr. Molina understood that the police were, in effect, accusing 

him or charging him of the murder. He clearly understood the consequences of those 

charges. That is, if they were established, that he would go to prison for life. [¶] And 

most importantly he formulated a defense to those charges. . . [¶] . . . In fact, formulated 

might be too soft a word, fabricated a defense. As we later learned during the course of 

his conversation with his mother, . . . he effectively admitted that he had committed the 

crime. But with the police, not only did he deny committing the crime, he gives an 

explanation of why he couldn’t have done the crime, to wit, he wasn’t there.” 

“Significantly, he also understood that . . . the burden was . . . in this regard . . . on 

the People to prove that he was guilty. They kept on inviting him to prove his innocence, 
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to prove that he wasn’t there . . . . And he kept on telling them, no, you have to prove 

that I was there. . . . [¶] Additionally . . . , he demonstrated during the course of this 

interview . . . that he was able to evaluate the worth of the police evidence” and “to 

suggest line of attacking that evidence.” 

Moreover, “defendant did not allow himself to be tricked by the police [into] 

implicating himself, nor did he buckle under . . . their strong and persistent pressure. 

[¶] If we were dealing with a feeble-minded person who didn’t understand what was 

going on, one would expect that he would succumb to these ploys of the police. Not at 

all. He knew exactly [what] they were saying and formulated a defense to it and stuck to 

his guns throughout the entire [interview].” “During the interview he gave every 

appearance of being very attentive and very comprehending. . . . [¶] . . . [T]his video of 

the interview shows that the defendant clearly understood what was going on . . . He was 

very understanding of the situation he was in.” 

“I’ll also note some highlights that I think are telling from the phone calls that he 

had with his mother and others from the jail. . . . [D]uring the course of those phone calls 

. . . he was giving instructions on how someone is to find a phone number on his cell 

phone directing . . . how you pull that information out of the cell phone. At another point 

he indicated that he realized his taxes had to be filed, important things like this to be 

done. And he gave directions that someone should do that.

“Another point: He talked about how his car should be sold so money could be 

raised to provide him with food and other items while he was in jail . . . [A]nother aspect 

which I found very telling was that he explained that someone had to see a traffic judge. 

Appears he had received a ticket and explained that he was in jail, so he wouldn’t get in 

greater trouble for [not] paying the ticket.

“Additionally, he made arrangements with one of his . . . fellow gang members . . . 

to take care of his mother. And then, more recently he was observed . . . by the jailers, by 

various guards at the detention facility, processing requests not only on his own behalf 

but on behalf of other inmates . . . which appears that . . . other cellmates were relying on 

him to do this on [their] behalf.
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“Look, I do not believe that it takes a rocket scientist to understand what goes on a 

trial and to be able to assist counsel in such a proceeding. And I do not believe that the 

due process requirements of the United States and California Constitutions require any 

greater understanding of what takes place at a trial than the defendant demonstrated that 

he is capable of in the interview he had with . . . police, his jail phone conversations with 

his family and his conduct in jail.

“I do not believe that it has been established by a preponderance of the evidence 

that he is incompetent and maybe more importantly I am satisfied that the evidence I've 

alluded to . . . indicates quite convincingly that although he may be slow and although he 

may have limitations that may be characterized as mental deficits, that these do not keep 

him from being able to understand what takes place at a trial or keep him in any way 

from being able to assist his counsel.

“Accordingly, I find him competent to stand trial pursuant to Penal Code 

section 1367 and also under the due process clauses of both the United States and the 

California Constitutions.” 

Defendant contends that ruling lacks the support of substantial evidence. “In 

reviewing a jury verdict that a defendant is mentally competent to stand trial, an appellate 

court must view the record in the light most favorable to the verdict and uphold the 

verdict if supported by substantial evidence.” (People v. Marshall, supra, 15 Cal.4th 1, 

31.) “In applying the 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 [trier 

of fact] 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 . . . to determine the credibility 

of a witness and the truth or falsity of the facts upon which a determination depends . . . .’ 

[Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that 

upon no hypothesis whatever is there sufficient substantial evidence to support” the [trier 

of fact’s decision.] [Citation.] [¶] The same standard governs in cases where the 

prosecution relies primarily on circumstantial evidence. [Citation.]” (People v. Zamudio
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(2008) 43 Cal.4th 327, 357.) “On appeal a finding of competency to stand trial ‘cannot 

be disturbed if there is any substantial and credible evidence in the record to support the 

finding.” (People v. Hightower (1996) 41 Cal.App.4th 1108, 1111.) 

The court heard the testimony of eight witnesses, including one mental health 

professional for each side, and considered numerous exhibits. There is no need to 

summarize the totality of the evidence, because it is readily apparent that there is ample 

substantial evidence supporting the trial court’s determination that defendant was 

competent to stand trial.

It is certainly true that the defense psychologist, Dr. Patricia Spivey, was firmly of 

the opinion that defendant was not competent to stand trial. But the prosecution’s 

psychiatrist, Dr. Randall Solomon, was just as adamant that defendant was competent. 

That should be, and is, the end of the matter, for it is a settled principle that a single 

witness, if deemed credible by the trier of fact, is substantial evidence. (Evid. Code, 

§ 411; People v. Cudjo (1993) 6 Cal.4th 585, 608-609; see People v. Leonard (2007) 

40 Cal.4th 1370, 1391-1393 [report and testimony of one expert witness constitute 

substantial evidence].)

Yet defendant argues that “the evidence of incompetency presented by the defense

[i.e. Dr Spivey’s testimony] was substantial,” indeed, “compelling,” while “the evidence 

of competency presented by the prosecution and relied on by the court was insubstantial.” 

But it was defendant who was carrying the burdens of persuasion and proof to rebut the 

presumption that he was competent. (People v. Ary (2011) 51 Cal.4th 510, 517-518; 

People v. Marks (2003) 31 Cal.4th 197, 215.) Whether evidence is compelling is in the 

eye of the trier of fact, which in this case means we must accept that it was not Dr. 

Spivey. The trial court’s detailed comments (“I seriously question,” “This explanation is 

not . . . satisfactory,” “my reservations, “ “the negative opinion this has on the weight I 

am prepared to give Dr. Spivey’s opinion”) leave no room for doubt on this point. 

Moreover, the court made it clear that the “other evidence” was “very revealing as to 

whether defendant would be able to understand what goes on at a trial and . . . assist his 

counsel in providing a defense at such trial.” 
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Defendant implicitly treats Dr. Spivey’s more recent examination as being 

inherently more credible than Dr. Solomon’s “outdated” evidence, but he provides no 

authority for such a conclusion. The freshness or staleness of an examination would 

appear to be merely one factor going only to the weight of the opinion it supports. (See 

People v. Valencia (2008) 43 Cal.4th 268, 295; People v. Boyer (2006) 38 Cal.4th 412, 

480-481; cf. People v. Cobb (2010) 48 Cal.4th 243, 252 [“A defendant’s condition a year 

earlier is relevant but not dispositive” to issue of whether he qualifies as mentally 

disordered offender]; People v. Dunkle, supra, 36 Cal.4th 861, 889-890 [jury could 

consider the timing and amount of time experts spent interviewing defendant].) And the 

weight to be given to testimony is a matter conclusively entrusted to the trier of fact. 

(People v. Lindberg (2008) 45 Cal.4th 1, 27; see People v. Guerra (2006) 37 Cal.4th 

1067, 1129.) 

Defendant’s expert exclusive approach would seem to deny utility to the mass of 

nonexpert, circumstantial evidence cited by the trial court. (Cf. People v. Rogers, supra, 

39 Cal.4th 826, 847 [“Evidence of incompetency may emanate from several sources, 

including the defendant’s demeanor, irrational behavior, and prior mental evaluations.”]; 

People v. Ramos (2004) 34 Cal.4th 494, 507 [“Substantial evidence of incompetence may 

arise from separate sources”].) The testimony of lay persons might not be as weighty as 

the opinion of mental health professionals, but it is not to be dismissed as worthless. The 

testimony of law enforcement personnel and jailers who had personal experience with the 

defendant would seem to have a particular insight into certain aspects of defendant’s 

ability to deal with, and to interact with, the workings of the legal system. Indeed, the 

trial court found it “very revealing” on the issues of defendant’s competency. Moreover, 

this precise category of evidence was considered and implicitly treated as relevant by our

Supreme Court in People v. Dunkle, supra, 36 Cal.4th 861, 888-889. Finally, although it 

does not appear to be directly involved here, the judicial officer’s personal observations 

of the defendant may be consulted in determinations of competency. (See People v. 

Lewis (2008) 43 Cal.4th 415, 525; People v. Danielson (1992) 3 Cal.4th 691, 727.)
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“A defendant is deemed competent to stand trial . . . if he ‘ “has sufficient present 

ability to consult with his lawyer with a reasonable degree of rational 

understanding” ’and ‘ “has a rational as well as factual understanding of the proceedings 

against him.” ’ ” (People v. Ary, supra, 51 Cal.4th 510, 517.) Our review of the record, 

conducted along the lines of the trial court’s ruling, establishes that that ruling has the 

support of ample, if not abundant, substantial evidence. (Evid. Code, § 411; People v. 

Zamudio, supra, 43 Cal.4th 327, 357; People v. Hightower, supra, 41 Cal.App.4th 1108, 

1111.)

The Trial Court Did Not Abuse Its Discretion In

Excluding Testimony From Defendant’s Mother

The prosecution moved in limine to exclude testimony that “The defendant’s 

mother, when interviewed by police regarding jail phone calls between her and the 

Defendant, said that although he confessed to murder on the jail phone calls, he 

frequently tells her things just to make her upset.” The prosecution argued that admission 

of this evidence was precluded by Evidence Code section 1102, arguing as follows: “In 

the instant case, the defendant is attempting to prove his conduct on a particular occasion 

(notably not of the crime itself) by introducing evidence of his character or a trait of his 

character. Evidence Code section 1102, however, does provide the following: ‘In a 

criminal action, evidence of the defendant’s character or a trait of his character in the 

form of an opinion or evidence of his reputation is not inadmissible by Section 1101 if 

such evidence is : (a) Offered by the defendant to prove his conduct in conformity with 

such character or trait of character.’

“However, there are logical limitations to what a Defendant can present in terms 

of character evidence under Section 1102. Notably the first (and most prescient) 

limitation is the following, as held in People v. Monteverde (1965) 236 Cal.App.2d 630, 

642: ‘Testimony as to an element of character not involved in the crime of which the 
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defendant is on trial is not admissible.’1 [Citations.] Thus, the first inquiry must be made 

as to what element of character the defendant is seeking to admit with his mother’s 

testimony. Ostensibly, the Defendant will attempt, through his mother, to demonstrate 

that he has the character trait of telling her negative things about himself, although false, 

to gain her attention.

“The second, and determinative, inquiry is whether this trait of character is 

‘involved in the crime of which’ the defendant is on trial. It most definitely is not. The 

defendant is not charged with telling his mother true things. Nor is the defendant charged 

with trying (or not trying) to get his mother’s attention. Thus, the defendant seeks to 

admit evidence of a character trait that is not involved in the crime that he is charged 

with. Accordingly, evidence of Defendant Molina’s character for telling his mother true 

(or false) things is plainly inadmissible.” 

 

1 Notwithstanding the prosecutor’s citation of a single authority that is almost 

60 years old, the point made by Monteverde is very well established. One of the two 

decisions cited by the Monteverde court was People v. Chrisman (1901) 135 Cal. 282, 

where our Supreme Court held it was not error to preclude a witness from answering the 

question “ ‘What were the boy’s habits as to steadiness, drinking, or anything of that 

sort?’ ” because, with respect to a person on trial for grand larceny, “This question did 

not touch his character or reputation for honesty, which was the trait involved in the 

charge made against him.” (Id. at p. 288.) Chrisman cited People v. Ashe (1872) 44 Cal.

288, where the Supreme Court stated that a criminal defendant “is permitted to support 

the . . . presumption of innocence by proof of the fact that his personal character in the 

trait involved in the charge has previously been good.” (Id. at p. 291.)

Nothing changed with the adoption of the Evidence Code. The Law Revision 

Commission made this comment to Evidence Code section 1102: “Under Section 1102, 

the accused in a criminal case may introduce evidence of his good character to show his 

innocence of the alleged crime—provided that the character or trait of character to be 

shown is relevant to the charge made against him. This codifies existing law. People v. 

Chrisman, 135 Cal. 282 . . . (1901).” (Cal. Law Rev. Com. com. 29B Pt. 3B, West’s 

Ann. Evid. Code (2009 ed.) foll. § 1102, p. 311; see Wydich, Character Evidence: A 

guided Tour of the Grotesque Structure (1987-1988) 21 U.C. Davis L. Rev. 123, 141-142 

[“To be relevant, the defendant’s evidence must concern a character trait that is 

inconsistent with the crime charged.”].)
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Defendant filed a “response” in which he advised that he “will defer presenting 

argument as to expected testimony of defendant’s mother . . . until the hearing of this 

issue.” 

In discussing the in limine motions, the prosecutor argued: “I made a motion with 

respect to Mr. Molina’s mother . . . [her] proposed testimony. [¶] I anticipate—and I 

don’t know because I don’t have any statements—I have a statement that she gave to the 

police, obviously, but I don’t know if Mr. Hoehn [defense counsel] has any additional 

statements from her. If so, I have not received them. [¶] I anticipate she would take the 

witness stand and say something to the effect of: Yes, I listened—I spoke with Mr. 

Molina, my son, in jail shortly after he was incarcerated. I asked . . . him if he committed 

a murder, what he was charged with. [¶] He said murder. [¶] I expressed my dismay. 

[¶] He replied, oh, well, I did do it. [¶] And you should all know that there is something 

about my son, which is that he always tells me things he did to get my attention. He is 

always falsely confessing to me, said that he has committed when he really hasn’t done 

them.

“That is, for my motion, inadmissible character evidence and I don’t think it 

should be allowed. [¶] I also think this not only applies to the defendant’s mother, but I 

think it applies to any and all mental health experts the defense will call. It was discussed 

extensively in Dr. Carolyn Walser’s testimony . . . . I don’t think it’s reflective of any 

psychological condition diagnosed in the DSM-IV. And I think again, it’s inappropriate 

and inadmissible character evidence. I understand why the defense wants to introduce it, 

but I don’t think that makes it any more . . . admissible.” 

Defense counsel responded: “. . . [T]he material referred to by the People is 

addressed by Dr. Walser as part of her opinions and conclusions . . . [a]nd ultimately in 

her January 31, 2009 DSM-IV-TR diagnostic impression, her active diagnosis includes 

major depression, and I believe as part of her prospective testimony regarding 

Mr. Molina’s mental functioning, how his mind works. And she ultimately indicates that 

he has severe neuropsychological impairment and part of his behavior with his mother is 

relevant with respect to what he may say.
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“And so as part of both the mother’s testimony which we would be offering 

basically as her overall good character assessment of her son that he is not a violent 

person, not a person that would shoot someone, not a killer despite [the] People’s 

evidence through all of the gang members who blame him for the December 22 murders.

There isn’t any evidence outside of that and alleged statements by him to gang members 

relative to that case. . . .

“And these reports were prepared a long time ago and the People have had that in 

their discovery materials for a long time. And Mr. DeFerrari [the prosecutor] is correct, 

the statement in the police reports is the comment specifically addressing the way my 

client would get his mother’s attention.

“But, the other component, obviously, is the other material that we are offering in 

this case, specifically what was implanted in his mind by the police regarding probably 

going to prison for life because they have witnesses, what can he say.

“So it’s—there two prongs to our argument why his statements have a different 

meaning than what the People would say they mean. So again, it’s our right to present 

evidence that we are seeking to preserve my client’s constitutional rights to a fair trial, 

equal protection of the law and his other constitutional rights to present evidence. The 

People don’t have to agree with it, but in order to get it before the jury it’s ultimately, 

most important and it’s crucial to the defense to have this component of that 

interpretation before the jury through those two witnesses, my client’s mother and 

Dr. Carol Walser.

This led to the following exchange between the court and defendant’s counsel:

“THE COURT: So you are saying that the mother’s ability to say that the 

defendant is a non-violent person permits her to say that he frequently says things to get 

my attention that are not true?

“MR. HOEHN: She is the only person that would have that knowledge and the 

Doctor relied upon that as part of her report.

“THE COURT: Right. The question is whether it’s admissible.

“MR. HOEHN: Exactly.
15

“THE COURT: Well, under 1102 the defendant can present its character 

reputation or opinion but not through specific acts. Seems to me that these are this is a 

specific act. [¶] So it’s not clear to me that his mother is permitted to testify as part of his 

general opinion or reputation as an honest and law abiding person, that on given 

occasions he used to do certain things to support that opinion. Generally, specific acts 

are not admissible under 1102. [¶] . . . [¶] . . . I think the analysis is different as to the 

psychologist or the professionals. Experts, of course, may rely on hearsay. The question 

is what hearsay is admissible through the expert. And, of course, the jury would be 

instructed it’s not admissible for the truth of the matter asserted. I have to parse out the 

degree to which specific hearsay can be elicited in front of the jury under the case law 

relating to experts.” 

The prosecutor argued there was also the point “set out in . . . People v. 

Monteverde . . . which is the testimony as to an element of character not involved in the 

crime of which a defendant is on trial is not admissible. If the defendant were charged 

with telling his mother the truth on all occasions then I think I suppose this would be 

tremendously relevant evidence. It is not what the defendant is charged with, he is 

charged with murder.

“Moreover, I don’t think that the psychologist gets to back door in the testimony 

that the defendant always lies to his mother because he wants attention. Again, that is not 

any particular part of her diagnosis. That is not a symptom of depression. It’s nothing to 

do with this case, . . . it’s a convenient piece of her report for the defendant which she 

entirely relies upon the defendant’s mother for. So it’s—I guess the classic scenario of 

getting in the back door . . . what can’t be fit through the front.

“On top of that, it’s not relevant to this trial. If the defendant were to take the 

stand and say, look I didn’t mean what I said, I always say things to get my mom’s 

attention like that. Perhaps there would be a differed argument. But . . . I don’t think the 

defendant can introduce those through an expert especially considering they don’t bolster 

her opinion about any of his mental conditions.” 
16

“THE COURT: . . . [T]he question is whether hearsay is admissible through the 

expert. For example, his statement that he is innocent of the crimes. I’m not sure that 

isn’t admissible through the experts. [¶] . . . [T]he basis for the expert’s opinion is 

admissible is so the jury can evaluate what weight to give the expert’s opinion, but it 

doesn’t serve as a vehicle for admitting hearsay.” 

The court continued: “The question is whether it’s relevant to the only basis for 

admissibility of her [Dr. Walser’s] opinion is whether it helps the jury decide if the 

defendant actually formed the intent . . . [¶] . . . [¶] . . . [or] the agreement to kill . . . . 

And I understand the point that he may have intellectual deficits that affect his ability to 

form that intent or whether he did in fact form that intent, but I’m not sure I see how his 

testimony to try and get attention from his mother affects his ability or impacts whether 

he had formed the intent or agreement to kill with his co-conspirators. [¶] In other words, 

I think the People have a valid point that it doesn’t relate to the admissible basis for the 

psychologist’s testimony on that issue. And that is on the actual intent to kill or 

conspire.”

After hearing additional argument, the court then stated: “The cases on experts 

generally require that the Court perform a gatekeeping function and make sure that 

hearsay isn’t brought in wholesale, unreliable hearsay isn’t brought in wholesale through 

an expert so that the jury takes it for the truth of the matter asserted. That is one of the 

functions I have to perform. [¶] . . . [¶] . . . I’ll get you rulings before opening 

statements.” 

The court’s eventual ruling was as follows: “On the issues of the defendant’s jail 

calls and his intent at the time of the jail calls, it’s my present conclusion that the 

proposed testimony from the defendant’s mother that it was the defendant’s habit or 

custom or character to falsely claim things were worse than they really were in order to 

get her attention is character evidence inadmissible under Evidence Code Sections 1101 

and 1102 because they are specific instances of conduct offered to prove that the 

defendant acted in conformity there with the jail calls.
17

“There with similarly as to the proposed testimony from the mental health experts, 

but based on the mother’s statements to them and the defendant’s statements to them it is 

the experts’ conclusion that the defendant had the tendency to seek attention from his 

mother by overly describing things as worse than they really were is not a mental 

condition that is relevant to the defendant’s intent at the time of forming a conspiracy or 

committing the alleged crimes, it is at best an opinion as to what the defendant was 

thinking when he made certain admissions to his mother on the telephone.

“And in my view that is expressly prohibited by . . . Penal Code sections 25, 28 

and 29.

“Penal Code section 28 says that evidence of a mental disease, mental defect or 

mental disorder is admissible solely on the issue of whether or not the accused actually 

formed a required specific intent, premeditated, deliberated or harbored malice 

aforethought when a specific intent crime is charged. The defendant’s tendency to make 

things look worse when he spoke to his mother to get her attention is not relevant to the 

defendant’s actually forming the required specific intent for the charged crimes.

“So my view it is excluded by sections 25, 28 and 29 of the Penal Code.” 

The standard of review for evidentiary rulings on relevance and character evidence 

is abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668 [relevance]; 

People v. Doolin (2009) 45 Cal.4th 390, 437 [Evid. Code, § 1102].) “A trial court abuses 

its discretion when its ruling ‘ “ fall[s] ‘outside the bounds of reason.’ ” ’ [Citation.]” 

(People v. Benavides (2005) 35 Cal.4th 69, 88.) The same stringent standard applies to 

excluding evidence pursuant to the Penal Code sections cited by the trial court. 

(People v. San Nicolas (2004) 34 Cal.4th 614, 661-663; People v. Cortes (2011) 

192 Cal.App.4th 873, 909, 912.)

However, defendant attacks the exclusionary ruling only insofar as it was based on 

Evidence Code section 1102. In other words, defendant does not challenge the other 

grounds for the ruling.

The most elemental principle of appellate review is that trial court error is never 

presumed, but must be demonstrated by the appellant. (E.g., People v. Giordano (2007) 
18

42 Cal.4th 644, 666.) Almost as fundamental is the principle that “ ‘ “a ruling or 

decision, itself correct in law, will not be disturbed on appeal merely because given for 

the wrong reason. If right upon any theory of the law applicable to the case, it must be 

sustained regardless of the considerations which may have moved the trial court to its 

conclusion.” ’ ” (People v. Brown (2004) 33 Cal.4th 892, 901.) Thus, the other grounds 

given by the court, which do not evoke challenge by defendant, are deemed sufficient for 

the ruling. (See Western States Petroleum Assn. v. Board of Equalization (2013) 

57 Cal.4th 401, 409; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, 

pp. 409-410.)

Defendant attempts to give his argument a constitutional dimension by asserting 

the ruling infringed “his constitutional due process right to present a complete defense . . . 

and his constitutional right to compulsory process.” This attempt to elevate the status of 

the claimed error will not prevail.

“ ‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does 

not impermissibly infringe on a defendant’s right to present a defense.” [Citations.]

Although completely excluding evidence of an accused’s defense theoretically could rise 

to this level, excluding defense evidence on a minor or subsidiary point does not impair 

an accused’s due process right to present a defense. [Citation.] If the trial court 

misstepped, “[t]he trial court’s ruling was an error of law merely; there was no refusal to 

allow [defendant] to present a defense, but only a rejection of some evidence concerning 

the defense.” [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 427-428.)

The ruling did not impair defendant’s right to present a defense. Defendant 

himself could testify to his fantasist tendencies in conversing with his mother. (People v. 

Gerule (2002) 28 Cal.4th 557, 605 [“Defendant was free to present this information by 

taking the stand himself.”].) That, together with counsel’s closing argument, could serve 

to acquaint the jury with the defense theory that defendant did not commit the charged 

offense. (See People v. Whisenhunt (2008) 44 Cal.4th 174, 213 [“Through defendant’s 

testimony and defense counsel’s closing argument, the jury was fully apprised of the 

defense theories”].) Thus, “the trial court merely rejected some evidence concerning a 
19

defense, and did not preclude defendant from presenting a defense.” (People v. McNeal

(2009) 46 Cal.4th 1183, 1203.) The excluded evidence was “defense evidence on a 

minor or subsidiary point.” (People v. Boyette, supra, at p. 428.) Yes, it can be seen as 

involving defendant’s credibility, but only in the sense of collaterally impeaching a single 

statement. Excluding one source of that impeachment did not undermine the 

prosecution’s case against defendant.

Lastly the “right to present a complete defense” principle invoked by defendant 

appears limited to capital cases. (See People v. Homick (2012) 55 Cal.4th 816, 855; 

People v. Rogers, supra, 39 Cal.4th 826, 872 & fn. 18.) That is not implicated here.

In light of the foregoing, defendant has not established that granting the 

prosecution’s in limine motion amounted to a clear abuse of discretion. (People v. 

Fuiava, supra, 53 Cal.4th 622, 667-668; People v. Benavides, supra, 35 Cal.4th 69, 88.)

The Challenged Murder Convictions

Will Be Allowed To Stand

Under this caption in his brief, “two of appellant’s four convictions of murder must 

be reversed because the evidence fails to show that appellant perpetrated, aided and 

abetted, or conspired to commit them,” defendant argues: “Appellant was tried and 

convicted of murder in counts one, seven, eight, and nine. The prosecution presented 

evidence to show that appellant fired the shots that killed Antonio Cintron in count one 

and evidence to show that appellant drove the getaway car from the shooting that killed 

Luis Perez in count seven. However, the prosecution presented no evidence to show that 

appellant had any responsibility for the shooting deaths of Lisa Thayer in count eight or 

Rico McIntosh in count nine.” 

It is significant that defendant does not challenge his conviction for conspiracy 

(count four), because it is that peculiar creature, the law of conspiracy, which defeats 

defendant’s attempt to overturn the two murder convictions. Defendant, on the other 

hand, has only naked logic on this side. After all, he maintains: “I was in the county jail, 

I did not provide the gun(s) or any other instrumentality used in the murders, and I gave 

no direct orders for the murders.”
20

The law on this issue may continue to be controversial, but it is settled.

“Since conspiracy is a continuing offense [citation], a defendant who has joined a 

conspiracy continues to violate the law ‘through every moment of [the conspiracy’s] 

existence,’ [citation], and he becomes responsible for the acts of his co-conspirators in 

pursuit of their common plot.” (Smith v. United States (2013) 568 U.S. __, __ [133 S.Ct. 

714, 719].) This court made the same point three decades ago: “Once the conspiracy is 

established it is not necessary to prove that each conspirator personally participated in 

each . . . [act of the conspiracy] . . . since members of the conspiracy are bound by all acts 

of all members committed in furtherance of the conspiracy.” (People v. Cooks (1983) 

141 Cal.App.3d 224, 312; see People v. Kauffman (1907) 152 Cal. 331, 334 [“ ‘In 

contemplation of law the act of one is the act of all. Each is responsible for everything 

done by his confederates’ ”].)

We continued: “The crime of conspiracy can be committed whether the 

conspirators fully comprehended its scope, whether they acted together or in separate 

groups, or whether they used the same or different means known or unknown to them.” 

(People v. Cooks, supra, 141 Cal.App.3d 224, 312.) One of the authorities cited for this 

principle was our decision in People v. Means (1960) 179 Cal.App.2d 72, 80, where we 

stated: “[T]here need be no showing of direct association between members of a 

conspiracy. Common design is the essence of a conspiracy and the crime can be 

committed whether the parties comprehend its entire scope, or whether they act in 

separate groups or together, by the same or different means known or unknown to them, 

if their actions are consistently leading to the same unlawful result . . . .”

And, strikingly applicable here, we further stated in 1983: “Once the defendant’s 

participation in the conspiracy is shown, it will be presumed to continue unless he is able 

to prove, as a matter of defense, that he effectively withdrew from the conspiracy. 

[Citation.] [¶] Although a defendant’s arrest and incarceration may terminate his 

participation in an alleged conspiracy, his arrest does not terminate, or constitute a 

withdrawal from the conspiracy as a matter of law. [Citations.] Withdrawal from, or 
21

termination of, a conspiracy is a question of fact.” (People v. Cooks, supra,

141 Cal.App.3d 224, 316.) 

“ ‘Each member of the conspiracy is liable for the acts of any of the others in 

carrying out the common purpose, i.e., all acts within the reasonable and probable 

consequences of the common unlawful design.’ ” (People v. Flores (2005) 

129 Cal.App.4th 174, 182, quoting what is now 1 Witkin & Epstein, Cal. Criminal Law 

(4th ed. 2012) Elements, § 98, p. 404.) And, in the classic formulation by our Supreme 

Court: “whether or not the act committed was the ordinary and probable effect of the 

common design or whether it was a fresh and independent product of the mind of one of 

the conspirators, outside of, or foreign to, the common design, is a question of fact for the 

jury [citations], and if there be any evidence to support the finding of the jury on this 

question, its determination is conclusive.” (People v. Kauffman, supra, 152 Cal. 331, 

335.) This is part of the jury’s power “considering the unique circumstances and the 

nature and purpose of the conspiracy of each case—to determine precisely when the 

conspiracy has ended.” (People v. Saling (1972) 7 Cal.3d 844, 852.)

From these authorities it should be clear that defendant’s incarceration and lack of 

direct communication to the killers of Thayer and McIntosh is not legally dispositive. 

Neither his actual presence nor his direct participation was required for liability. 

Defendant does not dispute his membership in a criminal street gang. He does not 

dispute the existence of the conspiracy, or that he was properly convicted of that 

substantive offense. He does not contend he ever withdrew from that conspiracy. He is 

thus liable for the Thayer and McIntosh murders committed after his incarceration, if they 

can be deemed the “ordinary and probable effect[s]” (People v. Kauffman, supra, 

152 Cal. 331, 335), the “ ‘reasonable and probable consequences’ ” (People v. Flores, 

supra, 129 Cal.App.4th 174, 182) of the conspiracy. 

This is where defendant makes his stand: he argues that he cannot be convicted of 

the Thayer and McIntosh killings because, adopting another Supreme Court phrasing, 

“those two killings were not the natural and probable consequences of any conspiracy 

[see People v. Prieto (2003) 30 Cal.4th 226, 250] entered into by appellant. . . . 
22

[N]othing about appellant’s expressed intention suggested that appellant and other gang 

members conspired that they would aggressively hunt for Norteños and anyone who 

resembled Norteños and kill them at every opportunity for an indefinite period of time 

into the future. . . . No evidence was presented to show that appellant aided, facilitated, 

or encouraged either of the killings in counts eight and nine. It would be unreasonable to 

expand conspiracy theory liability to cover murders committed after a conspirator is in 

custody when there is no clear link between the conspirator and the killing. Thus the 

shooting deaths of Thayer and McIntosh could not be the natural and probable 

consequences of any conspiracy involving appellant.” We do not agree.

Insofar as defendant is relying on his status as a prisoner in the county jail, it has 

been shown that the fact of his incarceration does not terminate his potential criminal 

liability as a matter of law. In any event, it would be inaccurate to picture defendant as 

sitting silently in his cell, with no contact with his VFL colleagues. The jury heard 

evidence of recorded phone conversations that defendant made to the gang’s current 

leader. The leader promised to send money to defendant while he was in jail, and to take 

care of defendant’s mother. The leader also provided information of the latest 

developments concerning other gang members, and gave defendant messages to pass on 

to other gang members in the jail. Most crucially, he gave orders to defendant and made it 

clear defendant was still under gang discipline. The jury also heard testimony from a jail 

guard that defendant appeared to be associating and socializing with the other Sureños 

inmates.2 From this evidence the jury could conclude that defendant never withdrew 

from the conspiracy but remained an active part of it.

Defendant’s emphasis on the lack of a “clear link” between himself in jail and 

other gang members is also misplaced, for it erroneously assumes that a direct connection 

and correlation is required. (People v. Means, supra, 179 Cal.App.2d 72, 80.) It is also 

 

2 Not all of the information heard at the competency hearing about defendant’s 

behavior and activity in jail was reintroduced at his trial. Parenthetically, it may be 

pertinent to note that the competency determination was made by retired Judge Peter 

Spinetta, while Judge John W. Kennedy presided at defendant’s trial.
23

contrary to the presumption that defendant remained a member of the conspiracy. 

(People v. Cooks, supra, 141 Cal.App.3d 224, 316.)

Defendant’s assumption is also at odds with the nature of conspiracies. “ ‘[I]t was 

not necessary for the State to prove that the parties actually came together, mutually 

discussed their common design, and after reaching a formal agreement set out upon their 

previously agreed course of conduct.’ ” (Lorenson v. Superior Court (1950) 35 Cal.2d 

49, 57.) “It is seldom possible for the prosecution to offer direct evidence of an 

agreement to commit a crime. The agreement to commit the crime is usually made in 

secrecy. The conspiracy must be inferred by the trier of fact from all the circumstances” 

(People v. Chavez (1962) 208 Cal.App.2d 248, 253), which here would include the 

“common gang membership . . . ‘the conduct [of the conspirators] in mutually carrying 

out a common illegal purpose, the nature of the act, the relationship of the parties [and] 

the interests of the alleged conspirators . . . .’ ” (People v. Superior Court (Quinteros) 

(1993) 13 Cal.App.4th 12, 20-21.)

The jury heard more than ample evidence that the VFL and ML Sureño gangs had 

a systematic practice of hunting down and trying to kill rival Norteño gang members and 

suspected members. The killings were accomplished in the same manner—on the streets, 

using handguns. Defendant participated in that campaign of killing before he was 

arrested. Thus, the jury had a basis for treating subsequent Norteño killings as the natural 

and probable consequences of the conspiracy, and for treating defendant, even after he 

was incarcerated, as still a member of the on-going conspiracy. (People v. Zamudio, 

supra, 43 Cal.4th 327, 357; People v. Kauffman, supra, 152 Cal. 331, 335; People v. 

Flores, supra, 129 Cal.App.4th 174, 182; People v. Cooks, supra, 141 Cal.App.3d 224, 

316.)

DISPOSITION

The judgment of conviction is affirmed.
24

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.