Filed 3/3/ 16 P. v. Mendoza CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

JUAN ME NDOZA , Defendant and Appellant. 2d Crim. No. B2 49627 (Super. Ct. No. BA332081 ) ( Los Angeles County)

A jury convicted appellant Juan Mendoza of two counts of first degree
murder. (Pen. Code, § § 187 , subd. ( a ) , 189

. ) 1 The jury found true special c ircumstances allegations that he committed multiple murders (§ 190.2, subd . (a)(3)) during the commission of a robbery, burglary, and carjacking (§ 190.2, subds . (a)(17) (A), (G), (L) )

. The jury further found true allegations that he used and discharged a firearm (§ 12022.53, subds. (b)

- (e)(1)) and committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced him to two consecutive terms of life in prison without the possibility of parole plus two c onsecutive terms of twenty

- five

year s to life for the gun use enhancements. The trial court stayed additional sentence enhancements of 80 years.

1 All further statutory reference s are to the Penal Code unless otherwise stated.2 Appellant contends that several errors individually and cumulatively warrant reversal: (1) rulings by the tr ial court to admit and preclude various statements made by his brother Angel Mendoza (Angel) ; (2), the lack of an instruction that Angel
and codefendant Salvador Viescas were accomplices as a matter of law and that their testimony required corroboration an d s hould be viewed with caution ; (3) testimony about the Mexican Mafia; and (4) Viescas’s testimony that appellant had been to jail

. We
affirm.
FACTS

Jesse Gonzalez ran a used car business called Jesse’s Auto Sales in East Los Angeles

. About two years b efore the murders, Gonzalez’s former son

- in

- law, Michael Ibarra, washed cars for him for about a month. Ibarra hung out with members of the Lil East Side gang (LES) , including Angel . They became upset with him for giving
information about them to a rival gang. Angel believed that Ibarra had something to do with the death of his and appellant’s brother because Ibarra had laughed when it happened

. Jonathan Van Dyke was a member of the Highland Park gang. He met appellant at an “involuntary residential pr ogram” called the Lighthouse Alvarado. The program had a mentoring program in which Van Dyke was appellant’s “strength.” The day before the murders, appellant and Van Dyke left the program and picked up

a ppellant’s truck in Alhambra. They drove to Viesc as ’s house in East Los Angeles. Viescas was a former member of the San Fer gang. He and a ppellant went into the bedroom and closed the door. They cam e out after about 10 minutes. Appellant and Van Dyke returne d to the Lighthouse Alvarado.

The next day , appellant and Van Dyke again left the program and took appellan t’s truck to Viescas’s house. On the way there, appellant told Van Dyke that a
woman had robbed him of some money “and he was going to get it back” by going to the car dealership where her f amily worked. He was looking for two “punks”

— the woma n’s
cousins

— who worked there. Van Dyke assumed this meant appellant was going to rob3

the dealership. Appellant asked Van Dyke what he “wanted out of it.” Van Dyke said,
“Just a car.” When they got t o Viescas’s house, appellant told Viescas and Van Dyke “to

go look and see who was there” at the dealership. They agreed. Appellant and Van Dyke then left to pick up A ngel at a construction site in Glendale so that appellant “wou ldn’t
have to do this alo ne.” The three of them returned to Viescas’s house. Appellant told Van Dyke and Viescas to go to the dealership, see who was there, and call them on a “burn” phone, i.e., one with a stolen “chip.”

Van Dyke and Viescas walked down an alley to Jesse’s Aut o Sales , where

t hey saw two of Gonzalez’s salesmen, Arturo Saldana and Francisco Cereceres . After two or three minutes, they left th rough the alley. Viescas called appellant and told him that there were just “two old guys” at the dealership and that he a nd Van Dyke were on their way back.

A ppellant called back and told them, “Hurry up and get your ass back” to
th e dealership. They ran back. By the time they got there, they saw a ppellant c o me out of the office. He had blood on his clothes and hands. H e said, “Take my brother and [Viescas] , and I’ll meet you guys.” Appellant was holding three sets of keys and a wallet. Van Dyke took the keys to a Jeep Grand Cherokee that he had seen earlier and liked. He got in to the car along with Angel and Viescas. Angel also had blood on his clothes and was holding a small caliber pistol in his lap.

Viescas directed Van Dyke to drive to West Covina. They were running low on gas, so Van Dyke pulled into a gas station. Angel gave h im the wallet he was holding. V an Dyke tried to use a credit card from the wallet to get gas but could not figure out the correct zip code to enter. Viescas directed him to a house a few blocks

away. Viescas spoke with a man at the house

. Appellant arrived a bout 45 minutes
later in a white Dodge Dakota. He parked in the garage. He told Van Dyke to wipe down the car to get rid of blood and fingerprints. Appellant and Angel removed their
clothes and put them in a trash bag.4 Van Dyke asked appellant what happened at the dealership. Appellant told him, “Don’t worry. We got them.” When Van Dyke asked who he “got,” appellant said, “the dudes that were there.” Van Dyke asked him if was “talking about the old guys,” appellant said, “Yes.

. . . They’re not going to be talking to anybod y.” Van Dyke, believing appellant meant that they had killed Saldana and Cereceres, said, “I’m gone.” Van Dyke picked up a checkbook from the dealership that appellant had brought in from
the Dako ta and drove off in the Jeep. When he got to Highland Par k, he tried unsuccessfully to cash one of the checks. He parked the car on a back street at the top of
a hill and wiped it down . He then locked the car and threw the keys in to a storm drain

.

Carlos Jauregui, an LES member, was at home in Montebel lo on t he day of
the murders. Angel showed up , and Jauregui drove him to his (Angel’s) grandmother’s house. Angel told Jauregui that he, appel lant, and Viescas had killed Iba rra’s father and another person. Late r, Angel realized it was not Iba rr a’s father whom he had killed.

Angel told Jauregui that when appellant picked him up from work, he wanted to borrow his gun because “he w as going to go get [Ibarra].” He als o wanted to commit a robbery. Angel said that when he and appellant were committing the robbery at the dealership, two men lunged at them. Angel grabbed something used for washing cars and started hitting one of them on the head. He shot both men in the head. Afterwards,
h e took a car , which he left near a Kmart or Target. He disassembled the gu n and threw away the pieces. Later that day while watching a television news story about the murders, Angel told Jauregui he had done that.

When Gonzalez returned to the dealership after his lunch break
, he
discovered the victims’ bodies lying in a pool of blood. A white Dodge Dakota and a Jeep Grand Cherokee were missing from the lot . A checkbook was missing from the
office. Sald ana’s wallet was also missing. Saldana and Cereceres had abrasion s all over
their bodies. Saldana had two broken ribs. Hi s injuries were consistent with being beaten by a metal hose nozzle. Both died of gunshot wounds.

The gang expert, Detective Eduardo Aguirre, testified that t aking money from an LES member’s family without paying it back is “a straight

- out disrespect” to the5

gang. Gang members often get money back that they are owe d through force and
violence. Stolen cars are also of value to gang members for traveling to commit crimes and transporting narcotics by allowing them to avoid detection by law enforcement.
DI SCUSSION Evidentiary Rulings
“E vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made,

. . . so far subjected him to the risk of

. . . criminal liability

. . . that a reasonable man in his position would not have made the statement
unless he believed it to be true. ” (Evid. Code, § 1230.) “The proponent of such evidence
must show that the declarant is unavailable , that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]” ( People v. Duarte (2 000) 24 Cal.4th 603, 610

- 611.)

Appellant contends that in applying the exception to the hearsay rule for statements against penal interest, the trial court erred by admitting and excluding certain

out

- of

- court statements made by Angel. “ ‘ “ The focus of the declaration against interest exception t o the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the

co urt may take into account not just the words but the circumstances under which they were uttered, the possible motivation of t he declarant, and the declarant’ s relationship to
the defendant. ” [Citation.] ’ [Citation & fn. omitted .]” ( People v. Gonzales ( 2011) 51 Cal.4th 894, 933 .) We review the trial court’s rulings for abuse of discretion. ( People v. Valdez (2012) 55 Cal.4th 82, 143.)

Admission of Angel ’s Statements to Jauregui
T he prosecution moved to admit Jauregui ’s testimony that Angel stopped by his home hours after the murders and told him details about how and why they were committed. The trial court admitted this testimony as statements against Angel’s penal6

interest

. Appellant clai ms that Angel’s statement to Jau regui “that appellant had com e to him looking for a gun and had instigated the incident” was inadmissible because it “was prohibited blame

- shifting and blame

- spreading

. ” We disagree. 2

It is true that “a hearsay statement ‘that is in part inculpatory and in part exculpatory (e.g., on e that admits some complicity but places the major responsibility on others) does not meet the test of trustworthi ness and is thus inadmissible.’ ” ( People v.
Duarte , supra , 24 Cal.4th at p. 612.) S ection 1230’s exception to the hearsay rule “does not app ly to collateral assertions within a declaration against penal interest

— i.e., any portion of a statement that is not itself specifically disserving to the declarant’s interests.” ( People v. Valdez
, supra , 55 Cal.4th at p. 144.) Here, however, “the trial court could have reasonably found that, in context, [Angel’s] statement as a whole” regarding appellant coming to him for a gun “was specifically disserving of [ Angel’s ] interest.” ( Ibid .) Angel and Jauregui were both members of LES. The two were “close ” and socialized “almost on a daily basis

. ” Angel lived in Jauregui’s garage for more than a
month. Immediately after the murders, An gel came to Jauregui for a ride to his grandmother’s house, during which he made the statements at issue. “[T]he most re liable
circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.] ( People v. Greenberger (1997) 58 Cal.App.4th 298, 335.)

Viewed in isolation, Angel’s statement that a ppellant originally came to him and asked to borrow his gun tend ed to inculpate appellant. Angel’s response : “No. No. I’ll go. I got to do that, ” however, shifted blame from appellant to Angel, who fire d
the fatal bullets. Moreover, appellant’s state ments to Angel also explained Angel’s motive, which was the same as appellant’s: they believed Gonzalez was related to Ibarra,
who had “something to do with their brother’s death. ”

2 “ We need not resolve

. . . the People’s forfeiture argument because [this] arguably preserved claim[] fail [s] on [its] merits. ” ( People v. Valdez
, supra , 55 Cal.4th at p. 143 .)7 Taken in context, Angel’s statements to Jauregui did not shift the blame for the murders away from himself and onto appellant. Accordingly, the trial court did not abuse its discretion in admitting them.

Appellant also claims that the admission of these statements violated his Sixth Amendment rights

. S tatement s that are not testimonial in nature, such as “a casual remark to an acquaintance,” “ statements from one prisoner to another ,” and Angel’s

statements to Jauregui , “ while subject to traditional limitations upon hearsay evidence, [are] not subject to the Confrontation Clau se. ” ( Davis v. Washington (2006) 547 U.S. 813, 821, 824

- 825 .) Exclusion of Angel ’s Statements to the Police

Appellant moved to introduce statements Angel made to the police that Angel acted alone in going to Jesse’s Auto Sales and shooting the victims. He argued
that this hearsay evidence also fell into the penal interest exception. The trial court denied the motion because under the totality of the circumstances it could not find that Angel’s statement was reliable

. Appellant claims that this ruling w as an abuse of the trial
court’s discretion under sections 1230 and 1202 of the Evidence Code and violated his Sixth Amendment right to confrontation.

In determining that Angel’s statements that he acted alone were unreliable, the trial court properly con sidered his fraternal relationship with appellant as a motive to deny appellant’s involvement in the robbery and murders. The statements themselves suggest Angel had an ulterior motive. Angel repeatedly told the police that he went to the dealership alon e even though these statements were non responsive to the ir que stions

. The trial court did not abuse its discretion in excluding them under section 1230

. As there was no error under state evidence law, appellant’s derivative claim under the fede ral
C onsti tuti on is also meritless

. ( People v. Seumanu (2015) 61 Cal.4th 1293, 1311 .)

A ppellant also argues that the exclusion of Angel’s hearsay statements to the police denied him the opportunity to impeach Angel’s inconsistent hearsay statements to Jauregui in violation of section 1202 of the Evidence Code

. We need not address this argument, raised for the first time on appeal, because a ny error was harmless.8 Angel’s version of events was inconsistent with the evidence. In particular,
it fails to explain how, acting alone, Angel managed to drive two cars off the dealership lot and park them miles apart. Van Dyke testified that appellant planned to rob the dealership. A ppellant himself contradicted Angel’s claim to have acted alone in

statements he made to bo th Jauregui and the police. In addition, as we have explained, Angel had a strong motive to lie to the police to protect his brother. Because the evidence contradicting Angel’s statement to the police was overwhelming, any error in precluding the jury fr om hearing it was harmless. ( People v. Baldwin (2010) 189 Cal.App.4th 991, 1007 .)
Instruction on Accomplice Testimony

The trial court’s jury instructions defined the term “accomplice” (CALJIC No. 3.10) and explained that jurors (1) should view the testim ony of an accomplice or codefendant with caution (CALJIC No. 3.18) and (2) could not rely on such testimony to convict absent corroborating evidence (CALJIC Nos. 3.11, 3.12). (See § 1111.) Over appellant’s objection, 3 t he trial court instructed that Van Dyke was an accomplice as a
matter of law

. (CALJIC No. 3.16.)

Appellant contends that the trial court erred by not instructing that Angel
and Viescas were also accomplices as a matter of law. “Whether someone is an accomplice is ordinarily a question of fact for the jury; only if there is no reasonable dispute as to the facts or the inferences to be drawn from the facts may a trial court instruct a jury that a witness is an accomplice as a matter of law. [ Citation.]” ( People v. Valdez
, supra , 55 Cal.4t h at pp. 145

- 146.)

Viescas maintained his innocence at trial and testified that he did not intend to rob anyone when he went to the dealership

. The trial court “properly refused to instruct the jury [he] was an accomplice as a matter of law.” ( People v. Manibusan (2013) 58 Cal.4th 40, 94.) Angel, on the other hand, undisputedly was the sho o t er who

3 At trial, appellant conte nded that Van Dyke was not an accomplice as a matter of law and asked the trial court not to give an instruction to that effect because “the inference might be that if he is an accomplice, therefore [everyone] else is.”9

killed both victims. 4 The trial court erred in not instructing that he was an accomplice as a matter of law. (See People v. Carrasco (2014) 59 Cal.4th 924, 968 [ person “who ‘directly commit [s] the act constituting the offense’” is an “accomplice” for purposes of section 1111].)

The error, however, was harmless because the record contains sufficient
evidence to corroborate Angel’s statements . (S ee People v. Gonzales (2011) 52 Cal.4th 254, 303.) After the murders, appellant asked Jauregui if he “had heard what h e had done with his brother.” Appe llant told him they had gone to look for Ibarra, who “got lucky” because he “had gone to lunch when they got there. ” Appellant also told the police that he went to Jesse’s Auto Sales on the day of the murders and “[s]omeone gave [him] a set of keys and just told [him] to drive a car away,” which he dropped off at the Wal

- Mart
where it was recovered. This evidence “is sufficient” to corroborate Angel’s statements because “it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” ( People v. Fauber (1992) 2 Cal.4th 792, 834.) Mexican Mafia Evidence

The prosecutor asked the gang expert whether LES members, when they go to prison, “unify with a larger gang within prison or within the jail system.” The expert answered that they do so with the Mexican Mafia prison gang. Appellant contends that the pros ecutor’s elicitation of testimony about the Mexican Mafia prison gang was misconduct that, when combined with the trial court’s failure to admonish the jury to disregard the testimony, viol ated his right to due process.

Initially , we reject the People’s a rgument that appellant forfeited a claim of prosecutorial misconduct because he failed to specifically object on that ground. Appellant made a general objection to the testimony and requested a curative admonition,

4 In arguing that “Angel’s guilt was not undisputed,” the People cite ambiguous statements in defense counsel’s closing argument. Defense counsel made similar comments during his opening statement while asserting that “Angel Mendoza, for his

own reason .

. . killed Mr. Saldana and Mr. Cerec eres.”10

which was refused. Requesting the same admonition on the specific basis of prosecutorial misconduct would have been futile. (See People v. Hill (1998) 17 Cal.4th 800, 820.) We reject appellant’s contention on the merits. The prosecutor’s single question about the Mexican Mafia was relevant t o the issues in the case. As the prosecutor pointed out, there had been “testimony about witnesses being intimidated within the jail” and the Mexican Mafia evidence also “explain[ed] why [LES members] would get together with another gang member from Highl and Park as opposed to someone that didn’t have that gang association.” Consequently, there was no
misc onduct. ( See People v. Samayoa (1997) 15 Cal.4th 795, 854 [ posing questions of questionable relevance not prosecutorial misconduct] .)

Nor did the tria l court abuse its discretion by denying defense counsel’s request for an admonish ment to disregard the testimony

. T he trial court sustained the objection to the testimony and , upon defense counsel’s request
, inform ed the jury that the testimony had been s tricken. The trial court previously had instructed the jury not to consider evidence that is rejected or stricken. “We must presume the jury heeded the instruction and disregarded the stricken material.” ( People v. Horton (1995) 11 Cal.4th 1068, 1121.) Codefendant’s Testimony That Appellant Had Been to Jail

When Viescas testified in his own defense, he twice suggested appellant may have been in jail. Appellant’s trial counsel did not object when either of these two statements were made. Later, during an unrelated sidebar discussion, appellant’s trial counsel moved for a mistrial on the ground that Viescas “attempted to volunteer that my client had been in other situations, inviting the jury to speculate my client may have committed other crimes, perhap s serious crimes.” The trial court denied the motion because “[t]here was not a timely objection or a request for a curative instruction.”

Appellant contends that the trial court erred because the testimony was highly prejudicial to him. We disagree. “ ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with11

considerable discretion in ruling on mistrial motions.’ [Citation.]” ( People v. Avila (2006) 38 Cal.4th 491, 573.) Viescas’ s two references to appellant’s time in jail were brief, irrelevant to the q uestioning , and expressed with uncertainty (“I believe he got out
of

— he got out of jail” and “He went to jail or something”). The trial court did not abuse
its discretion in rulin g they were not prejudicial

. ( See People v. Medina (1995) 11 Cal.4th 694, 751 [no evidence of prejudice where counsel failed to object to unnecessary
evidence suggesting defendant previously had been to jail ].)
Cumulative Error Appellant asserts that cum ulative error compels the reversal of his
convictions. We have identified only one error , which was harmless . There is thus no
error to cumulate

. DISPOSITION

The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.Ronald S. Coen , Judge Superior Court County of Los Angeles

______________________________

John A. Colucci , under appointme nt by the Court of Appeal, for Defendant
and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chi ef Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson , Supervising Deputy Attorney General, and Theresa A. Patterson , Deputy Attorney General, for Plaintiff and Respondent.