Filed 4/17/14 P. v. Vasquez CA2/4 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

WILLIAM VASQUEZ, 

 Defendant and Appellant. 

 B241020 

 (Los Angeles County 

 Super. Ct. No. SA057247) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, 

Larry Paul Fidler, Judge. Affirmed. 

 Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and 

Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
2 

 Defendant William Vasquez appeals from the judgment entered following his 

conviction by jury of five counts of first degree murder (counts one, two, three, four and 

eight), one count of willful, deliberate and premeditated attempted murder (count seven) 

and two counts of assault with a semi-automatic firearm (counts five and six). (Pen. 

Code, §§ 187, subd. (a), 664/187, subd. (a), 245, subd. (b).)1

 The jury also found the 

following allegations to be true: (1) the special circumstance that defendant committed 

first degree murder and was convicted of one or more counts of murder in the first or 

second degree; (2) the special circumstance that defendant committed first degree murder 

and intentionally killed the victim while defendant was an active participant in a criminal 

street gang and carried out the crime to further the gang’s activities; (3) as to counts one, 

two, three, four, and seven, defendant personally and intentionally discharged a firearm, 

which proximately caused great bodily injury or death to the victim; and (4) defendant 

committed the crimes for the benefit of a criminal street gang, with the specific intent to 

promote, further or assist in criminal conduct by gang members. (§§ 190.2, subds. (a)(3) 

& (a)(22); 12022.5, subd. (a); 12022.53, subds. (b), (c) & (d); 186.22, subd. (b).) 

Although the prosecution sought the death penalty, two juries did not return a death 

verdict. Defendant received five terms of life without the possibility of parole, 140 years 

to life and 16 years, with the sentences to run consecutively. 

 Defendant contends: (1) the murder counts should not have been consolidated; 

(2) a photographic identification should have been excluded because it was obtained 

through an unduly suggestive process; (3) his right to due process was violated by 

allowing the identifications of witnesses who failed to appear at a court-ordered lineup; 

(4) the trial court’s curative instruction with respect to those witnesses was inadequate; 

(5) the testimony of a defense expert was unduly restricted; (6) a motion for new trial 

should have been granted; (7) some of the convictions are not supported by the evidence; 

(8) cumulative error requires reversal; and (9) the matter must be remanded for the trial 

 1

 All further undesignated statutory references are to the Penal Code. 
3 

court to conduct an in camera hearing pursuant to Pitchess v. Superior Court (1974) 

11 Cal.3d 531. 

 Finding no error, we affirm the judgment. 

STATEMENT OF FACTS 

I 

The Prosecution Case 

A. The Shooting of Hector Bonilla and Jonathan Hernandez2

 (Counts One and Two)

On the evening of March 5, 2005, Santa Monica police officers and paramedics 

responded to reports of a shooting at the Moose Lodge in that city. The bodies of Hector 

Bonilla and Jonathan Hernandez were found on the floor of the main hall. They had been 

shot multiple times. 

Earlier that day, Imelda Martinez was at the Moose Lodge attending a birthday 

party for her brother, Ruben. She saw defendant, whom she knew as Willie, at the party. 

Defendant had stayed at her home on occasion and was a friend of Ruben’s. Defendant 

was wearing a long-sleeved shirt that Martinez described as “blood red.” Martinez did 

not recall seeing anyone at the party wearing a similar type of red shirt. 

Martinez was present in the Moose Lodge when Bonilla and Hernandez were shot. 

After the incident, Martinez was interviewed by detectives. She told them that when the 

shooting started, she went down toward the floor. As Martinez looked up, she saw 

something red and the first thought that came to her mind was that defendant was the 

shooter. Defendant’s shirt was distinctive because “it was more casual and everybody 

else was a bit more dressed up.” Martinez told detectives she saw the arm of the person 

in the red shirt and it was pointed downward at a 45 degree angle as the shots were being 

fired. Martinez acknowledged that the room was not well lit. 

 2

 Defendant, Jose Mojarro and Erick Nunez were jointly charged with the murders 

of Bonilla and Hernandez. Mojarro and Nunez were severed from the case and tried 

together prior to defendant’s trial. We affirmed their convictions. (People v. Mojarro 

July 2, 2011, B223035) [nonpub. opn.].); (People v. Nunez (Sep. 29, 2010, B215886) 

[nonpub. opn.].) 
4 

On the night of the shooting, after Martinez returned home with her cousin, her 

cousin’s husband and some friends, she told them that the person in red who was doing 

the shooting was the same individual who previously had stayed at her home. That 

person was defendant. 

On July 25, 2005, Martinez identified a picture of defendant during an interview 

with detectives. Next to the picture, she wrote, “This is Willie, the one I saw at the party 

wearing a red shirt.” 

Ruben Martinez rented the Moose Lodge for his birthday party. He spent most of 

the time in the bar area during the party. He estimated there were approximately 100 

guests at the location. At some point, Martinez heard popping sounds. He became aware 

that there had been a shooting. Earlier, Martinez saw defendant at the party. Defendant 

was wearing a red shirt and red cap. He stood out because he was wearing red. Martinez 

told police, “I’m shocked for him to be wearing that when the Bloods are the enemy. I 

don’t know. I don’t understand that. I mean, he must have had the balls that big to be 

doing something like that. Who’s going to tell him anything?” 

Martinez saw four or five members of the Santa Monica gang at the party. “They 

were yelling and shouting out their [] territory, their neighborhood.” The members were 

walking around the dance floor and waving their bandanas. 

Martinez knew defendant was a member of the 18th Street gang. Defendant was a 

friend in the neighborhood and had stayed at Martinez’s home. When Martinez identified 

defendant’s photograph for police, he did not tell them that he knew defendant. Martinez 

acknowledged he did not want to be present in court. Although he denied being 

frightened to give information, Martinez conceded he told police, ‘“You know how it is 

on the street. If you say a word, you get taken out.”’ 

A couple of days after the shooting, defendant came to Martinez’s home. 

Defendant asked if the Moose Lodge had any surveillance cameras. 

Salvador Ramirez was at the party. He saw defendant, someone he had 

encountered in the neighborhood on prior occasions, at the location. Ramirez knew 

defendant as Willie. Defendant was wearing a red shirt and a red baseball cap. They 
5 

exchanged greetings. Ramirez spent most of the time in the area of the bar and was there 

when the shooting broke out in the main room. 

About a week after the shooting, Ramirez spoke to Imelda Martinez. She told 

Ramirez that she saw the shooter. She was not certain, but she thought the shooter was 

defendant because he was wearing a red shirt at the party, like the shooter. Ramirez did 

not recall seeing anyone at the party wearing a red shirt and a red hat other than 

defendant. 

On March 20, 2005, approximately two weeks after the shooting, detectives 

showed Ramirez a six person photographic lineup. He selected defendant’s photograph, 

indicating defendant was the person Ramirez knew as Willie. 

Rachel Herrera, another guest at the party, arrived at about 9:00 p.m. and sat in the 

bar area. She went into the main room, wished Ruben Martinez a happy birthday and 

said hello to his sister, Imelda. At some point, a scuffle broke out. She testified at an 

earlier proceeding that four or five males were fighting. Herrera saw someone throw a 

chair and heard a sound “like firecrackers.” She and others realized shots were being 

fired and they ran. 

That night, Herrera spoke to police officers. She said one of the men she saw was 

dressed in red and wore a red baseball cap. This person approached the group that was 

fighting and shot a male multiple times. The victim immediately fell to the floor. The 

shooter stepped forward and fired more rounds into the prostrate victim. Herrera 

admitted she told an officer that she would not be able to identify the people involved in 

the fight because it was too dark inside the room to see their faces. 

Herrera attended two live lineups. She did not identify any of the participants. 

The parties stipulated that defendant was in the second lineup Herrera viewed. 

Diana Estrada arrived at the party and sat at one of the tables in the main room. 

She became aware of a commotion. Estrada told police she saw five or six male 

Hispanics fighting. Her boyfriend, Cuauhtemoc Estrada (they were married at the time of 

trial and we will refer to each by his or her first name) saw four or five individuals 

striking one male. The table at which she and her boyfriend were sitting was shoved 
6 

against them. They got up and went under a nearby piano. Both Estradas saw two men 

shooting. One of the shooters was wearing a red shirt and red hat. He was firing at a 

man who was on the floor. Diana saw a second shooter, who was wearing a white shirt 

and jeans. She focused more of her attention on the man in red. 

After the shooting stopped, the perpetrators ran out of the exit that led to the street. 

Diana became aware that Cuauhtemoc had been shot in the right leg. He went to a 

hospital. By the time of trial, he had not yet fully recovered from his wounds. At times, 

he still had pain in the leg. 

Diana “more or less, kn[e]w...what [the man in red] looked like.” She described 

him as being a light skinned Hispanic in his late teens to early 20’s, with a small 

mustache. He was between five foot three and five foot six and “it did not look like he 

weighed a lot.” She was shown a six-pack photographic lineup by police. Diana circled 

defendant’s photograph and wrote, ‘“This photo resembles the one who was – shot the 

older victim, which is the one with the red shirt.”’ At a prior proceeding, Diana said she 

was unable to identify the shooters. 

Cuauhtemoc saw that one man engaged in the fight stood out from the others 

because he was dressed in red. He was shown a six-pack and identified one of the 

shooters. The person Cuauhtemoc selected was not the man wearing red. 

Another party guest, Cesar Banuelos, was in the bar area with his wife and some 

friends. He noticed a large group of men near a pool table, but did not notice anything 

out of the ordinary. He went to the restroom. While there, he heard the sound of gunfire. 

After the incident, Banuelos was shown some photographs. He circled 

defendant’s photograph and wrote, ‘“It looks like the guy wearing bright red at the 

Moose Lodge Party.”’ He did not see anyone else at the party wearing a red shirt. The 

person depicted in the photograph looked like a person named Willie, whom Banuelos 

had seen in the neighborhood. At trial, Banuelos identified defendant as Willie. 

Ramon Mendoza helped the DJ set up for the party and spent most of the time 

seated on the stage. While there, he noticed a disturbance near the main door. Three or 

four men were beating on one individual. After the individual was knocked down, 
7 

another male approached the group with a raised chair. To Mendoza, it appeared as if 

that person was attempting to throw the chair at the group involved in the fight. One of 

the males who was inflicting the beating took out a gun and shot the person with the 

chair, who immediately dropped to the floor. The gunman then turned and shot the male 

who was being beaten. A second male produced a gun and began to fire at the same 

male. The first gunman returned to the victim who had raised the chair and shot him as 

he lay on the floor. That gunman looked toward Mendoza and fired two or three shots at 

him. Mendoza was not struck. He ducked down on the stage and continued to hear 

gunfire. 

On March 8, 2005, Mendoza was shown a photographic lineup. He identified a 

photograph of the person he called the first shooter and wrote, ‘“This looks like the guy I 

saw shooting at the Moose Lodge.”’ Mendoza described the shooter as being five-seven 

to five-eight, skinny, 17 or 18 years old and wearing a blue cap. 

On March 25, Mendoza was shown a second photo spread. He circled one picture 

and wrote, ‘“He looks like one of the guys I saw shooting inside the Moose Lodge 

party.”’ Mendoza looked at a third six-pack. He selected defendant’s photograph and 

wrote, ‘“He looks like the guy who initiated the fight at the Moose Lodge.”’ Mendoza 

said this person was wearing a red shirt at the party. 

Mendoza admitted that he withheld certain information from the detectives during 

the photo showups. When he was subpoenaed to testify, he realized he was going to be 

sworn to tell the truth. As he was waiting to testify at the preliminary hearing, Mendoza 

told Detective Lewis that he recognized the second shooter as being the male wearing the 

red shirt, whose picture Mendoza had identified. Mendoza said he was afraid to identify 

the individual at the photo showup because he seemed like he was the leader of the group 

who had participated in the fight at the Moose Lodge. In court, he identified defendant as 

the second shooter. He described defendant as being about “five-five, five-six, stocky 

build. He was a little shorter, heavier set than the first shooter.” Mendoza said he 

remembered the events at the Moose Lodge as if “it was yesterday.” 
8 

Mendoza acknowledged that when he was interviewed shortly after the incident, 

he mentioned only one shooter. He also conceded that he failed to say there was a second 

shooter on the first three occasions that he spoke to detectives. 

Crispin Yanez attended the birthday party. Yanez saw defendant, whom he knows 

as Willie, at the party. When asked by detectives what defendant was wearing, Yanez 

replied, “Uh, it was really hard not to miss him. He was wearing a red [] outfit, I think.” 

The outfit consisted of a red shirt and a red hat with the letter “A” on it. 

Yanez testified that he was standing near a pool table when he heard gunshots; 

however, he did not see the shooting, claiming he was drunk. During an interview with 

Santa Monica detectives, Yanez said he heard the shooting, turned around and, because 

the guests had gotten down on the floor, he had a clear view of defendant shooting at an 

individual. ‘“The guy was already dead, and Willie kept on walking towards him 

shooting until the gun, I guess, I don’t know . . . .”’ Yanez told the detectives defendant 

shot the larger victim. He also saw a second shooter who was firing at another man who 

was on the ground. 

At trial, Yanez claimed he lied to the Santa Monica detectives, saying he told them 

what they wanted to hear because he was being investigated for a double homicide by 

Los Angeles police. After being interviewed by Los Angeles Police Department 

detectives, he was released. Yanez admitted that after he was dropped off at home, he 

and his family drove to the Santa Monica police department to speak with detectives. He 

denied telling police that he was afraid of defendant, although he acknowledged saying 

he was concerned for his family. 

On August 19, 2005, Yanez was shown a six-pack by police. He circled 

defendant’s photograph and wrote, ‘“I saw him shooting at the guy in the Moose.”’ He 

looked at a second set of pictures and circled one photograph and wrote, “I saw him walk 

into the Moose and []shooting at a guy [who] fell down.” Yanez saw the second man 

walk into the Moose with defendant. Yanez told police the second man was wearing a 

black shirt. 
9 

Defendant is a friend of Yanez’s brother, Jose. In 2005, Jose affiliated with the 

18th Street gang. Yanez believed defendant also was affiliated with that gang because he 

hung out with Jose. 

Yanez was upset when served with a subpoena. He denied that he started to cry. 

Soon afterward, he went to Arizona. He claimed that he left the area for reasons 

unrelated to the court proceedings. A warrant was issued when Yanez failed to appear at 

the preliminary hearing. Detective Lewis called and left several messages for Yanez, 

who claimed he did not receive them. Eventually, Lewis went to Arizona, took Yanez 

into custody and returned to Los Angeles. Yanez denied that he repeatedly told the 

detective that he was fearful. 

Los Angeles Police Department Detective Timothy Grimes was one of the 

detectives who interviewed Yanez in connection with an unrelated double homicide. 

When Grimes began the interview he was unaware of the Moose Lodge shooting. His 

partner was told by the officer who arrested Yanez that Yanez may have some 

information concerning that incident. After Grimes concluded his interview related to 

other crimes (which we discuss, infra), he asked Yanez what he knew about the Moose 

Lodge killings. 

Grimes showed Yanez several six-pack photographic lineups that included 

members of the 18th Street gang. Yanez selected a photograph of defendant and told 

Grimes that Willie did the shooting. During the course of the interview, Yanez stated, 

several times, that he was in fear for having provided information to the police. A tape of 

Grimes’s interview of Yanez was played for the jury. 

Santa Monica Police Detective Richard Lewis interviewed Yanez shortly after he 

was released by Detective Grimes. Lewis spoke to Yanez at the Santa Monica station 

after Yanez and his girlfriend arrived there. The interview was videotaped and the 

recording was played for the jury. 

Yanez told Detective Lewis and Detective John Henry that defendant, who was 

wearing a red shirt and red baseball hat with the letter “A” on it, was one of two shooters 

at the Moose Lodge. Yanez described how defendant walked toward one of the victims 
10 

who was lying on the floor and continued to shoot him. Yanez estimated he had seen 

defendant on 30 prior occasions, as defendant would visit Yanez’s brother. Yanez 

expressed concern that defendant and the other shooter would learn he had given 

information to the police, noting the two men were “ruthless.” 

Yanez saw a series of photographic lineups. After viewing the first, he circled 

photograph number five, identifying Jose Mojarro as the second shooter. In the second 

six-pack, he selected picture number three, a photograph of defendant. 

Lewis said he personally served Yanez with a subpoena at his residence. Yanez 

began to cry and said he did not want to testify. He maintained that he had helped the 

police so the perpetrators could be caught; however, he wanted no further part in the case. 

After Yanez was subpoenaed, he fled to Arizona. The detectives received a warrant for 

his arrest and retrieved Yanez from Phoenix after he was arrested during a traffic stop. 

On the trip back to Los Angeles, Yanez again began to cry, saying he was scared for 

himself and his family. 

Krizna Ayala went to the party with the father of her three children, victim Hector 

Bonilla. They arrived shortly after 10:30 p.m. At some point, Ayala went to the 

restroom and while inside, she heard a number of gunshots. When she came out of the 

restroom, the gunfire had ended. She saw Bonilla on the floor bleeding. 

A few weeks later, Ayala was shown six-packs by the police. She selected two 

photographs and stated she saw the persons depicted at the party. Ayala said one was 

wearing a blue hat and a t-shirt at the time; the other was dressed in a red shirt and red 

hat. She said one of the persons in another photo array might have been present as well. 

Christian Solares’s testimony from the preliminary hearing of defendant, Jose 

Mojarro and Erick Nunez was read to the jury. Solares was in custody, having been 

convicted of attempted murder. He was at the party at the Moose Lodge and saw his 

friends Jonathan Hernandez and Hector Bonilla there. Hernandez, Bonilla and Solares 

were members of the 17th Street Santa Monica gang. After the shooting, Solares saw 

Hernandez and Bonilla lying dead on the floor. 
11 

About a month later, Solares was interviewed by Detective Lewis. He did not 

recall telling Lewis the following: (1) he heard someone yell that Hernandez was being 

beaten; (2) he looked over and saw Hernandez being hit by several individuals, including 

one wearing a red shirt and red baseball cap; (3) Hector Bonilla starting running toward 

the fight; (4) the man in the red shirt pulled a handgun and starting firing; (5) a second 

individual produced a gun and shot several times; (6) the man in red continued to fire at 

Hernandez and Bonilla after they were lying on the floor; (7) the man in red was an 18 to 

20 year old, thin, light-skinned male Hispanic, about five-nine or five-ten; (8) the man in 

red shot Jonathan Hernandez; and (9) he, Solares, could get shot for saying anything to 

police. 

Detective Lewis showed Solares a six-pack photographic lineup. Solares circled a 

picture of Mojarro and wrote that Mojarro was at the party talking to one of Solares’s 

friends. 

Solares’s interview was videotaped and the tape was played for the jury. 

Alfonso Lozano is a Santa Monica Police officer. He is familiar with the gangs in 

Santa Monica. The Santa Monica 17 gang is a clique of the Santa Monica 13 gang. 

Jonathan Hernandez and Hector Bonilla were members of the Santa Monica 13 gang and 

Santa Monica 17 clique. In 2005, the Santa Monica 13 gang and its clique were rivals of 

the 18th Street gang. 

Doctor Ogbonna Chinwah, a deputy medical examiner for the Department of 

Coroner for Los Angeles County, performed the autopsy on Jonathan Hernandez. He 

ascribed the cause of death to multiple gunshot wounds (Hernandez suffered 17 wounds). 

The parties stipulated that marijuana and methamphetamine were found in Hernandez’s 

system. 

Doctor Raffi Djabourian is also a deputy medical examiner. He performed the 

autopsy on Hector Bonilla. Bonilla suffered eight gunshot wounds and succumbed as a 

result. He had the tattoo “SM” on his body. The parties stipulated that Bonilla had a 

blood alcohol level of .05 percent. In addition, cocaine and marijuana were found in his 

system. 
12 

B. The Shooting of Alex Haro (Count Three)

On January 27, 2002, Salina Redondo attended a backyard party at a home where 

she saw her friend Alex Haro. She had finished dancing with Haro when she noticed 

some individuals entering the yard through a side gate. Suddenly, the guests began 

running toward the house and out of the yard. Redondo realized the people were trying 

to get away from a man wearing a baseball hat, whom she identified as defendant. He 

was casually walking into the yard with a gun at his side. She made eye contact with 

defendant and ran toward the house. As she was entering the home, Redondo heard six to 

nine gunshots. After the shooting stopped, she was scared, left the residence and drove 

away. She did not talk to police that night. 

Some weeks after the shooting, Redondo was working at an In-N-Out drive-thru 

window when she saw defendant in the passenger seat of a car that drove up. After 

completing the transaction with the driver, she left the window in a panic. Redondo was 

very concerned because she had worked at that location for about a year and had not seen 

defendant there before. 

Approximately a week and a half later, she was at work when she saw defendant 

again. On this occasion, he walked into the restaurant. Redondo took his order at the 

counter. After he gave her money, Redondo left the counter and walked to the back of 

the restaurant. Defendant sat at a table with another individual and ate. Redondo waited 

until they left the restaurant before returning to the counter. 

On May 22, 2002, Redondo met with detectives and viewed a photographic 

lineup. She selected defendant’s picture and said he was the person with the gun, whom 

she saw in the backyard at the party and who twice came to her place of employment. 

When Redondo spoke to detectives that day, she held back some information because she 

was scared. She wanted to limit her involvement in the case because defendant had 

shown up twice at her job. Since the time of that first interview with detectives, Redondo 

realized she had to come forward and divulge all she knew because Alex Haro was a 

longtime friend. 
13 

Redondo acknowledged that she had been asked to attend a lineup on September 

20, 2007 and October 30, 2007. She failed to appear at either. 

Cesar Navarro was another guest at the party. He knew Haro in high school, but 

had not seen him in the four and a half years since graduation. Navarro and Haro had a 

conversation, trying to catch up on each other’s life. Later, Haro was dancing when 

Navarro noticed two males walking toward the back of the yard. One of the males rushed 

forward and yelled, “Fuck Caca City.” That male, who appeared angry and aggressive, 

rapidly approached a “young kid” who was wearing a hat with the letter “C” on it and 

knocked the hat off his head. Haro came over “to defend” the youngster and socked the 

aggressive male, who then “pulled out a gun and just started unloading.” The shooter 

was inches away from Haro as he fired. Haro died as a result of the shooting. 

After the gunfire, the crowd began to scatter. Navarro froze. A few seconds later, 

he heard two more gunshots. 

Navarro described the shooter as “not tall at all. Probably about five-five, five-six 

at the most” and “really thin.” He was wearing a baggy charcoal gray hooded sweater 

and a fitted, navy blue Yankee hat. The male was Hispanic and had a very light 

mustache. 

On February 20, 2002, Navarro was interviewed by police. He was shown a sixpack photographic lineup. He circled defendant’s photograph and wrote that he ‘“looks 

like the suspect . . . that was wearing a fitted New York hat at the time where he had a 

gun and shot towards Alex Haro.”’ He was one hundred percent certain of his 

identification at the time. 

In 2007, Navarro attended a live lineup. The parties stipulated that defendant was 

in position number four and Navarro selected the person in position number five. 

Carlos Diaz was present at the party where Haro was shot. Diaz had known Haro 

since high school. Both were members of the Culver City Boys gang. On the night of 

the party, Diaz did not see any other Culver City Boys members. 

Diaz walked to the front of the house to meet some girls who had arrived. He 

professed to not remember anything else from that night. He conceded that he told police 
14 

on the night of the shooting: (1) he saw some bald-headed guys arguing; (2) someone in 

the group said everything was cool; (3) as Diaz walked toward the backyard, three of the 

guys who had been arguing followed; (4) the three had guns; (5) one of the three used a 

derogatory term for Culver City Boys by asking “Who’s from Caca City?” 

Diaz said he heard shooting coming from the backyard and saw people running 

toward the front of the house. Diaz went into the backyard to look for Haro because he 

did not see him run out of the backyard. 

In March 2002, detectives showed Diaz a six-pack photographic lineup. He 

selected defendant’s photograph and wrote that he ‘“looks like one of the people that 

[came] to the party with the handgun and hood on his head.”’ At trial, he claimed he 

circled the photograph because the detectives pointed that person out by tapping on the 

picture. 

Los Angeles Police Detective Richard Gordon and his partner Detective 

Razanskas were the detectives who conducted the March 2002 interview of Diaz. 

Detective Gordon denied that anyone tapped on defendant’s photograph during the photo 

showup. 

In September 2006, Diaz was arrested. While in custody, an inmate asked him his 

name. Diaz replied he was “Scrappy” from Culver City. The inmate said he was 

“Crook” from 18th Street. He also said to Diaz, “You are Carlos Diaz.” Diaz had never 

spoken to the man before. He denied telling detectives the day before he was to testify 

that defendant was the inmate who had spoken to him in jail. 

Diaz admitted he was currently in custody, having been convicted of commercial 

burglary. He also acknowledged that he did not attend two live lineups. 

Erica Diaz also attended the backyard party. She noticed a male walking through 

the yard and the guests were getting out of his way. Diaz did not recall the description of 

the male that she gave to detectives. The male was screaming, “Who’s from Caca?” He 

slapped a hat that had the letter “C” on it off the head of another guest. Diaz then heard 

gunfire. 
15 

In April 2002, Diaz was shown a six-pack photographic lineup. She selected a 

picture of defendant and wrote that the person depicted looked like the male who was 

screaming at the party. Detective Gordon said she described the shooter as being a male 

Hispanic, about five-five to five-six in height and roughly 130 pounds. He was 16 to 20 

years old with a thin mustache and was wearing a black baseball cap, black sweatshirt 

and black hooded sweatshirt. She told Gordon the person removed a handgun from his 

waistband area and fired three to four shots at Haro. 

She failed to attend two live lineups. 

Los Angeles Police Sergeant Jason Azpeitia arrived at the scene of the shooting in 

a response to a radio call. While at the location, he observed two individuals, Carlos 

Diaz and Daniel Mendez, arguing in the street. Azpeitia saw an individual with a 

gunshot wound to his leg on the porch of the residence. 

Detectives Gordon and Razanskas, were the investigating officers. They 

responded to the crime scene at the backyard of the residence. Among the items located 

in the yard that were booked into evidence were a .40 caliber cartridge casing, bullet 

fragments, and a .22 caliber cartridge casing that was found by one of the residents. In 

the driveway of the location, six .45 caliber cartridge casings were found. A vehicle 

parked in the driveway had what appeared to be bullet strikes. The strikes indicated that 

they were made by shots fired in the direction of the street. A bullet fragment was 

discovered in the street. 

Doctor Louis Pena, a deputy medical examiner for the Los Angeles County 

Department of Coroner, performed the autopsy on Alex Haro. Haro was shot three times, 

twice in the torso and once in the back of the head; each of the wounds was fatal. Two of 

the wounds had stippling, indicating that the gun was fired from a range of a couple of 

inches up to two feet away from the victim.3

 

 3

 A criminalist determined that one of the projectiles recovered by Doctor Pena 

was consistent with a .22 caliber round. 
16 

C. The Shooting of Jesse Becerra and Raymundo Ortiz (Counts Four and Five)

On September 23, 2005, Raymundo Ortiz attended an outdoor birthday party at a 

residence on 21st Street. He left the location to urinate in a nearby alley, accompanied by 

a friend named Santiago Rosales. After Ortiz relieved himself, he stopped to wait for 

Rosales. A black SUV drove up. An occupant of the SUV asked a third person (later 

identified as Jesse Becerra), who was standing near Ortiz, where he was from. Becerra 

replied, ‘“Santa Monica.”’ Ortiz felt something bad was going to happen because 

‘“somebody just doesn’t reply and respond another hood or whatever [] if they are not 

from there.”’ Ortiz was aware that he was not in Santa Monica at the time. 

The SUV pulled away. A short time later, Ortiz saw a person running in his 

direction and firing a weapon. He believed it was the same individual who had asked 

Becerra where he was from. Becerra fell. Ortiz and Santiago hit the ground to get cover. 

Ortiz was shot in the leg. The man ran past and kept firing at Becerra’s head as he lay on 

the sidewalk. 

On October 17, 2005, Ortiz was shown a six-pack photographic lineup. He circled 

defendant’s photo in position number two and wrote: ‘“It could be number 2. It looks 

like his face.”’ At the time, Ortiz was certain he was identifying the person who shot 

Becerra and him; however, he acknowledged he testified at the preliminary hearing that 

he was not one hundred percent sure. 

On October 30, 2007, Ortiz attended a live lineup. The parties stipulated that 

although defendant was in the lineup, Ortiz selected another individual. 

Santiago Rosales was with Ortiz on the sidewalk. A black SUV came up. 

Someone inside the car asked the victim where he was from in a stern, demanding voice. 

The victim identified the gang he was from. The vehicle pulled away. Rosales and Ortiz 

started back toward the party and the victim passed them and continued down the 

sidewalk in the direction of the alley. As the victim passed, shots were fired from behind 

Rosales. Rosales turned and saw the gunman running toward them and shooting. 

Rosales jumped back. The gunman ran past him toward the victim, continuing to fire his 
17 

weapon. After the shooter left, Rosales saw Ortiz on the ground. The shooter was the 

same person who had asked the victim where he was from. 

On September 30, 2005, Rosales was shown a photographic lineup. He circled a 

photograph of someone other than defendant and wrote the person had the same bone 

structure as the shooter. 

Los Angeles Police Officer Hector Marquez was the first officer to respond to the 

location. There were approximately five people surrounding a victim who was lying on 

the ground. The responding ambulance attempted to provide first aid to that individual. 

A second victim, who had been shot in the leg, was in the driveway. 

Los Angeles Police Detective Louis Turriaga was called to the scene. He was told 

there had been a party at the location prior to the shooting. 21 cartridge casings were 

located near the victim, one in the back of his shirt. 

Doctor Chinwah performed the autopsy on Jesse Becerra. Becerra sustained 20 

gunshot wounds, nine to the back of the head. 

D. The Shooting of Donell Kipp (Count Six)

On January 26, 2003, Lisa Briseno went to Apartment 201 in a building on 

Glendon Avenue where she socialized with three girlfriends and three males, one of 

whom was defendant. Briseno had seen defendant on several prior occasions. The group 

partied in the apartment. Alcohol and drugs were consumed. After she had been at the 

location for several hours, she saw defendant standing in the living room and clicking 

two guns that he was holding. He seemed “paranoid” because a helicopter was flying 

overhead. Defendant thought someone had called the police. 

Briseno got up and went into the kitchen. She made some soup, hoping it would 

sober defendant up. When she tried to bring him the soup, defendant pointed a gun at her 

and said not to come any closer. He started pointing both guns at the others, who were 

sitting on two couches. Briseno heard a gunshot and noticed one of the males was 

holding his shoulder and bleeding. (The parties stipulated that the person shot was 

Donell Kipp.) 
18 

Defendant told Briseno she was going to drive him somewhere. She offered him 

the use of her car, but he demanded that she take him. At gunpoint, defendant led 

Briseno, her friends and Kipp to Briseno’s car. Briseno could not drive, so one of her 

friends drove to a location where defendant wanted to be dropped off. After defendant 

left the vehicle, Kipp was driven to the hospital. Briseno did not call the police. 

That evening, police officers came to her house. She told them what had occurred 

earlier in the day. About a year later, she was shown a photographic lineup and identified 

defendant as the person who shot Kipp. 

Candy Betancourt, who was present in the apartment with Briseno, confirmed that 

defendant shot the victim. In October 2005, she identified defendant’s photograph from a 

six-pack. Betancourt could not say for sure whether defendant was in the courtroom 

during her testimony. She acknowledged that in January 2003 she viewed a photographic 

lineup that included defendant’s picture and did not identify him. 

After the incident, Betancourt was interviewed by Los Angeles Police Detective 

Jeff Nolte. She was afraid to speak to police because she knew the incident was gang 

related and believed her family would be killed if she cooperated with the authorities. 

She knew defendant was a member of the 18th Street gang and had seen him on prior 

occasions. Betancourt identified defendant’s picture from a photographic lineup and said 

he was the shooter. She was confident she would be able to identify him if she saw him 

again. 

Ruth Betancourt offered similar testimony; however, she did not recall that anyone 

directed her (she was the driver) to go to a particular location. She also identified 

defendant’s photograph from a six-pack, saying he looked like the shooter. 

According to Detective Nolte, Ruth also said that she was afraid to cooperate. She 

stated that defendant opened fire in the apartment, ordered the occupants to leave with 

him and told her where to drive after the group got into Briseno’s car. Ruth identified 

defendant’s photograph and said he was the shooter. 

Los Angeles Police Criminalist Harry Klann responded to the crime scene. He 

observed what appeared to be blood stains that started in the street and continued on the 
19 

sidewalk on the side of the apartment building. The stains were photographed. The 

blood trail led up the stairs, into the building, down a hallway and to an open apartment 

door. 

Klann went inside the apartment. No one was present. Three cartridge casings 

(two .9 millimeter and one .45 caliber) were located on the floor in front of a couch. 

There were bloodstains on the couch cushions. A third .9 millimeter cartridge casing was 

found on the ground in front of a television set. A spent bullet was retrieved from inside 

a couch cushion. Live rounds of ammunition, several magazines for a semiautomatic 

firearm, firearms and drugs also were recovered. 

E. The Shooting of Mark Brown (Count Seven)

On December 3, 2003, Mark Brown was standing outside a residence on La Salle 

Avenue. Brown had lived in that neighborhood all of his life and, as a Rollin 20’s gang 

member, he knew that his gang controlled the area. The location where Brown was 

standing was a place “where the homies kick it at.” He noticed a male, whom Brown 

identified as defendant, jogging in his direction. A girl came up to Brown and asked for a 

dollar. As he went into his pocket to get some money, Brown’s keys dropped to the 

ground. He went down to pick them up when he noticed a black object close to his face. 

Brown threw his hands up and grabbed defendant’s wrist. Defendant was holding a gun. 

Brown and defendant struggled for control of the weapon. Defendant was pulling 

the trigger. Brown was struck in the shoulder by a bullet. The men fell and the gun hit 

the ground. Brown dove under a nearby car. Defendant retrieved the firearm, and 

continued to fire while shouting ‘“fuck slobs.”’ Brown said the word “slob” is a term 

used to disrespect Blood gang members, which includes those who belong to the Rollin 

20’s. After five or six shots, the gunfire ceased. People in the residence, including Sheba 

Robinson, ran outside. 

Brown was familiar with the 18th Street gang and stated that 18th Street and the 

Rollin’ 20’s Crips were “always at war.” Brown had seen defendant on prior occasions 

when Brown and fellow gang members drove through 18th Street territory during their 
20 

“scouting” trips looking for 18th Street members to kill and when Brown was at the 

shooting range. 

On December 16, 2003, Brown viewed a photographic lineup and identified 

defendant as the individual who shot him. He also identified defendant at a live lineup. 

At the time of trial, Brown was in prison for selling narcotics. He had prior 

convictions for shooting at an inhabited dwelling, attempted robbery, seven robberies, 

and the selling of narcotics. 

On the night of December 3, Sheba Robinson was walking home from the market. 

A red vehicle Robinson believed to be an Acura approached and stopped near her. The 

driver yelled, ‘“Hey, do you know where any 20’s are at?”’ Robinson did not respond 

and continued walking. There were four Hispanic males in the car. One stood out in her 

mind. 

Later, while Robinson was at home, she heard gunshots and then someone 

knocking on the front door. When Robinson opened the door, Brown collapsed on her 

living room floor. Robinson called 911. She knew Brown from the neighborhood and 

was aware that he was a long time member of the Rollin’ 20’s. 

In October 2005, Robinson spoke to the police about the shooting for the first 

time. She viewed a photographic six-pack. She identified defendant’s picture and said 

he looked like the driver of the Acura. At trial, Robinson stated she was 50 percent 

certain that the person whose picture she selected was the driver of the car. 

Los Angeles Police Officer Kevin Beard arrived at the scene. He observed Brown 

in the parking lot, suffering from two gunshot wounds. Beard requested an ambulance, 

set up the crime scene by taping off the area and attempted to locate physical evidence. 

Detective Jeff Nolte responded to the location. He saw numerous .9 millimeter 

cartridge casings and bullet impacts on the building and nearby vehicles. The detective 

spoke to Mark Brown shortly after the shooting. Brown said Sheba Robinson called his 

name to warn him as the shooter approached. (Robinson denied doing so.) 
21 

F. The Shooting of Kevin Walton (Count Eight)

 That same evening, Detective Nolte arrived at the scene of a second shooting at 

about 7:45 p.m. He saw Walton, who had suffered multiple gunshot wounds, lying in the 

street. Six .9 millimeter cartridge casings were located in the street near Walton’s body. 

 Walton’s body was found approximately a quarter to a half mile from where 

Brown was shot. It took about one minute to travel between the two locations by car. 

Sheba Robinson called 911 to report the Brown shooting at 6:17 p.m. The 911 call 

reporting Walton’s shooting came in two minutes later. 

Doctor Irwin Golden performed the autopsy on Kevin Walton. Walton had three 

gunshot wounds; one to the neck, another to the jaw and a third to the knee. The wounds 

to the neck and jaw were fatal. 

G. Gang Expert Testimony 

Officer Teodoro Urena had personal contact with defendant on approximately six 

occasions. Defendant is a self-admitted member of the Alsace clique of the 18th Street 

gang. All blood gangs, which include the Rollin’ 20’s, Santa Monica Trece and the 

Culver City Boys, are rivals of 18th Street. During his contacts with defendant, Urena 

attempted to counsel defendant to get out of the gang. 

Urena believed the Moose Lodge shooting started an active feud between 18th 

Street and Santa Monica Trece. Urena also was aware of shootings between 18th Street 

and the Rollin 20’s and 18th Street and the Culver City Boys. 

Los Angeles Police Officer Edgar Hernandez worked the gang unit from 2001 to 

2006, focusing exclusively on the 18th Street gang. In 2005, the 18th Street gang had 

approximately 3,000 documented members in the Rampart Division and 5,000 in Los 

Angeles county. Alsace was one of the cliques of the gang. 18th Street is a rival to all 

gangs in the surrounding areas. 

According to Hernandez, respect is “everything” to the culture of 18th Street. A 

member who puts in work for the gang escalates his or her level of respect within the 

gang. Disrespect of an 18th Street member sometimes leads to murder. 
22 

Hernandez identified photographs of Jose Mojarro and Erick Nunez. Hernandez 

testified at their preliminary hearing and trial. Mojarro had a tattoo representing the 

Alsace clique. Members of the Alsace clique often wear an Atlanta Braves hat, which 

has a letter “A.” Nunez had a tattoo representing the Smiley Drive clique, also affiliated 

with 18th Street. Its members wear San Diego Padre hats. Hernandez opined that both 

were members of the 18th Street gang, with Mojarro in the Alsace clique and Nunez in 

the Smiley Drive clique. Hernandez also identified a photograph of defendant, whom he 

believed was a member of the Alsace clique of 18th Street. 

Presented with a hypothetical mirroring the facts of the shooting at the Moose 

Lodge, Hernandez opined that Hernandez and Bonilla were killed by 18th Street gang 

members acting in concert for the purpose of benefitting the gang. 

 Hernandez was asked about the killing of Alex Haro. Based on a hypothetical 

outlining the events that led to that shooting, the officer stated that the crime was carried 

out for the benefit of the 18th Street gang. Specifically, Hernandez noted that defendant 

entered the party uttering a phrase that disrespected the Culver City gang, Culver City 

was having a party in 18th Street territory and the victim, Haro, was a member of the 

Culver City gang. 

 Hernandez believed the shooting of Mark Brown also was for the benefit of the 

gang. Brown was a member of the Rollin 20’s gang, a rival of 18th Street. Defendant 

approached Brown uttering a disrespectful term for Rollin’ 20 members and shot Brown 

in front of a known Rollin 20’s hangout. Shooting a gang member in the victim’s 

territory enhanced the shooter’s gang’s reputation for violence and garnered respect for 

the gang. 

 The prosecution asked Hernandez to consider the facts relating to the shooting of 

Kevin Walton, also a Rollin’ 20’s member. Walton was shot minutes after defendant 

attempted to kill Brown. Hernandez said Walton’s shooting was carried out with the 

intent to benefit the gang. Defendant was in the process of eliminating as many rivals of 

18th Street as possible. 
23 

H. The Forensic Evidence 

Thomas Matsudaira is a forensic scientist working in the firearms and tool mark 

unit of the Orange County laboratory. The lab has a contract with the city of Santa 

Monica. He examined 26 cartridge casings and 15 bullet or bullet fragments, referred to 

as projectiles, related to the Moose Lodge shooting. With respect to the casings, 

Matsudaira determined that 12 were fired from one firearm and 14 were fired from a 

second weapon. The casings and projectiles were fired from a .9 millimeter semiautomatic pistol. 

Starr Sachs was employed for 20 years in the Los Angeles Police Department’s 

crime lab as a firearms examiner. She test fired a .226 Sig Sauer that was recovered from 

defendant when he was arrested. She examined 21 cartridge casings from the Becerra 

shooting and determined that seven of the casings were fired from the Sig Sauer. The 

other 14 casings were fired from a second weapon. 

Sachs also examined three cartridge casings recovered from the scene of the Kipp 

shooting and six casings recovered at an unrelated shooting involving a victim named 

Reddix. The same gun fired the casings left at both shootings. 

Sachs examined nine .9 millimeter cartridge casings from the Brown shooting. All 

were fired from the same gun. 

Sachs examined seven casings from the Walton shooting. They were fired from 

the same gun. The Brown and Walton casings were fired from the same weapon. The 

Walton and Reddix casings were fired from the same gun.4

 

Melissa Popobic is employed as a senior forensic print specialist by the Los 

Angeles Police Department and assigned to the latent print unit. The recovery of latent 

fingerprints is dependent on the surface in question. The smoother the surface the more 

likely prints will be discovered and lifted. Firearms are not a good source for lifting 

 4

 Although Sachs offered no opinion with respect to Alex Haro’s murder, she 

acknowledged that another examiner wrote in a report that two of the projectiles taken 

from Haro’s body were fired by different weapons. Sachs thought the evidence was 

inconclusive. 
24 

prints, due to the texture of the grips, the presence of oil and the heat generated by the 

firing of the weapon. Popobic was able to lift prints from firearms less than ten percent 

of the time and from cartridge casings less than one percent of the time. 

I. Defendant’s Arrest 

Jeff Hofmeyer is a Los Angeles Police Department detective. On October 13, 

2005, he was assigned to the FBI fugitive task force and conducted a parole search at the 

apartment of Daniel Mendez, an associate of defendant. Mendez is a member of the 

Alsace clique of the 18th Street gang. Between 5 a.m. and 6 a.m., Hofmeyer and his 

team, including Mendez’s parole officer, knocked on the front door of Mendez’s fourth 

floor apartment. People inside were moving and talking. Eventually, after team 

members continued to pound on the door, a female let them inside. Mendez was not 

inside the apartment. 

 One of the team members, Lieutenant Peter Zarcone, noticed a window. He pulled 

the curtain back and opened the window. He observed defendant crouched down on the 

window sill. Zarcone grabbed defendant by the shoulders and pulled him into the 

apartment. Zarcone searched defendant and found a holster attached to his waistband that 

contained a fully loaded .226 Sig Sauer handgun. In his pockets, defendant had three 

loaded magazines and a baggie with loose rounds of ammunition. 

 At first, Zarcone thought defendant was Mendez. Another officer looked at 

defendant and noted that he did not look like Mendez. The officer asked defendant, 

‘“You’re Willie Vasquez, aren’t you?”’ Defendant replied, ‘“My name is William. You 

guys have been looking for me for a long time, haven’t you?”’ He then said, ‘“I knew 

someone snitched on me. Fuck a snitch. I hate a snitch. You just remember it’s you 

guys’ fault somebody’s going to die.”’ As Hofmeyer and others escorted defendant out 

of the apartment building, defendant shouted, ‘“Fuck all snitches. I hate rats. Fuck the 

rats. Alsace. Alsace.”’ 

 Hofmeyer transported defendant to the police station. In the car, defendant said, 

‘“I know you guys have been looking for me for a long time. Shit, I’m the best.”’ 
25 

Officer James Ross, who was also in the vehicle, described defendant’s demeanor as 

boisterous and arrogant. 

 After arriving at the station, defendant said he noticed that Ross was carrying a 

Beretta and Hofmeyer had a Glock. Defendant commented that those were fucked 

weapons. He was sure because he was proficient with guns. He practiced and his 

preferred weapon was an HK or Sig. As defendant exited the car, he said he had angels 

tattooed on his head because he was a “dark angel.” 

 Ross was present while defendant was photographed with his shirt off. On 

defendant’s chest was an 18th Street tattoo with the letter “A” above it. The “A” stood 

for Alsace. Various photographs of defendant depicting his tattoos were placed into 

evidence. 

II 

The Defense Case 

A. The Shooting of Hector Bonilla and Jonathan Hernandez 

Michael Espindola attended the party at the Moose Lodge. He was a member of 

the Santa Monica gang. Espindola was a friend of victim Jonathan Hernandez. Prior to 

the shooting, Espindola and a male he knew as “Peanut” (later identified as original codefendant Jose Mojarro) were talking in the parking lot. Espindola, Mojarro and 

Hernandez were in custody together as juveniles. Hernandez called Espindola and 

Mojarro asked to speak to Hernandez. After the telephone conversation, Hernandez 

appeared at the parking lot and the three walked into the Lodge together. There was no 

animosity between Hernandez and Mojarro. 

 As Espindola walked into the Lodge, he noticed a male wearing a red shirt and red 

hat standing near the entrance. He saw Hector Bonilla sitting in the hall. There appeared 

to be nothing wrong. He went to the bathroom. Espindola was inside the bathroom when 

he heard gunfire. He went into the hall and saw Hernandez on the ground. Espindola did 

not observe anyone fighting or firing a weapon. Mojarro and the male in the red shirt and 
26 

red hat were gone. After Espindola left the Lodge, he was detained by police and 

interviewed. 

 Officer Gerardo Leyva interviewed Espindola on the night of the shooting. 

Espindola told him that he noticed Venice 13 and 18th Street gang members at the party. 

He got nervous when the gang members started staring at him. Espindola saw one of his 

fellow gang members leave the party. Espindola said he wished the member had stayed 

in case there was trouble. 

 The parties stipulated that on the day of the shooting, Espindola made several cell 

phone calls to Hector Bonilla and Jonathan Hernandez and Bonilla and Hernandez made 

a number of cell phone calls to Espindola. 

B. The Shooting of Alex Haro 

On January 27, 2002, the date Alex Haro was shot, Francisco Zaragoza and his 

family lived across the street from the scene of the party. He was asleep when he heard 

gunshots. Zaragoza looked out his front window and saw people running. He spoke to a 

police officer that night, but could not recall what he said. He was certain that he told the 

officer the truth. 

 The parties stipulated that Zaragoza was interviewed at approximately 3:10 a.m. 

on January 27. He told police that he heard three shots at around 12:30 a.m. He looked 

outside his home and heard someone say, ‘“Fuck 18th Street.”’ Zaragoza saw a white car 

parked in front of the scene of the shooting. He observed people throwing rocks and 

bottles at the vehicle as it left the location. 

 In June 2010, a .45 caliber handgun was recovered in the San Fernando Valley 

after the arrest of two gang members. One was from the Pacas Trece gang and the other 

was a member of the Knock Knock Boys. The parties stipulated that the cartridge 

casings found at the scene of the Haro shooting were fired from the recovered handgun. 
27 

C. The Shooting of Jesse Becerra and Raymundo Ortiz 

Claudia Chavez attended the party near 21st Street and La Brea. After she left the 

party, Chavez and her friend, Sergio Perez, were walking on 21st Street. She passed by 

the victim, Jesse Becerra, who was Perez’s friend. Perez stopped to talk to Becerra and 

Chavez walked ahead as she spoke on her telephone. Two or three people ran by her and 

she heard gunshots coming from behind her. Chavez called 911. 

D. The Shooting of Mark Brown

 Officer Ryan Hicks spoke with Mark Brown as Brown was being taken to the 

hospital. Brown told him he did not know the shooter, but thought he would recognize 

him if he saw him again. 

E. Expert Testimony 

Robert Shomer is an expert with respect to the factors that affect human 

perception and memory and eyewitness identifications. His opinions are based on 

scientific research utilizing experiments and statistics. 

He proffered the following to the jury: (1) unlike a camera, the human eye cannot 

capture everything it perceives; (2) eyewitness identifications have a relatively low level 

of reliability as compared to those linked by DNA or fingerprints; (3) even under the best 

conditions, factors such as stress and the passage of time between witnessing an event 

and being asked to identify someone affect the accuracy of an identification; (4) a 

witness’s confidence level in his or her identification has little correlation to its accuracy; 

(5) an identification after a live lineup is more accurate than one made after a 

photographic showup or a viewing in court; and (6) seeing an individual in multiple 

showup procedures may affect the accuracy of an identification; 

Dr. Ronald Markman has testified as an expert on the subject of drugs “thousands 

of times over the years.” Methamphetamine is a stimulant 
28 

that interferes with the normal function of the brain and can cause a person to be “very, 

very apt to misinterpret an event.” The drug can cause some to become paranoid and 

others to become very aggressive. Ecstasy and cocaine can produce similar effects. 

Dr. Markman looked at the autopsy report prepared in the deaths of Jonathan 

Hernandez and Hector Bonilla. At the time of Hernandez’s death, he had a significant 

amount of amphetamine and methamphetamine in his system. Bonilla had alcohol, 

cocaine and marijuana in his system. 

The injuries Hernandez sustained to his face were consistent with having been 

struck four or five times. Dr. Markman could offer no opinion on how many times 

Hernandez may have been struck on other parts of his body. 

DISCUSSSION 

I 

 Defendant contends the trial court erred when it allowed the prosecution to join 

the Santa Monica Moose Lodge killings (counts one and two) with the other crimes, 

which took place in Los Angeles. He asserts that joinder of the unrelated crimes “that 

took place at disparate times and in disparate locations was so prejudicial that it deprived 

him of Fourteenth Amendment due process.” We disagree. 

Section 954 allows two or more offenses of the same class of crimes to be 

consolidated. Defendant suggests that the joined crimes in this case did not meet the 

statutory requirement that they be ‘“connected together in their commission”’ because 

they were committed at different times and locations. The test, however, is that, in order 

to conclude that crimes are connected together, there must exist a ‘“common element of 

substantial importance in their commission.”’ (Alcala v. Superior Court (2008) 

43 Cal.4th 1205, 1219 (Alcala), quoting People v. Scott (1944) 24 Cal.2d 774, 778.) 

Here, each of the charged murders involved gang members who were gunned down in 

public. The similarity of the victims is akin to the scenario in Alcala where the homicide 

victims were young, Caucasian females who all suffered blunt-force facial trauma. The 

Alcala court found that the crimes were sufficiently connected. (Ibid.) In addition, in the 
29 

present case, there is little question that the intent or motivation for the shootings was to 

eliminate rival gang members. “[T]he intent or motivation with which different acts are 

committed can qualify as a ‘common element of substantial importance’ in their 

commission and establish that such crimes were ‘connected together in their 

commission.’ [Citation].” (Ibid.) We conclude the evidence, viewed in its entirety, 

sufficiently connects the murder charges and satisfies the statutory requirements for 

joinder. Thus, defendant had “the burden to clearly establish a potential of prejudice 

sufficient to warrant separate trials.” (People v. McKinnon (2011) 52 Cal.4th 610, 630.) 

“We review the trial court’s decision not to sever counts for abuse of discretion 

based on the record when the motion was heard. [Citation.]” (People v. Gonzales and 

Soliz (2011) 52 Cal.4th 254, 281.) A court abuses its discretion if its ruling falls outside 

the bounds of reason (Alcala, supra, 43 Cal.4th at p. 1220.) ‘“The factors to be 

considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) 

whether some of the charges are likely to unusually inflame the jury against the 

defendant; (3) whether a weak case has been joined with a strong case or another weak 

case so that the total evidence may alter the outcome of some or all of the charges; and 

(4) whether one of the charges is a capital offense, or the joinder of the charges converts 

the matter into a capital case.’ [Citations.]” (Id. at pp. 1220–1221.) Even if the trial 

court’s ruling was correct at the time it was made, we “still must determine whether, in 

the end, the joinder of counts resulted in gross unfairness depriving the defendant of due 

process of law.” (People v. Gonzales and Soliz at p. 281.) 

A. Cross-Admissibility of the Evidence 

Defendant vigorously argues the evidence in the Santa Monica murders and the 

other murders (which we refer to collectively as the Los Angeles murders) was not crossadmissible. The Attorney General urges the evidence would have been admissible if the 

matters had been tried separately to establish motive and a common scheme or plan. We 

deem it unnecessary to decide that issue. “[E]ven if cross–admissibility did not support 

consolidation of the cases, the absence of cross-admissibility alone would not be 
30 

sufficient to establish prejudice where (1) the offenses were properly joinable under 

section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates 

an abuse of discretion. [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 577, 

overruled on another point by Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) 

B. Whether Some of the Charges Were Likely to Inflame the Jury 

Defendant argues the sheer number of murder charges served to inflame the jury. 

In addition, he asserts the brutality demonstrated by the shooter in the Santa Monica case 

justified severance. Jonathan Hernandez was shot 17 times and Hector Bonilla suffered 

eight gunshot wounds. Defendant concludes this evidence and the multiple serious and 

violent charges “would prompt the jury to treat the crimes as one rather than deal with 

each separately.” We are not persuaded. 

Defendant has cited no case that suggests it is appropriate to simply count the 

number of properly joined charges in determining whether severance is required. The 

authority upon which he relies discusses the effect of adding charges in an information or 

indictment that are not of the same class of crime. That is not the case here. As we 

noted, the question, properly framed, is whether some of the joined charges likely unduly 

inflamed the passions of the jury and thus prejudiced the accused. Although we agree 

with defendant that the Santa Monica shootings were brutal, the fact of the matter is that 

the murder of Jesse Becerra was equally heinous. He suffered 20 gunshot wounds, 

including nine to the back of the head. Witnesses said the shooter continued to fire at 

Becerra as he lay on the pavement. Alex Haro was shot three times at point blank range, 

twice in the torso and once in the back of the head, because he had the audacity to defend 

a young man the shooter had assaulted. Simply put, the Santa Monica murders were no 

more violent and senseless as some of the other charged murders and did not unduly 

inflame the jury. 
31 

C. The Relative Strength of the Cases 

Defendant claims “[a] number of the Los Angeles cases were very weak, with 

identifications fraught with suggestiveness and inconsistencies.” Nonetheless, he points 

only to the Haro shooting as an example. With respect to that charge, defendant was 

identified by four witnesses; two said he was the shooter and two stated he entered the 

yard with a handgun just before the murder occurred. Julian Navarro, who selected 

defendant’s photograph from a six-pack, was certain of his identification at the time.5

 

Selina Redondo, who saw defendant with a handgun shortly before the shooting, 

observed him twice at her place of employment after the incident. She, too, was certain 

of her identification. 

Defendant, while conceding the identifications in the Becerra and Kipp shootings 

were strong, asserts that the evidence of intent was not. He is incorrect. Becerra was 

shot after he was asked where he was from. Raymundo Ortiz testified that he knew there 

was going to be trouble because Becerra answered he was from Santa Monica and he was 

not in Santa Monica gang territory at the time. More to the point, Becerra was shot 20 

times. Evidence of intent to kill could not have been clearer. With respect to the Kipp 

incident, defendant was convicted of assault with a firearm. To prove intent to commit 

an assault, the prosecution had to establish that “defendant did an act with a firearm that 

by its nature would directly and probably result in the application of force to a person.” 

(CALCRIM No. 875.) No other evidence of intent was necessary. The testimony was 

more than adequate to demonstrate that defendant performed the requisite act necessary 

to establish defendant’s intent to commit an assault with a firearm. 

The joinder of the Santa Monica murders with the other offenses did not bolster an 

otherwise weak case. 

 5

 We recognize that Navarro, who selected defendant’s photograph in February 

2002, identified someone else at a lineup that took place five years later in 2007. We also 

note that Navarro viewed the six-pack less than a month after the shooting. 
32 

D. Death Penalty Considerations 

 Citing Williams v. Superior Court (1984) 36 Cal.3d 441, defendant claims that 

because the prosecution sought the death penalty, we should “give this case a higher 

degree of scrutiny than in the run-of-the-mill consolidation of cases and counts.” 

However, our Supreme Court observed that, since Williams, “the subsequent enactment 

of section 790(b)—which, as noted, specifically provides for joinder of capital cases such 

as these—makes it clear that such a heightened analysis is no longer called for.” (Alcala, 

supra, 43 Cal.4th at p. 1229, fn 19.) In addition, as the Attorney General points out, 

unlike the situation in Williams, the joinder of the counts at issue did not give rise to the 

special circumstances allegation of multiple murder. Defendant was eligible for the death 

penalty whether the Santa Monica cases were joined or tried separately. (See, e.g., 

§§ 190.2, subd. (a)(3) [multiple murders, based on Moose Lodge killings] & 186.22, 

subd. (f) [murder to further activities of street gang].) Because the joinder of the two 

cases did not ‘“convert”’ the matter into a capital case, severance was not required. (Id. 

at p. 1229) 

 After examining the four factors, we conclude that defendant failed to carry his 

burden of clearly establishing “a potential for prejudice sufficient to warrant separate 

trials.” (People v. McKinnon, supra, 52 Cal.4th at p. 630.) The trial court’s decision to 

join the charges did not constitute an abuse of discretion. 

E. Defendant’s Right to Due Process 

Defendant contends the evidence presented with respect to the Santa Monica 

murders made it unlikely that the jury could give due consideration to each of the counts 

arising out of the Los Angeles incidents. Without analysis, he argues that “[i]t is highly 

likely [defendant] would have obtained a better result on some of the counts had the two 

cases been tried separately.” We reject this speculative claim. 

 Finally, seizing on one statement he made while testifying during the retrial of the 

penalty phase, defendant urges he was denied the opportunity to testify during the guilt 

phase. Defendant said that he was mad at his attorneys because they “should’ve let [him] 
33 

testify during my guilty [sic] phase.” On appeal, he suggests he would have testified 

separately in the Santa Monica case if it had not been joined with the Los Angeles 

offenses. That is not a fair reading of his statement at trial, during which he gave no hint 

that he desired to limit his testimony to only the Santa Monica charges. 

 The joinder of counts did not result in an unfair trial that deprived defendant of 

due process of law. 

II 

 Defendant alleges the photo identification of Cesar Banuelos was the product of a 

suggestive photo array prepared by Santa Monica Police detectives and argues its 

admission violated his right to due process.6 He notes witnesses said that one of the 

suspects was wearing a bright red shirt. He complains that after Banuelos identified 

others who were at the party, detectives showed him a six-pack with defendant’s picture 

and told him to concentrate on the suspect who had been described as wearing a bright 

red shirt. Only then, defendant argues, did Banuelos select defendant’s picture. 

 In determining whether the admission of identification evidence violated 

defendant’s right to due process, we consider whether the procedure was unduly 

suggestive and unnecessary, and, if so, whether the identification itself was nevertheless 

reliable under the totality of the circumstances. (People v. Thomas (2012) 54 Cal.4th 

908, 930.) We need not determine whether the identification was reliable unless we find 

that the procedure utilized was unduly suggestive. (Id. at pp. 930–931.) 

Defendant “does not persuade us that he met his burden of showing an unduly 

suggestive identification procedure.” (People v. Ochoa (1998) 19 Cal.4th 353, 413.) 

Detective told Banuelos to concentrate on the individual who was wearing the bright red 

shirt when they showed him the photographic lineup. They did not suggest anyone in the 

 6

 The Attorney General argues defendant forfeited this contention by failing to 

secure a ruling on his motion to suppress Banuelo’s identification in the trial court. In 

order to forestall a claim of ineffective assistance of counsel, we address defendant’s 

claim. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1044, fn. 5.) 
34 

array was that individual. More importantly, they did nothing to hint to Banuelos that 

defendant’s photograph was the one he should select. Certainly if an officer told a 

witness to concentrate on the face of the person who robbed him and nothing more, there 

would be nothing unduly suggestive about the procedure. So it is here. 

 Even if we were to determine that the procedure utilized was unduly suggestive, 

Banuelos’s identification of defendant was reliable. Banuelos had prior contacts with 

defendant, having seen him in the neighborhood. We observe defendant does not address 

the issue of reliability. 

 The identification process did not deprive defendant of due process. 

III 

 Four witnesses, Carlos Diaz, Salina Redondo, Erica Diaz and Sheba Robinson did 

not appear at two court-ordered lineups. Defense counsel moved to exclude Redondo’s 

in-court identification due to her failure to attend the lineup. The trial court declined to 

do so, noting there was no authority to support the request. Later, when the parties were 

discussing exhibits, the defense moved to exclude Sheba Robinson’s photographic 

identification on the same ground. Again, the court denied the request, deciding that 

giving what it called the “Fernandez instruction” (People v. Fernandez (1990) 

219 Cal.App.3d 1379) would cure the problem. 

 The trial court modified CALCRIM No. 315 that sets forth the factors the jury 

should consider in evaluating eyewitness identifications. The modification read: “Some 

witnesses that testified in court failed to attend the physical lineup, despite being 

requested to attend. You should view their testimony, as to eyewitness identification, 

with caution as it may be less reliable than if the witness had attended the physical 

lineup.” 

 Defendant contends “the trial court’s mildest of cautionary instructions was no 

remedy at all. It rewarded the People for not ensuring attendance of witnesses at the live 

lineups because the court imposed no sanction whatsoever for the denial of legitimate 
35 

discovery.” He urges the court’s failure to exclude the identifications of the four 

witnesses in question violated his right to due process.7

 We disagree. 

 With respect to the instruction given by the trial court, the court had discretion to 

fashion a remedy short of excluding the identifications. Similar instructions were 

approved in People v. Virgil (2011) 51 Cal.4th 1210, 1255–1257 (jury told it could 

consider “‘[t]he failure of a witness to attend a live line-up’ in assessing the accuracy of 

that witness’s identification”) and People v. Fernandez, supra, 219 Cal.App.3d at pages 

1384–1385 (jury instructed it should view testimony of witnesses who failed to attend 

lineup with caution, as it may be less reliable). As in those cases, the trial court 

appropriately instructed the jury here. 

 As to defendant’s complaint regarding the admission of the witnesses’ 

identifications, “the Constitution does not require exclusion of eyewitness testimony as a 

sanction for a witness’s failure to attend a lineup.” (People v. Virgil, supra, 51 Cal.4th at 

p. 1256.) Defendant attempts to avoid the holding of Virgil by claiming the witness’s 

identifications were unreliable. First, defendant cites no case suggesting that the rule 

stated in Virgil applies only to otherwise reliable eyewitness testimony. Second, the jury 

assessed the strength of the witnesses’ identifications. Any issue defendant has with its 

determination is more appropriately an attack on the sufficiency of the evidence, which 

we address below. 

In his reply brief, defendant also asserts Virgil should not apply because the 

identification process of witness Banuelos was unduly suggestive and Sheba Robinson 

was not asked to attend a lineup. Banuelos was not one of the witnesses who failed to 

attend a lineup and, as we have discussed, the process utilized during his viewing of the 

photographic lineup was not unduly suggestive. As to Robinson, there would be more 

reason to scrutinize the identification of a witness who willfully failed to attend a lineup 

 7

 The Attorney General argues the contention was forfeited because defendant did 

not object on due process grounds in the trial court. For the same reason set forth above, 

we address defendant’s claim. (See footnote 6, ante.) 
36 

(as was the case with Carlos Diaz, Redondo and Erica Diaz) than one of a witness who 

was never asked to attend. 

 The trial court properly exercised its discretion by reading the tailored instruction 

regarding the witnesses who did not appear at the physical lineup. 

IV 

Prior to trial, the parties learned that cartridge casings recovered from the scene of 

the shootings of Donell Kipp and Mark Brown were destroyed, although photographs of 

the casings remained. The defense motion to exclude testimony relating to those casings 

was denied. 

 As we have discussed, the prosecution’s ballistics expert, Starr Sachs, was able to 

examine the casings from the Kipp and Brown shootings prior to their destruction. After 

examining the casings from the Walton homicide, Sachs determined that the casings from 

the Walton and Brown shootings were fired from the same gun. Sachs also had access to 

cartridge casings from the Reddix murder. She concluded that the casings collected from 

the scenes of the Kipp, Walton and Reddix shootings were fired by the same weapon. 

 In the trial court, the defense objected to the evidence relating to the Reddix 

incident. It was concerned that the jury would reason that Reddix was the victim of a 

homicide and conclude defendant was responsible.8 The prosecution responded that the 

details of the Reddix shooting could be kept from the jury. The defense objection was 

overruled. 

 During trial, the prosecution was allowed to elicit evidence explaining why the 

Kipp and Brown cartridge casings were destroyed. Officers testified that because they 

were non-homicide cases and no special holds were placed on the evidence, the casings 

were destroyed. The defense again objected to the Reddix evidence, noting that after the 

 8

 The Attorney General argues defendant forfeited the contention by failing to 

object pursuant to Evidence Code section 352. We disagree. Defense counsel 

specifically stated his concern was that the admission of the evidence would unduly 

prejudice his client. 
37 

jury learned that casings were subject to destruction because they were collected in a nonhomicide case, it would necessarily conclude that Reddix was a murder case. The trial 

court overruled the objection, stating that whether the jury would consider the nature of 

the Reddix case in this regard was speculation. 

 Defendant contends that admission of the Reddix evidence “was bound to lead to 

jury speculation and generate irreparable prejudice.” As a result, defendant urges, he was 

denied a fair trial. The crux of defendant’s argument is that the jury must have concluded 

the Reddix case was a homicide and that he was responsible. These assumptions are 

unwarranted. 

 As to whether the jury would readily ascertain the Reddix case was a homicide, 

defendant concedes it was not told that was the case. Instead, he asserts, the testimony 

concerning how the ballistics evidence was retained would inexorably lead it to reach that 

conclusion. The jury was informed that in non-homicide cases, such as Kipp and Brown, 

evidence is held for six months and is destroyed unless a request is made to extend the 

hold for another six months. In homicide cases, items are held for one year and requests 

for extensions are routinely made. Thus, defendant suggests, because the cartridge 

casings in the Kipp and Brown shootings were destroyed and those connected to the 

Reddix case were not, the jury must have concluded that the Reddix case was a homicide. 

However, the jury also heard testimony that sometimes evidence is destroyed because the 

investigating officers are transferred and the new handling detectives are not aware that a 

new hold request is necessary. In nonhomicide cases, the evidence may be retained if 

police so request. The jury easily could have thought the cartridge casings were 

destroyed for either of these reasons. Of course, this assumes the jury would have been 

concerned with the details of the Reddix homicide. Defendant was not charged in 

connection with that shooting. Instead, the jury learned the gun used in the Reddix 

incident, not the perpetrator of that incident, was relevant. This was so because the shell 

casings from the Kipp, Brown and Walton shootings were fired from the same weapon. 

 It is an even greater stretch to accept that the jury must have determined defendant 

was guilty of killing Reddix. Defendant argues any juror with common sense would have 
38 

so concluded. To the contrary, because defendant was not charged with killing Reddix, a 

reasonable juror would be more likely to conclude that defendant was not involved. 

After all, he was charged with murdering five other individuals, but not Reddix. In 

addition, the jury received evidence that the weapon used to kill Alex Haro was found in 

the San Fernando Valley eight years after his murder in the possession of gang members 

who had no connection to this case or to defendant. Thus, the jurors learned that 

weapons did not necessarily stay in the possession of the same gang, much less the same 

individual. 

 The jury had no reason to ignore the court’s instruction that it was to decide the 

case based only the evidence presented during the trial. Defendant’s claim the jury was 

compelled to decide issues unconnected to the case and did so to his detriment is without 

merit. 

V 

 Defendant alleges the trial court deprived him of a fair trial by unduly restricting 

the testimony of Robert Shomer, his expert on eyewitness identification. He asserts 

Shomer was barred from answering hypothetical questions and offering his opinions, 

which were based on professional literature in the field. As a result, defendant argues, he 

was prevented from presenting a complete defense in a case that was so dependent on 

eyewitness identification. His claim is not supported by the record. 

 The court heard the prosecutor’s motion to limit the scope of Shomer’s testimony. 

At no time during that hearing did the court issue a blanket order barring any testimony, 

with the exception of Shomer’s opinion regarding the accuracy of the witnesses’ 

identifications. Defendant does not challenge that ruling. The court noted that it had 

heard Shomer testify a number of times. The court reiterated twice that it would rule on 

objections “on a question-by-question basis.” 

 Contrary to defendant’s complaint, Shomer was allowed to explain that his 

knowledge in the field was based on experimental studies and he informed the jury of the 

results of those studies. Significantly, defendant does not cite any question that his expert 
39 

was not allowed to answer. He broadly urges he could not with specificity cite to the 

record what evidence was barred “because it was excluded before the witness testified.” 

Not so. Defendant’s expert was allowed to present his opinion virtually without 

restriction. The court sustained two of the prosecutor’s objections. On both occasions, 

defense counsel was able to rephrase his question and Shomer was allowed to answer. 

Defendant’s right to present a defense was not infringed. 

VI 

As noted, there were two penalty trials. On November 1, 2011, after the parties 

completed argument in the second penalty trial, the prosecutor advised the court that his 

office had received a letter from an individual identifying himself as Jose Mojarro. Jose 

Mojarro was a co-defendant in the Moose Lodge shootings and was convicted in a 

separate trial. Defense counsel acknowledged receiving the letter, which was dated 

October 12, 2011. He read the contents of the letter into the record as follows: “I killed 

Richard Haro on West View Boulevard. I seek no sympathy or any type of sympathetic 

treatment. I shot him three times, twice in the chest, once in the head. Sincerely, Jose 

Mojarro.” The court recessed for the morning. That afternoon, the jury was instructed 

and began deliberations. 

 On the morning of November 3, 2011, the parties convened in court to discuss a 

question posed by the jury. After resolving that matter, the following colloquy followed: 

Defense Counsel: “I thought about the note from Mojarro, the note that was dated 

October 12 [and] sent to the D.A.’s office, and we read it into the record. 

 The Court: “Yes?” 

 Defense Counsel: “You know, I have no idea of the substance of the materiality 

of his claim that he was the one that killed Haro. 

 The Court: “Yes? 

 Defense Counsel: “The only way I can think of preserving the substantive - - if 

there is any substantive value and the delay, apparent delay in turning over the note, is to 

bring a motion for a mistrial at this moment.” 
40 

 The mistrial motion was denied. 

 On appeal, defendant attempts to characterize counsel’s motion as a request for a 

new trial. He then faults the court for not considering the factors set out in section 1181, 

subdivision 8, which apply where a motion for new trial is brought on the ground of 

newly discovered evidence. The Attorney General argues defendant forfeited the claim 

by failing to move for a new trial below. She is correct. 

 At no time during the discussion of the letter purportedly authored by Mojarro did 

defense counsel utter the words “new trial.” Belatedly, defendant argues a jury would 

have had serious reservations about finding him guilty of Haro’s murder had it known of 

Mojarro’s letter. 

 The very points defendant now raises make clear that trial counsel had no 

intention of moving for a new trial on the guilt phase that had been completed almost a 

year before. If he had, he would have made the same arguments defendant presses now. 

Trial counsel did not mention the guilt phase of the trial or ask the court to consider the 

effect of Mojarro’s admission on the jury’s determination that defendant murdered Haro. 

Defendant urges counsel’s words are not dispositive. Instead, defendant says, “the 

substance of his argument controls.” We are not persuaded. 

 The fact is trial counsel did not move for a new trial. In the trial court a defendant 

must specify the grounds relied upon in making a motion for new trial and a failure to do 

so forfeits the issue for appeal. (People v. Gonzales and Soliz, supra, 52 Cal.4th at 

p. 332.) Trial counsel did not cite section 1181 or assert any grounds suggesting he was 

seeking a new adjudication of defendant’s guilt with respect to Haro’s murder. The trial 

court could not err by failing to grant a new trial motion that was never brought. 

VII 

Defendant attacks the sufficiency of the evidence underlying several of the 

convictions. As to the Moose Lodge homicides (Bonilla and Hernandez), and the Haro 

and Brown shootings, he alleges there is a lack of evidence demonstrating that he was the 

shooter. Alternatively, he argues the convictions for first degree murder in the Moose 
41 

Lodge and Haro incidents must be reduced to either second degree murder or 

manslaughter. 

 “‘When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence – that is, evidence that is reasonable, 

credible, and of solid value – from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46 

Cal.4th 680, 701.) “In so doing a reviewing court ‘presumes in support of the judgment 

the existence of every fact the trier could reasonably deduce from the evidence.’ 

[Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ 

[Citation.]” (Ibid.) With this standard in mind, we examine the evidence presented. 

 With regard to the Moose Lodge shootings, several witnesses identified defendant 

as one of the shooters. Ramon Mendoza saw the fight break out between the victims and 

other males. He identified defendant as one of the shooters after viewing a photographic 

lineup and at trial. Crispin Yanez, who knew defendant, told detectives that defendant 

was one of the shooters, pointing out that he continued to fire his weapon at one of the 

prostrate victims. At trial, Yanez claimed he lied to police. The jury apparently did not 

believe Yanez’s attempt to distance himself from his earlier identification. Imelda 

Martinez told another witness that she believed defendant, with whom she was familiar, 

was one of the shooters. In addition, a number of other witnesses said the shooter was at 

the party wearing a bright red shirt and baseball hat, which is what defendant wore. 

Several witnesses also testified that they did not recall any other guests dressed in a 

similar fashion. 

 Defendant contends the witnesses to the Moose Lodge shootings could not have 

seen the killers because there were so many people in a dark room, “lit only by dim lamps 

on two or three tables.” He sets forth what he perceives to be shortcomings in each 

witness’s identification. He presented these arguments to the jury, and they were 

rejected. We do not reweigh the evidence. “‘Conflicts and even testimony which is 

subject to justifiable suspicion do not justify the reversal of a judgment for it is the 
42 

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.]” (People v. Lee (2011) 51 Cal.4th 620, 632.) 

 Turning to the murder of Alex Haro, Julian Navarro and Erica Diaz identified 

defendant as the shooter after viewing photographic lineups. In addition, other witnesses 

said defendant was armed with a gun as he went into the backyard, the location where the 

shooting occurred. 

 Again, defendant argues, as he did to the jury, that inconsistencies in the 

witnesses’ testimony rendered it unreliable. However, unless defendant demonstrates 

that either Navarro’s or Diaz’s testimony was either physically impossible or inherently 

improbable, the identification of either, standing alone, is sufficient to support 

defendant’s conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Defendant has 

not met that burden. 

 Alternatively, defendant asserts that even if the evidence is sufficient to identify 

him as the shooter, we should reduce his convictions in the Moose Lodge and Haro cases 

to either second degree murder or manslaughter. However, he does not explain why the 

evidence fails to support the jury’s finding that he committed first degree murder. “As 

this contention is perfunctorily asserted without any analysis or argument in support, we 

reject it as not properly raised.” (People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.) 

 We address the evidence in the Walton murder. Kevin Walton was shot at a 

location that was approximately a quarter to a half mile from where Mark Brown was 

shot by defendant. This was a distance that could be traveled by car in about a minute. 

Walton’s shooting was reported to 911 roughly two minutes after Sheba Robinson called 

911 and told the operator that Brown had been wounded. Brown identified defendant as 

the person who shot him and the ballistics expert stated that the same gun was used to 

shoot Brown and Walton. 

 Defendant attacks the testimony of Brown, who provides the link between the 

Brown and Walton shootings. Again, it was within the jury’s purview to accept Brown’s 
43 

testimony and we may not disturb its credibility finding. Relying on the jury’s 

conclusion that he did not personally fire the weapon during the Walton murder, 

defendant urges we must accept he was not the shooter. Even so, as the prosecutor 

pointed out, at best this reduced defendant’s liability to that of an aider and abettor to a 

first degree murder. Defendant does not explain why the jury finding on the firearm 

allegation renders the underlying conviction for murder unsupported. Given the 

relationship between the time and location of the two shootings, the jury could reasonably 

conclude that defendant was present at both shootings, personally firing at Brown and 

assisting in the murder of Walton. 

VIII 

 Asserting this was a close case, defendant contends serious errors of Constitutional 

dimension caused irreparable prejudice. Having rejected his claims of error, we conclude 

he did not suffer cumulative prejudice. (People v. Tully (2012) 54 Cal.4th 952, 1020.) 

IX 

 Defendant filed a Pitchess motion seeking citizen complaints lodged against 

Santa Monica Police Detectives Richard Lewis and John Henry for threatening or 

harassing witnesses or causing witnesses to make false statements or identifications. In 

his declaration in support of the motion, defense counsel alleged the detectives “harassed, 

badgered and threatened witnesses Ruben Martinez and Imelda Martinez during the 

course of this investigation in order to cause them to implicate [defendant] in the shooting 

at the Moose Lodge.” The detectives also were accused of threatening Crispin Yanez 

into stating that defendant was involved in the shooting and using improper identification 

procedures to get Ramon Mendoza to identify defendant’s photograph from a six-pack. 

 As to the allegations of misconduct relating to Mendoza, Ruben Martinez and 

Imelda Martinez, the trial court concluded “there is simply a failure of a legitimate or 

plausible or possible scenario other than pure unabridged speculation to involve those 

officers and for the court to review their personnel records.” Because defendant’s claim 
44 

with respect to Yanez was based on Yanez’s preliminary hearing testimony, the court 

deferred ruling on the motion until it read the transcript of the hearing. 

 Defendant filed an amended Pitchess motion focusing on the interview between 

the detectives and Yanez. Counsel’s declaration outlined Yanez’s preliminary hearing 

testimony at which he claimed he lied to detectives about having seen defendant shooting 

at the victims in the Moose Lodge. Counsel contended the detectives conspired with 

officers from the Los Angeles Police Department to obtain false statements from Yanez. 

 The trial court denied the motion. After noting that it had read Yanez’s 

preliminary hearing testimony, it stated “[e]verything that the witness complained of is 

his own personal feelings.” 

 Defendant contends the court erred by failing to conduct an in camera hearing.9

 

He argues Yanez testified that he lied to the detectives and felt compelled to identify 

defendant because it was what the detectives wanted to hear. Defendant argues this 

testimony was enough to support the conclusion that the detectives conspired with other 

officers to force Yanez to falsely identify defendant as the shooter. His claim is 

unavailing. 

 Defendant correctly points out that to show cause for an in camera review of an 

officer’s personnel records, he “need demonstrate only ‘a logical link between the 

defense proposed and the pending charge’ and describe with some specificity ‘how the 

discovery being sought would support such a defense or how it would impeach the 

officer’s version of events.’ [Citation.]” (People v. Gaines (2009) 46 Cal.4th 172, 182.) 

We review a trial court’s ruling on a Pitchess motion under the deferential abuse of 

discretion standard. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) 

 Initially, we observe that defendant asserts the trial court denied his motion only 

after improperly determining that Yanez was not a credible witness. He is mistaken. In 

 9

 We are aware that because the court deferred ruling on the motion until it had the 

opportunity to read Yanez’s preliminary hearing testimony, it decided to review the 

personnel files of the officers involved for the convenience of the custodian of records. 

Given our conclusion on this issue, we deem it unnecessary to examine the transcript of 

that inquiry. 
45 

fact, after the court ruled on the motion, it commented that Yanez was not a credible 

witness and specifically stated that it “didn’t consider that.” 

 On the merits, defendant theorizes that the factual scenario set forth in his motion 

“was plausible because it is more likely that Yanez fingered [him] for the Moose Lodge 

shooting because he was threatened with the death penalty in a murder case in which the 

detectives knew Yanez was not involved.” Nothing in Yanez’s preliminary hearing 

testimony supports that conclusion. 

 At no time did Yanez say or suggest that the detectives engaged in misconduct. 

He did not accuse them of threatening him in any fashion. He assumed that they wanted 

him to implicate defendant in the shooting at the Moose Lodge, but he did not point to 

any instance when the detectives suggested it would work to his advantage if he 

identified defendant. As to defendant’s assertion that Yanez was threatened with the 

death penalty in another case, Yanez was questioned by Los Angeles Police Department 

detectives in connection with that incident, not by the Santa Monica detectives who were 

the subject of the Pitchess motion. Defendant’s attempt on appeal to weave a conspiracy 

to frame him between the Los Angeles and Santa Monica detectives fails. Counsel’s 

declaration in support of the motion did not attempt to establish a factual scenario, 

plausible or otherwise, suggesting such an arrangement. 

 The trial court’s denial of defendant’s Pitchess motion did not constitute an abuse 

of discretion. 

DISPOSITION 

 The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 EPSTEIN, P. J. 

We concur: 

 WILLHITE, J. MANELLA, J.