Filed 10/20/21 P. v. Rosales CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CESAR ROSALES,

Defendant and Appellant.

 H045615

 (Santa Cruz County

 Super. Ct. No. F25184)

I. INTRODUCTION

Around 6:15 p.m. on a Saturday in July 2011, defendant Cesar Rosales committed a 

drive-by shooting in the parking lot of a Target shopping center, killing Gustavo Diaz 

Zargoza and wounding Zargoza’s cousin, Esparanza Salazar. Defendant was the passenger 

in a vehicle driven by fellow gang member Miguel Rodriguez, who testified against 

defendant at trial. 

A jury convicted defendant of special circumstances murder (Pen. Code, §§ 187, 

190.2, subd. (a)(21), (22)),1two counts of shooting from a motor vehicle (§ 12034, 

subd. (c)), assault with a deadly weapon (§ 245, subd. (a)(1)), and active participation in a 

criminal street gang (§ 186.22, subd. (a)). The jury also found various sentence 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

enhancement allegations true. The trial court sentenced defendant to life without the 

possibility of parole (LWOP) consecutive to 55 years to life. 

Defendant contends that insufficient evidence corroborates the accomplice testimony; 

the gang-murder special circumstance finding must be reversed because insufficient 

evidence corroborates the accomplice testimony that the murder was committed to further 

the activities of a criminal street gang; the court improperly admitted unauthenticated and 

unduly prejudicial photographs and videos posted on social media; his counsel was 

ineffective for failing to elicit evidence of and request jury instructions on voluntary 

intoxication; the court improperly instructed the jury to consider eyewitness certainty when 

evaluating eyewitness identification testimony; his counsel was ineffective for failing to 

object to the prosecution’s improper argument; his fair trial rights were violated when the 

trial court failed to excuse a biased juror; cumulative prejudice from the trial errors requires 

reversal; his LWOP sentence is cruel and unusual because he committed the offenses when 

he was 19 years old; and the trial court improperly imposed various fines and fees without 

determining his ability to pay. 

For reasons that we will explain, we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Case

1. The Incident

On the evening of July 23, 2011, cousins Gustavo Diaz Zargoza, Esparanza Salazar, 

and Martin Diaz Morales went to the Watsonville Target because Salazar wanted to buy an 

iPhone. As the trio exited the store around 6:13 p.m., a green car approached slowly and 

stopped. The vehicle’s passenger “gave [Zargoza] this look,” and the car drove away. The 

passenger did not appear to be angry but he stared. No words or gestures were exchanged. 

The passenger was in the front seat; the only other person in the car was the driver. The 

passenger was wearing a black cap with the letter “P” on it. 
3

When the group got to their car, Salazar suddenly felt something hit her arm. She

turned and saw someone shooting at them from a green car behind them. There was smoke 

coming from the front passenger window where the passenger was sitting. Two people 

were in the car, a front passenger and the driver. The passenger side of the vehicle was 

closest to Salazar. Salazar could not see the passenger’s face because he was wearing a hat 

with the letter “P” on it that was pulled down. More shots were fired, hitting the windows 

of neighboring cars. 

Morales saw that the shots were coming from a small car that had approached them 

from behind. The male front passenger “kept shooting towards” Zargoza and Salazar from 

about 12 to 15 feet away. The passenger was wearing a hat and his hand was sticking out of 

the passenger-side window holding a chrome revolver that Morales thought “was probably a 

357.” One of the windows in a car parked next to them shattered. Another bullet hit the 

group’s car above its license plate. 

Salazar felt weak and sat down. She saw Zargoza next to her and asked him if he had 

been hit. Zargoza responded that he had been shot in the stomach. 

A responding officer performed CPR on Zargoza. Zargoza was gasping for air and a 

pool of blood formed around his body. Emergency medical responders arrived and treated 

Zargoza but he died at the scene. An autopsy revealed a gunshot had gone through 

Zargoza’s right arm and entered his chest, traveled through his ribs, lung, and heart, and 

entered his left lung. The cause of death was blood pooling in Zargoza’s chest cavity. A 

bullet was removed and collected as evidence. 

Zargoza was wearing a blue nylon belt and blue gym shorts under his jeans. He had 

a blue bandana in his pants pocket, three dots tattooed on his chest, and “X3” tattooed on his 

shin. One of his shoes had “X3” written in pen inside of it. 

Salazar was taken to the hospital. She had been shot in the right elbow, which 

destroyed her joint and caused severe bone loss. After two surgeries, Salazar still had pain 

and weakness in her arm and difficulty working. 
4

2. Bystander Eyewitnesses

Joanne Jackson was working at a store next to Target on the day of the incident. She 

was outside the store on a break around 6:15 p.m. and noticed a green car drive past her very 

slowly. The car turned and went down the parking aisle in front of her. All of a sudden 

Jackson heard five loud booms and a car window shatter. Jackson saw that the car with the 

shattered window was an SUV parked on the right side of the parking aisle, which was on 

the passenger side of the green car. “[T]hen the green car took off really fast and went to 

the right.” Jackson saw that the car’s front passenger window was open. Jackson ran into 

the store and called 911. 

Maria Sanchez had gone to Target with her 11-year-old daughter, arriving around 

6:15 p.m. After she parked her SUV and started walking toward Target, she heard “some 

noise like thunder” and saw that a revolver had been fired by the front passenger in a green 

Honda. The passenger’s stretched-out arm was holding a gray or silver revolver that was 

aimed outside the passenger’s window. Sanchez grabbed her daughter and hid behind some 

cars. 

Shelly Turcotte had gone to Target with her husband. As they were parking, Turcotte 

heard about five gunshots and saw people scattering. Turcotte then saw a small green 

Honda or Mazda speed past them. Two men were in the car. The front passenger was 

wearing a red hat and looking back in the direction of where the shots were fired and a 

person was lying on the ground. The men appeared to be Hispanic. The car’s license plate 

number contained the number four and the letter U.

The parties stipulated that if called to testify, Sophia Orozco would state that on July 

23, 2011 around 6:15 p.m., she saw a green Honda exiting the Target parking lot going 

extremely fast. Orozco would testify that she saw two people in the front of the vehicle and

that the driver, who was male, had a red tattoo on the left side of his neck. Orozco was 

“sure it was red but is not sure that it was a red lip tattoo as she had initially reported to the 

police.” 
5

3. Police Investigation 

Santa Cruz County Sheriff’s Sergeant Roy Morales responded to the Target parking 

lot and was shown a still photograph of the suspect vehicle taken from video surveillance 

footage. The vehicle appeared to be an older, green, four-door Honda Accord. There was

some sort of red silhouette in the back of the car and a white spot on its hood. 

Based on information that the victim was possibly a Sureño, Sergeant Morales began 

searching areas where Norteños were known to congregate. After about a half hour, 

Sergeant Morales saw a similar looking green Honda in the parking lot of an apartment 

complex. The car was parked in the assigned space associated with Miguel Rodriguez and 

Witness1. The vehicle’s license plate was “4UBF449” and its hood had a fairly large spot

of white bird excrement on it. Its hood was warm and there was something reddish in the 

backseat. Police had the vehicle towed to a secure facility. 

Police showed Salazar and Morales approximately 30 photographs of Norteño 

members, many of whom were members of the Clifford Manor Locos (CML) subset. 

Defendant and Rodriguez were included in the packet of photos. Neither Salazar nor 

Morales was able to identify anyone in the photographs. 

When police searched the interior of the Honda, they found partially eaten food and 

four expended 357-Magnum shell casings in a Jack In The Box bag on the front passenger 

floorboard. There was also a Jack In The Box receipt with a time stamp of 1:52 p.m., July 

23, 2011, in a compartment on the passenger’s armrest. 

Police showed the Jack In The Box employee listed on the receipt photographs of 

Rodriguez. The employee identified Rodriguez based on the red “C” tattoo on the left side 

of his neck. Surveillance footage from the Jack In The Box showed the same green Honda 

Accord going through the restaurant’s drive-thru that was on Target’s surveillance footage. 

Rodriguez was driving.
6

Defendant’s mother contacted the police because she was unable to reach defendant 

after July 22, 2011, which was unusual. Defendant’s sister had also sent defendant a text 

message on July 23, 2011, but he never responded. 

In November 2011, police were notified that the DNA profile developed from a swab 

of the partially eaten food in the Jack In The Box bag on the Honda’s front passenger 

floorboard matched the DNA profile associated with defendant in a DNA database. Police 

tried to locate defendant and Rodriguez, but were unsuccessful. 

Also in November 2011, the Morgan Hill Police Department contacted the 

Watsonville Police Department about a Ruger .357 revolver that they recovered from Joe 

“Troubles” Ruiz. The Morgan Hill police had learned from a confidential informant that the 

gun may have been used in a homicide in Watsonville. A criminalist subsequently 

determined that the bullet recovered from Zargoza’s body was fired from the .357 Ruger 

revolver.

The case went cold. 

On July 23, 2013, Rodriguez was arrested near Mexicali, Mexico on a homicide 

warrant. Police learned that defendant was working in Aptos and was on felony probation. 

Defendant was arrested on July 24, 2013. Two cell phones were found on defendant, 

which defendant stated were his. Police located a notebook containing various items with 

defendant’s name on it, including his resume; “CML” and “Lonely Boy” were written in the 

notebook. Defendant was wearing a black Houston Astros hat with a five-point star on it 

and a red knit cap underneath the hat. 

In May 2014, it was determined that the DNA profile developed from defendant’s 

reference swab matched the DNA profile developed from the swabs of the partially eaten 

food in the Jack In The Box bag. The chance that a randomly selected unrelated person 
7

would have the same DNA profile was one in 130 quintillion for Hispanics.2 Rodriguez was 

excluded as a source of the DNA developed from the food swabs. 

A District Attorney Investigator determined that he had the same arm span as 

Rodriguez. The investigator sat in the driver’s seat of a 2001 four-door Honda Accord and 

tried to stick his arm through the front passenger window. The investigator “couldn’t get 

close to [the window]” without getting “almost horizontal” and taking his foot off the gas. 

4. A.R.’s Testimony (Defendant’s Former Girlfriend)

A.R. testified that she began dating defendant when he was in Mexico in 2011. A.R. 

stated that in July 2011, defendant and Rodriguez began living in a room in her 

grandmother’s house in Hijido, Recomodo, a small town. A.R. had not seen her cousin

Rodriguez in eight years and had never met defendant before. 

A.R. testified that when she asked defendant why he was in Recomodo, he stated that 

he had committed a crime in the United States. Defendant said that “they had killed a 

person” because “there had been a gang conflict.” According to A.R., defendant said that 

“they had gone to a store. They were going to prepare a meal at [Rodriguez’s] home and

when they were in the car going back home they ran into two men and a woman. They 

passed them. They turned around and they came back to the same place and when they

came by [defendant] . . . had gotten the gun and he had fired it because he wanted to feel 

what it feels like when you would fire it.” Defendant stated that “he had killed a person and 

he had wounded a woman.” Defendant told A.R. that Rodriguez was driving a truck and 

that the incident happened in Watsonville. Defendant said that they went to Rodriguez’s 

home and then to Tijuana, arriving in Recomodo a week later. 

A.R. did not tell anyone what defendant said. Her family knew why defendant and 

Rodriguez were there. A.R. testified that defendant understood Spanish but did not speak it 

2 The prosecution did not present DNA statistical rarity evidence for other 

ethnicities. 
8

well. Defendant often called Rodriguez “Demon” and Rodriguez often called defendant 

“Lonely.” 

At some point defendant decided to leave because he and Rodriguez were not getting 

along. Defendant thought it was safe to return to the United States because he saw on the 

news that Rodriguez was the suspect in the homicide, not him. A.R.’s aunt took defendant 

to the border. A.R. never saw defendant again. Rodriguez stayed but was eventually 

arrested at A.R.’s grandmother’s house. 

A photograph showed defendant celebrating New Year’s Eve with A.R.’s family on 

December 31, 2011. 

5. Miguel Rodriguez’s Testimony (Defendant’s Accomplice)

Rodriguez testified that he began associating with Norteños in school, partying with 

them and fighting Sureños. Growing up, he learned to recognize Sureños by their 

appearance, dress, and speech. His freshman year he was expelled from Gilroy High School 

for possessing a knife. At age 16, he began selling methamphetamine with his father until 

his father’s arrest. 

Rodriguez testified that when he was 18 years old, he began living with his girlfriend, 

Witness1. They had a daughter in April 2008. When his father was released from custody, 

Rodriguez began selling drugs with him again. By age 19 or 20, Rodriguez was a fulltime 

drug dealer. At some point, Rodriguez’s brother Jose began living with Rodriguez and 

Witness1. Jose socialized with CML members including Patrick Diaz, whose gang name 

was “Grande,” and defendant, whose gang name was “Lonely Boy.” Defendant had been

recently “jumped into” the gang. Rodriguez got to know the CML members and became 

friends with them. 

Rodriguez stated that the gang members had defendant on a “[t]oughen up program,” 

which involved beating defendant up, and Rodriguez felt bad for him. Rodriguez became 

closer to defendant and socialized with him daily. Defendant and several other CML 

members would accompany Rodriguez while he was selling drugs. 
9

At some point, Jose was “jumped into” CML. In order to protect Jose, Rodriguez 

joined the gang when he was about 20 years old. Rodriguez was “jumped in” and given the 

gang name “Demon.” 

Rodriguez testified that gang members were expected to confront Sureños by fighting 

them; they were not supposed to walk away. Confrontations would start with a whistle or 

hand signs; other times members would rush a Sureño when they did not want the Sureño to 

run; and sometimes members would ask a suspected Sureño where he or she was from. If a 

member walked away from a Sureño, he or she would be violently disciplined by the gang. 

Members were also supposed to confront people who were staring at, or “mugging,” them. 

Members could not look weak. 

Rodriguez stated that members were supposed to make monetary contributions to the 

gang to help incarcerated members and to buy weapons. To build a reputation within the 

gang, some members sold drugs, others were smart, and some were fighters or killers. CML 

members identified with the Cincinnati Red’s “C” logo. Members made “C,” “M,” or “L” 

hand signs when confronting someone from another gang. 

Rodriguez had a “C” tattooed on his neck; a demon on the back of his neck; “CM 

Loco” on his back; “265” on his rib cage; “X4” on his calf; a “CML . . . hey rag” on his left 

forearm; and four dots on his face. The four dots identified him as a Norteño affiliate. 

Rodriguez bought four or five guns off the street before he turned 21. When 

Rodriguez turned 21 in October 2009, he got a gun permit and bought a .357 Ruger revolver 

at a Watsonville gun shop. 

Rodriguez testified that later in 2009, he was driving defendant, Jose, and a guy from 

“North Side” in his Chevy Silverado. Someone in the car threw a rock at a group of 

suspected Sureños. One of the suspected Sureños threw the rock back at Rodriguez’s truck. 

Rodriguez drove home to get his gun. Rodriguez drove the group back to where they saw 

the suspected Sureños, but the Sureños were no longer there. Rodriguez subsequently 

located the suspected Sureños in Sureños territory. The individuals threw their hands up 
10

and starting walking toward Rodriguez’s car. Rodriguez fired five rounds at them. 

Someone tried to run and fell. Law enforcement was unaware of the incident until 

Rodriguez told the prosecution about it after trial in this case had started. Rodriguez had not 

been charged for that offense. 

Around 2010, defendant lived at Rodriguez’s house and they were together every 

day. Rodriguez considered defendant his best friend. Toward the end of 2010, defendant 

went to jail twice. Defendant was placed in a residential treatment program and afterwards 

lived at a sober living environment. Rodriguez and defendant talked and saw each other 

periodically. 

In February or March 2011, Rodriguez bought a .25 semiautomatic pistol. About a 

month later, the gun was found by police during a vehicle stop. Rodriguez was arrested and 

the gun was seized. 

Rodriguez stated that in May or June 2011, he sold the .357 revolver to defendant 

because he needed the money. Rodriguez was no longer selling drugs and had just moved 

to a new apartment with Witness1 and their daughter. Rodriguez filed the serial numbers 

off the gun. Defendant was doing well at that point. He was working and was not doing 

drugs or drinking. 

Defendant and Rodriguez planned to see each other on July 23, 2011. Rodriguez had 

borrowed Witness1’s father’s car, a green Honda Accord. Rodriguez, Witness1, and their 

daughter went to Jack In The Box. Rodriguez bought some food for defendant and the 

group picked him up. Defendant was in the front passenger seat and Witness1 and the

daughter were in the back. Rodriguez was wearing a red Cincinnati Reds hat; defendant 

wore a blue New York Yankees hat. Defendant ate the food in the car. Rodriguez drove the

group to a liquor store and bought beer and rolling papers. Rodriguez drove them to the 

woods and they smoked marijuana. At one point while Rodriguez was driving, defendant 

shot the .357 revolver out the front passenger window. Rodriguez also shot the gun. They 
11

threw the shell casing out the window. The group went to the beach and then the discount 

mall. The group picked up some food and went to Rodriguez and Witness1’s apartment. 

Rodriguez testified that he and defendant left to buy alcohol and pick up a video 

game. Rodriguez drove the Honda and defendant was in the front passenger seat. They 

went to a liquor store, stopped at defendant’s house to get the game, and went to 

Rodriguez’s cousin’s house to buy marijuana. Defendant had the gun with him. 

As Rodriguez drove back to the apartment, defendant asked him to pull into the 

Target shopping center so that he could meet a girl. While Rodriguez drove toward Target, 

a man caught Rodriguez’s eye. Rodriguez thought the man was a Sureño based on the way 

he looked at them. The man gave them “a little smirk, like, . . . mugging, looked like 

laughing at us.” The man was with a girl. Rodriguez “flipped him off and threw up [his] 

four fingers,” representing “14.” Either defendant or Rodriguez made a derogatory 

statement about the man. The man reacted by laughing, which Rodriguez took as 

disrespect. The man was on the passenger side of the car, about 10 feet from defendant. 

Rodriguez stated that he circled the car around. Both Rodriguez and defendant said 

they were “going to get this fool.” Defendant said he was going shoot the man. Rodriguez 

told him that he was “all in” but this was not the place because of the people and the 

cameras; it was also broad daylight. Rodriguez suggested beating the man up because if 

they were caught, it would mean less time in jail. Defendant agreed. 

Rodriguez testified that he drove the car into the parking aisle where the man was 

walking. The man was on the Honda’s passenger side. As Rodriguez looked for a parking 

spot to his left, defendant shot the gun five times out of the passenger-side window. 

Rodriguez called defendant an “idiot” and quickly drove off. 

Rodriguez drove them back to the apartment. Defendant put the shell casings in the 

Jack In The Box bag. They went inside and, without mentioning any details, Rodriguez told 

Witness1 that he messed up but that “it wasn’t [him].” About 45 minutes to an hour after 
12

the shooting, Rodriguez saw police looking at the Honda parked in his assigned parking 

space. Rodriguez told Witness1, “[I]t’s done, . . . they’re here,” and left with defendant. 

Once they got out of the apartment complex, Rodriguez called someone to pick them 

up. They went to Damien Padilla’s house. Defendant had the gun with him. Rodriguez 

told the people there that they needed to hide. Older gang members arrived to check on 

them. Rodriguez and defendant spent the night. The next day they got a ride to Rodriguez’s 

uncle’s house in Gilroy. Rodriguez told his uncle that they had to go to Mexico. 

At some point, defendant told Rodriguez that he had left the gun shells in the Jack In 

The Box bag inside the car. A CML member gave them some money and defendant left the 

gun with him to get rid of. Rodriguez arranged transportation for himself and defendant to 

Mexico. They were dropped off in Tijuana and took a bus and a taxi to Hijido, Reacomodo. 

Rodriguez testified that he later learned from a CML member that the .357 revolver 

had been sold to someone named “Troubles.” 

On July 23, 2013, after defendant had returned to the United States, the Mexican 

police arrested Rodriguez and transported him to the border where he was picked up by the 

United States Marshals. 

Rodriguez testified that he understood that his statement to the police about the 

offense could not be used against defendant unless Rodriguez testified.3 Rodriguez stated 

that at the time of the preliminary hearing, he was placed in a van with defendant. 

Defendant told Rodriguez that he was not going to turn his back on Rodriguez even though 

Rodriguez had implicated him; that they were “homies”; his family was praying for 

Rodriguez; and Rodriguez should keep his head up. Defendant told Rodriguez to “stay 

strong, they want you real bad to get to me.” Rodriguez asked defendant “how much time 

3 The parties stipulated that Rodriguez’s statements to the police were given to 

defendant in 2013 and that the statements would not be admissible against defendant at trial 

unless Rodriguez testified. The parties also stipulated that the preliminary hearing was held 

in 2015 and that Rodriguez’s statements to the police were admitted against defendant and 

Rodriguez at the hearing. 
13

[he was] willing to do,” and defendant responded, “None.” Rodriguez thought that was 

selfish and would affect him “[r]eal bad” because he “would . . . be[] the one getting 

convicted for it.” Rodriguez testified that at no point did defendant get angry with 

Rodriguez for naming him as the shooter or accuse Rodriguez of lying. Rodriguez 

subsequently learned that there had been a recording device in the van. The recording was 

played for the jury. 

In the beginning of 2017, Rodriguez reached an agreement with the district attorney. 

Rodriguez pleaded guilty to voluntary manslaughter and admitted a gang enhancement. 

Rodriguez was facing a minimum sentence of 13 years and a maximum sentence of 21 years 

when he testified at trial, unless the court struck the gang enhancement, which would result 

in a possible sentence of 3 to 11 years. By the time Rodriguez testified, Rodriguez had 

joined a “dropout gang” for protection. 

Rodriguez testified that defendant did not speak Spanish well and sometimes had 

difficulty speaking Spanish clearly. 

Rodriguez identified the .357 Ruger revolver that a criminalist determined had fired 

the bullet recovered from Zargoza’s body as the gun he owned and sold to defendant. 

6. Witness1’s Testimony (Rodriguez’s Former Girlfriend)

Witness1 testified that she began dating Rodriguez in high school. After they 

graduated, they moved in together and had a daughter. 

Witness1 stated that Rodriguez and Jose joined CML at some point; both were 

jumped in. Gang members socialized at the house she shared with Rodriguez and had gangrelated discussions. In 2009, Rodriguez bought a Ruger handgun. 

Rodriguez began socializing with defendant in 2009 or 2010 after defendant had been 

jumped in. Rodriguez and defendant were close. Defendant would often stay with them. 

Witness1 noticed that gang members would say that defendant was not tough and would call 

him a derogatory name. Witness1 stated that other CML members thought defendant was 

weak. 
14

Weeks before the incident at Target in 2011, Rodriguez talked about selling the 

Ruger to defendant. Witness1 was doubtful that defendant could buy the gun because he did 

not have any money. 

Witness1 testified that on July 22, 2011, she and Rodriguez borrowed her parents’ 

car, a 2000 or 2001 green, four-door Honda Accord. On July 23, Witness1, Rodriguez, and 

their daughter went shopping and to Jack In The Box. Then they drove around Green 

Valley Road. Defendant joined them at some point. Witness1 got in the backseat with her 

daughter and defendant got in the front passenger seat. 

As they were driving around the outskirts of town, defendant took the Ruger out of 

his pocket or waistband, pointed it out the window, and fired once. Witness1 and her 

daughter were scared, but Rodriguez and defendant acted like this was normal. At some 

point the group returned to Witness1 and Rodriguez’s apartment. 

Rodriguez left with defendant in the Honda around 6:00 p.m. At 6:26 p.m.,

Rodriguez and defendant ran inside and Rodriguez either said that he or they had messed up 

and he would explain it later. Rodriguez grabbed a hoodie and they ran out. They did not 

take the car. Hours later, a police officer called Witness1 looking for Rodriguez. Police 

arrived at the apartment later that night and searched the premises. 

A couple of days later, Witness1 saw surveillance footage from the incident on the 

news. She recognized her father’s green Honda on the footage because of the spot of bird 

excrement on the hood. A man told Witness1 to leave money for Rodriguez, which she did. 

A couple weeks later, Rodriguez called, asking what happened with the police. He did not 

mention where he was and she did not ask. Witness1 learned a couple of weeks later that 

Rodriguez and defendant were in Recomodo, Mexico. Witness1 wired money to Rodriguez 

monthly. 

Rodriguez called Witness1 daily. At some point, he told Witness1 that they had gone 

to the store, defendant shot someone in the parking lot, and Rodriguez drove away. 
15

7. Additional Gang Evidence

a. The Norteños, the Sureños, and the CML Subset

Watsonville Police Corporal Joseph Perez testified as an expert in criminal street 

gangs. Corporal Perez stated that there are primarily two rival gangs in Watsonville, the 

Norteños and the Sureños. Norteños are affiliated with the Nuestra Famila prison gang. 

Norteños are the Nuestra Familia’s street-level gang members. Norteños identify with the 

letter “N,” the number 14, the symbol of four dots or four dots over two lines, the color red, 

and the term “Norte.” Norteños commonly refer to Sureños as “scraps” and use the letter 

“S” written backwards with a line through it to refer to Sureños disrespectfully. Norteños 

often wear red clothing to identify with the gang or possess a red bandana or red necklace. 

The Sureños are affiliated with the Mexican Mafia prison gang. Mexican Mafia and 

Sureño members identify with the letter “M,” the number 13, the symbol of three dots over 

two lines, and the color blue. Sureños wear blue clothing or possess a blue object to identify 

with the gang. Both Norteños and Sureños claim various sports teams’ logos to identify 

themselves. For example, some Norteños in Watsonville identify with the Washington 

Nationals’ red “W.” 

Corporal Perez stated that gangs use violence to control people through fear and gang 

members use violence to gain respect. Members also gain respect by making money for the 

gang through drug sales and burglaries. It is common for multiple gang members to be 

involved in the commission of a crime and when multiple members are involved, the crime 

is commonly committed at the direction of the gang or in association with other gang 

members. Local street gangs have to pay mandatory taxes to the prison gangs. 

Disrespect is met with retaliation. Disrespect can be something as simple as looking 

at someone the wrong way. If a gang member is disrespected and does not retaliate, the 

member looks “like a punk” and will be punished. 

Corporal Perez testified that if Norteños come into contact with Sureños, at a 

minimum he would expect them to give each other dirty looks, or “mug” each other, and 
16

stare each other down. Gang signs might be thrown. Even if an individual is not wearing 

gang colors or symbols, “both groups know exactly that that person is not from their group . 

. . and [is] their enemy . . . by just looking at them,” based on the way the person walks or

his or her mannerisms. Sometimes a violent interaction starts with a gang member asking, 

“Where are you from?” 

Within the Norteño gang in Watsonville, there are seven subset gangs “or hoods” that 

Norteño gang members identify with. The subsets were started by individuals in the 

neighborhoods where they grew up. The Nuestra Famila has rules that all Norteños from 

different subsets have to follow in jail, including that they join together as one and do not 

disrespect each other. 

To become a subset member, a person often must be “jumped in.” Typically the 

person will be beaten up by some of the gang members to show his or her toughness and 

then be asked to commit a crime on behalf of the gang. The Watsonville subsets hold 

meetings that only jumped-in subset members can attend. 

Corporal Perez stated that the Clifford Manor Locos subset, or CML, formed in the 

late 1980’s at the Clifford Manor Apartments in Watsonville. CML members identify with 

Norteño symbols and also with the letter “C,” the numbers 265 and 240, the term “cliffas,” 

and the Cincinnati Reds’ “C” logo. CML claims the Clifford Manor Apartment complex as 

its territory. 

b. Law enforcement contacts and other gang evidence

In December 2008, Watsonville police responded to a call regarding three minors 

smoking marijuana at a park. Several individuals were found nearby, including Patrick 

Diaz. Diaz was on probation with “gang terms.” A probationer with gang terms must not 

associate with known gang members or wear gang-related clothing. Also present were 

Mario Fragoso, Oscar Ortiz, and defendant. Diaz’s belt buckle had a “C” engraved on it. 

Diaz had a “W” tattooed on his neck; “ENE” tattooed on his stomach; the huelga bird 

tattooed on his left arm; “Cliffas,” “Norte,” and a red strawberry, for Watsonville, tattooed 
17

on his forearms; and “CM Loco” tattooed on the top of his hands. Ortiz was wearing a red 

belt. 

On January 21, 2009, Watsonville police responded to Clifford Manor Apartments. 

Defendant, Miguel Morales, Miguel Narez, Damien Padilla, Victor Ramos, Jeremy Robles, 

Fragoso, Ryan Heinrichs, Michael Heinrichs, and Ortiz were contacted in the complex’s 

playground. Padilla, Ramos, and Robles were on probation with gang terms. Padilla had a 

box cutter with an exposed blade in his pocket. Fragoso had an “M” and a “C” tattooed on 

his elbow and was a known CML member. Narez had a “C” tattooed on his face; a large 

“W” tattooed on his neck; “Cliffas” tattooed on one of his arms; and was a known CML 

member. Robles had a five-point star tattooed on his neck, which was a Norteño tattoo. 

Robles had “CM” tattooed on his chest. Ramos had two bars with four dots on tattooed the 

left side of his neck and “CML” on the back of his neck. 

On April 4, 2009, a Watsonville police officer observed a vehicle run a stop sign and 

speed away. Upon locating the car, the officer approached the three occupants. Defendant 

ran but was apprehended. Defendant had a pair of tweezers in his pocket. Defendant also 

had a baggie and a straw with white powdery residue on them. The other two individuals 

were brothers who were Norteños who associated with the North Side Chicos subset. One 

brother wore a red shirt and a cap with a red brim and a red “W” and had an “N” and an “S” 

tattooed on his chin; “chicos” across his neck; four dots his wrist; and “Beast” on his hand. 

The other brother had a tattoo of his nickname, “Inocente,” on a hand; “NSWC” across his 

back; “chicos” across his chest; and “Lonely Boy” across his lower back. Lonely Boy was 

the nickname of a North Side Chicos gang member who had been murdered. 

On May 6, 2009, Defendant and Padilla went to the Watsonville police department to 

pick up a cell phone and a bicycle that had been seized during an investigation. When the 

police seized the cell phone, it was in Jerry Robles’s and Narez’s possession. Both Robles 

and Narez were on probation with gang terms. Robles was a documented Norteño and 

Narez was affiliated with the CML. 
18

Padilla stated that the cell phone belonged to him. The phone had a screen saver with 

the letters “CML” and the word “Norte” on it. It also had an “S” with a line through it. A 

photo on the phone depicted “taste da norte.” Padilla admitted that he was on probation 

with gang terms; defendant stated that he was on probation. A record check revealed an 

outstanding warrant for defendant’s arrest. A cell phone in Padilla’s pocket had “Norte” as 

its screen saver. Defendant stated that the phone was his. Both Padilla and defendant were 

wearing with belt buckles with the letter “C” on them. Padilla had “1,” “4,” and 

“Watsonville” tattooed on his chest; a “C” his right hand; an “M” and “CML” on his left 

hand; and a “W” tattooed behind his left ear. Padilla was thought to be a CML member. 

On June 9, 2009, defendant was stopped by Watsonville police for a vehicle 

infraction. Defendant was wearing a Cincinnati Reds hat with a “C” on the front and had a 

belt with a “C” on the buckle. When defendant was asked if he was a CML member,

defendant responded that he was “just a Norte[ñ]o.”

In July 2009, Watsonville police contacted defendant and Ryan Heinrichs. Both 

were on juvenile probation with gang terms. Ryan was a CML member. Ryan’s phone had 

a photograph depicting defendant, Nathan Heinrichs, and an unidentified male posing in 

front of a fence with “265” written on it. The men were making CML hand symbols. 

Ryan’s phone also had digital images of “X4.” Defendant’s phone had a background with 

“Norte” on it. 

Defendant was contacted again on August 5, 2009. Defendant was on probation with 

gang terms. Defendant was wearing a Cincinnati Reds hat with a “C” on the front. When 

defendant was asked if he was a CML member, defendant responded that he socializes with 

Norteños. 

On August 11, 2009, Watsonville police responded to River Park, which had 

problems with gang activity. Defendant, Rodriguez, Jose, Nathan Heinrichs, Ryan 

Heinrichs, and Johnny Castillo were socializing in the park. Five of the men were on 

probation with gang terms; all of the men were documented gang members or associates; 
19

and some were associated with CML. Jose had “X4”; “265”; and “C” tattoos. Castillo had 

“X”; “4”; “Clifford”; “Manor”; and “CML” tattoos. Nathan had a “Watson” tattoo and was 

wearing a red belt with a “W” on it. Ryan had a tattoo stating “RIP Brandon Gil.” Gil was 

a Norteño gang member who had been murdered. Rodriguez had a “Mongolian” hairstyle, 

which was a Norteño haircut. 

On September 10, 2009, Watsonville police determined that Jose’s cell phone 

contained photographs of a red bandana and a Cincinnati Reds “C” hat; a writing containing 

the word “Grande” and the phrase “Clifford Manor 14 Locos,” with the “S” in Locos 

crossed out; a writing that said “Watsonville Norteño gang, XIV, Clifford Manor Locos, X 

Grande 4, . . . Lonely Boy, and Casper”; and Norteño related cartoons. 

On October 2, 2009, Watsonville police contacted defendant when the vehicle 

defendant was traveling in was stopped for a traffic infraction. Defendant was still on 

probation with gang terms. Rodriguez was driving and was wearing a red shirt and a red 

belt. Rodriguez was a documented gang member. When defendant was asked why he was 

in the company of a Norteño member, defendant responded that he was “caught . . . 

slipping.”

On November 17, 2009, defendant was contacted with Rodriguez and Padilla. When 

the Watsonville police officer first noticed the group, they were running. When the group 

saw the officer, they slowed to a walk and went in different directions. Defendant and 

Rodriguez got into a Chevy Silverado and began to drive away. Rodriguez was driving. 

Padilla and defendant were on probation with gang terms. Defendant was known to police 

as a Norteño associate and a CML member. Rodriguez was wearing a sports hat with a 

black “C” on the front. 

On January 8, 2010, defendant was contacted in the front passenger seat of a truck 

driven by Rodriguez. Defendant was on probation with gang terms. Rodriguez was 

wearing a red checkered shirt, a red cross around his neck, and a white belt with a “C” on 

the buckle. Rodriguez’s clothing and tattoos were consistent with CML membership. 
20

When asked why he was in the presence of a Norteño, defendant responded that “the only 

reason he’s getting caught is because [the officer was] targeting him.” 

On May 5, 2010, Watsonville police responded to the YMCA’s handball courts, 

where there had been a lot of gang activity, and contacted a group of seven people. Padilla 

and Samuel Duran were on probation with gang conditions. Padilla and Joseph Granada4

were known CML members. The other four individuals who were present were defendant, 

Gilbert Torres, Jonathan Cruz, and Michael Heinrichs. Michael had “Clifford” tattooed on 

his right arm; “Manor” tattooed on his left arm; and was wearing a red belt with a belt 

buckle with a “C” on it. Granada had four dots tattooed near his left eye; “265” above his 

right eyebrow; “CML” tattooed on the back of his head; “X4” tattooed on his chest; and was 

wearing a red belt and a red hat with “Nor Cal” on it. Padilla had a “C” tattooed on his right 

earlobe and right hand; an “M” on his left earlobe and left hand; a large “W” on his neck; 

“1,” “4,” and “Watonsville” on his chest; and “Norte Saldado” and “Clifford Soldado” 

tattooed under his neck. Duran had one dot tattooed on his right elbow and four dots 

tattooed on his left elbow. Cruz had “Watsonville” tattooed on one of his arms. Torres was 

wearing red shorts. 

On May 22, 2011, defendant was the passenger in a vehicle observed by a 

Watsonville police officer. When the car parked, the driver got out and quickly walked out 

of view. Defendant was contacted. Defendant was on probation and admitted that he was 

an active Norteño member. Defendant was wearing a red and black striped shirt and a 

Cincinnati Reds hat with a “C” on the front. The driver was later identified as Raymond 

Carthall. Carthall was gang affiliated, on parole, and not supposed to associate with other 

known gang members. 

When defendant was arrested in this case in July 2013, one of the cell phones in his 

possession had two music folders, one labeled “CML” with a money sign and the other 

4 The reporter’s transcript refers to “Joseph Granada” and “Joseph Granados.” We 

will refer to him as “Granada.” 
21

labeled “C $T.” A money sign is used to signify an “S” with a line through it. The music 

was “Norteño gangster rap-type music.” One of the songs was called, “Scrap is Going to 

Die,” which was about killing Sureños. Another song was called, “Going to Kill a Scrap,” 

which contained a lyric about “pulling drive-bys.” Defendant had two teardrop tattoos on 

the webbing of his index finger. 

Watsonville Police Detective Kristine Rangel testified that CML member Alejandro 

“Happy” Flores made rap music and videos promoting the gang. Flores’s rap videos were 

posted on YouTube. Defendant appears in Flores’s video for the song, “Roped Off,” which 

was posted on March 15, 2017. Narez, the Heinrichs, and Fragoso also appear in the video, 

as do other CML members. The individuals are wearing clothing consistent with CML 

membership. Flores also references defendant in the video for the song, “Still Crazy,” 

which was posted on July 26, 2016. 

Flores had a public Instagram account. One of the photographs posted on Flores’s 

account depicted Diaz, Anthony “Risky” Hernandez, and defendant, whose nickname was 

“Lonely Boy.” Diaz, Hernandez, and defendant were making CML gang signs with their 

hands. The photograph was posted on March 5, 2017. There was also a photograph of 

defendant posing that was posted on July 15, 2017, and a photograph of defendant making a 

“C” with his hand that was posted on March 21, 2017. The three photographs appeared to 

have been taken at the Santa Cruz jail. Flores is a known CML member and has a 

Mongolian hairstyle. The Instagram account also had the posting, “Lonely, keep your head 

up, my boy.” 

c. Predicate offenses

Corporal Perez testified that on December 18, 2009, a Sureño was shot at a trailer 

park on Green Valley Road. The police had no suspects until Rodriguez admitted that he 

was responsible for the shooting. 
22

Corporal Perez stated that in 2009, Adrian Rodriguez committed an assault with a 

deadly weapon, a firearm, with a gang enhancement. Also in 2009, Patrick Diaz committed 

three assaults with a deadly weapon. 

Corporal Perez testified that in 2010, Jose assaulted his girlfriend with a firearm. 

Corporal Perez stated that on July 8, 2011, Alvaro Melendrez was unlawfully in possession 

of firearm and was subsequently convicted of that offense. 

Corporal Perez stated that Ulysses Vasquez had been convicted of robbery with a 

gang enhancement and that Ulysses Castillo had been convicted of unlawful possession of a 

firearm. 

d. Expert opinions

Corporal Perez opined that Melendrez, Vasquez, Castillo, Jose, Adrian Rodriguez, 

and Diaz were active CML members on July 23, 2011. 

Based on the circumstances of defendant’s police contacts, defendant’s statements to 

the police, the gang indicia on defendant’s phone, the photographs of defendant in the 

presence of CML members, and Rodriguez’s testimony that defendant was “a jumped-in 

[CML] member,” Corporal Perez opined that defendant was an active member of CML on 

July 23, 2011. Corporal Perez also opined that Rodriguez was a CML member in 2011 

based on his admission of gang membership and his gang tattoos. 

Corporal Perez testified that Zargoza’s clothing and tattoos were consistent with 

Zargoza being a Sureño affiliate. Zargoza had no contacts with law enforcement. 

Corporal Perez opined that at the time of the murder, CML’s primary activities were 

robbery, assault with a deadly weapon, unlawful possession of firearms, and drug sales. 

Corporal Perez testified that based on the facts of this case and Rodriguez’s testimony, 

killing Zargoza would benefit CML because it would “put[] fear in rival gang members,” as 

it shows that CML members are not afraid to shoot a rival in broad daylight, around 

families. It would also make the community fearful of the gang, which would decrease the 

public’s willingness to report crimes, and help recruit new members. In Corporal Perez’s 
23

opinion, killing Zargoza would benefit defendant and Rodriguez because it would heighten 

their reputation and status in the gang as it shows they have no fear and would commit 

violence against their perceived rivals. Corporal Perez opined that Zargoza’s murder was 

committed by two gang members in association with each other. 

B. Defense Case

Defendant did not testify or call any witnesses. 

C. Charges, Verdicts, and Sentence

Defendant was charged by second amended information with special circumstances

murder (§§ 187, subd. (a), 190.2, subd. (a)(21), (22); count 1); two counts of shooting from 

a motor vehicle (§ 12034, subd. (c); counts 2 and 4); attempted murder (§§ 664/187, 

subd. (a); count 3); and active participation in a criminal street gang (§ 186.22, subd. (a); 

count 5). As to counts 1 through 4, it was alleged that defendant personally used and/or

personally and intentionally discharged a firearm causing great bodily injury or death

(§ 12022.53, subds. (b), (c), (d)), and that he committed the offenses for the benefit of, at the 

direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1), (5)). As to 

counts 2, 3 and 4, it was alleged that defendant personally inflicted great bodily injury (§

12022.7, subd. (a)). Regarding counts 2 and 3, it was alleged that defendant inflicted great 

bodily injury or death as a result of discharging a firearm from a motor vehicle (§ 

12022.55). As to count 3, it was alleged that defendant personally used a firearm (§ 

12022.5).

A jury convicted defendant of counts 1, 2, 4, and 5 and of assault with a deadly 

weapon (§ 245, subd. (a)(1), the lesser included offense to attempted murder charged in 

count 2. The jury found the sentence enhancement allegations true except it did not find 

that defendant violated section 12022.53 regarding count 3 because the allegation was not 

submitted to the jury. The jury also found a section 12022.55 enhancement true on count 4.5

5 The prosecution did not allege a section 12022.55 enhancement on count 4 and the 

trial court did not instruct on section 12022.55. In response to our request for supplemental 
24

The trial court sentenced defendant to LWOP consecutive to 55 years to life and 

imposed various fines and fees.

III. DISCUSSION

A. Corroboration of Accomplice Testimony

Defendant contends that insufficient evidence corroborates Rodriguez’s accomplice 

testimony in violation of section 1111 and his due process rights.6 The Attorney General 

counters that Rodriguez’s testimony is sufficiently corroborated by defendant’s admissions, 

bystander testimony, and DNA evidence. 

1. Legal Principles

Section 1111 mandates that “[a] conviction can not be had upon the testimony of an 

accomplice unless it be corroborated by such other evidence as shall tend to connect the 

defendant with the commission of the offense; and the corroboration is not sufficient if it 

merely shows the commission of the offense or the circumstances thereof.”

“This statute reflects the Legislature’s determination that ‘ “because of the reliability 

questions posed by” ’ accomplice testimony, such testimony ‘ “by itself is insufficient as a 

matter of law to support a conviction.” ’ [Citation.] ‘Thus, for the jury to rely on an 

accomplice’s testimony about the circumstances of an offense, it must find evidence that, “ 

‘without aid from the accomplice’s testimony, tend[s] to connect the defendant with the 

crime.’ ” ’ [Citation.] ‘ “The entire conduct of the parties, their relationship, acts, and 

conduct may be taken into consideration by the trier of fact in determining the sufficiency of 

briefing regarding the jury’s true finding on the uncharged enhancement, defendant 

concedes that the jury’s finding should be upheld because he impliedly consented to an 

informal amendment of the information and “the jurors were instructed on all the elements 

of section 12022.55.” The Attorney General argues that the charging error was harmless. 

We accept defendant’s concession. (See People v. Toro (1989) 47 Cal.3d 966, 976, 

disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; see 

also People v. Houston (2012) 54 Cal.4th 1186, 1227-1228.) 

6 The trial court instructed the jury with CALCRIM No. 335 that Rodriguez was an 

accomplice to the crimes as a matter of law.
25

the corroboration.” ’ [Citation.]” (People v. Rodriguez (2018) 4 Cal.5th 1123, 1128.) This 

includes the defendant’s statements and conduct. (People v. Gurule (2002) 28 Cal.4th 557, 

628 (Gurule).)

“ ‘The corroborating evidence may be circumstantial or slight and entitled to little 

consideration when standing alone, and it must tend to implicate the defendant by relating to 

an act that is an element of the crime.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 505 

(Abilez).) The independent evidence need not corroborate the accomplice as to every fact 

on which the accomplice testifies. (People v. Davis (2005) 36 Cal.4th 510, 543.) 

“ ‘ “Although the corroborating evidence must do more than raise a conjecture or suspicion 

of guilt, it is sufficient if it tends in some degree to implicate the defendant.” ’ ” (People v. 

Szeto (1981) 29 Cal.3d 20, 27 (Szeto).)

“ ‘The trier of fact’s determination on the issue of corroboration is binding on the 

reviewing court unless the corroborating evidence should not have been admitted or does 

not reasonably tend to connect the defendant with the commission of the crime.’ 

[Citations.]” (Abilez, supra, 41 Cal.4th at p. 505.)

2. Rodriguez’s Testimony Was Sufficiently Corroborated

Relying primarily on People v. Pedroza (2014) 231 Cal.App.4th 635 (Pedroza), 

defendant argues that without Rodriguez’s testimony, there is insufficient evidence 

connecting him to the offense. In Pedroza, an accomplice testified to the defendant’s 

involvement in the murder, which occurred sometime between 10:00 and 10:50 p.m. (Id. at 

pp. 639-640.) “[A]side from the [accomplice’s] testimony, the evidence relating to 

defendant was: (1) defendant was in the same gang as the victim and [the accomplice]; (2) 

the gang—which had over 400 members—was experiencing frequent in-house murders; and 

(3) at some time after 11:00 p.m., [a gang member’s wife] heard a banging noise at her 

house; a few hours later, between 2:00 and 3:00 a.m., she saw defendant in her garage, 

along with [three fellow gang members, including the accomplice].” (Id. at p. 651.) The 

Court of Appeal determined that the independent evidence did not sufficiently corroborate 
26

the accomplice’s testimony because it “established only that defendant had a general 

connection to the victim and other perpetrators—shared gang membership—and he was 

seen associating with the other perpetrators after the murder, away from the crime scene.” 

(Id. at p. 651.)

We find Pedroza distinguishable. As detailed below, evidence of defendant’s 

admissions, defendant’s opportunity to commit the offense, the manner of death, and 

eyewitness testimony sufficiently corroborate Rodriguez’s testimony.

A.R. testified that defendant told her that “he had killed a person and he had 

wounded a woman.” A.R. stated that defendant said “they had gone to a store” and 

Rodriguez was driving. “They were going to prepare a meal at [Rodriguez’s] home and

when they were in the car going back home they ran into two men and a woman. They 

passed them. They turned around and they came back to the same place and when they

came by [defendant] . . . had gotten the gun and he had fired it because he wanted to feel 

what it feels like when you would fire it.” Defendant stated that “they returned to 

[Rodriguez’s] home and then they left, both of them.” Defendant also told A.R. that “there 

had been a gang conflict.” 

Defendant’s admissions, as testified to by A.R., echoed Rodriguez’s testimony about 

the offense. They were also consistent with Salazar’s eyewitness testimony. A.R. testified 

that she learned about the offense from defendant and that she had never spoken to 

Rodriguez about it. In Pedroza, there was no comparable evidence—i.e., testimony 

regarding the defendant’s admissions—linking the defendant to the crime. “The necessary 

corroborative evidence for accomplice testimony can be a defendant’s own admissions.” 

(People v. Williams (1997) 16 Cal.4th 635, 680 (Williams); accord, People v. Avila (2006) 

38 Cal.4th 491, 563 (Avila).)

In addition to A.R.’s testimony on defendant’s admissions, Rodriguez’s testimony 

was corroborated by evidence of the manner of death, a gunshot fired from a .357 Ruger 

revolver, and DNA evidence from the food in Jack In The Box bag on the passenger seat 
27

floorboard that provided circumstantial evidence of defendant’s presence on the date of the 

offense in the front passenger seat of the vehicle from which the gunshot was fired. Also, 

Witness1 testified that Rodriguez and defendant had left Witness1 and Rodriguez’s 

apartment in the vehicle around 6:00 p.m., which was approximately 15 minutes before the 

murder, and returned about 20 to 25 minutes later, “grabbed a sweater,” and “ran out,” 

leaving the apartment complex on foot with the car parked in the complex’s lot. The car 

belonged to Witness1’s father, and when Witness1 had traveled in the vehicle with 

Rodriguez and defendant earlier in the day, Rodriguez drove and defendant sat in the front 

passenger seat. Witness1 stated that defendant had the gun with him in the vehicle, which 

she described as a “Ruger.” 

One of the victim’s cousins who was present during the shooting testified that the

vehicle’s male front passenger had fired shots from what was “probably a 357.” A

bystander testified that the vehicle’s front passenger had fired shots from a revolver. And 

the parties stipulated that if called to testify, a witness who saw the vehicle leaving the crime 

scene would state that the driver “had a red-colored tattoo on the left side of his neck.” 

Rodriguez had a red “C” tattooed on the left side of his neck. All of the above evidence 

corroborates Rodriguez’s testimony.

Abilez is instructive. There, the defendant claimed that “apart from [the 

accomplice’s] uncorroborated testimony, there was no evidence identifying him as the 

assailant.” (Abilez, supra, 41 Cal.4th at p. 505.) The California Supreme Court held 

otherwise, finding sufficient corroboration on the issue of identity based partly on two 

witnesses’ testimony “that, in the days before the murder, they heard defendant state he 

wished to kill the victim.” (Id. at pp. 505-506; see also Gurule, supra, 28 Cal.4th at p. 628 

[finding that the accomplice testimony “was amply corroborated by defendant’s own 

extrajudicial statements to police,” among other evidence].) In addition, “[a]ll the critical 

aspects of [the accomplice’s] testimony were corroborated,” based on evidence of the 

manner of death and the defendant’s and another visitor’s presence at the victim’s home on 
28

the evening of the murder, where a witness overheard the defendant and the victim argue 

and overheard the victim scream. (Abilez, supra, at p. 505.) 

Defendant asserts that A.R.’s testimony does not provide sufficient corroboration 

because it contains “multiple inaccuracies” and because A.R. did not speak English and 

defendant did not speak Spanish well. The inaccuracies included A.R.’s testimony that 

Rodriguez was driving a truck, instead of a sedan, and that defendant said that “they had 

killed a person.” (Italics added.) But A.R. also testified that defendant told her that “he had 

gotten the gun” and that “he had killed a person and he had wounded a woman.” Moreover, 

a Spanish-speaking investigator testified that in jail calls, defendant spoke Spanish to his 

mother, sister, and son. The investigator had no difficulty understanding defendant although 

sometimes defendant misinterpreted words. 

Based on our careful review of the record, we conclude that A.R.’s testimony on

defendant’s admissions, Witness1’s testimony regarding defendant’s opportunity to commit 

the offense, and the other evidence detailed above sufficiently corroborate Rodriguez’s

accomplice testimony because it “ ‘reasonably tend[s] to connect’ ” defendant with the 

crimes without aid from Rodriguez’s testimony. (Szeto, supra, 29 Cal.3d at p. 27, italics 

omitted; see also Abilez, supra, 41 Cal.4th at p. 505 [we are bound by “ ‘[t]he trier of fact’s 

determination on the issue of corroboration . . . unless the corroborating evidence should not 

have been admitted or does not reasonably tend to connect the defendant with the 

commission of the crime.’ ”].)

B. Corroboration of Accomplice Testimony Regarding Gang-Murder Special 

Circumstance

Defendant contends that the gang-murder special circumstance finding must be 

reversed because there is “insufficient evidence to corroborate Rodriguez’s testimony that 

the murder was [committed] to further the activities of the criminal street gang.” The 

Attorney General asserts that section 1111’s accomplice-testimony corroboration 

requirement does not apply to the gang-murder special circumstance because the gang-
29

murder special circumstance “required proof of defendant’s motive for the murder, not 

proof of a separate crime.” 

In People v. Hamilton (1989) 48 Cal.3d 1142, 1177 (Hamilton), the California 

Supreme Court held that “[w]hen the special circumstance requires proof of some other 

crime, that crime cannot be proved by the uncorroborated testimony of an accomplice. But 

when . . . it requires only proof of the motive for the murder for which defendant has already 

been convicted, the corroboration requirement of section 1111 does not apply.” (Footnote 

omitted.) The court observed that section 1111 provides that “ ‘[a] conviction cannot be had 

upon the testimony of an accomplice unless it be corroborated.’ ” (Hamilton, supra, at 

p. 1176.) The court analogized section 1111’s corroboration requirement to the requirement 

of proof of corpus delicti for special circumstances that “require[] proof of some crime other 

than the charged murder,” but not for special circumstances that “require[] only proof of the 

defendant’s motive for the murder or some other matter which does not constitute a separate 

criminal offense,” and “adopt[ed] the same distinction here.” (Hamilton, supra, at p. 1177.)

The California Supreme Court applied Hamilton’s holding in Avila, supra, 38 Cal.4th 

at page 570. There, the court determined that section 1111 did not apply to “the witnesskilling special circumstance” because that special circumstance “did not require proof of a 

crime other than the charged murder; rather, it required that ‘[t]he victim was a witness to a 

crime who was intentionally killed for the purpose of preventing his or her testimony in any 

criminal . . . proceeding . . . .’ (§ 190.2, subd. (a)(10).” (Avila, supra, at p. 570.)

Here, the gang-murder special circumstance required proof that “defendant 

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

street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out 

to further the activities of the criminal street gang.” (§ 190.2, subd. (a)(22).) Unlike the 

felony-murder special circumstance, for example, which requires proof that “[t]he murder 

was committed while the defendant was engaged in . . . the commission of” an enumerated

felony (§ 190.2, subd. (a)(17)(A)-(L)), and thus, requires proof of a crime’s commission in 
30

addition to the charged murder (see People v. Howard (1988) 44 Cal.3d 375, 414, 

superseded on another ground as recognized in People v. Shoemake (1993) 16 Cal.App.4th 

243, 253), the gang-murder special circumstance does not require proof of a crime other 

than the charged murder. Thus, under the court’s guidance in Hamilton and Avila, we 

determine that section 1111’s corroboration requirement does not apply to the gang-murder 

special circumstance.

But even if we assume that section 1111 requires corroboration of Rodriguez’s 

testimony as it pertains to the gang-murder special circumstance, defendant’s claim fails

because there is sufficient corroborating evidence in the record. As we stated above, “ ‘[t]he 

corroborating evidence may be circumstantial or slight and entitled to little consideration 

when standing alone, and it must tend to implicate the defendant by relating to an act that is 

an element of the crime.’ ” (Abilez, supra, 41 Cal.4th at p. 505.) 

First, there is evidence that corroborates Rodriguez’s testimony that defendant was a 

CML member. Witness1 testified that defendant had been “jumped in[to]” CML a year or 

two before the murder. In addition, there was extensive testimony regarding defendant’s 

police contacts in the years before the offense in the presence of CML members and 

defendant’s gang-related clothing. Before trial, defendant was visited by CML members in 

jail. 

There is also evidence that the offense was gang related. The victim’s cousin

testified that when the suspect vehicle initially drove by them before the shooting, “going 

really slowly” and then “stopp[ing],” the passenger “stared” and “gave [the victim, 

Zargoza,] this look.” Zargoza was wearing a blue nylon belt and blue gym shorts under his 

jeans and had a blue bandana in his pants pocket. He also had three dots tattooed on his 

chest and “X3” tattooed on his shin, and his shoe had “X3” written inside of it. 

Although Zargoza’s blue clothing and tattoos were not visible, a former Watsonville 

gang detective testified that Norteños have told him that “sometimes . . . they just know” 

when someone is “[a] rival gang member[] even if that person is not wearing blue.” 
31

Similarly, the prosecution’s gang expert testified that “someone could not be wearing any 

colors and neither group could be wearing any colors and both groups know exactly that that

person is not from their group and [is] . . . their enemy . . . by just looking at them,” based 

on the person’s “mannerisms” and the way the person “carr[ies] themselves.” The expert 

stated that in his experience, a gang conflict can often “start . . . with a look,” and if a 

“Sureño is found alone by a group of Norteños,” can end up with the person being chased, 

shot, and killed. The expert also testified that gangs use “[v]iolence . . . almost like a tool” 

to “put[] the fear in people” and “keep[] them in control. So violence against anybody is the 

tool that’s used the most . . . because that’s how you control an area.” According to the 

prosecution’s gang expert, the CML is a Norteño subset. At the time of the offense, CML’s 

primary activities were robbery, assault with a deadly weapon, unlawful possession of 

firearms, and drug sales. 

Taken together, this independent evidence “tends to connect . . . defendant” (People 

v. McDermott (2002) 28 Cal.4th 946, 986 (McDermott)) to a killing perpetrated “while . . . 

defendant was an active participant in a criminal street gang” that “was carried out to further 

the activities of the criminal street gang” (§ 190.2, subd. (a)(22)). 

Defendant argues that there is “insufficient evidence to corroborate Rodriguez’s 

testimony that the murder was [committed] to further the activities of the criminal street 

gang” because the gang expert’s opinion that the murder benefitted CML was based partly 

on Rodriguez’s testimony. However, “[t]he corroborating evidence need not by itself 

establish every element of the crime.” (McDermott, supra, 28 Cal.4th at p. 986.) Moreover, 

as we observed above, the expert testified that gangs use violence to control an area and 

make people fearful. To the extent that independent evidence was required to demonstrate 

that Zargoza’s murder furthered CML’s activities, this testimony provided the necessary “ 

‘circumstantial or slight’ ” corroboration. (Abilez, supra, 41 Cal.4th at p. 505.) 
32

In sum, we determine that section 1111 does not require corroboration of 

Rodriguez’s accomplice testimony as it pertains to the gang-murder special circumstance, 

but even if corroboration is required, the record contains sufficient corroborating evidence.

C. Admission of Instagram Photographs and YouTube Videos

Defendant contends that the trial court erred when it admitted as evidence of 

defendant’s gang status photographs posted on Instagram on March 5 and March 25, 2017,

and videos posted on YouTube on July 26, 2016 and March 17, 2017, because the evidence 

was irrelevant as it had not been authenticated. Defendant also contends that the evidence’s 

admission violated Evidence Code section 352 (section 352) because it was cumulative, 

lacked probative value, and was unduly prejudicial. The Attorney General argues that the 

claims have been forfeited and that the trial court did not abuse its discretion when it 

admitted the evidence. 

1. Trial Court Proceedings

The prosecution moved in limine to present evidence of defendant’s “gang activity 

while in custody.” Included in the proffered evidence were photographs and a video of 

defendant “flashing gang signs both alone and in the company of [two CML] members.” 

The prosecution asserted that the evidence was “highly relevant” to show defendant was an 

active participant in the gang on the date of the offense. 

At the hearing on the motion, the prosecution stated that the video “was produced by 

a member of the defendant’s gang while the defendant is in custody singing about Norte[ñ]o 

gangs in Watsonville and then there is an image of [defendant] in that video. [¶] . . . [¶] 

The footage appears to be on a similar visit as the Instagram photos that feature [defendant]

and some other gang members in custody throwing up a C for [CML]. [¶] The portion of 

this video has him with one of those same people. And the rapper is singing about freeing 

the person that is there with [defendant].” 
33

Defendant asserted that he had “foundational concerns about the video,” stating that 

he did not “know anything about when it was produced.” Defendant observed that he 

appeared in the video for “less than a second,” and was wearing orange jail clothes. 

Defendant argued that the video was “duplicative of [the] still photographs, which [were] a 

little more easy to pin down from a timeframe perspective,” and of Rodriguez’s anticipated 

testimony on CML members. Defendant argued that the video was “prejudicial given [his] 

role in it is minute compared to other actors that appear in this video.” 

The court ruled that the video was admissible under section 352 because it was not 

“significantly more prejudicial than probative,” was not unduly time consuming, and would

not confuse the jury. The court stated that defendant “reserve[ed] his right to contest the 

[video’s] admissibility based on other evidentiary concerns, for example, cumulative and/or 

lack of foundation.” 

The prosecution introduced the photographs and two videos during Detective 

Rangel’s testimony. Detective Rangel testified that the photographs were posted on CML 

member Alejandro Flores’s Instagram account. When the prosecution attempted to move 

the photographs into evidence, defendant “object[ed] on the foundational level with the 

witness.” After an unreported bench conference, the court sustained the objection. The 

prosecution asked Detective Rangel whether she had seen the photographs on Flores’s 

Instagram account, and Detective Rangel responded that she had. When the prosecution 

again asked to move the photographs into evidence, defendant stated that he had no 

objection and the court admitted them. 

The photograph posted on March 5, 2017, depicted defendant with two CML 

members. The individuals were making CML gang signs with their hands and were wearing 

jail clothes. One of the comments posted about the photograph mentioned defendant’s 
34

“nickname . . . Lonely Boy.” The photograph posted on March 21, 2017, showed defendant 

in the jail visiting area making a “C” with his hand.7

Detective Rangel testified that Flores was a rapper and that she had viewed Flores’s 

videos for the songs, “Still Crazy” and “Roped Off.” The court admitted the videos into 

evidence at the prosecution’s request after defendant had no objection. 

Detective Rangel stated that the “Still Crazy” video was posted on YouTube on July 

26, 2016. In it, Flores referenced defendant with the line, “Free my other brother Lonely, 

looking at life.” In “Roped Off,” which was posted on YouTube on March 15, 2017, 

defendant appeared in custody with “Happy Diaz,” who was also in custody. Several other 

CML members appeared in the video. The individuals wore clothes consistent with CML 

membership and appeared at various “gang strongholds.” 

2. Forfeiture

Evidence Code section 353 provides that “[a] verdict or finding shall not be set aside, 

nor shall the judgment or decision based thereon be reversed, by reason of the erroneous 

admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to 

exclude or to strike the evidence that was timely made and so stated as to make clear the 

specific ground of the objection or motion.” Thus, “ ‘the “defendant’s failure to make a 

timely and specific objection” on the ground asserted on appeal makes that ground not 

cognizable.’ ” (People v. Partida (2005) 37 Cal.4th 428, 434 (Partida).)

The evidentiary objection “ ‘must be made in such a way as to alert the trial court to 

the nature of the anticipated evidence and the basis on which exclusion is sought, and to 

afford the People an opportunity to establish its admissibility.’ [Citation.] What is 

important is that the objection fairly inform the trial court, as well as the party offering the 

evidence, of the specific reason or reasons the objecting party believes the evidence should 

be excluded, so the party offering the evidence can respond appropriately and the court can 

7 A photograph posted on Flores’s account on July 15, 2017, was also admitted into 

evidence. Defendant raises no claim on appeal regarding that photograph.
35

make a fully informed ruling. If the court overrules the objection, the objecting party may 

argue on appeal that the evidence should have been excluded for the reason asserted at trial, 

but it may not argue on appeal that the court should have excluded the evidence for a reason 

different from the one stated at trial. A party cannot argue the court erred in failing to 

conduct an analysis it was not asked to conduct.” (Partida, supra, 37 Cal.4th at p. 435.)

Here, defendant has forfeited his claims that the trial court erred when it admitted the 

Instagram photographs. Although defendant initially objected to the photographs’ 

admission on foundation grounds, which the trial court sustained, defendant did not state 

any further objection when the prosecution renewed its request to move the photographs 

into evidence after laying additional foundation. In fact, defendant stated that he had no 

objection to the photographs’ admission after additional foundation was laid. Accordingly, 

defendant’s claims regarding the photographs are “ ‘not cognizable.’ ” (Partida, supra, 37 

Cal.4th at p. 434.)

We also conclude that defendant has forfeited his claim that the trial court improperly 

admitted the YouTube videos because they were irrelevant as they were not authenticated. 

While defendant stated during the in limine hearing that he had “foundational concerns” 

about the video evidence because he did not “know anything about when it was produced,”

the trial court directed defendant to renew his foundational objection when the evidence was 

introduced. Defendant failed to do so, specifically stating that he had no objection to the 

videos’ admission. Thus, defendant’s claim that the videos were inadmissible because they 

were unauthenticated and irrelevant is also “ ‘not cognizable’ ” on appeal. (Partida, supra, 

37 Cal.4th at p. 434.) 

Defendant further contends that the trial court abused its discretion under section 352 

when it admitted the videos because they were cumulative, lacked probative value, and were 

unduly prejudicial. Defendant argues that “the prosecution had already introduced

numerous other evidence to prove that [he] was a gang member,” and that video evidence 

indicating that he may have been a gang member in 2016 and 2017 was of little probative 
36

value to whether he was a gang member in 2011. Defendant observes that he did not appear 

in one of the videos and had little control over what was written about him. In addition, 

defendant argues that the video evidence “evoked an emotional bias against [him]” because 

it showed him smiling, associating with gang members post-arrest, and seemingly 

unworried about the serious charges he faced. 

These claims were also not preserved. Defendant argued during the in limine hearing 

that the video evidence was “duplicative of [the] still photographs” and of Rodriguez’s 

testimony. However, the trial court stated that it was “not making a decision as to . . . 

whether [the video evidence] potentially, depending on what evidence is presented, becomes 

cumulative,” and directed defendant to “contest [its] admissibility based on . . . 

cumulative[ness]” when the evidence was presented. Defendant did not do so, lodging no 

objection when the prosecution requested to move the videos into evidence during trial, and 

has therefore forfeited the claim. 

Lastly, regarding the prejudicial nature of the video evidence, defendant argued 

below that it was “prejudicial given that [his] role in it is minute compared to other actors 

that appear in [it.]” We conclude that this argument did not “fairly inform the trial 

court . . . of the specific reason or reasons [defendant now] believes the evidence should 

[have] be[en] excluded”—namely, that its probative value was minimal given that the 

videos were posted years after the charged offense and were made by someone else and that 

it “evoked an emotional bias against [him].” (Partida, supra, 37 Cal.4th at p. 435, italics 

added.) 

For these reasons, we conclude that defendant’s claims regarding the Instagram 

photographs and YouTube videos are “ ‘not cognizable’ ” on appeal. (Partida, supra, 37 

Cal.4th at p. 434.)

3. Ineffective Assistance of Counsel

Defendant contends that if we find that his claims regarding the Instagram 

photographs and the YouTube videos have been forfeited, his trial counsel was ineffective 
37

for failing to adequately object to their admission. Defendant argues that “there simply

could have been no rational tactical purpose for counsel’s failure to object.” 

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must 

establish both that his or her counsel’s performance was deficient and that he or she suffered 

prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient 

performance component of an ineffective assistance of counsel claim requires a showing 

that “counsel’s representation fell below an objective standard of reasonableness” under 

prevailing professional norms. (Id. at p. 688.) “When a claim of ineffective assistance is 

made on direct appeal, and the record does not show the reason for counsel’s challenged 

actions or omissions, the conviction must be affirmed unless there could be no satisfactory 

explanation. [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).) 

Regarding prejudice, a “defendant must show that there is a reasonable probability”—

meaning “a probability sufficient to undermine confidence in the outcome”—“that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” 

(Strickland, supra, at p. 694.) Prejudice requires a showing of “a ‘ “demonstrable reality,” 

not simply speculation.’ ” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) “If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . 

that course should be followed.” (Strickland, supra, at p. 697.)

Here, the record is silent regarding why counsel did not object to the two Instagram 

photographs now challenged on appeal and thus “affords no basis for concluding that 

counsel’s omission was not based on an informed tactical choice.” (Anderson, supra, 25 

Cal.4th at p. 569.) For example, “counsel may have desired not to highlight the evidence by 

making an objection. ‘[T]he decision whether to object . . . is highly tactical, and depends 

upon counsel’s evaluation of the gravity of the problem and whether objection or other 

responses would serve only to highlight the undesirable [evidence].’ [Citation.]” (People v.

Seumanu (2015) 61 Cal.4th 1293, 1313, omitted (Seumanu).) Because there is a 

“satisfactory explanation” for counsel’s failure to object to the photographs, defendant’s 
38

ineffective-assistance claim regarding the photographs must be denied. (Anderson, supra, at 

p. 569.)

Regarding the Instagram videos, which counsel initially objected to on different 

grounds than those asserted here, we conclude that defendant has not demonstrated that he 

was prejudiced by their admission because he has not shown “a reasonable probability” that 

but for their admission, “the result of the proceeding would have been different.” 

(Strickland, supra, 466 U.S. at p. 694.)

The evidence against defendant was strong. Defendant admitted to his former 

girlfriend after he fled to Mexico that “he had killed a person” and that “there had been a 

gang conflict.” Defendant’s accomplice, Rodriguez, testified that they had seen a suspected 

Sureño near Target who had disrespected them and that they were “going to get [him].” 

Rodriguez stated that defendant fired a .357 revolver five times out the passenger window as 

Rodriguez drove down a parking aisle and that defendant later admitted that he had left the 

expended shell casings in a Jack In The Box bag in the car. Rodriguez also testified that he 

and defendant were CML members. 

As we detailed above, Rodriguez’s testimony was amply corroborated by other 

evidence, including bystander testimony identifying the vehicle’s passenger as the shooter 

and the driver as a man with a red tattoo on his neck, which Rodriguez had, and DNA 

evidence linking defendant to the Jack In The Box bag, which was found on the front 

passenger floorboard and contained four .357 shell casings. Moreover, the videos were not 

more inflammatory than the evidence of Zargoza’s murder and seemingly did not evoke an 

emotional response as the jury did not find defendant guilty as charged, convicting him of 

assaulting Salazar with a deadly weapon rather than attempted murder. 

In sum, we reject defendant’s claim that his counsel was ineffective for failing to 

adequately object to the Instagram photographs and YouTube videos because defendant has 

failed to meet his burden under Strickland as he has shown neither deficient performance 

nor prejudice.
39

D. Counsel’s Failure to Elicit Voluntary Intoxication Evidence and to Request 

Voluntary Intoxication Instructions 

Defendant contends that his trial counsel was ineffective for failing to elicit evidence 

that defendant was intoxicated during the offense and for failing to request voluntary 

intoxication instructions. The Attorney General asserts that defendant’s claim fails 

primarily because defendant has failed to show that there were no tactical reasons for the 

omissions. 

As stated above, to prevail on a claim of ineffective assistance of counsel, a criminal 

defendant must establish both that his or her counsel’s performance was deficient and that 

he or she suffered prejudice. (Strickland, supra, 466 U.S. at p. 687.)

Defendant contends that his trial counsel “could have elicited information from 

Rodriguez and Witness[1] . . . that [he] was under the influence” during the murder. 

However, the record is silent regarding the reason for counsel’s decision not to elicit 

evidence of defendant’s voluntary intoxication from Rodriguez and Witness1 and thus 

“affords no basis for concluding that counsel’s omission was not based on an informed 

tactical choice.” (Anderson, supra, 25 Cal.4th at p. 569.) Given that Rodriguez testified on 

cross-examination that despite defendant’s history of “alcohol-related behavior,” he was 

“doing better” at the time of the offense, which was consistent with his testimony on direct 

examination and with defendant’s mother’s testimony, perhaps counsel determined that a 

voluntary-intoxication defense was not factually supported. 

Defendant also contends that his counsel was deficient for failing to request jury 

instructions on voluntary intoxication. Defendant asserts that there was substantial evidence 

to support the instruction based on evidence that his accomplice “Rodriguez was a drug user 

and a drug dealer”; on the day of the offense, defendant and Rodriguez twice went to a 

liquor store and twice bought marijuana; Rodriguez admitted that he was “ ‘high on weed’ ” 

when he was shooting in the woods with defendant before the offense; and defendant had 

“an alcohol addiction problem.” 
40

However, “[a] defendant is entitled to such an instruction only when there is 

substantial evidence of the defendant’s voluntary intoxication and the intoxication affected 

the defendant’s ‘actual formation of specific intent.’ ” (Williams, supra, 16 Cal.4th at p. 

677); see also People v. Verdugo (2010) 50 Cal.4th 263, 295.) Even assuming “th[e] scant 

evidence” on which defendant relies constitutes substantial evidence of his voluntary 

intoxication, which is doubtful, “there was no evidence at all that voluntary intoxication had 

any effect on defendant’s ability to formulate intent.” (Williams, supra, at pp. 677-678.) 

Thus, counsel was not remiss for failing to request voluntary intoxication instructions. (See 

People v. Gray (2005) 37 Cal.4th 168, 219-220 [counsel not ineffective for failing to request 

jury instructions unsupported by substantial evidence].)

E. Eyewitness Identification Instruction

Defendant contends that the trial court violated his federal due process rights when it 

instructed the jury on eyewitness identification testimony with CALCRIM No. 315 because 

the instruction told the jury to consider an eyewitness’s level of certainty when evaluating 

his or her testimony. Defendant argues that because eyewitness certainty is not a reliable 

predictor of accuracy, the instruction was erroneous and lowered the prosecution’s burden 

of proof. The Attorney General counters that the claim has been forfeited and that there was 

no eyewitness identification testimony as none of the bystander eyewitnesses identified 

defendant as the shooter. 

Pursuant to CALCRIM No. 315, the trial court instructed the jury, “You have heard 

eyewitness testimony identifying the defendant. As with any other witness, you must decide 

whether an eyewitness gave truthful and accurate testimony.” The court listed 15 

“questions” for the jury to consider, including, “How certain was the witness when he or she 

made an identification?” The court also stated, “The People have the burden of proving 

beyond a reasonable doubt that it was the defendant who committed the crime. If the People 
41

have not met this burden, you must find the defendant not guilty.”8 Defendant did not 

object to the instruction.

In People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez), the defendant claimed the trial 

court erred when it instructed jurors pursuant to CALJIC No. 2.92 that they should consider 

“ ‘the extent to which the witness is either certain or uncertain of the identification,’ ” 

because the language was at odds with “scientific studies that conclude there is, at best, a 

weak correlation between witness certainty and accuracy.” (Sánchez, supra, at p. 461, fn. 

omitted.) The California Supreme Court determined the defendant’s claim had been 

forfeited by his failure to request modification of the instruction in the trial court. (Id. at pp. 

461-462; see also People v. Ward (2005) 36 Cal.4th 186, 213 (Ward) [finding no sua sponte 

duty to modify CALJIC No. 2.92 and no due process violation].)

Here, like the defendant in Sánchez, defendant forfeited any challenge to the trial 

court’s eyewitness identification instruction by failing to object to the instruction or request 

8 The entirety of the trial court’s eyewitness identification instruction stated: “You 

have heard eyewitness testimony identifying the defendant. As with any other witness, you 

must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating 

identification testimony, consider the following questions: Did the witness know or have 

contact with the defendant before the event? [¶] How well could the witness see the 

perpetrator? [¶] What were the circumstances affecting the witness’s ability to observe, 

such as lighting, weather conditions, obstructions, distance, and duration of observation? 

[¶] How closely was the witness paying attention? [¶] Was the witness under stress when 

he or she made the observation? [¶] Did the witness give a description and how does that 

description compare to the defendant? [¶] How much time passed between the event and 

the time when the witness identified the defendant? [¶] Was the witness able to pick a 

perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did 

the witness ever change his or her mind about the identification? [¶] How certain was the 

witness when he or she made an identification? [¶] Are the witness and the defendant of 

different races? [¶] Was the witness able to identify other participants in the crime? [¶] 

Was the witness able to identify the defendant in a photographic or physical lineup? [¶] 

Were there any other circumstances affecting the witness’s ability to make an accurate 

identification? [¶] The People have the burden of proving beyond a reasonable doubt that it 

was the defendant who committed the crime. If the People have not met this burden, you 

must find the defendant not guilty.” 
42

its modification. (See Sánchez, supra, 63 Cal.4th at pp. 461-462; see also Ward, supra, 36 

Cal.4th at p. 213.) 

Moreover, in People v. Lemcke (2021) 11 Cal.5th 644, 646 (Lemcke), the California 

Supreme Court recently rejected the defendant’s due process challenge to CALCRIM No. 

315.9 The court found “nothing in CALCRIM No. 315’s instruction on witness certainty 

that operates to ‘lower the prosecution’s burden of proof.’ ” (Lemke, supra, at p. 657.) Nor 

did the instruction violate the defendant’s due process rights “by denying him ‘a 

“meaningful opportunity to present a complete defense” ’ ” or by rendering the trial 

fundamentally unfair. (Id. at pp. 660-661; but see id. at pp. 647-648 [referring the issue to 

the Judicial Council for evaluation of how the instruction can be “modified to avoid juror 

confusion regarding the correlation between certainty and accuracy,” and directing trial 

courts to “omit the certainty factor from CALCRIM No. 315 unless the defendant requests 

otherwise”].) 

We are bound by Lemke and likewise conclude that the instruction did not lower the 

prosecution’s burden of proof or otherwise violate defendant’s due process rights. (See 

Lemcke, supra, 11 Cal.5th at pp. 657, 660-661.) Thus, even if defendant’s challenge to 

CALCRIM No. 315 were not forfeited, and assuming the bystanders’ identifications of the 

passenger as the shooter constituted an eyewitness identification, defendant’s claim fails.

F. Failure to Object to Prosecutorial Misconduct During Argument

Defendant contends that his counsel was ineffective for failing to object to 

prosecutorial misconduct during rebuttal argument. Defendant claims that the prosecutor 

committed misconduct when he told the jury that A.R.’s testimony describing Rodriguez as 

“a sangrone [sic]” did not “necessarily” translate to “conceited or arrogant,” but instead 

“means that you’re an asshole,” because the prosecutor’s translation was not evidence. 

Defendant also claims that “the prosecutor misled the jury into believing that [he] was cold 

9 The defendant in Lemcke objected to the CALCRIM No. 315 instruction. (Lemcke, 

supra, 11 Cal.5th at p. 652.)
43

blooded and was willing to let his mentor and good friend Rodriguez . . . be the fall guy,

when in reality, [defendant’s nonadmitted confession to the police] helped Rodriguez obtain 

a light sentence.” The Attorney General argues that no misconduct occurred and that even if 

the prosecutor’s statements constituted misconduct, the statements were harmless. 

The general rules applying to claims of prosecutorial misconduct are as follows: “A 

prosecutor’s conduct violates the federal Constitution only when it is ‘ “ ‘so egregious that it 

infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ 

[Citations.] A prosecutor’s conduct that does not rise to the level of a constitutional 

violation will constitute misconduct under state law only if it involves ‘ “ ‘the use of 

deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ 

[Citation.] A prosecutor is given wide latitude to vigorously argue his or her case and to 

make fair comment upon the evidence, including reasonable inferences or deductions that 

may be drawn from the evidence. [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 

726 (Ledesma).) “When attacking the prosecutor’s remarks to the jury, the defendant must 

show that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was 

‘a reasonable likelihood the jury understood or applied the complained-of comments in an 

improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly 

infer” that the jury drew the most damaging rather than the least damaging meaning from 

the prosecutor’s statements. [Citation.]’ [Citations.]” (People v. Centeno (2014) 60 Cal.4th 

659, 667.)

“ ‘A defendant may not complain on appeal of prosecutorial misconduct unless in a 

timely fashion, and on the same ground, the defendant objected to the action and also 

requested that the jury be admonished to disregard the perceived impropriety.’ [Citation.] 

A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can 

argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the 

effective assistance of counsel.” (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).) 

“Keeping in mind that ‘[a]n attorney may choose not to object for many reasons, and the 
44

failure to object rarely establishes ineffectiveness of counsel’ [citation], we examine each 

instance of alleged misconduct.” (Williams, supra, 16 Cal.4th at p. 221.)

1. Translation of “Sangr[ó]n[]”

A.R. testified that she and Rodriguez were not close and that she did not like him 

because he “thought very highly of himself and was conce[it]ed.” 

During closing argument, defense counsel asserted that “Rodriguez is a liar” whose 

testimony should be disregarded, and that A.R.’s testimony regarding defendant’s “alleged 

confession [was] unreliable” because she was Rodriguez’s cousin and had been in a 

relationship with defendant. 

The prosecutor asserted in rebuttal that inspectors learned of A.R. when Rodriguez’s 

family members in Mexico suggested that they speak to her because she had been involved 

with defendant. The prosecutor argued, “That’s how they came across [A.R.], not because

she came up wanting to divulge this information to help her cousin, the cousin that she 

described in the Spanish word, sangr[ó]n[], which doesn’t just necessarily mean conceited 

or arrogant, I don’t think the translation does it justice. To be clear, you call somebody a 

sangr[ó]n[], that means that you’re an asshole, that’s what that means. Make no mistake, 

[A.R.], she doesn’t have love for [Rodriguez].” 

Although a prosecutor has “wide latitude to vigorously argue his or her case and to 

make fair comment upon the evidence” (Ledesma, supra, 39 Cal.4th at p. 726), A.R.’s 

purported use of the word “sangr[ó]n[]” to describe Rodriguez was not in evidence, nor was 

the prosecutor’s translation of A.R.’s testimony. Thus, the remark constituted misconduct 

under state law. As the California Supreme Court explained in People v. Hill (1998) 17 

Cal.4th 800, 827-828 (Hill), referring to facts not in evidence “is ‘clearly . . . misconduct’ 

[citation], because such statements ‘tend[] to make the prosecutor his [or her] own 

witness—offering unsworn testimony not subject to cross-examination. It has been 

recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to 

the jury because of the special regard the jury has for the prosecutor, thereby effectively 
45

circumventing the rules of evidence.” [Citations.]’ ‘Statements of supposed facts not in 

evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ 

[Citation.]”

We conclude, however, that defendant has not established that his counsel was 

deficient for failing to object to the prosecutor’s remark or that he was prejudiced by it. 

(See Lopez, supra, 42 Cal.4th at p. 966.) As we have stated, “ ‘[d]eciding whether to object 

is inherently tactical, and the failure to object will rarely establish ineffective assistance.’ ” 

(Id. at p. 972.) Here, counsel could have reasonably surmised that the prosecutor’s labeling 

of Rodriguez as “an asshole” was not detrimental to his argument that Rodriguez’s 

testimony should be disregarded, even if the prosecutor attributed the use of the word 

“sangr[ó]n[]” to A.R. Or, “defense counsel may simply have desired not to highlight the 

comment by objecting.” (Gurule, supra, 28 Cal.4th at p. 610.) 

Nor has defendant persuaded us that counsel’s nonobjection resulted in prejudice. 

The prosecutor’s comment was brief; the jury had ample opportunity to assess A.R.’s and 

Rodriguez’s credibility and demeanor during their testimony; and the jury was instructed 

that “[n]othing that the attorneys say is evidence” and that it “must rely on the [interpreter’s] 

translation” of witnesses’ testimony. Given the strength of the evidence against defendant, 

as we have detailed above, we find no “reasonable probability” that had counsel objected to 

the prosecutor’s statement and the jury been admonished to disregard it, “the result of the 

proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.)

2. Misleading the Jury

Defendant was interviewed by the police in 2013. During the interview, defendant 

admitted, “Fine, I did it, bro’. Yeah, I shot him. [¶] . . . [¶] . . . Five times, all five rounds.” 

Defendant also stated, “[Rodriguez] had nothing to do with it. He just drove by, I shot five 

times. Then he drove off.” Defendant continued, “[Rodriguez] was trying to tell me, he 

was trying to get me to stop. He told me to stop three times. I didn’t listen, I still did it.” 
46

In a motion in limine, the prosecution stated that it did not seek admission of 

defendant’s confession to the police in its case in chief because the confession occurred after 

defendant had invoked his right to remain silent. The prosecution sought permission to 

impeach defendant with the confession if defendant testified. The trial court excluded 

evidence of the confession in the prosecution’s case in chief but indicated that it would 

allow the introduction of inconsistent statements if defendant testified. Defendant did not 

testify and none of his statements to the police were admitted into evidence.

The parties stipulated at trial that Rodriguez’s statements to the police were given to 

defendant in 2013 and that the statements would not be admissible against defendant at trial 

unless Rodriguez testified. The parties also stipulated that the preliminary hearing was held 

in 2015 and that Rodriguez’s statements to the police were admitted against defendant and 

Rodriguez at the hearing. 

Rodriguez testified at trial that during a break in the preliminary hearing, he was 

placed in a van with defendant. As relevant here, defendant told Rodriguez that they were 

“brothers, homies,” and to “stay strong, they want you real bad to get to me.” Rodriguez 

asked defendant “how much time [he was] willing to do,” and defendant responded, “None, 

bro.” Rodriguez thought that was “[s]elfish” and would affect him “[r]eal bad” because he 

“would . . . be[] the one getting convicted for it.” Rodriguez testified that at no point did 

defendant get angry at him for naming defendant as the shooter or accuse Rodriguez of 

lying. 

Rodriguez testified that he decided to cooperate with the prosecution in 

October 2016. When asked why he “waited[ed] so long” to cooperate, Rodriguez 

responded, “Because I still had hope that [defendant] would man up and accept whatever he 

had coming, say the truth, say he shot someone, try to get . . . a deal for him and I would 

take whatever they offered me.” 

During rebuttal argument, the prosecutor asserted: “[Defendant,] the so-called family

member[,] is willing to just look the other way and let [Rodriguez] take the full fall, 
47

knowing darn well what he did, and then he’s in the van telling him, you’ve got to stay

strong, you know, because the only way they can get to me is by getting to you and getting 

you to testify. [Defendant] has the gall to tell [Rodriguez] to keep his mouth shut so he can 

walk. I mean, give me a break, that’s a dirt bag move, that is downright dirt bag, even on 

the street. Like [Rodriguez] said, you got to own up to what you do, you got man up for 

what you do. [Rodriguez] manned up and he’s acknowledged what he’s done, and we know 

from the transportation van that [defendant] never said, what the hell are you doing, 

accusing me of murder, what the hell you doing, accusing me of shooting, why did you put 

me in the passenger seat firing that . . . gun if you knew damn well that wasn’t me. . . . 

[Defendant] told [Rodriguez], keep your mouth shut because they want your statement, and . 

. . when [defendant] says, they want your statement, that’s because he knows that everything 

that is said by [Rodriguez] is what’s the truth.”

Defendant contends that the prosecutor’s comments were misconduct because they 

were misleading as “the prosecutor knew that [defendant] had taken responsibility and told 

the police he was the shooter and told the police Rodriguez did not ask him to shoot.” 

Defendant also argues that it was improper for the prosecutor to “accuse[] [defendant] of 

being a ‘dirt bag’ ” and of “let[ting] take Rodriguez take the fall” given defendant’s 

confession. 

As we stated earlier, a prosecutor has “wide latitude to vigorously argue his or her 

case.” (Ledesma, supra, 39 Cal.4th at p. 726.) A prosecutor’s “argument may be strongly 

worded and vigorous so long as it fairly comments on the evidence admitted at trial or asks 

the jury to draw reasonable inferences and deductions from that evidence.” (Seumanu, 

supra, 61 Cal.4th at p. 1330.) Based on the evidence of defendant’s statements in the van 

telling Rodriguez to “stay strong,” “they want you real bad to . . . get to me,” and that he 

was unwilling to do any “time” in this case, it was not improper for the prosecutor to argue 

that defendant “ha[d] the gall to tell [Rodriguez] to keep his mouth shut so he can walk” and 

to call it “a dirt bag move.” The argument was a fair comment on the evidence, and “[u]sing 
48

colorful or hyperbolic language will not generally establish prosecutorial misconduct.” 

(People v. Peoples (2016) 62 Cal.4th 718, 793.) Thus, defense counsel was not remiss in 

failing to object to those remarks. (See People v. Thomas (1992) 2 Cal.4th 489, 531

[because there was no misconduct, “counsel was not ineffective in making no objection”].)

The prosecutor also argued, “[Defendant] has the gall to tell [Rodriguez] to keep his 

mouth shut so he can walk. Like [Rodriguez] said, you got to own up to what you do, you 

got man up for what you do. [Rodriguez] manned up and he’s acknowledged what he’s 

done.” While Rodriguez testified that he waited to cooperate with the prosecution to see if 

“[defendant] would man up,” the prosecutor’s argument implies that defendant did not “man 

up,” which is at odds with defendant’s confession to the police. A prosecutor commits 

misconduct when he or she misleads the jury on the facts or the law. (See Hill, supra, 17 

Cal.4th at pp. 825, 845; People v. Daggett (1990) 225 Cal.App.3d 751, 758 [a prosecutor 

may not mislead jurors by asking them “to draw an inference that they might not have 

drawn if they had heard the evidence the judge had excluded”].) And to the extent that the 

prosecutor was referring to defendant’s failure to plead guilty, “a defendant’s character may 

not be impugned because he [or she] has elected to stand trial.” (People v. Rusling (1969) 

268 Cal.App.2d 930, 938.)

Because defendant did not object to the comment, he must establish that his counsel 

performed deficiently and demonstrate “a reasonable probability” that the trial result would 

have been different had an objection to the remark been lodged and sustained. (Strickland, 

supra, 466 U.S. at p. 694.) Defendant fails to do so.

First, counsel reasonably could have decided not to object to the remark to avoid

bringing further attention to it. (See Seumanu, supra, 61 Cal.4th at p. 1313.) Second, the 

evidence against defendant was strong. As detailed above, Rodriguez, defendant’s 

accomplice, testified that defendant was the shooter, and Rodriguez’s testimony was amply 

corroborated by evidence of opportunity, the manner of death, and eyewitness testimony

that the passenger was the shooter. Moreover, A.R. testified to defendant’s admission that
49

“he had killed a person and had wounded a woman.” In addition, the challenged comment

did not “ ‘serve to fill an evidentiary gap in the prosecution’s case.’ ” (People v. Vargas

(1973) 9 Cal.3d 470, 480.) And the jury was instructed that it “must not be biased against . . 

. defendant just because he has been . . . brought to trial” and that the attorneys’ “remarks 

are not evidence.” Given the strength of the evidence against defendant and the court’s 

instructions, any deficient performance based on counsel’s failure to object to the brief 

remark would have been harmless. (See Williams, supra, 16 Cal.4th at pp. 222-224.)

G. Biased Juror

Defendant contends that his convictions must be reversed because a sitting juror had 

an actual bias against him, which violated his federal and state constitutional rights to a fair 

trial. The Attorney General argues that the record does not demonstrate that a juror had an 

actual bias. 

1. Trial Court Proceedings

On November 28, 2017, the court informed the parties that college students had 

observed the trial and that a professor had contacted the district attorney’s office because a

student wrote a report stating that a juror told her that he thought defendant was guilty. The 

court and the parties agreed that they needed to determine “who made this statement and 

what the context was.” The court observed that the report contained “a series of 

inaccuracies,” but stated that “if indeed that is as an accurate comment, I possess distinct 

concerns with that individual being able to stay on the jury any longer.” 

As relevant here, the report, dated November 7, stated that the student “sat in on a 

hearing for case number F19741 [sic] Cesar Rosales Vs. the People” and that the case was 

“extremely long.” The report recounted that “[t]here were three key witnesses who testified 

against the defendant, including his friend/gang member . . . Rodriguez, his mother and his 

ex-girlfriend from Mexico,” and purported to summarize their testimony. The report also 

stated, “During the recession [sic] a man outside the courthouse and I were talking about 
50

parking and he told me ‘This case isn’t looking good for the defendant, he’s going to be 

convicted of first degree murder[.]’[] Based on the mass of evidence and testimony against 

the defendant and the statement from the juror. My prediction is that the defendant will be 

found guilty.” 

On November 30, the student was questioned by the court and counsel. When asked 

if she had spoken with a juror, the student responded that she talked to a juror on November 

7 or 8 but was unsure if he “was from this case.” The student added, “He did tell me that he 

received a slip for parking because he was a juror prior, like, two weeks before when I 

talked to him.” The student had been uncertain whether she was “allowed to park out there” 

and had asked the juror where he parked. The juror told her that “he parked out there with 

the slip that he was provided” and asked the student if she was “writing for the paper.” The 

student responded that she was writing for a class. The student told the court, “And he told 

me that this case wasn’t looking good for the defendant and he thinks that he will be guilty. 

[¶] However, the man -- it . . . was a heavy-set older man, but his hair wasn’t as white as all 

the other heavy-set men I saw today.” The student stated that she did not recognize any of 

the men on the jury. The court noted that the student had been in the courtroom for 45 

minutes to an hour, which gave her an opportunity to observe the jury. 

When asked by the prosecution whether she recognized any of the people sitting in 

the jury box, the student responded, “I didn’t believe so.” The student stated that the man

“act[ed] . . . like . . a juror” because “[he] had that [parking] slip.” The student said that the 

juror did not specify the case he served on. At the prosecution’s request, the student 

described the juror’s appearance. 

Defense counsel asked whether the student had been watching the testimony on the 

day she spoke with the juror and the student stated that she had. When asked whether the 

juror “[w]as . . . also in this courtroom watching some of [the] testimony,” the student 

responded, “That I’m not sure.” Defense counsel asked if the juror specified that defendant 

was going to be convicted of first degree murder, and the student responded, “He said 
51

guilty,” and, “I put the first degree murder part in [the report]. He said guilty.” The student 

believed that she spoke to the juror on the date of opening statements. 

At the conclusion of questioning, defense counsel stated that he was concerned 

because he was unaware of “any other trial in the immediate courtroom to our left. By that 

day, we had our impaneled jury and all the excused jurors were long gone for at least a day. 

[¶] Anyone who was identifying as a juror and speaking about not looking good for the 

defendant, I think, quite frankly, it has to be this trial.” 

The court agreed to investigate further. The court stated that it would question each 

juror individually and that it was “pretty confid[e]nt that this would have been a juror in our 

case. And, from the Court’s perspective, . . . if indeed such a discussion occurred and there 

isn’t a good explanation for it, I don’t see any other choice but to excuse that juror.” 

On December 1, the court told the jury that a student had watched the trial on 

November 7 and had written a report on it for her class. The court explained that it had

received the report because the student mentioned “having a discussion with one of our

[male] jurors about this case. So from a due diligence perspective, I'll need to specifically 

discuss that with each [male] juror to see if that is you.” The court added that “nobody is in 

trouble for this.” The court then questioned each male juror individually, asking them 

whether they had a conversation with a student about parking that included a reference to 

the case and describing the student’s appearance to them. All of the male jurors denied 

having such a conversation. 

After questioning the jurors, the court observed that the interaction was “not ringing a 

bell with anyone.” The court found, “I believe this was such a transitory contact between 

the juror and the [student] and so benign from that particular individual’s perspective that 

even presuming that it took place, I don’t see an adverse impact to these individuals 

continuing to serve. No one has recalled anything about this contact and I am also taking 

into account the fact that there is a certain level of inaccuracy with the descriptions offered 

by this [student] within the report. I think that [the student] was trying to be as genuine as 
52

possible, I’m not suggesting she’s making something up, but there is certainly a lack of 

sophistication on her part as to what the process is and what actually was even said during 

the date that she was here, inaccuracies regarding her description as to what was discussed 

and presented. [¶] So from the Court’s perspective, in light of the fact that we’ve gone 

through our due diligence regarding each of these individuals, my intent is to simply 

proceed with this case.” 

Defense counsel disagreed that the interaction was “benign,” observing that the 

juror’s statement that “things don’t look good for the defendant, I believe he will be 

convicted of first-degree murder, that, to me, sounds like somebody has formed an

opinion, which is in direct contradiction with the Court’s orders, and so I think -- I think 

simply in that regard, it’s worth and warrants an investigation. I am in agreement, however, 

that I don’t know that there’s any evidence to suggest that the [jurors] who came in front of 

the Court this afternoon were being untruthful or, for that matter, the young student herself 

was somehow being untruthful.” 

The prosecution stated that there were “many misrepresentations” in the student’s 

report, including that when she observed the trial, Rodriguez had already testified against 

defendant, which was “factually inaccurate.” The prosecution questioned whether the 

student was “lying” and stated, “[T]here’s some things that seem to be very much 

augmented to paint a much more detailed story there and there are inaccuracies, so I just 

want to point that out and I agree and I respect your decision with respect to how

you’ve handled this.” 

When the court asked defense counsel if he had anything further to add, defense 

counsel declined. 

2. Legal Principles

“An accused has a constitutional right to a trial by an impartial jury. (U.S. Const., 

amends. VI and XIV; Cal. Const., art. I, § 16; [citations].) An impartial jury is one in which 

no member has been improperly influenced [citations] and every member is ‘ “capable and 
53

willing to decide the case solely on the evidence before it” ’ [citations].” (People v. 

Hamilton (1999) 20 Cal.4th 273, 293-294.)

Juror misconduct occurs when there is “a direct violation of the oaths, duties, and 

admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on 

voir dire, consciously receives outside information, discusses the case with nonjurors, or 

shares improper information with other jurors.” (People v. Hamilton, supra, 20 Cal.4th at 

p. 294.) Prejudgment of a case “ ‘constitute[s] serious misconduct.’ ” (People v. 

Weatherton (2014) 59 Cal.4th 589, 598 (Weatherton).) “Misconduct by a juror . . . usually 

raises a rebuttable ‘presumption’ of prejudice.” (People v. Hamilton, supra, at p. 295.)

“[W]hether an individual verdict must be overturned for jury misconduct or 

irregularity ‘ “ ‘is resolved by reference to the substantial likelihood test, an objective 

standard.’ ” ’ [Citation.] Any presumption of prejudice is rebutted, and the verdict will not 

be disturbed, if the entire record in the particular case, including the nature of the 

misconduct or other event, and the surrounding circumstances, indicates there is no

reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors 

were actually biased against the defendant.” (People v. Hamilton, supra, 20 Cal.4th at

p. 296, italics omitted.) 

“What constitutes ‘actual bias’ of a juror varies according to the circumstances of the 

case.” (People v. Nesler (1997) 16 Cal.4th 561, 580 (Nesler).) Under the federal 

constitution, “ ‘ “[t]he theory of the law is that a juror who has formed an opinion cannot be 

impartial.” [Citation.] [¶] It is not required, however, that the jurors be totally ignorant of 

the facts and issues involved. . . . It is sufficient if the juror can lay aside his [or her] 

impression or opinion and render a verdict based on the evidence presented in court.’ ” (Id.

at pp. 580-581, italics omitted.) Under California law, “actual bias supporting an attack on 

the verdict is similar to actual bias warranting a juror’s disqualification.” (Id. at p. 581.) 

Thus, actual bias is “ ‘the existence of a state of mind on the part of the juror in reference to 
54

the case, or to any of the parties, which will prevent the juror from acting with entire 

impartiality, and without prejudice to the substantial rights of any party.’ ” (Ibid.) 

“We accept the trial court’s credibility determinations and findings on questions of 

historical fact if supported by substantial evidence. [Citations.]” (Nesler, supra, 16 Cal.4th 

at p. 582; see also People v. Dykes (2009) 46 Cal.4th 731, 809 (Dykes).) “Whether 

prejudice arose from juror misconduct, however, is a mixed question of law and fact subject 

to an appellate court’s independent determination.” (Nesler, supra, at p. 582; Dykes, supra, 

at p. 809.)

3. Substantial Evidence Supports Implied Finding of No Misconduct

Defendant contends that the juror misconduct violated his federal and state 

constitutional rights because it resulted in “a biased juror . . . convict[ing] [him].” The trial 

court, however, never made a finding of misconduct, and we determine that substantial 

evidence supports the trial court’s implied finding that no misconduct occurred. 

At the initial hearings on the student’s report, the trial court repeatedly expressed 

concern that if the report was accurate that a male juror told the student that the case was not 

looking good for defendant and defendant was going to be convicted of first degree murder, 

the juror could not remain on the jury. But after questioning the student and the male jurors, 

the court noted the jurors’ lack of recollection of “anything about this contact,” the 

inaccuracies in the student’s report, and the student’s lack of sophistication, and found that 

any contact between the student and a juror was “benign” and “transitory,” impliedly 

finding that no misconduct—that is, no statement indicating a juror prejudged the case—

occurred. While defense counsel disagreed with the court’s assessment that the contact was 

benign, it is clear from the court’s statements at the initial hearings on the report that had the 

court found that a juror made a statement indicating that he had prejudged the case, the court 

would not have characterized the interaction as benign. 
55

Substantial evidence supports the trial court’s finding. The student’s report contained 

several factual errors, including that Rodriguez, defendant’s mother, and defendant’s former 

girlfriend had testified on November 7. In actuality, on November 7, the prosecution called 

two witnesses, an officer and a percipient witness to the shooting. 

In addition, when the student was questioned by the court and counsel, she stated that 

she was uncertain that the juror was from this case and that the juror mentioned that “he was 

a juror prior, like, two weeks before when I talked to him.” (Italics added.) The jury in this 

case was impaneled on November 6, the day before this conversation transpired. The 

student did not recognize any of the male jurors on the date she was questioned after having 

been in the courtroom for 45 minutes to an hour and clarified that the juror she spoke to said 

that he thinks the defendant “will be guilty,” but that she added “[of] first degree murder” to 

the report. The juror did not specify the case on which he served.

Finally, none of the male jurors recalled having a conversation with a student about 

parking that included a reference to this case. The court and defense counsel believed the 

jurors. 

Based on this record, we conclude substantial evidence supports the trial court’s 

implied finding that no juror misconduct occurred. Because there was no finding of 

misconduct, the presumption of prejudice, which is rebutted if the record demonstrates that 

there is no substantial likelihood that a juror was actually biased against the defendant, does 

not apply. (Cf. Weatherton, supra, 59 Cal.4th at p. 600 [“Once a court determines a juror 

has engaged in misconduct, a defendant is presumed to have suffered prejudice.”].) 

Defendant’s claim that he was convicted by a biased juror fails.

H. Cumulative Prejudice

Defendant contends that the cumulative prejudice from the trial court’s errors and 

multiple instances of counsel’s deficient performance warrants reversal. Because there are 

no errors to cumulate, defendant’s claim fails. (See In re Reno (2012) 55 Cal.4th 428, 483; 

People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
56

Defendant further contends that the prosecutor’s misconduct should be cumulated. 

However, defendant forfeited his claims of prosecutorial misconduct and has not shown that 

his counsel was ineffective for failing to object to the prosecutor’s improper remarks. 

Regardless, “[w]e have considered each claim on the merits, and neither singly nor 

cumulatively do they establish prejudice requiring the reversal of the convictions.” (People 

v. Lucas (1995) 12 Cal.4th 415, 476.)

I. Cruel and Unusual Punishment

Defendant contends that his LWOP sentence violates the Eighth Amendment’s 

prohibition against cruel and unusual punishment because he was 19 when he committed the 

offense. Defendant acknowledges that his sentence was mandatory under section 190.2, 

subdivision (a), but argues that it was unconstitutional under Miller v. Alabama (2012) 567 

U.S. 460 (Miller) because the trial court was without “discretion to consider defendant’s 

youth and immaturity, and to impose a sentence less than LWOP.” The Attorney General 

contends that defendant’s claim has been forfeited and that Miller does not apply because 

defendant was not a juvenile when he committed the crimes. 

1. Forfeiture

Defendant did not object to the trial court’s imposition of LWOP. “A defendant’s 

failure to contemporaneously object that his sentence constitutes cruel and unusual 

punishment forfeits the claim on appellate review.” (People v. Speight (2014) 227 

Cal.App.4th 1229, 1247 (Speight); accord, People v. Russell (2010) 187 Cal.App.4th 981,

993; see also People v. Burgener (2003) 29 Cal.4th 833, 886 [failure to object to judicial 

substitution at sentencing on cruel and unusual grounds waived Eighth Amendment claim].) 

Defendant argues that his claim is cognizable on appeal because it involves a “pure 

issue[] of law” and because an objection would have been futile. We are not persuaded.

“Cruel and unusual punishment arguments, under the federal or California tests, 

require examination of the offense and the offender.” (People v. Norman (2003) 109 

Cal.App.4th 221, 229; accord, Speight, supra, 227 Cal.App.4th at p. 1247.) Indeed, 
57

defendant raises case- and offender-specific facts that he asserts should have been 

considered by the trial court. Citing People v. Scott (1994) 9 Cal.4th 331 (Scott), defendant 

contends that “the forfeiture rule applies only to discretionary sentencing choices.” Scott

did not so hold. Rather, Scott determined that the waiver doctrine applies to “claims 

involving the trial court’s failure to properly make or articulate its discretionary sentencing 

choices.” (Id. at p. 353.) Scott did not conclude that the forfeiture rule only applies to

claims challenging a trial court’s discretionary sentencing choices.

Nor is defendant’s failure to object excused under the futility doctrine. “Reviewing 

courts have traditionally excused parties for failing to raise an issue at trial where an 

objection would have been futile or wholly unsupported by substantive law then in 

existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) In applying the doctrine, courts 

ask whether “ ‘the pertinent law later changed so unforeseeably that it is unreasonable to 

expect trial counsel to have anticipated the change.’ ” (People v. Black (2007) 41 Cal.4th 

799, 810, italics added.) Miller, the case on which defendant relies, was decided before

defendant was sentenced. 

Accordingly, defendant has forfeited his claim that his sentence constitutes cruel and 

unusual punishment under the Eighth Amendment. But as we explain below, even if 

defendant’s Eighth Amendment claim had been preserved, it would fail on the merits.

2. Defendant’s LWOP Sentence Does Not Violate the Eighth 

Amendment

“The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees 

individuals the right not to be subjected to excessive sanctions.’ [Citation.] That right . . . 

‘flows from the basic “precept of justice that punishment for crime should be graduated and 

proportioned” ’ to both the offender and the offense. [Citation.]” (Miller, supra, 567 U.S. 

at p. 469.)

In Miller, the Supreme Court held that “mandatory life without parole for those under 

the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 
58

‘cruel and unusual punishments.’ ” (Miller, supra, 567 U.S. at p. 465.) The court explained 

that its prior cases “establish that children are constitutionally different from adults for 

purposes of sentencing.” (Id. at p. 471; see Roper v. Simmons (2005) 543 U.S. 551 (Roper) 

[invalidating death penalty for juvenile offenders] and Graham v. Florida (2010) 560 U.S. 

48 [holding that LWOP sentences for non-homicide juvenile offenders violate the Eighth 

Amendment].) Specifically, “juveniles have diminished culpability and greater prospects 

for reform,” making them “ ‘less deserving of the most severe punishments.’ ” (Miller, 

supra, at p. 471.)

Citing a scientific study regarding brain maturation, defendant asserts that “there is 

no reason why [Miller’s] rule should cease to operate at the moment a defendant turns 18,” 

and that “he merely contends that a sentencing court should have the discretion to consider a 

young adult’s age, and whether that age was a sufficiently mitigating factor to warrant an 

opportunity to seek parole many years down the road.” 

Defendant’s argument is one for the Legislature. The Supreme Court observed in 

Roper that “[t]he qualities that distinguish juveniles from adults do not disappear when an 

individual turns 18. By the same token, some under 18 have already attained a level of 

maturity some adults will never reach.” (Roper, supra, 543 U.S. at p. 574.) Nonetheless, 

the court concluded that “a line must be drawn” for Eighth Amendment purposes, and it 

drew that line at “the point where society draws the line for many purposes between 

childhood and adulthood,” which is age 18. (Roper, supra, at p. 574.) We are bound by 

Roper. (See People v. Fletcher (1996) 13 Cal.4th 451, 469, fn. 6 [Supreme Court decisions 

on questions of federal constitutional law are binding on state courts].) Accordingly, we 

must reject defendant’s claim that his mandatory LWOP sentence violates the Eighth 

Amendment.

J. Dueñas Claim

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was 

decided after defendant was sentenced, defendant contends that the trial court’s imposition 
59

of a $10,000 restitution fine (§ 1202.4, subd. (b)), a $200 court operations assessment (§ 

1465.8), and a $150 court facilities assessment (Gov. Code, § 70373) violated his due 

process rights because the court did not determine his ability to pay. Defendant also 

contends that the fine and assessments violated the Eighth Amendment’s prohibition against 

excessive fines. The Attorney General asserts that the claims have been forfeited, defendant 

has no constitutional right to an ability-to-pay determination regarding the restitution fine, 

and defendant has failed to show an inability to pay the remaining assessments. 

1. Dueñas

In Dueñas, the appellate court reversed an order imposing the court operations 

assessment (§ 1465.8) and the court facilities assessment (Gov. Code, § 70373) after 

concluding that it was “fundamentally unfair” and violated due process under the federal 

and California Constitutions to impose the assessments without a determination of the 

defendant’s ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also 

concluded that the execution of a restitution fine under section 1202.4 “must be stayed 

unless and until the trial court holds an ability to pay hearing and concludes that the 

defendant has the present ability to pay the restitution fine.” (Dueñas, supra, at p. 1164.)

2. Forfeiture

Defendant did not object to the trial court’s imposition of a $10,000 restitution fine, a 

$200 court operations assessment, and a $150 court facilities assessment. 

The Courts of Appeal have reached different conclusions regarding whether a due 

process claim under Dueñas is forfeited if the defendant failed to object below. (See, e.g., 

People v. Rodriguez (2019) 40 Cal.App.5th 194, 197, 206 [Dueñas claim forfeited]; People 

v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 [due process objection based on Dueñas

not forfeited]; People v. Santos (2019) 38 Cal.App.5th 923, 932 [claim based on Dueñas not 

forfeited].) We determine that defendant forfeited his ability-to-pay claim. 

The trial court imposed the maximum statutorily authorized restitution fine of 

$10,000 under section 1202.4. Section 1202.4 provides that “[t]he restitution fine shall be 
60

set at the discretion of the court and commensurate with the seriousness of the offense.” 

(Id., subd. (b)(1).) The statute sets forth a minimum and maximum fine. (Ibid.) Section 

1202.4 further provides that “[t]he court shall impose the restitution fine unless it finds 

compelling and extraordinary reasons for not doing so and states those reasons on the 

record. A defendant’s inability to pay shall not be considered a compelling and 

extraordinary reason not to impose a restitution fine.” (Id., subd. (c).) However, 

“[i]nability to pay may be considered . . . in increasing the amount of the restitution fine in 

excess of the” statutory minimum fine. (Ibid., italics added.) Specifically, in setting the 

restitution fine in excess of the statutory minimum, “the court shall consider any relevant 

factors, including, but not limited to, the defendant’s inability to pay . . . .” (Id., subd. (d).) 

The defendant “bear[s] the burden of demonstrating” an inability to pay. (Ibid.) “Express 

findings by the court as to the factors bearing on the amount of the fine shall not be 

required. A separate hearing for the fine shall not be required.” (Ibid.)

Significantly, “a defendant forfeits on appeal any ‘claims involving the trial court’s 

failure to properly make or articulate its discretionary sentencing choices’ in the absence of 

objection below. [Citations.]” (People v. Wall (2017) 3 Cal.5th 1048, 1075.) In this case, 

by failing to object below, defendant forfeited his claim that the trial court failed to exercise 

its discretion to determine his ability to pay. (See People v. Nelson (2011) 51 Cal.4th 198, 

227 [ability-to-pay claim forfeited where the defendant could have objected at sentencing “if 

he believed inadequate consideration was being given to” the ability-to-pay factor for the 

restitution fine].)

Defendant argues that his inability-to-pay claim is cognizable on appeal because an 

objection would have been futile. However, as stated, subdivision (d) of section 1202.4 

mandates that “the court . . . consider any relevant factors, including . . . the defendant’s 

inability to pay” in setting a restitution fine above the statutory minimum. Because the trial 

court imposed the maximum restitution fine, defendant was “obligated to object to the 

amount of the fine and demonstrate his inability to pay anything more than the [statutory] 
61

minimum. Such an objection would not have been futile under governing law at the time of 

his sentencing hearing. [Citations.]” (People v. Frandsen (2019) 33 Cal.App.5th 1126, 

1154.) In other words, “even before Dueñas a defendant had every incentive to object to 

imposition of a maximum restitution fine based on inability to pay because governing law as 

reflected in the statute (§ 1202.4 . . .) expressly permitted such a challenge. [Citation.]” 

(People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez).) “Thus, even if Dueñas

was unforeseeable (a point on which we offer no opinion), under the facts of this case 

[defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to 

object.” (Ibid.) 

We also determine that defendant forfeited his ability-to-pay claim regarding the 

$200 court operations assessment and the $150 court facilities assessment. “[I]f [defendant] 

chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would 

not complain on similar grounds regarding an additional [$350] in fees.” (Gutierrez, supra, 

35 Cal.App.5th at p. 1033.)

Lastly, we conclude that defendant’s excessive fines claim was forfeited. While the 

United States Supreme Court determined after defendant’s sentencing that the excessive 

fines clause of the federal Constitution is “an ‘incorporated’ protection applicable to the 

States” (Timbs v. Indiana (2019) 586 U.S. ___, 139 S.Ct. 682, 686), California courts have 

long entertained challenges to fines under article 1, section 17 of the state Constitution (see, 

e.g., People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; 

People v. Urbano (2005) 128 Cal.App.4th 396, 406). Thus, it was incumbent on defendant 

to raise an excessive fines objection in the trial court to preserve his claim. (See People v. 

McCullough (2013) 56 Cal.4th 589, 592-593 [constitutional challenge to booking fee 

forfeited]; People v. Torres (2019) 39 Cal.App.5th 849, 860 & fn. 4 [excessive fines claim 

forfeited in absence of timely objection].)

Thus, defendant has forfeited his inability-to-pay and excessive-fine claims. 

Moreover, defendant is serving an LWOP sentence and will thus be able to earn prison 
62

wages over a substantial period. Accordingly, any error in ordering defendant to pay the 

challenged fine and assessments is harmless. (People v. Johnson (2019) 35 Cal.App.5th 

134, 139-140.)

IV. DISPOSITION

The judgment is affirmed.
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

DANNER, J.

People v. Rosales

H045615