Filed 3/9/22 P. v. McMorries CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

SHELDON MCMORRIES et al., 

Defendants and Appellants.

 B289194

 (Los Angeles County

 Super. Ct. No. 

NA091954)

APPEAL from a Judgment of the Superior Court of Los 

Angeles County, Laura L. Laesecke, Judge. Affirmed as modified 

with directions. 

Corona & Peabody and Jennifer Peabody, under 

appointment by the Court of Appeal, for Defendant and Appellant 

Sheldon McMorries.

Janyce Keiko Imata Blair, under appointment by the Court 

of Appeal, for Defendant and Appellant David Solorio.

Ralph H. Goldsen, under appointment by the Court of 

Appeal, for Defendant and Appellant Ronald Lopez.
2

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri, Steven E. Mercer and 

Noah P. Hill, Deputy Attorneys General, for Plaintiff and 

Respondent. 

___________________________

In a 19-count indictment, the prosecution jointly charged 

Appellants Sheldon McMorries, David Solorio and Ronald Lopez 

with the murder of William “Tiny” Knight and other offenses, 

including attempted murder, conspiracy, and extortion. 

Appellants were tried jointly before a single jury. The jury found 

them guilty of the first-degree murder of Knight and convicted 

them as charged on all other counts.

Appellants now challenge the sufficiency of the evidence 

supporting a number of their convictions and contend the trial 

court erroneously: declined to sever McMorries’ trial, admitted 

prejudicial expert testimony on the meaning of gang code, 

committed instructional error, and failed to grant their motions 

for mistrial. They also request we review the trial court’s incamera Pitchess evaluation and correct the abstracts of judgment 

to delete certain fines and fees, or remand for a hearing on their 

ability to pay the fines and fees pursuant to People v. Duenas 

(2019) 30 Cal.App.5th 1157. In supplemental briefs, Appellants 

also contend the Senate Bill 775 (2021-2022 Reg. Sess.) 

amendments to Penal Code section 1170.95 permit their 

challenge to the jury instructions regarding natural and probable 

consequences to be raised on direct appeal. Finally, McMorries 

requests in a supplemental brief that we strike his five-year 

enhancements under section 667.5, subdivision (b). We affirm. 
3

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Introduction.

The prosecution contended the three appellants were part 

of a Mexican Mafia crew working for Emiliano “Tonito” Lopez, an 

inmate incarcerated at Pelican Bay State Prison. Appellant 

Lopez, Tonito’s brother, was the crew chief. Solorio was a 

“camarada” who served as appellant Lopez’s assistant. 

McMorries, along with others, was an enforcer or “tax” collector 

who extorted “rent” or “tax” money from gangs operating in areas 

controlled by Tonito’s crew and turned the money over to Lopez 

and Solorio. Under the direction of Lopez and Solorio, McMorries

shot and killed Knight on July 5, 2010, because Knight, who also

was extorting rent or tax money from gangs on behalf of the crew,

failed to turn the money over to Lopez or Solorio. The prosecution 

also contended appellants Lopez and Solorio conspired to have 

two county jail inmates, James Arellano and Daniel Bugarin, 

killed for breaking Mexican Mafia rules.

Trial evidence consisted primarily of recordings of 

intercepted phone calls; audio recordings from body wires worn 

by informants; text messages; interpretation by gang experts of 

language used in the calls, conversations, and text messages; cell 

phone triangulation; surveillance; and McMorries’ confession to 

an informant.

After summarizing the information, we summarize the 

relevant trial evidence concerning the Mexican Mafia and the 

shooting of Knight. Additional facts relevant to particular legal 

issues are discussed later in the opinion in connection with our 

analysis of those issues. We also defer discussion of facts relating 

to the other crimes with which only Solorio and Lopez were 

charged (conspiracy to commit murder, the attempted murders of 
4

Arellano and Bugarin, and the extortion counts) until later in the 

opinion.

B. Information 

The second amended information, filed May 22, 2017, 

alleged as follows against the three appellants1: 

Count Section Offense Date Defendant Victim

1 187 Murder 7/5/10 All William 

Knight

2 182/187 Conspiracy to 

Commit Murder

7/5/10 All William 

Knight

3 182/518/ 

519

Conspiracy to 

Commit 

Extortion

6/29/10 

to

8/20/11

All Ovidio 

Salazar

4 518 Extortion 10/31/10 

to 

12/13/10

Lopez Carmelo 

Pizzaro

5 519 Extortion by 

Threat

9/21/10 

to 

12/13/50

Solorio, 

Lopez

Vincent 

Lugo

6 519 Extortion by 

Threat

11/2/10 

to 

12/13/10

Lopez Robert 

Abeyta

7 519 Extortion by 

Threat

11/2/10 

to 

12/13/10

Lopez Alex 

Medrano

8 518 Extortion 11/3/10 

to 

11/22/10

Lopez Arnulfo 

Chavez

1 Section references in the following chart, and throughout 

this opinion, are to the Penal Code, unless otherwise indicated.
5

9 519 Extortion by 

Threat

11/7/10 

to 

12/22/10

Lopez Jerome 

Saucedo

10 519 Extortion by 

Threat

12/8/10 

to 

12/13/10

Lopez Mario 

Munoz

11 519 Extortion by 

Threat

12/9/10 

to 

12/13/10

Lopez Manuel 

Gomez

12 519 Extortion by 

Threat

19/2/10 

to 

8/20/11

Solorio, 

Lopez

Eduardo 

Gonzalez

13 12021, 

subd. 

(a)(1)

Felon in 

Possession

7/11/11 McMorries N/A

14 29800, 

subd. 

(a)(1)

Felon in 

Possession

4/12/12 Lopez N/A

15 H&S 

11379, 

subd. 

(a)

Sale/Offer for 

Sale Controlled 

Substance

4/12/12 Solorio N/A

16 187/664 Attempted 

Murder

4/7/10 to 

4/14/12

Solorio, 

Lopez

James 

Arellano

17 182/187 Conspiracy to 

Commit Murder

4/7/10 to 

4/14/12

Solorio, 

Lopez

James 

Arellano

18 664/187 Attempted 

Murder

1/18/09 

to 

2/14/09

Solorio, 

Lopez

Daniel 

Bugarin

19 182/187 Conspiracy to 

Commit Murder

1/18/09 

to 

2/14/09

Solorio, 

Lopez

Daniel 

Bugarin
6

The information further alleged Counts 1 through 12 and 

15 through 19 were committed for the benefit of a criminal street 

gang (§ 186.22, subd. (b)(1)). 

C. Overview of the Mexican Mafia.

At trial, Francis Hardiman, a gang expert with the Los 

Angeles County Sheriff’s Department, testified about the 

Mexican Mafia’s structure and function. 

According to Hardiman, the Mexican Mafia, or Eme 

(Spanish for the letter M), was first organized in the 1950s in 

state prisons. Originally, the Mexican Mafia operated only in 

prisons, but beginning in the 1990s, it extended its reach outside 

to the County jails and into the streets. The Mexican Mafia sent 

paroled members as emissaries to the street gangs to tell them 

their criminal activities fell under the Mexican Mafia’s control, 

and the gangs would have to pay the Mexican Mafia “taxes” if 

they wanted to commit crimes in those areas. Moreover, the 

Mexican Mafia would force local street gangs to sell the Mexican 

Mafia’s drugs. If taxes were not paid by a street gang, when its 

members came to prison, they would be given the “green light”

(ordered killed) by the Mexican Mafia. Also, people who failed to 

pay taxes or skimmed taxes collected might have a “green light” 

put on them to send a message to other street gang members. 

The Mexican Mafia employs a hierarchical structure. The 

highest level consists of the 150 to 200 actual “members.” Most of 

the members of the Mexican Mafia are serving life terms and rely 

on others on the outside to commit crimes for the organization. 

Below the members are “camaradas” and “secretaries” who work 

directly with the members. The bottom tier level consists of 

soldiers (“Surenos,” or “South Siders”). A camaradas, as a second-
7

tier Mexican Mafia associate, works closely with a Mexican Mafia 

member. 

On a local level, gang members tax individuals in a specific 

area under the direction of a crew chief. Collections are made 

from those engaging in criminal activity in the neighborhood. 

Generally, an incarcerated member would give orders to a 

second-tier gang member, who in turn would carry the message 

to a crew chief. The crew chief would delegate to his crew. 

D. Tonito’s Crew.

As noted above, appellant Lopez is Tonito’s younger brother 

and was Tonito’s second in command. McMorries (nicknamed 

“Goofy”) had tattoos signifying membership in the Mexican 

Mafia, as did Solorio (nicknamed “Blackie”) and Lopez 

(nicknamed “Dave”). Solorio and Lopez were camaradas, while 

McMorries was a soldier. Tonito’s crew collected taxes at the 

beginning of each month. 

Lisa Robles was Tonito’s girlfriend. In approximately 2007 

she met appellant Lopez. Robles began to collect taxes in Newhall 

and sent the money to Lopez. She met Solorio in 2008 through 

Tonito, and conveyed messages from Lopez and Solorio to Tonito. 

They also spoke about Mexican Mafia business.

Tonito told Solorio that Solorio was a “camarada.” Tonito 

gave Solorio the authority to handle problems he had with 

someone. “You . . . handle it however you think you need to 

handle it, but don’t let nobody know about it. Just deal with it.”

Solorio put Ovidio Salazar (nicknamed “Flaco”) in charge 

of collecting taxes in 2009, and Salazar reported to Solorio and 

Lopez. Salazar, who had started as a member of the Garden View 

Locos gang, collected taxes in Bell Gardens, Pasadena, and the 

Harbor area. He delivered the taxes to Lopez. Salazar began 
8

working for Lopez in May 2009, after a stay in prison. Sometime 

in 2010, Lopez appointed Knight the tax collector for the Harbor 

area. 

Michael Franco (nicknamed “Boxer”) collected taxes for 

Tonito from 2002 to 2007. Franco delivered taxes to and reported 

to Lopez. Franco testified at trial that local Hispanic gangs could 

agree with the Mexican Mafia to pay taxes, in exchange for which 

the local gang could use “13” in its name and expect the Mexican 

Mafia to enforce the gang’s right to sell drugs in its territory. 

Franco also testified there were rules within the Mexican 

Mafia about killing local gang members for not turning over 

collected taxes. The “big homie” or top Mexican Mafia member,

would need to authorize any killing and would only do so with the 

proper “paperwork,” namely, evidence establishing a rules 

violation. In the case of a snitch, the paperwork would include 

any type of police report, or a court transcript showing 

cooperation with law enforcement. 

According to Franco, if taxes were not paid, people could 

end up paying a lot of money, or they could lose their car, their 

house, or their life. About 90 percent of collectors skimmed, but 

few were disciplined. Merely skimming would not warrant severe 

punishment. Tonito’s crew did not like to kill people because it 

would attract the attention of law enforcement. 

E. Local Activities of Mexican Mafia: 

Investigation.

A task force consisting of local police agencies and federal 

agents from the Department of Homeland Security began 

investigating the Mexican Mafia in the Bell Gardens area. In 

2006, Detective Dano Neslen of the Bell Gardens Police 

Department used informants, surveillance, and recordings of 
9

prison phone calls in his investigation. Detectives wiretapped 

approximately 16 phones over the course of the investigation. In 

gang cases, phones often are switched or “flipped” to evade 

detection. 

Neslen obtained wiretaps and learned appellants were 

working as part of Tonito’s crew. As a result of listening to many 

hours of wiretaps, Detective Neslen could identify the appellants’ 

voices. 

Salazar was initially the subject of the wiretaps but later 

became an informant.2 Salazar was released from jail in June 

2010 and wore a wire when he met with all appellants from 

October 18, 2010, to approximately September 19, 2011. 

During 2008 through 2010, Detective Neslen listened to 

Tonito’s phone calls with Mexican Mafia members. In 2009, he 

intercepted voice and text messages on Lopez’s and Solorio’s 

phones. 

E. Events Leading to the Shooting of Knight.

1. Knight Fails to Turn Over Tax Collections.

The victim William Knight was a tax collector for Tonito. In 

2010, Knight was put in charge of tax collecting for the Harbor 

area. Knight had not turned over his collections for at least a 

month before his July 2010 murder. 

Detective Neslen heard conversations between victim 

Knight and Solorio regarding taxes. Knight also spoke to 

McMorries. 

2 Salazar was recruited by Neslen as an informant in 2010 

when Salazar had legal problems. Salazar was paid $11,500 for 

his work. 
10

In May 2010, Solorio told Knight that Salazar was in 

custody. Knight and Solorio spoke regarding Knight’s failure to 

deliver tax money. To explain the shortfall, Knight informed 

Solorio the $2,000 he had collected for the month was taken by 

police when he was arrested. Knight planned to pick up three

neighborhoods the next month, and he was going to have each 

neighborhood contribute an additional $100 to make up the 

shortfall. 

2. The Crew Discusses Knight.

In late June 2010, Solorio told Lopez he had not been able 

to reach Knight on his phone. A few days later, Knight told 

Solorio he had lost his phones. Knight told Solorio that “I got it 

still” and “the next one is already coming up,” which referred to 

June and July taxes. Solorio told Knight they were “over here 

asking for it” and “we’re both asking for it, homie.” Neslen 

believed this referred to the late June taxes, and that both 

Solorio and Lopez were looking for Knight’s tax collection. 

On June 29, 2010, Solorio called Knight and questioned 

him about the tax money. Knight responded that he “gotta live 

too.” Solorio responded that Knight should consider stepping 

down. Knight complained that a lot of people were being arrested, 

and he received a visit from “Fox,” who threatened him based on 

a drug debt unrelated to the Mexican Mafia. Knight sent a text 

message to Solorio telling him he was not stepping down. 

According to Neslen, Knight always had an excuse for failing to 

turn over the taxes. Neslen believed Knight was not skimming 

but simply not turning over the money. 

Solorio called Lopez and told him to contact Knight. Lopez 

responded that he would call Knight and pick up the taxes. 

Solorio gave Lopez Knight’s phone number. 
11

Knight called Robles and asked for help because he was in 

trouble with Solorio and Lopez. Robles responded that she would 

talk to them and try to work out a payment plan. Robles spoke to 

Solorio and asked what Knight could do to rectify the situation. 

Solorio said Knight was “through” and she should not talk to him 

anymore. Robles believed this meant Knight was going to be 

killed. 

On June 30, McMorries asked whether Knight had turned 

over any money. McMorries told Solorio that Knight had been 

told over and over to turn over the money but had not done so. 

McMorries was aware that Knight had been asking for an extra 

$100. According to Neslen, Knight was going against the rules. 

Solorio told McMorries to contact people paying taxes to 

Knight to let them know there would be a change. Solorio and 

McMorries agreed to meet later that day. McMorries told Solorio 

he was “more than willing.” Neslen believed that because Solorio 

had told McMorries it was a “wrap,” Knight was going to be 

killed. Neslen made arrangements to have Knight detained. 

On July 1, 2010, McMorries told Solorio that Knight had 

called him and asked for money. Lopez and Solorio then spoke on 

the phone and Lopez told Solorio they needed to talk about what 

McMorries had told him the previous day. 

On July 3, 2010, McMorries called Solorio to tell him 

“everything’s cool” and that Knight “was confident” he was cool. 

Neslen believed this meant that McMorries was trying to make 

Knight comfortable so that he could use the element of surprise

to facilitate killing Knight. 

Neslen testified that on July 4, 2010, Solorio used the 

terminology “that’s a wrap” to describe a “green light” on an 

inmate in prison. Several days later, the inmate was stabbed. 
12

D. July 5, 2010, Killing of Knight

Early in the afternoon of July 5, 2010, McMorries and 

Solorio met at a Carl’s Junior in Monterey Park Officers followed 

Solorio to the Carl’s Junior. After Solorio and McMorries left the 

Carl’s Junior, officers followed McMorries to his house but 

stopped the surveillance because McMorries lived on a cul de sac. 

Officers attempted to find Knight. 

On July 5, 2010, at 10:19 p.m., police responded to a “shots 

fired” call. Knight’s body was found next to his car on 219th 

Street in Torrance. Police recovered Knight’s phone and six .45 

caliber shell casings from the scene. There were no security 

cameras in the area, and no one witnessed the shooting. Knight 

died from multiple gunshot wounds. 

Knight’s phone contacts contained appellants’ phone 

numbers listed under their gang monikers: Solorio (“Black”), 

Lopez (“T Bro”) and McMorries (“Disney”). McMorries had called 

Knight three times on July 5, at 9:58 p.m., 10:11 p.m., and 10:13 

p.m. The last phone call from Knight’s phone was to McMorries. 

Shortly after the shooting, McMorries called Solorio several 

times, but Solorio did not answer. Finally, at 10:33 p.m., Solorio 

answered and McMorries told him “hey, it’s done, dog.” Solorio 

responded, “you’re done,” to which McMorries replied, “done.” A 

few minutes later, Solorio sent McMorries a text asking, “did 

everything go smooth?” and McMorries responded, “yes.” At 10:56 

p.m., Solorio sent a text to Lopez telling him to “get rid of the 

phone.” 

Neslen, who was monitoring these calls and texts in real 

time, believed Knight had been murdered. Neslen contacted law 

enforcement in the area. Neslen later heard from Detective David 

Cortez that Knight was the victim. Neslen and Cortez met and 
13

Neslen informed Cortez about the wiretapping. McMorries was 

named as a suspect. 

E. Investigation into Knight’s Shooting.

Phone records and cell tower triangulation established that 

between 9:44 p.m. and 10:13 p.m. on July 5, 2010, McMorries’ 

phone was near a cell tower close to the scene of Knight’s death. 

About ten minutes later, his cell phone connected with towers 

closer to McMorries’ home.

On July 6, 2010, McMorries was arrested. During a search 

of his home, police found .45 caliber ammunition, 

methamphetamine, and a narcotics scale. Salazar called Solorio 

for information, saying he had heard gossip. Solorio told Salazar 

that McMorries was in the Central Jail in the same module.3

While in jail, Salazar met McMorries in the laundry room. 

McMorries confessed to Salazar that he had shot Knight because 

Knight was collecting taxes but not turning them over.

4

McMorries had killed Knight because Lopez and Solorio had 

come to a mutual agreement that Knight had to be killed. 

Further, Knight’s girlfriend was a snitch and they had told 

Knight to kill her, but he had not done so. 

McMorries explained that, on the night of the shooting, he 

had set up a meeting with Knight in Knight’s neighborhood. 

When he arrived, Knight was leaning against his car texting. 

Knight looked up, and McMorries shot him. McMorries took 

Knight’s gun and left. 

3 Before this time, Salazar had not met McMorries. 

4 This conversation was not taped. 
14

On August 23, 2010, McMorries and Salazar were placed in 

a cell together and their conversation was taped. McMorries and 

Salazar discussed Knight’s shooting and the presence of an 

unknown “snitch.” McMorries said he was upset because he had 

not told anyone about the shooting. McMorries believed someone 

was going to “flip” and go into protective custody. McMorries and 

Salazar believed Knight’s girlfriend was the snitch. Salazar was 

released from jail on October 18, 2010. As part of his plea 

agreement, he agreed to wear a wire while continuing to work as 

a tax collector for Tonito. Neslen conducted surveillance of 

Salazar. After collecting money, Salazar would turn it over to 

Lopez or Solorio. 

During the time McMorries was in jail, Salazar met with 

Lopez and Solorio. They discussed Mexican Mafia business, 

including territories and crimes being committed by other gang 

members. They also met with other Mexican Mafia members and 

discussed business. 

Solorio told Salazar that local gangs were complaining 

about Knight because he was collecting too often and asking for 

too much money. Solorio believed Knight was a drug addict.

Salazar believed Solorio and McMorries had formulated a plan to 

kill Knight’s girlfriend but had not decided who would do it. 

In late January 2011, Salazar met with Lopez and 

discussed Mexican Mafia business. Salazar told Lopez that 

during a meeting he had with Robles and Solorio, Robles asked 

about Knight and Salazar mentioned he was not with them 

anymore. Lopez responded that Robles did not need to know 

about Knight and should not be asking about it. 

In mid-March 2011, Salazar met with Solorio and Solorio 

told him he had been visited by the police who were investigating 
15

Knight’s murder. Police told Solorio they believed he had 

information about Knight’s killing. Officer Cortez interviewed 

Solorio in mid-March 2011 and showed him a pyramid diagram 

labelled “Organizational Chart” with lines connecting McMorries 

and Knight to Solorio. 

Salazar met with Lopez on March 22, 2011 and they spoke 

about Solorio’s visit from the police. Salazar said he was going to 

tell Solorio to “step back” and Lopez agreed. 

At that time, McMorries had been jailed on a parole 

violation. McMorries was released in May 2011. On May 20, 

2011, Salazar met with Lopez and asked whether he had met 

with McMorries. Lopez confirmed he had. Lopez complained 

McMorries was “running his mouth” and talking to many people. 

On June 28, 2011, Salazar, Solorio, McMorries and other 

members of the crew met. McMorries had multiple guns and had 

a grenade for sale. He revealed he had a van for disabled people 

with multiple compartments where he kept the guns. McMorries 

told them he still had Knight’s Glock and that he took the gun 

when Knight was killed. 

On July 11, 2011, Salazar met with McMorries under the 

pretext of buying a gun, but he in fact was attempting to find out 

about Knight’s gun. McMorries told him about the police visit to 

Solorio’s house and the pyramid. Salazar believed McMorries told 

him he had destroyed three .45s, and Salazar interpreted this to 

mean that McMorries had gotten rid of Knight’s gun. McMorries 

was no longer collecting taxes because he did not want “his name 

out there.” 

McMorries was arrested again on July 13, 2011, for a 

parole violation. On July 20, 2011, Solorio and Lopez discussed 
16

McMorries’ arrest. Solorio and Lopez were arrested April 12, 

2012. 

On September 14, 2014, appellants were being transported 

to the Long Beach courthouse together. They encountered a 

Mexican Mafia member who was a witness in an arson case and

in protective custody. The witness was acquainted with 

McMorries. Appellants asked the witness if he could stab 

Salazar. Salazar later learned appellants told the witness they 

would take the “green light” off him if he killed Salazar.

5

F. Defense Evidence.

6

Sandra Gonzalez, the mother of McMorries’ son, testified 

that McMorries and Knight were friends and Knight came to 

their house often. 

On the day of Knight’s shooting, between 6:00 to 7:00 p.m., 

Knight came by Gonzalez’s house looking for McMorries. 

McMorries was out at the time, having left at about 1:00 p.m. 

that day, but he was there later that evening. They went to 

Carson Street between 7:00 and 9:00 p.m. to pick up drugs. 

McMorries was home with her at 10:19 p.m. 

With respect to the charges that Lopez and Solario 

conspired to have two county jail inmates, James Arellano and 

Daniel Bugarin, killed, two officers on the jail bus testified they 

would have reported any conversation to solicit harm. Santiago 

Sencion, one of those who attacked Arellano, denied any 

involvement with the Mexican Mafia and testified he slapped 

Arellano because Arellano called him a “bitch.” 

5 We discuss the attempted murder counts and the extortion 

counts in detail later in this opinion. 

6 Each defendant put on his own defense. 
17

Martin Flores, a gang expert, testified the Mexican Mafia 

was originally formed to protect Hispanic prisoners. The Mexican 

Mafia is not a “unitary” organization. Thus, not every member 

treats their “business” or crew in the same way. “Taxes” are paid 

for many reasons. The Mexican Mafia controls every prison in the 

state, and taxes ensure that if local gang members go to prison, 

they are protected from other prison gangs. In that sense, “taxes” 

are not extortion. 

G. Verdict and Sentencing.

1. McMorries. 

The jury found McMorries guilty of first-degree murder 

(Count 1) and guilty of conspiracy to commit murder, conspiracy 

to commit extortion, and being a felon in possession of a handgun 

(Counts 2, 3 and 13). The jury found true the personal discharge 

of a firearm causing death allegations on Counts 1 and 2 and the 

allegation that offenses committed in Counts 1, 2 and 3 were 

committed for the benefit of a criminal street gang. McMorries 

admitted to five prior prison terms (§ 667.5, subd. (b).). 

The trial court sentenced McMorries to an aggregate term 

of 57 years to life plus 18 years, as follows: (a) on Count 1, 25 

years to life, plus 25 years to life for the personal use allegation, 

plus five years consecutive for the five prior prison terms; (b) on 

Count 3, seven years to life plus five years consecutive for the five 

prior prison terms; and (c) on Count 13, the upper term of three 

years plus five years consecutive for the five prior prison terms. 

The court stayed sentence on Count 2 pursuant to section 654. 
18

2. Solorio.

The jury found Solorio guilty of first-degree murder 

(Count 1) and nine other charges. The jury found true the firearm 

use enhancements (§§ 12022.53, subds. (b), (c) and (d)) on Counts 

1 and 2, and the gang enhancements (§ 186.22, subd. (b)(1)) on 

Counts 1, 2, 3, 5, 12, 16, 17, 18 and 19. 

The trial court sentenced Solorio to an aggregate term of 

114 years to life, as follows: (a) on Count 1 (murder), 25 years to 

life as a major participant with a consecutive term of 25 years to 

life for the gun use enhancement; (b) on Count 2 (conspiracy to 

commit murder), the court imposed and stayed, pursuant to 

section 654, consecutive terms of 25 years to life; (c) on Count 3 

(conspiracy to commit extortion), the court stayed imposition of a 

term pursuant to section 654; (d) on Counts 5 and 12 (extortion), 

the court imposed a term of seven years to life to be served 

consecutively with the term in Count 1, and found Count 12 

involved a different victim and Solorio was a major participant in 

a serious crime over an extended period; (e) on Count 15 

(possession of a controlled substance), the midterm of three years 

to be served concurrently with the term in Count 1; (f) on Counts 

16 and 18 (attempted murder), the court imposed and stayed 

pursuant to section 654 the upper term of nine years and found 

the offense in Count 16 involved a separate victim; (g) on Counts 

17 and 19 (conspiracy to commit murder), the court imposed a 

term of 25 years to life to be served consecutively to Count 1. 

3. Lopez.

The jury found Lopez guilty of first-degree murder and 16 

other counts and found true the special allegations concerning

firearm use and gang participation. 
19

The trial court sentenced Lopez to an aggregate term of 535 

years to life, as follows: (a) on Count 1 (murder), a total of 105 

years to life, consisting of 25 years to life, tripled under the Three 

Strikes Law, plus 25 years for the firearm enhancement, plus five 

years for the two prior serious felonies; (b) on Counts 2 and 3, the 

court stayed imposition of sentence pursuant to section 654; (c) on 

Counts 4 through 12 (extortion), 25 years to life on each count, to 

run consecutively, plus a five-year gang enhancement; (d) on 

Count 14 (felon in possession), four years to run concurrently;

and (e) Counts 16 and 18 (attempted murder) 25 years to life 

tripled, plus a five year gang enhancement. 

DISCUSSION7

I. SEVERANCE OF TRIAL

McMorries argues the trial court abused its discretion in 

declining to sever his trial from that of his co-defendants Solorio 

and Lopez. McMorries asserts his connection to the 

otherdefendants and the Mexican Mafia was minimal; he was not 

a “member” of the Mexican Mafia, was not charged in or 

implicated in any of the other crimes committed by Lopez and 

Solorio, was not a target of the four-year investigation into 

Tonito’s operation, had nothing to do with the general operations 

of the crew under Tonito, had no history of committing crimes for 

the benefit of the Mexican Mafia, was only heard on wiretaps 

seven times and only between June 30 and July 5, 2010, and 

spent most of the two years after Knight’s murder in jail or 

7 To the extent applicable, the appellants join in each other’s 

arguments. 
20

prison. As a result, he contends the trial resulted in a denial of 

due process of law that requires reversal. We disagree. 

A. Factual Background.

McMorries was charged in four of the 19 counts. He was 

charged jointly with Solorio and Lopez in Count 1 (murder), 

Count 2 (conspiracy to murder) and Count 3 (conspiracy to 

extort), and was charged separately in Count 13 with unlawfully 

possessing a firearm. Codefendants Solorio and Lopez, either 

jointly or independently with each other, were charged with 

extortion (Counts 4-12), felon in possession of a firearm (Count 

14), transportation of a controlled substance (Count 15), 

attempted murder (Counts 16 and 18), and conspiracy to murder 

(Counts 17, 19). 

On August 1, 2016, McMorries filed a motion to sever his 

case from Solorio and Lopez. He argued that because he was only 

charged in four counts of the 19-count amended information, the 

evidence to be admitted against Solorio and Lopez related to the 

other counts and would be voluminous and prejudicial. 

In its opposition filed November 2, 2016, the prosecution 

argued the evidence “against the three defendants is inextricably 

intertwined,” and the pattern of extortion established in the 

counts against codefendants Solorio and Lopez is directly 

relevant to all defendants’ liability for conspiracy and murder. 

Furthermore, evidence applicable to the counts unrelated to 

McMorries would be cross-admissible because it was relevant and 

material to the murder and conspiracy charges against him. The 

prosecutor argued that statements by Lopez and Solorio to 

Salazar “sometimes reference McMorries” and show that they 

“were all working in concert,” and the extortion plot explains the 

motive for Knight’s murder. 
21

At the hearing on the motion, McMorries argued that only 

10 to 20 percent of the preliminary hearing evidence related to 

him or the charges against him and evidence against the other 

defendants, including recorded wiretaps, phone calls and 

meetings during which other assassinations and extortion plots 

are discussed, would be highly prejudicial. 

The trial court noted that its tentative ruling was to deny 

severance because the charges dealt with “interrelated events” 

and “cross-admissible evidence in the sense that they’re all 

connected.” Observing that the charges related to “different parts 

of the same criminal enterprise,” the trial court denied the 

motion. “Like a sophisticated drug ring or something, there is 

going to be different parts and pieces of that criminal enterprise 

that don’t always involve all the parties, but they’re part of the 

enterprise and you kind of have to take the ride with everybody 

else because you’re a part of it. In one piece or another, you’re 

part of it. Certainly the allegation with . . . McMorries’s piece or 

part are very significant, and it would not make sense to separate 

it out. We would be hearing the same witnesses over and over 

again. It would be unnecessarily redundant and an unnecessary 

use of our time and the jury’s time to separate out these cases.”

Ultimately, the trial court denied the severance motion.

B. Discussion.

Section 1098 provides in relevant part: “When two or more 

defendants are jointly charged with any public offense, whether 

felony or misdemeanor, they must be tried jointly, unless the 

court orders separate trials.” Section 1098 illustrates the 

Legislature’s “strong preference for joint trials,” including joint 

penalty phase trials. (People v. Winbush (2017) 2 Cal.5th 402, 

455; People v. Sanchez (2016) 63 Cal.4th 411, 463–464 (Sanchez).) 
22

“Joint trials promote efficiency and help avoid inconsistent 

verdicts.” (Ibid.)

“Joint proceedings are not only permissible but are often 

preferable” when, as here, the “defendants’ criminal conduct 

arises out of a single chain of events. Joint trial may enable a 

jury ‘to arrive more reliably at its conclusions regarding the guilt 

or innocence of a particular defendant’” and the trial judge “to 

assign fairly the respective responsibilities of each defendant in 

the sentencing;” plus it conserves judicial resources. (Kansas v. 

Carr (2016) 577 U.S. 108, 125; People v. Silveria and Travis

(2020) 10 Cal.5th 195, 242.) 

The legislative preference for joint trials is, however, 

“subject to a trial court’s broad discretion to order severance.” 

(People v. Thompson (2016) 1 Cal.5th 1043, 1079 (Thompson).) 

“Factors that may bear on a trial court’s decision to order 

separate trials include “‘an incriminating confession, prejudicial 

association with codefendants, likely confusion resulting from 

evidence on multiple counts, conflicting defenses, or the 

possibility that at a separate trial a codefendant would give 

exonerating testimony.’” [Citations.] Severance may also be 

appropriate where “‘there is a serious risk that a joint trial would 

compromise a specific trial right of one of the defendants or 

prevent the jury from making a reliable judgment about guilt or 

innocence.’” [Citations.]” (People v. Gomez (2018) 6 Cal.5th 243, 

274.)

In considering a motion to sever, the factors to be evaluated 

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

(2) whether some of the charges are likely to unusually inflame 

the jury against the defendant; (3) whether a weak case has been 

joined with a strong case or another weak case so that the total 
23

evidence may alter the outcome of some or all of the charges; and 

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

of the charges converts the matter into a capital case. (Alcala v. 

Superior Court (2008) 43 Cal.4th 1205, 1220–1221.)

Prejudicial association justifying severance involves 

circumstances where evidence regarding a codefendant might 

make it likely the jury would: (1) convict the codefendant; and 

(2) convict the defendant based on his relationship with the 

codefendant rather than on the separate evidence against the 

defendant. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 152.) 

Merely trying “crime partners” together is not prejudicial 

association. (People v. Cummings (1993) 4 Cal.4th 1233, 1286 

[where defendants were “crime partners in several of the 

robberies and in the murder, prejudicial association with a 

codefendant is not a factor”].)

Whenever defendants are jointly tried, “part of the 

prosecution’s case will naturally attempt to establish that the 

defendants associated with each other, at least to the extent that 

they all participated in the crimes at issue.” (People v. Bryant, 

Smith and Wheeler (2014) 60 Cal.4th 335, 383.) “That defendants 

associated more broadly than their specific involvement in the 

alleged crimes may also be directly relevant to establishing their 

guilt.” (Ibid.) It is also likely that different defendants 

participating together in a crime “will have different levels of 

involvement and different personal backgrounds. These 

circumstances alone do not compel severance or render a joint 

trial grossly unfair. Individuals who choose to commit crimes 

together are not generally entitled to shield the true extent of 

their association by the expedient of demanding separate trials.” 

(Ibid.)
24

“We review a trial court’s denial of a severance motion for 

abuse of discretion, based on the facts at the time of the trial 

court’s ruling.” (People v. Daveggio and Michaud (2018) 4 Cal.5th 

790, 819.) “To establish an abuse of discretion, defendant[ ] must 

demonstrate that the trial court’s decision was so erroneous that 

it ‘falls outside the bounds of reason.’ [Citation.] A merely 

debatable ruling cannot be deemed an abuse of discretion.” 

(People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at 

p. 390.) “[E]ven if a trial court acted within its discretion in 

denying severance, ‘“the reviewing court may nevertheless 

reverse a conviction where, because of the consolidation, a gross 

unfairness has occurred such as to deprive the defendant of a fair 

trial or due process of law.”’” (Thompson, supra, 1 Cal.5th at p.

1079.)

C. Appellants Were Properly Tried Together

“A ‘classic’ case for joint trial is presented when defendants 

are charged with common crimes involving common events and 

victims.” (People v. Keenan (1988) 46 Cal.3d 478, 499–500.)

Here, all the offenses arose out of the operations of a gang 

that all appellants were involved with. McMorries volunteered to 

kill Knight, and his role in the killing of Knight was the most 

dramatic evidence presented to the jury. McMorries trapped 

Knight and shot him repeatedly when Knight looked up from his 

phone. Knight “didn’t have a chance.” Accordingly, there was no 

danger that McMorries would have been convicted in counts 1, 2, 

3, or 13, based on evidence pertinent to Lopez and Solorio 

admitted on the other counts or as a result of “guilt by 

association.” Thus, there was no reasonable possibility that the 

jury would be confused by the presence of additional counts 

against appellants Lopez and Solorio only.
25

Indeed, the evidence of McMorries’ involvement in the 

murder of Knight was overwhelming. McMorries was recorded 

plotting to kill Knight, affirming that he had done so, and

admitting that he had destroyed the weapon he used in Knight’s 

murder. McMorries admitted to Salazar that he had personally 

killed Knight as part of a plan agreed upon by all three 

appellants. 

Further, the evidence on all counts was cross-admissible. 

The conduct of the Mexican Mafia as an organization, including 

the conduct of Lopez and Solorio, was admissible against 

McMorries to establish his motive in the murder of Knight, his 

motive in the conspiracy to murder Knight, his motive and role in 

the conspiracy to commit extortion, and to prove the truth of the 

gang enhancement allegations. (People v. Hardy (1992) 2 Cal.4th 

86, 170 [conspiracy charges involving codefendants a basis for 

cross-admissibility of evidence]; People v. Vega-Robles (2017) 9 

Cal.App.5th 382, 432 [same].) 

McMorries’ reliance on People v. Chambers (1964) 231 

Cal.App.2d 23 is misplaced. In Chambers, two defendants were 

tried together for offenses involving incidents committed 

separately against patients in a nursing home. One defendant 

owned the nursing home, and the other worked there as a nurse. 

Chambers observed that the case involved no “joint or 

conspiratorial action” on the part of the defendants. (Id. at p. 26.) 

Further, “in the absence of any charge of concerted or 

conspiratorial action,” the defendants should not have been tried 

together because of overwhelming evidence that the nurse 

defendant had engaged in a pattern of long-standing brutality 

against patients that did not involve the owner of the facility. (Id. 

at p. 29.) Here, in contrast to Chambers, appellants were jointly 
26

charged with conspiracy to commit murder and conspiracy to 

commit extortion. The evidence showed they worked in concert to 

extort and kill. 

Finally, the trial court also instructed the jury that it had 

to separately determine whether appellants were members of the 

charged conspiracies, and that appellants were not liable as coconspirators for the acts of their co-defendants that were 

committed prior to the time that they joined their conspiracy to 

commit extortion. McMorries has failed to establish that the trial 

court abused its discretion when it denied his severance motion, 

that he would have obtained a more favorable result if he had 

been tried by himself on counts 1, 2, 3, or 13, or that joinder 

resulted in gross unfairness amounting to a denial of due process.

II. EXPERT TESTIMONY RE GANG CODE 

McMorries and Lopez, joined by Solorio, argue that 

admission of expert testimony interpreting their slang or “gang 

code” improperly invaded the province of the jury, thereby 

violating their due process right. The contend a gang expert has 

no expertise regarding what a speaker meant by a particular 

statement and can only testify how a word or phrase is commonly 

used in a gang subculture. 

A. Relevant Factual Background. 

Over multiple and continuous objections, the prosecution’s 

experts, including Neslen, testified to the meaning of defendants’ 

slang statements in conversations testified to at trial or as 

captured by wiretaps, body wires, and texts. In these statements, 

the defendants used slang, initials, nicknames, abstruse 

language and code words. Neslen testified, “[T]hey have idioms, 

which are words or phrases that are very commonly used within 
27

the organization that mean something to them.” The gang 

members also use initials. The purpose of using this slang or code 

is to hide the meaning of the speaker’s words. 

(a) Specific Terminology.

At trial, witnesses testified to the meanings of specific 

phrases, sometimes revealing a disagreement about what the 

phrases mean.

For example, the phrase “hard candy” as used within the 

Mexican Mafia, may mean an order to kill. Detective Neslen 

testified “my understanding of the term “hard candy,” based on 

my training and experience, is that it’s an authorization to kill,” 

and “‘hard candy’ is a code word for murder.”

On the other hand, Martin Flores, also a gang expert, 

testified that in some instances the phrase could mean to assault 

someone. “An individual may be told to give a hard candy, and 

somebody may . . . actually [be] killed or maybe a result of [sic] 

somebody just getting assaulted. Through my experience in cases, 

I have seen where hard candy basically means to make sure they 

get stuck, to get hit, to get stabbed.” “I want people to 

understand I worked on cases where this term ‘hard candy’ is 

being used. . . . [O]n a case in L.A. County, the county jail where 

somebody was stabbed. . . . . [A] phone call was made by the 

individual to another person, and that person was told to make 

sure he gets hard candy.” Although there was a “hard candy” 

order out on him, the victim testified the phrase did not 

necessarily mean that someone would be killed. 

As noted above, “Green light” means that permission had 

been given by Mexican Mafia leaders to assault or kill someone. 

Both Salazar and Neslen testified to the meaning of this phrase. 
28

Detective Neslen testified the phrase “it’s a wrap” was 

commonly used by Mexican Mafia to signify that someone needed 

to be killed. “There is finality to it, like, ‘hey, it’s over.’” This 

might mean that someone violated a rule, “[s]ome rule that he 

can’t get out of. He can’t come back into [the] fold.” Neslen had 

heard the phrase in the context of murder, like, “hey, we need to 

kill that guy.” 

In addition, Neslen testified to his opinion regarding what 

the defendants meant when they used certain phrases. For 

example, Neslen testified that when Flaco said, “I thought that 

fool was all good when we had met up with D,” and Solorio 

responded “Since that day nothing came through, dog,” they were 

referring to money. 

(b) Specific Conversations Interpreted.

At trial, Neslen testified to the meaning of language used 

in some of the intercepted phone calls.

Neslen testified that when Knight stated “I’ma [sic] pick 

up, like three new neighborhoods for next month, homie,” in the 

context of tax collection, Knight meant he was going to have 

three new street gangs start paying taxes monthly. Knight’s 

statement that “I’m going to make every neighborhood kick in an 

extra hundred,” according to Neslen meant he was going to 

collect $100 more. 

Although in other contexts the initial “T” could refer to 

Tonito, when Solorio told Lopez that “homeboy called you T”, 

“he’s not answering our calls” and “I sent a little squad out there 

to try to look for him,” Solorio was referring to “Tiny” Knight 

when he used the initial “T.” 

On June 29, 2010, in a conversation between Solorio and 

Knight, Solorio told Knight “I’m going to need to get that from 
29

you, dog, because they’re over here asking for it” and “So you got 

that or what?” they were referring to monthly tax money. In 

particular, Neslen stated “”Based on my knowledge and 

experience of this case, in this call, the word ‘that’ is referring to 

the monthly tax money.” Neslen based his conclusion on the 

crew’s custom of collecting taxes at the beginning of the month, 

and because it was late June at the time of the call, Solorio was 

referring to the June collection. Knight told Solorio that “I got it 

still” and “the next one is already coming up,” which Neslen 

believed referred to June and July taxes. Solorio told Knight that 

they were “over here asking for it” and “we’re both asking for it, 

homie.” Neslen thought this referred to the late June taxes, and 

that both Solorio and Lopez were looking for Knight’s tax 

collection. 

(c) Defendants’ Objections

During trial, Lopez and the other defendants objected to 

the prosecution witness’s interpretation of slang, arguing there 

was a significant distinction between expert testimony to the 

meaning of slang terms and expert testimony interpreting what a 

particular defendant meant when he used such a slang term. 

Initially, the trial court disagreed. However, after much of the 

testimony had come in, the trial court agreed, concluding the 

expert could not testify “this is what the speaker meant” when 

such a term was used. 

Following the verdict, Lopez filed a new trial motion 

arguing the trial court improperly permitted expert testimony to 

encompass the defendants’ guilt in the guise of interpreting their 

code. The trial court denied the motion. 
30

B. Discussion.

Defendants contend the experts’ opinions concerning what 

the speakers meant by coded language, as opposed to how such 

terms are commonly used in gang subculture, was inadmissible. 

They contend the witnesses improperly testified to the 

defendants’ intent, and their objections to the testimony should 

have been sustained. We review the trial court’s decision to admit 

expert testimony for abuse of discretion (People v. Prince (2007) 

40 Cal.4th 1179, 1223), and find none here.

While lay witnesses are allowed to testify only about

matters within their personal knowledge (Evid. Code, § 702, 

subd. (a)), expert witnesses are given greater latitude. “A person 

is qualified to testify as an expert if he has special knowledge, 

skill, experience, training, or education sufficient to qualify him 

as an expert on the subject to which his testimony relates.” (Evid. 

Code, § 720, subd. (a).) An expert may express an opinion on “a 

subject that is sufficiently beyond common experience that the 

opinion of an expert would assist the trier of fact.” (Evid. Code, 

§ 801, subd. (a).)

However, “an expert has traditionally been precluded from 

relating case-specific facts about which the expert has no 

independent knowledge. Case-specific facts are those relating to 

the particular events and participants alleged to have been 

involved in the case being tried. . . . An expert is also allowed to 

give an opinion about what those facts may mean. The expert is 

generally not permitted, however, to supply case-specific facts 

about which he has no personal knowledge.” (People v. Sanchez 

(2016) 63 Cal.4th 665, 675–676.)

Although an expert witness may express an opinion that 

embraces an ultimate issue to be determined by the trier of fact, 
31

provided the expert’s opinion is otherwise admissible (Evid. Code, 

§ 805), the expert may not offer an opinion on how the case 

should be decided. (People v. Killebrew (2002) 103 Cal.App.4th 

644, 651 (Killebrew), disapproved on other grounds in People v. 

Vang (2011) 52 Cal.4th 1038, 1047, fn. 3 (Vang).) An expert may 

not opine on the defendant’s guilt. (People v. Coffman and 

Marlow (2004) 34 Cal.4th 1, 77.) “The reason for this rule is not 

because guilt is the ultimate issue of fact for the jury, as opinion 

testimony often goes to the ultimate issue. [Citations.] Rather, 

opinions on guilt or innocence are inadmissible because they are 

of no assistance to the trier of fact. To put it another way, the 

trier of fact is as competent as the witness to weigh the evidence 

and draw a conclusion on the issue of guilt.” (Vang, supra, 52 

Cal.4th at p. 1048.) 

In People v. Champion (1995) 9 Cal.4th 879, the court 

sanctioned the use of expert testimony to explain gang 

terminology. The defendants asserted the trial court erred in 

permitting a deputy sheriff to explain the meaning of several

words used by defendants during a conversation in a van 

transporting them to jail. The defendants reasoned this 

testimony was beyond the scope of the deputy’s gang expertise. 

Champion disagreed, concluding the deputy had spent years 

investigating and associating with juvenile gangs and therefore 

the trial court could reasonably determine he was sufficiently 

familiar with gang terminology to accurately interpret the words 

used by defendants. Champion observed, “[t]he use of an expert 

for this purpose is not uncommon” and further that “the meaning 

of some of the words used by defendants were ‘sufficiently beyond 

common experience that the opinion of an expert would assist the 

trier of fact . . . .’ (Evid. Code, § 801, subd. (a).)” (Id. at p. 924.) 
32

Nonetheless, appellants rely on Killebrew, where the court 

determined certain gang expert opinion testimony was 

improperly admitted because the expert “testified to the 

subjective knowledge and intent” of certain alleged gang 

members by testifying that each of the alleged gang members 

knew there was a gun in one of the cars and jointly possessed the 

gun with every person in each of the three cars for their mutual 

protection. (Killebrew, at p. 658.) However, “Killebrew does not 

generally prohibit such testimony; rather, the reviewing court 

concluded that in view of the facts and circumstances of that 

case, the expert's opinion about the defendant's subjective 

knowledge and intent was inadmissible.” (People v. Roberts 

(2010) 184 Cal.App.4th 1149, 1194.) Roberts observed that in 

Killebrew, the expert’s opinion was the only evidence offered to 

establish the elements of the crime. “As such, it was ‘the type of 

opinion that did nothing more than inform the jury how [the 

expert] believed the case should be decided.’” (Roberts, supra, at 

p. 1194.) Without other evidence, the expert opinion may 

impermissibly invade the province of the trier of fact. (Ibid.)

Here, the expert testimony assisted the jury and was not 

unduly prejudicial. In addition to defining what appeared to be 

ordinary phrases (“it’s a wrap,” “green light,” and “hard candy”) 

in terms of their gang culture definitions, the experts provided 

necessary context for the use of other common words, such as 

“that” or “it” which could not be properly understood without 

Neslen’s expertise. Such testimony did not cross the line into 

being prohibited testimony concerning the defendants’ intent to 

commit a crime: Neslen did not testify, for example, that when 

Solorio said “it’s a wrap,” Solorio intended to kill Knight. Further, 

the witnesses did not testify to the elements of the crime, as 
33

prohibited by Killebrew, but interpreted phrases commonly used 

by the defendants in connection with the tax collection enterprise 

and put the statements in context. 

Finally, admission of this evidence did not violate 

defendants’ due process rights. Due process is not offended by the 

admission of relevant evidence unless it is so prejudicial as to 

render the criminal trial fundamentally unfair. (People v. 

Jablonski (2006) 37 Cal.4th 774, 805.) In the absence of 

fundamental unfairness, the harmless error test of People v. 

Watson (1956) 46 Cal.2d 818 (Watson), is used to analyze an 

evidentiary error that involves state law. (People v. Partida

(2005) 37 Cal.4th 428, 439.) The question is “whether it is 

reasonably probable the verdict would have been more favorable 

to the defendant absent the error.” (Ibid.) Here, given the sheer 

number of telephone calls the experts testified to and the 

structure and operations of the crew, the evidence of defendants’ 

guilt was considerable apart from the slang interpretations. For 

example, McMorries confessed to killing Knight in a taped 

conversation, and told Salazar that he had done so after 

conferring with Lopez and Solorio and receiving the authorization 

from Tonito. 

III. HEARSAY STATEMENTS PROVIDE SUBSTANTIAL 

EVIDENCE TO SUPPORT LOPEZ’S CONVICTION.

Lopez argues insufficient evidence supports his conviction 

for the murder of Knight (Count 1) because the only evidence of 

his participation in the killing consists of the uncorroborated 

multi-level hearsay statements of accomplices Solorio and 

McMorries. As a result, he argues, admission of what he contends 

are unreliable statements violated his due process and 
34

confrontation rights and section 1111’s requirement of 

independent corroboration. 

A. Relevant Factual Background.

Salazar learned of the agreement to kill Knight from 

McMorries, who heard of it from Solorio. 

As noted above, Tonito was at the top of the local Mexican 

Mafia hierarchy, while Lopez acted as a camarada or chief of the 

crew. Those who violated the Mexican Mafia’s rules could be 

killed or otherwise harmed, as Lopez stated, “I’ll [f] you up just to 

[f] you up . . . . Because I can do that.” According to Lopez, Tonito 

wanted to minimize Lopez’s role within his crew. 

Lopez was aware that Knight was not turning over taxes he 

had collected. McMorries told Solorio he had discussed Knight 

with Lopez. Lopez knew McMorries had volunteered to kill 

Knight. After Knight’s killing, McMorries told Salazar in the 

jail’s laundry room (in an untaped conversation) that he had done 

it pursuant to approval obtained from Lopez and Solorio. Solorio 

also stated that Lopez had authorized the killing. 

Lopez met with Salazar, who told him McMorries had 

stated he killed Knight. Lopez told Salazar he instructed Solorio 

to “deal with” Knight’s skimming; “deal with it” meant to kill 

Knight. Lopez told Salazar that Robles did not need to know 

about the killing. 

At trial, Lopez objected to the hearsay statements. The trial 

court ruled they were admissible under several hearsay 

exceptions, including declaration against penal interest (Evid. 

Code, § 1230), statement of co-conspirator (Evid. Code, § 1223), 

and party admissions (Evid. Code, § 1220). 
35

B. Discussion

1. Lopez’s Conviction Based on the Hearsay 

Statements of Nontestifying Accomplices Did Not Violate Due 

Process.

Lopez argues that aside from accomplice testimony, 

nothing independently connects him to Knight’s murder. 

An accomplice is “one who is liable to prosecution for the 

identical offense charged against the defendant on trial in the 

cause in which the testimony of the accomplice is given.” (§ 1111.) 

The testimony of accomplices must be corroborated by “such 

other evidence as shall tend to connect the defendant with the 

commission of the offense.” (Ibid.) This evidence may not come 

from or require “‘aid or assistance’” from, the testimony of other 

accomplices or the accomplice himself. (People v. Davis (2005) 36 

Cal.4th 510, 543.) Section 1111 reflects the Legislature’s 

determination that because accomplice testimony poses 

reliability questions, it is, without additional evidence, 

insufficient as a matter of law to support a conviction. (People v. 

Rodriguez (2018) 4 Cal.5th 1123, 1128; People v. Romero and Self

(2015) 62 Cal.4th 1, 32.) 

The corroborating evidence, however, need not substantiate 

every fact to which the accomplice testifies. (People v. Davis, 

supra, 36 Cal.4th at p. 543; People v. Perez (2018) 4 Cal.5th 421, 

452.) The entire conduct of the parties, their relationship, acts, 

and behavior may be taken into consideration by the trier of fact 

in determining the sufficiency of the corroboration. The evidence 

need not independently corroborate every fact to which the 

accomplice testifies, and ‘““‘may be circumstantial or slight and 

entitled to little consideration when standing alone.’”’” (People v. 

Dalton (2019) 7 Cal.5th 166, 246–247.) “‘Corroborating 
36

evidence . . . ‘is sufficient if it tends to connect the defendant with 

the crime in such a way as to satisfy the jury that the accomplice 

is telling the truth.’ [Citation.]’” (People v. Lewis (2001) 26 

Cal.4th 334, 370.) ‘

The jury’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. (Romero 

and Self, supra, 62 Cal.4th at pp. 32–33.)

Here, substantial evidence independently corroborates the 

accomplice testimony. Aiders and abettors are liable for firstdegree premeditated murder if the evidence establishes the 

defendant aided or encouraged the commission of the murder 

with knowledge of the unlawful purpose of the perpetrator and 

with the intent or purpose of committing, encouraging, or 

facilitating its commission. (People v. McCoy (2001) 25 Cal.4th 

1111, 1117–1118.)

Lopez, in his role as camaradas, had the power to have 

people killed for violating the Mexican Mafia rules. As noted 

previously, Lopez stated he would “[f] people up” because he 

“could do that.” Moreover, he said, even “though I’m a thousand 

miles away . . . I [can] reach out and touch you.” Further, there 

was evidence that, in the context of Knight’s killing, Lopez knew 

Knight was skimming taxes. McMorries told Solorio he had 

spoken to Lopez and received approval from Lopez to proceed 

with Knight’s killing. McMorries admitted to shooting Knight. 

Later, evidencing knowledge of the shooting, Lopez said 

McMorries should “shut up” about the killing. 

When this accomplice testimony evidence is paired with

non-accomplice testimony, sufficient corroboration exists. For 
37

example, non-accomplices Robles and Salazar testified to 

Knight’s troubles. Knight called Robles and asked for help 

because he was in trouble with Solorio and Lopez. Robles told 

Knight she would talk to them and try to work out a payment 

plan. Robles spoke to Solorio and asked what Knight could do to 

rectify the situation. Solorio said Knight was “through” and she 

should not talk to him anymore. In late January 2011, Salazar 

met with Lopez and discussed Mexican Mafia business. Salazar 

told Lopez that during a meeting he had with Robles and Solorio, 

Robles asked about Knight and mentioned he was not with them 

anymore.

These facts, when coupled with the accomplice testimony 

establish there is substantial evidence Lopez acted to aid and 

abet McMorries in the shooting. Independent evidence ““‘need not 

corroborate the accomplice as to every fact to which he testifies 

but is sufficient if it does not require interpretation and direction 

from the testimony of the accomplice yet tends to connect the 

defendant with the commission of the offense in such a way as 

reasonably may satisfy a jury that the accomplice is telling the 

truth. . . .’ [Citations.]”” (People v. Davis (2005) 36 Cal.4th 510, 

543.)

2. Multiple Levels of Hearsay.

Lopez argues the trial court erred in concluding statements 

at all levels of hearsay qualified for an exception. Rather, he 

asserts, Solorio’s statement, when passed from McMorries to 

Salazar, constituted multiple levels of hearsay that did not 

qualify for the co-conspirator exception and, in any event, those 

statements were made after the conspiracy concluded. We 

disagree. 
38

Hearsay is an out-of-court statement offered for the truth of 

its content. (Evid. Code, § 1200, subd. (a).) Hearsay is generally 

inadmissible unless it falls under an exception. (Evid. Code, 

§ 1200, subd. (b).) “Multiple hearsay, or hearsay-within hearsay, 

is admissible only when each level of hearsay ‘meets the 

requirements of an exception to the hearsay rule.’” (People v. 

Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1010; 

People v. Anderson (2018) 5 Cal.5th 372, 403; Evid. Code, § 1201 

[“statement within the scope of an exception to the hearsay rule 

is not inadmissible on the ground that the evidence of such 

statement is hearsay evidence if such hearsay evidence consists 

of one or more statements each of which meets the requirements 

of an exception to the hearsay rule”].)

Here, the statements of Lopez, McMorries and Solorio 

constitute party admissions and are admissible against them as 

exceptions to the hearsay rule (Evid. Code, § 1220 [“[e]vidence of 

a statement is not made inadmissible by the hearsay rule when 

offered against the declarant in an action to which he is a 

party]”.) Further, the statements of each appellant are 

declarations against interest because they exposed each of the 

declarants to penal sanctions. (Evid. Code § 1230.) Each 

appellant’s admission would establish his participation in the 

conspiracy, and would establish his aiding and abetting of 

Knight’s murder.

Lastly, any statements by Lopez that furthered the 

conspiracy to murder Knight were admissible. (Evid. Code, 

§ 1223.)8 Under the co-conspirator exception to hearsay rule, 

8 Evidence Code section 1223 provides, “Evidence of a 

statement offered against a party is not made inadmissible by the 
39

three preliminary facts must be established for evidence of coconspirator's declaration to be admissible: (1) that declarant was 

participating in the conspiracy in question at the time of the 

declaration; (2) that the declaration furthered or was meant to 

further the conspiracy’s objective; and (3) that the party against 

whom evidence is offered was, at the time of the declaration, 

participating in the conspiracy, or would later participate in it. 

(People v. Clark (2016) 63 Cal.4th 522, 562.) Here, even those 

statements made after the Knight killing had happened are 

admissible because the parties were actively participating in a 

conspiracy to further the aims of the Mexican Mafia’s extortion 

activities. 

3. Due Process/Confrontation Clause.

Lopez argues that his Confrontation Clause and due 

process rights were violated by the admission of the hearsay 

statements of his co-defendants because the statements were 

inherently unreliable. Lopez notes that under the Aranda-Bruton 

rule,9 prior to the decision in Crawford, the statements here 

would have been inadmissible; further, the distinction between 

hearsay rule if: [¶] (a) The statement was made by the declarant 

while participating in a conspiracy to commit a crime or civil 

wrong and in furtherance of the objective of that conspiracy; 

[¶] (b) The statement was made prior to or during the time that 

the party was participating in that conspiracy; and [¶] (c) The 

evidence is offered either after admission of evidence sufficient to 

sustain a finding of the facts specified in subdivisions (a) and (b) 

or, in the court’s discretion as to the order of proof, subject to the 

admission of such evidence.” 

9 Bruton v. United States (1968) 391 U.S. 123; People v. 

Aranda (1965) 63 Cal.2d 518.
40

testimonial and non-testimonial statements drawn by Crawford 

does not transmute these statements into reliable forms of proof. 

Lopez points out that Salazar was a paid informant who later 

committed a crime, making his testimony unreliable. He contends 

admitting Salazar’s statements was error. We disagree.

In Crawford, the United States Supreme Court held the 

Sixth Amendment prohibits the admission of a witness’s 

“testimonial” out-of-court statements offered for their truth 

unless the witness is unavailable and the defendant had a prior 

opportunity for cross-examination. (Crawford v. Washington 

(2004) 541 U.S. 36, 59–60, fn. 9.) Under previous United States 

Supreme Court precedent, the admission of hearsay did not 

violate the right to confrontation if it bore “adequate ‘indicia of 

reliability.’” Reliability was inferred without more in a case 

where the evidence fell within “a firmly-rooted hearsay exception. 

In other cases, the evidence must be excluded, at least absent a 

showing of particularized guarantees of trustworthiness.” (Ohio 

v. Roberts (1980) 448 U.S. 56, 66.) 

Crawford overturned the Roberts rule. Crawford clarified 

that a mere showing of hearsay reliability was insufficient to 

satisfy the confrontation clause. “To be sure, the Clause’s 

ultimate goal is to ensure reliability of evidence, but it is a 

procedural rather than a substantive guarantee. . . . [¶] The 

Roberts test allows a jury to hear evidence, untested by the 

adversary process, based on a mere judicial determination of 

reliability. It thus replaces the constitutionally prescribed 

method of assessing reliability with a wholly foreign one.” 

(Crawford, supra, 541 U.S. at pp. 61–62.) Under Crawford, if an 

exception was not recognized at the time of the Sixth 

Amendment’s adoption, admission of testimonial hearsay against 
41

a criminal defendant violates the confrontation clause unless 

(1) the declarant is unavailable to testify and (2) the defendant 

had a previous opportunity to cross-examine the witness or 

forfeited the right by his own wrongdoing. (Crawford, at pp. 62, 

68; see Giles v. California (2008) 554 U.S. 353, 357–373.)

Aranda-Bruton involves the introduction of the confession 

of a co-defendant. (See generally, People v. Washington (2017) 15 

Cal.App.5th 19, 26 [explaining reach of Aranda-Bruton rule].) In 

Bruton, the United States Supreme Court held that the 

admission of a non-testifying codefendant’s confession implicating 

the defendant violates the confrontation clause's guarantee of the 

right to cross-examination even if the jury is instructed to 

disregard the confession as to the defendant. (Bruton v. United 

States, supra, 391 U.S. at pp. 127–128.) The Aranda court 

reached a similar conclusion on non-constitutional grounds. 

(People v. Aranda, supra, 63 Cal.2d at pp. 528–531; see also 

People v. Fletcher (1996) 13 Cal.4th 451, 455.)

However, nearly 40 years after Aranda and Bruton were 

decided, the United States Supreme Court held that the 

confrontation clause only prohibits the admission of testimonial 

hearsay statements. (Crawford, supra, 541 U.S. at pp. 59, 68–69; 

see Whorton v. Bockting (2007) 549 U.S. 406, 420 [confrontation 

clause has no application to out-of-court nontestimonial 

statements]; People v. Gutierrez (2009) 45 Cal.4th 789, 812 

[“[o]nly the admission of testimonial hearsay statements violates 

the confrontation clause”].) “Nontestimonial hearsay is subject 

only to ‘traditional limitations upon hearsay evidence’ and does 

not implicate the Sixth Amendment right of confrontation.” 

(People v. Arauz (2012) 210 Cal.App.4th 1394, 1401–1402.)
42

In Crawford, the United States Supreme Court did not 

explicitly define “testimonial statements,” however. (Crawford, 

supra, 541 U.S. at p. 51.) But Crawford did describe types of 

statements that constitute a “core class” of testimonial 

statements. These include functional equivalents of in-court 

testimony, such as affidavits and similar pretrial statements 

“made under circumstances which would lead an objective 

witness reasonably to believe that the statement would be 

available for use at a later trial.” (Id. at pp. 51–52.) In sum, “the 

confrontation clause is concerned solely with hearsay statements 

that are testimonial, in that they are out-of-court analogs, in 

purpose and form, of the testimony given by witnesses at trial.” 

(People v. Cage (2007) 40 Cal.4th 965, 984 (Cage).) To be 

“testimonial” under Crawford, a statement must have been 

“given and taken primarily for the purpose [of] . . . establish[ing] 

or prov[ing] some past fact for possible use in a criminal trial.” 

(People v. Cage (2007) 40 Cal.4th 965, 984.)

“[S]tatements made unknowingly to an informant or 

statements between fellow prisoners,” however, “are ‘clearly 

nontestimonial.’” (People v. Fayed (2020) 9 Cal.5th 147, 169.) 

People v. Arauz ̧ supra, 210 Cal.App.4th 1394, is illustrative. 

There, the defendants were charged with attempted murder in a 

gang-related shooting. (Id. at p. 1397.) During the investigation, 

police arrested a suspected accomplice for an unrelated drug 

offense and placed him in a cell adjoining a paid informant posing 

as a Mexican Mafia member. (Id. at p. 1399.) The accomplice, 

deceived by this ruse, told the informant he drove the defendants 

to the scene and defendants shot the victims. (Ibid.) Defendants 

asserted that evidence of the accomplice’s incriminating 

statements violated their confrontation clause rights. (Id. at p. 
43

1402.) Rejecting that argument, the Court of Appeal held the 

statements were nontestimonial because the accomplice “thought 

he was answering to the Mexican Mafia. He had no belief that his 

statements were being monitored and would be used in a 

subsequent trial.” (Ibid.) 

Like the defendant in Arauz, supra, 210 Cal.App.4th 1394, 

McMorries did not realize he was conversing with an informant. 

Nor were Solorio’s conversations with McMorries or Lopez 

testimonial. (See People v. Gallardo (2017) 18 Cal.App.5th 51, 

67–68 [statements were nontestimonial because, regardless of 

informant’s intent in asking the question, there was no evidence 

defendant knew or suspected the informant was a government 

agent or that his comments might be used at trial].)

Lopez’s Aranda-Bruton argument fails for the same reason. 

Post-Crawford, the rule of those cases applies only to testimonial 

statements. (People v. Cortez (2016) 63 Cal.4th 101, 129 [rejecting 

Bruton argument because, among other things, “‘the 

confrontation clause applies only to testimonial hearsay 

statements’”]; see also People v. Washington, supra,15 

Cal.App.5th at p. 28.)

4. Substantial Evidence Supports Lopez’s Murder 

Conviction.

In sum, Lopez argues Solorio’s hearsay statement to 

McMorries that Lopez had agreed to the killing of Knight, which 

was related by Salazar through an unrecorded conversation, does 

not constitute substantial evidence. We disagree. Because the 

statement is admissible, it demonstrates that Lopez was aware of 

and involved in the agreement to have Knight killed because 

Knight had failed to turn over his tax collections. 
44

IV. SUBSTANTIAL EVIDENCE ALSO SUPPORTS 

LOPEZ AND SOLORIO’S CONVICTIONS FOR 

EXTORTION AND CONSPIRACY TO COMMIT 

EXTORTION.

Solorio argues insufficient evidence supports his 

convictions on Counts 5 and 12, which charge him with extortion 

by threat jointly with Lopez. Lopez concurs and expands the 

argument to include his convictions for conspiracy to commit 

extortion and extortion on Counts 3, 4, 6, 7, 8, 9, 10, and 11, 

which McMorries joins with respect to Count 3. They contend 

there is no evidence that they or someone acting at their direction 

threatened to inflict unlawful injury upon the victims with the 

specific intent to induce the victims to surrender money, or that 

the threat was the controlling cause of the victims’ surrender of 

money or property. Further, they contend the practices of the 

Mexican Mafia cannot supply the necessary mental state of an 

aider and abettor, nor can it be supplied by propensity evidence. 

A. Factual Background. 

Salazar told individuals from whom he collected taxes that 

they had to pay. On occasion, someone who refused to pay taxes 

would be beaten, or killed. Salazar would give collected tax 

money to Lopez. Franco testified individuals are told that if they 

do not pay, they would “have problems.” 

Serrano, who was a tax collector for Tonito’s crew, collected 

taxes from gangs in Bell Gardens and turned the money (“rent”) 

over to Solorio. Serrano testified that all the crew’s tax collectors 

were armed. Local gang members and drug dealers do not like to 

pay taxes, and only do so because they know they will face 

violence or the threat of violence. Later, Lopez started picking up 
45

the taxes from Serrano. Lopez told Serrano that if he had any 

problem collecting taxes, Lopez would take care of it. The 

Mexican Mafia exerts a lot of influence over local gangs because 

the local gangs know that if their members do not pay taxes, and 

later end up in jail or prison, they could be harmed. 

With respect to specific counts, the prosecution presented 

evidence of taped phone calls and surveillance of the victims 

giving money to Salazar, as well as Salazar’s testimony that he 

collected money from certain individuals. These included 

Carmelo Pizzaro (“Spooky”) (Count 4), Robert Abeyta (“Clumsy”) 

(Count 6), Alex Medrano (“Dreamer”) (Count 7), Arnulfo Chavez 

(“Froggy”) (Count 8), Jerome Saucedo (“Lazy”) (Count 9), Mario 

Munoz (“Skinny”) (Count 10) and Manuel Gomez (Count 11). 

More individualized evidence was presented for Counts 5 

and 12. 

Count 5 concerned extortion of Vincent Lugo (“Crook”). 

Neslen heard Lugo make telephone calls in September 2010 to 

Salazar’s wife and arrange to deliver money to her. Several days 

later, Salazar’s wife turned over the money to Solorio, which she 

described as “$400 from WES (Lugo).” In early November 2010, 

surveillance observed Lugo give $400 to Salazar at a restaurant 

in South Gate. This money was subsequently given to Lopez. 

Count 12 concerned extortion of Eduardo Gonzalez 

(“Droopy”). Neslen testified Gonzalez called Salazar’s wife 

Darlene Vasquez and made arrangements to deliver money to 

her. Vasquez told Solorio she received $400 from “Droopy.” 

Surveillance disclosed Vasquez gave $500 to Lopez at a 

restaurant in South Gate. Salazar testified Lopez used his phone 

to tell Gonzalez he was to continue making payments to Salazar. 
46

The trial court instructed the jury with CALJIC Nos. 14.70 

(defining extortion), 14.71 (what constitutes threats inducing 

fear), 14.72 (meaning of term “unlawful injury”), and 14.73 

(causal relation between fear and consent). 

B. Discussion.

Extortion is the obtaining of property or other 

consideration from another with his or her consent induced by 

the wrongful use of force or fear. (§ 518, subd. (a).) Section 519 

provides that “fear” may be induced by a threat of any one of the 

following: (1) To inflict an unlawful injury to the person or 

property of the individual threatened or of a third person; (2) To 

accuse the individual threatened, or a relative of the threatened 

individual, of a crime; (3) To expose, or to impute to the victim a 

deformity, disgrace, or crime; (4) To expose a secret affecting the 

victim and (5) To report his, her, or their immigration status or 

suspected immigration status. Extortion is a specific intent 

crime, and thus guilt depends on the intent of the person who 

makes the threat and not the effect the threat has on the victim. 

(People v. Umana (2006) 138 Cal.App.4th 625, 641.)

“In order to establish extortion, ‘the wrongful use of force or 

fear must be the operating or controlling cause compelling the 

victim’s consent to surrender the thing to the extortionist.’” 

(Chan v. Lund (2010) 188 Cal.App.4th 1159, 1171.) The threat 

may be implied from all the circumstances: “‘No precise or 

particular form of words is necessary in order to constitute a 

threat under the circumstances. Threats can be made by 

innuendo and the circumstances under which the threat is 

uttered and the relations between [the defendant] and the [target 

of the threats] may be taken into consideration in making a 

determination of the question involved.’ [Citations.] . . .‘The more 
47

vague and general the terms of the accusation the better it would 

subserve the purpose of the accuser in magnifying the fears of his 

victim, and the better also it would serve to protect him in the 

event of the failure to accomplish his extortion and of a 

prosecution for his attempted crime.’” (Stenehjem v. Sareen (2014) 

226 Cal.App.4th 1405, 1424; see also People v. Choynski (1892) 95 

Cal. 640, 642 [persons guilty of extortion “seldom possess the 

hardihood to speak out boldly and plainly, but deal in mysterious 

and ambiguous phrases”].) The threat may be implied from the 

facts and context. (People v. Massengale (1968) 261 Cal.App.2d 

758, 764–765.) “The more vague and general his actions and 

statements the better they will serve his purpose in magnifying 

the fear of his victim and the better also it will serve to protect 

him in the event of the failure to accomplish his extortion and of 

a prosecution of his attempted crime. [Citations.]” (Ibid.)

Section 182 prohibits a conspiracy by two or more people to 

“commit any crime.” (§ 182, subd. (a)(1).) Conspiracy requires 

that the defendant and another person had the specific intent to 

agree or conspire to commit an offense, as well as the specific 

intent to commit the elements of that offense, together with proof 

of the commission of an overt act by one or more of the parties to 

such agreement in furtherance of the conspiracy. (People v. 

Johnson (2013) 57 Cal.4th 250, 257.) Both attempt and 

conspiracy cover inchoate crimes and allow intervention before 

the underlying crime has been completed. (Ibid.) However, 

conspiracy law attaches culpability at an earlier point than 

attempt. “‘Conspiracy is an inchoate offense, the essence of which 

is an agreement to commit an unlawful act.’ [Citations.] 

Conspiracy separately punishes not the completed crime, or even 

its attempt.” Rather, the crime of conspiracy punishes the 
48

agreement itself and does not require the commission of the 

substantive offense (Ibid.) A conspiracy may be implied from the

circumstances, including the conduct, relationships, and 

activities of the conspirators. (People v. Bollaert (2016) 248 

Cal.App.4th 699, 725.) A co-conspirator shares in the guilt of the 

principal. (People v. Maciel (2013) 57 Cal.4th 482, 515.)

In evaluating sufficiency of the evidence, we must view the 

evidence in the light most favorable to the People and must 

presume in support of the judgment the existence of every fact 

the trier could reasonably deduce from the evidence. (People v. 

Perez (2010) 50 Cal.4th 222, 229.) Circumstantial evidence may 

be sufficient to connect a defendant with the crime and to prove 

his guilt beyond a reasonable doubt. (People v. Abilez (2007) 41 

Cal.4th 472, 504.) 

Here, the prosecution relied on the threat to do an unlawful 

injury to the person or property of the person threatened. (§ 519, 

subd. (1).) This threat was made in the context of the Mexican 

Mafia’s control of neighborhoods, its imprimatur of “13” giving 

local gangs status and protection, and the risk of consequences 

(harm or death) if “taxes” were not paid. Thus, although there 

was no evidence of specific words uttered to the victims, the 

exchange of cash in this context constituted substantial evidence. 

Defendants rely on People v. Ochoa (2016) 2 Cal.App.5th 

1227, where the evidence was insufficient to show that defendant 

attempted to extort property from a food truck worker. The 

defendant, a gang member, asked the worker for “rent,” but the 

worker referred the defendant to the food truck owner. A few 

minutes later, the defendant approached the worker from behind, 

tapped his shoulder, and shot him without exchanging words. At 

issue in Ochoa was the charging document: the information did 
49

not identify the business (nor its owner) as a victim of attempted 

extortion. Instead, the information identified the worker as the 

only victim. Because the information misidentified the victim of 

the attempted extortion, it failed to provide the defendant with 

legally sufficient notice of the charge against him. In Ochoa, the 

food truck owner was unaware of a demand for property or an 

implied threat that defendant had made, and thus no extortion 

occurred. (Id. at pp. 1231–1232.) Here, there is ample evidence 

the victims knew of the threats: Salazar testified he told the 

victims they had to pay.

V. SUBSTANTIAL EVIDENCE OF ATTEMPTED 

MURDER (SOLORIO)

Solorio contends insufficient evidence supports his 

convictions for attempted murders of James Arellano and Daniel 

Bugarin because, at most, the evidence showed preparation and 

thus fails to show the direct movement towards commission of 

the offense. 

A. Factual Background. 

1. James Arellano (Count 16)

In April 2010, Salazar suspected that Arellano, a tax 

collector, was keeping tax money, and told Solorio. Arellano was 

in a county jail under the control of Mexican Mafia member Lalo 

Martinez, and was housed in the same unit as Hector Ornelas, 

one of Salazar’s fellow gang members. Through an intermediary, 

Solorio texted Martinez to obtain authorization to kill Arellano: 

“James Hernandez Arellano aka Lil Danger, 4M Marijuanos 13. 

Hard Candy.” In April 2010, Arellano was attacked and stabbed 

in jail by inmates. One of the attackers told a deputy he did not 
50

want to attack Arellano, but he had been ordered to do so. 

Arellano believed the order to attack him came from Solorio. 

The prosecution argued at trial that the text message 

constituted the overt act to support the attempted murder

charge. The court instructed the jury in line with this theory, “On 

April 7, 2010, defendant Solorio sent a text message . . . ordering 

a deadly attack on James Arellano. The text read ‘James Arellano 

also known as Lil danger 4m marijuana locos 13. Hard candy.’” 

2. Daniel Bugarin (Count 18) 

In January 2009, Solorio told “Smokey” Martin that he was 

looking for “Wacky” (Bugarin) from South Side Pasadena, who 

was in the county jail. Solorio stated that Wacky was not on “good 

status” and he had the paperwork on Bugarin. Solorio wanted to 

make sure they had “scissors and shit there too . . . because I 

want it done right.” Later that month, Solorio told Smokey that 

he had received the “work” and it was “a go” but that they should 

hold off until higher-ups could vouch for the work. 

In February 2009, Bugarin was stabbed by gang members 

affiliated with the Mexican Mafia while in custody. Bugarin 

believed Solorio ordered the attack because Solorio was in charge 

of the territory where Bugarin operated. 

The jury was instructed on an aiding and abetting theory 

for the attempted murders. 

B. Discussion.

Murder is the unlawful killing of a human being with 

malice aforethought. (§ 187, subd. (a); People v. Smith (2005) 37 

Cal.4th 733, 739.) “Attempted murder requires the specific intent 

to kill and the commission of a direct but ineffectual act toward 

accomplishing the intended killing.” (People v. Lee (2003) 31 
51

Cal.4th 613, 623.) Liability for an attempt does not require that 

any element of the underlying offense be accomplished. “‘[A] 

person may be convicted of an attempt to commit a crime he 

never could have completed under the circumstances.’ 

[Citations.]” (People v. Moses (2020) 10 Cal.5th 893, 899.)

The overt act element of attempt is satisfied when “a direct 

but ineffectual act [has been] done toward [a crime’s] 

commission.” (§ 21a.) “The overt act element of attempt requires 

conduct that goes beyond ‘mere preparation’ and ‘show[s] that 

[defendant] is putting his or her plan into action.’ [Citations.]” 

(People v. Watkins (2012) 55 Cal.4th 999, 1021.) The boundaries 

of attempt require an act sufficiently close to completing the 

crime. “For example, if a person decides to commit murder but 

does nothing more, he has committed no crime. If he buys a gun 

and plans the shooting, but does no more, he will not be guilty of 

attempt. But if he goes beyond preparation and planning and 

does an act sufficiently close to completing the crime, like rushing 

up to his intended victim with the gun drawn, that act may 

constitute an attempt to commit murder.” (People v. Johnson, 

supra, 57 Cal.4th at p. 258.) 

“Although a definitive test has proved elusive, we have long 

recognized that ‘[w]henever the design of a person to commit 

crime is clearly shown, slight acts in furtherance of the design 

will constitute an attempt.’ [Citations.]” (People v. Superior Court

(Decker) (2007) 41 Cal.4th 1, 8.) “Indeed, where (as here) the 

crime involves concerted action—and hence a greater likelihood 

that the criminal objective will be accomplished [citation]—there 

is a greater urgency for intervention by the state at an earlier 

stage in the course of that conduct. [Citation.]” (Id. at pp. 10–11.)

The line between mere preparation and conduct fulfilling the act 
52

element of attempt is difficult to determine. (People v. Hajek and 

Vo (2014) 58 Cal.4th 1144, 1192.) It is a question of degree and 

depends upon the facts and circumstances of a particular case. 

(Ibid.)

Here, on Count 16, Solorio contends the mere sending of 

the text message seeking authorization to kill Arellano does not 

rise to the level of attempt. On Count 18, he argues there is no 

evidence he had done all that he could to facilitate Bugarin’s 

stabbing. We disagree. Solorio’s argument ignores the fact the 

matter was tried on an aiding and abetting theory. 

“‘[A]n aider and abettor with the necessary mental state is 

guilty of the intended crime.’” (People v. Chiu (2014) 59 Cal.4th 

155, 158.) “‘A “person aids and abets the commission of a crime 

when he or she, acting with (1) knowledge of the unlawful 

purpose of the perpetrator; and (2) the intent or purpose of 

committing, encouraging, or facilitating the commission of the 

offense, (3) by act or advice aids, promotes, encourages or 

instigates, the commission of the crime.”’ [Citation.] ‘[T]o be 

guilty of attempted murder as an aider and abettor, a person 

must give aid or encouragement with knowledge of the direct 

perpetrator's intent to kill and with the purpose of facilitating the 

direct perpetrator’s accomplishment of the intended killing—

which means that the person guilty of attempted murder as an 

aider and abettor must intend to kill.’” (People v. Nguyen (2015) 

61 Cal.4th 1015, 1054.)

Solorio facilitated both attempted murders. With respect to 

Arellano, he set the wheels in motion by obtaining authorization, 

thereby giving aid and encouragement to the actual perpetrators 

of the attack. Similarly, with respect to Bugarin, Solorio set up 

the attack and made sure before it occurred that everything was 
53

in order, namely, that the actual perpetrators had implements to 

stab Bugarin.

VI. CLAIMED INSTRUCTIONAL ERROR: ACCOMPLICE 

LIABILITY (CALJIC NO. 3.00)

Solorio and Lopez argue the trial court erred in giving 

CALJIC No. 3.00 on accomplice (aider and abettor) liability 

because the instruction misstates the law by stating aiders and 

abettors are equally culpable, when an aider and abettor may be 

less culpable. 

A. Factual Background.

The trial court gave CALJIC No. 3.00, as follows:

“Persons who are involved in committing or attempting to 

commit a crime are referred to as principals in that crime. Each 

principal, regardless of the extent or manner of participation is 

equally guilty. Principals include: 

“1. Those who directly and actively commit or attempt to 

commit the act constituting the crime, or 

“2. Those who aid and abet the commission or attempted 

commission of the crime. 

“When the crime charged is either murder or attempted 

murder, the aider and abettor’s guilt is determined by the 

combined acts of all the participants as well as that person’s own 

mental state. If the aider and abettor’s mental state is more 

culpable than that of the actual perpetrator, that person’s guilt 

may be greater than that of the actual perpetrator. Similarly, the 

aider and abettor’s guilt may be less than the perpetrator’s, if the 

aider and abettor has a less culpable mental state.” (CALJIC 3.00 

(emphasis added.)) 
54

B. Discussion.

As a threshold matter, the Attorney General asserts that as

the instruction was a correct statement of the law, the claim of 

instructional error was not preserved for appeal because defense 

counsel neither objected to, nor sought modification of, the 

instruction. Generally, a party may not complain on appeal that 

an instruction is incomplete or confusing unless the party has 

requested appropriate clarifying or amplifying language. (People 

v. Castaneda (2011) 51 Cal.4th 1292, 1348; People v. Samaniego

(2009) 172 Cal.App.4th 1148, 1163.) 

We agree. The “equally guilty” language of CALJIC 3.00 is 

a correct statement of the law, and therefore appellants were 

required to request a modification or clarification. (People v. 

Nilsson (2015) 242 Cal.App.4th 1, 25–26.) Appellants forfeited

this argument because they did not raise it below, which would 

have given the trial court an opportunity to clarify the instruction 

and thereby avoid any possible ambiguities in the instruction as 

applied to this case. 

VII. CLAIMED INSTRUCTIONAL ERROR: INTENT TO 

KILL, CONSPIRACY TO COMMIT MURDER (CALJIC No. 

6.11)

Lopez argues his convictions for murder and attempted 

murder (Counts 2, 17 and 19) must be reversed because 

conspiracy to commit murder requires that each conspirator have 

the specific intent to commit murder, and the jury was incorrectly 

instructed with CALJIC 6.11 that it could convict him without 

the required mental state by relying on the natural and probable 

consequence of conspiring to commit extortion. Further, he 
55

asserts SB 1437 implicitly repealed attempted murder based 

upon any natural and probable consequence theory. 

A. Factual Background: Jury Instructions.

The trial court instructed the jury on conspiracy to commit 

murder. 

“A conspiracy to commit murder is an agreement entered

into between two or more persons with the specific intent to agree 

to commit the crime of murder and with the further specific 

intent to commit that murder, followed by an overt act committed 

in this state by one or more of the parties for the purpose of 

accomplishing the object of the agreement. Conspiracy is a crime. 

[¶] The crime of conspiracy to commit murder requires proof that 

the conspirators harbored express malice aforethought, namely, 

the specific intent to kill unlawfully another human being.” 

(CALJIC No. 8.69) 

The jury was also instructed: “A member of a conspiracy is 

not only guilty of the particular crime that to his knowledge his 

confederates agreed to and did commit, but is also liable for the 

natural and probable consequences of any crime or act of a coconspirator to further the object of the conspiracy, even though 

that crime or act was not intended as a part of the agreed upon 

objective and even though he was not present at the time of the 

commission of that crime or act. [¶] You must determine whether 

the defendant is guilty as a member of a conspiracy to commit the 

originally agreed upon crime or crimes, and, if so, whether the 

crimes alleged in Counts 1, 16 & 18 were perpetrated by a coconspirator in furtherance of that conspiracy and was a natural 

and probable consequence of the agreed upon criminal objective of 

that conspiracy. [¶] In determining whether a consequence is 

“natural and probable” you must apply an objective test based not 
56

on what the defendant actually intended but on what a person of 

reasonable and ordinary prudence would have expected would be 

likely to occur. The issue is to be decided in light of all of the 

circumstances surrounding the incident. A ‘natural consequence’

is one which is within the normal range of outcomes that may be 

reasonably expected to occur if nothing unusual has intervened. 

‘Probable’ means likely to happen.” (CALJIC 6.11, emphasis 

added.) 

The jury was also properly instructed on an aiding and 

abetting theory with CALJIC No. 3.00 (as discussed ante). The 

jury was also instructed with CALJIC No. 3.01, which defines 

aiding and abetting: “A person aids and abets the commission or 

attempted commission of a crime when he or she: [¶] (1) With 

knowledge of the unlawful purpose of the perpetrator, and 

[¶] (2) With the intent or purpose of committing or encouraging or 

facilitating the commission of the crime, and[¶] (3) By act or 

advice, aids, promotes, encourages or instigates the commission 

of the crime. [¶] A person who aids and abets the commission or 

attempted commission of a crime need not be present at the scene 

of the crime. To be guilty as an aider or abettor, the defendant’s 

intent or purpose of committing or encouraging or facilitating the 

commission of the crime by the perpetrator must be formed 

before or during the commission of the crime. [¶] Mere knowledge 

that a crime is being committed and the failure to prevent it does 

not amount to aiding and abetting.” 

In closing argument, the prosecution argued extensively on 

the natural and probable consequences before the jury. 
57

2. Lopez’s Claim is Cognizable On Direct 

Appeal.

Prior to the enactment of Senate Bill 1437, “an aider and 

abettor [was not required to] personally possess malice, express 

or implied, to be convicted of second-degree murder under a 

natural and probable consequences theory.” (People v. Gentile

(2020) 10 Cal.5th 830, 847 (Gentile).) Indeed, “‘the mens rea of 

the aider and abettor with respect to [the nontarget] offense [was] 

irrelevant [because] culpability [was] imposed simply because a 

reasonable person could have foreseen the commission of the 

nontarget crime.’” (People v. Chiu, supra, 59 Cal.4th at p. 164.)

Effective January 1, 2019, Senate Bill 1437 amended 

section 188 to provide that, outside the context of felony murder, 

“in order to be convicted of murder, a principal in a crime shall 

act with malice aforethought. Malice shall not be imputed to a 

person based solely on his or her participation in a crime.” (Stats. 

2018, ch. 1015 § 2.) “The natural and probable consequences 

doctrine is incompatible with this requirement. . . . .” (Gentile, 

supra, 10 Cal.5th at p. 847.) Accordingly, our Supreme Court has 

concluded that “Senate Bill 1437 eliminates natural and probable 

consequences liability for murder regardless of degree.” (Id. at pp. 

847–848.)

Senate Bill 1437 also enacted section 1170.95, subdivision 

(a), which permits a person convicted of murder under a natural 

and probable consequences theory to petition the sentencing 

court to have his or her murder conviction vacated and to be 

resentenced on any remaining counts. A person is entitled to 

section 1170.95 relief if, among other things, he or she “could not 

be convicted of first or second degree murder” following the 

enactment of Senate Bill 1437. (§ 1170.95, subd. (a)(3).)
58

In Gentile, our Supreme Court held that “[t]he ameliorative 

provisions of Senate Bill 1437 do not apply on direct appeal to 

nonfinal convictions obtained before the law became effective. 

Such convictions may be challenged on Senate Bill 1437 grounds 

only through a petition filed in the sentencing court under section 

1170.95.” (Gentile, supra, 10 Cal.5th at pp. 851–852.)

In 2021, while this case was pending on appeal, the 

Legislature enacted Senate Bill 775. Among other things, Senate 

Bill 775 amends section 1170.95 to provide that “[a] person 

convicted of murder, attempted murder, or manslaughter whose 

conviction is not final may challenge on direct appeal the validity 

of that conviction based on the changes made to Sections 188 and 

189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018).” 

(Stats. 2021, ch. 551, § 2.) Senate Bill 775 took effect on January 

1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(1) [absent urgency 

clause, statutory amendments enacted during regular session of 

the Legislature become effective on January 1 of the following 

year].) 

Because defendants’ judgment is not yet final, we address 

the impact of Senate Bill 1437 on their convictions. (People v. 

Vieira (2005) 35 Cal.4th 264, 306 [a “judgment is not final until 

the time for petitioning for a writ of certiorari in the United 

States Supreme Court has passed”]; People v. Lizarraga (2020) 56 

Cal.App.5th 201, 206 [“a petition for writ of certiorari is timely 

filed within 90 days after entry of judgment of a state court of 

last resort”].)
59

B. The Erroneous Instruction on Natural and 

Probable Cause Was Harmless Beyond a Reasonable 

Doubt.

1. Conspiracy to Commit Murder.

Conspiracy to commit murder requires the specific intent to 

kill. (People v. Swain (1996) 12 Cal.4th 593, 602.) Intent to kill 

for purposes of murder, also known as express malice, is shown 

when the assailant either desires the victim’s death or knows to a 

substantial certainty that death will occur. (People v. Smith

(2005) 37 Cal.4th 733, 739.) Intent to kill may “be inferred from 

the defendant’s acts and the circumstances of the crime. (Id. at p. 

741.)

Guilt as a direct aider and abettor requires: (1) a crime 

committed by the direct perpetrator; (2) knowledge of the direct 

perpetrator's intent to commit the crime; (3) intent to assist in 

committing the crime; and (4) conduct that in fact assists in 

committing the crime. (People v. Perez (2005) 35 Cal.4th 1219, 

1225.) The defendant must not only know the direct perpetrator’s 

intent, he or she must share that intent. (People v. Beeman (1984) 

35 Cal.3d 547, 560.) “Senate Bill 1437 did not change accomplice 

liability for murder under direct aiding and abetting principles.” 

(People v. Jenkins (2021) 70 Cal.App.5th 924, 931.) “‘One who 

directly aids and abets another who commits murder is thus 

liable for murder under the new law just as he or she was liable 

under the old law.’” (Ibid.)

“Liability for intentional, target offenses is known as 

‘direct’ aider and abettor liability; liability for unintentional, 

nontarget offenses is known as the ‘“‘natural and probable 

consequences’ doctrine.’”’ (In re Loza (2018) 27 Cal.App.5th 797, 

801.) “Senate Bill 1437 does not eliminate direct aiding and 
60

abetting liability for murder because a direct aider and abettor to 

murder must possess malice aforethought.” (Gentile, supra, 10 

Cal.5th at p. 848.)

“Under the natural and probable consequences theory of 

aiding and abetting a murder, a defendant can be found guilty of 

murder if he or she aids and abets a crime (i.e., the target crime) 

and murder (i.e., the nontarget crime) is a natural and probable 

consequence of that target crime.” (People v. Chavez (2018) 22 

Cal.App.5th 663, 683.) Here, the target offense was first degree 

murder because appellants were convicted of conspiracy to 

commit first degree murder. “[A] conviction of conspiracy to 

commit murder requires a finding of intent to kill[.]” (People v. 

Swain (1996) 12 Cal.4th 593, 607.) “‘[A]ll conspiracy to commit 

murder is necessarily conspiracy to commit premeditated and 

deliberated first degree murder.’” (People v. Beck and Cruz (2019) 

8 Cal.5th 548, 641.)

Thus, Solorio and Lopez can be liable for Knight’s murder 

on a theory they directly aided and abetted the offense, and the 

same principles would apply to the attempted murder and 

extortion charges. 

2. Harmless Error.

The Supreme Court has distinguished two categories of 

incorrect theories of jury instructions. (People v. Aledamat (2019) 

8 Cal.5th 1, 7 (Aledamat); People v. Guiton (1993) 4 Cal.4th 1116, 

1128.) A factually inadequate theory “is an otherwise valid legal 

theory that is not supported by the facts or evidence in a case.” 

(Aledamat, at pp. 7–8.) A legally inadequate theory “is incorrect 

because it is contrary to law.” (Id. at p. 7.) We presume jurors are 

able to evaluate and ignore factually incorrect theories. (Id. at p. 

8; Guiton, at p. 1125.) Legally incorrect theories require a more 
61

stringent standard of prejudice because jurors are less able to 

identify an incorrect statement of the law. (Aledamat, at p. 8; 

Guiton, at p. 1125.)

The Supreme Court has held that the Chapman10 harmless 

error standard applies to an “alternative-theory error” like the 

one here. (Aledamat, supra, 8 Cal.5th at p. 13.) The Supreme 

Court stated that the “reviewing court must reverse the 

conviction unless, after examining the entire cause, including the 

evidence, and considering all relevant circumstances, it 

determines the error was harmless beyond a reasonable doubt.” 

(Ibid.) In determining under Chapman “whether the error was 

harmless, the reviewing court is not limited to a review of the 

verdict itself. An examination of the actual verdict may be 

sufficient to demonstrate harmlessness, but it is not necessary.” 

(Ibid.) The reviewing court should consider the likelihood the jury 

applied the incorrect instruction, “not simply the strength of the 

evidence to support a guilty verdict using the correct instruction.” 

(People v. Thompkins (2020) 50 Cal.App.5th 365, 399.)

C. Application.

Here, we conclude any error was harmless beyond a 

reasonable doubt because is not possible that the jury relied on 

the doctrine of natural and probable consequences to find 

defendants guilty of murder, attempted murder, and extortion. 

Instead, the facts establish that the crimes committed were not 

the inadvertent foreseeable outcomes of appellants’ criminal 

behavior. Rather, they were the planned objectives of the 

conspiracy and therefore liability properly attached under the 

aider and abettor doctrine.

10 Chapman v. California (1967) 386 U.S. 18.
62

“Natural and probable consequences” is defined as “[a] 

natural and probable consequence is one that a reasonable person 

would know is likely to happen if nothing unusual intervenes.”

(CALCRIM No. 402, emphasis omitted.) Here, the doctrine would 

not apply because the murder and extortion offenses were not the 

unintended results of defendants’ conduct, but instead were the 

very results they envisioned. So, we conclude the jury necessarily 

relied on the viable aiding and abetting theory upon which they 

were instructed. 

Accordingly, the record establishes appellants were

convicted under a theory that remains valid under section 189, as 

amended by Senate Bill No. 1437.

VIII. CLAIMED INSTRUCTIONAL ERROR: FAILURE TO 

SUA SPONTE INSTRUCT WITH CALJIC 6.24.

McMorries argues the trial court erred in failing to instruct 

the jury with CALJIC No. 6.24 regarding the use of coconspirator’s statements. McMorries contends this failure was 

prejudicial because No. 6.24 provides the foundational 

requirements of the existence of a conspiracy, and he contends

such evidence was slim. He was only captured on seven of the 

wiretapped phone calls, in two conversations, a recorded cell 

communication, and two body wire conversations; all other 

statements were admitted under Evidence Code section 1223, the 

coconspirator exception to the hearsay rule. Alternatively, he 

asserts that if there is no sua sponte duty, he argues his trial 

counsel was ineffective for failing to request the instruction. 

A. Procedural Background.

Although statements of conspirators were admitted during 

trial pursuant to Evidence Code section 1223, trial counsel did 
63

not request instruction No. 6.24, which sets forth the 

foundational requirements for consideration of such hearsay 

statements. The trial court did not instruct with this instruction. 

CALJIC 6.24 provides: 

“Evidence of a statement made by one alleged conspirator 

other than at this trial shall not be considered by you as against 

another alleged conspirator unless you determine by a 

preponderance of the evidence:

“1. That from other independent evidence that at the time 

the statement was made a conspiracy to commit a crime existed;

“2. That the statement was made while the person making 

the statement was participating in the conspiracy;

“3. That the statement was made in furtherance of the 

objective of the conspiracy, and was made before or during the 

time when the party against whom it was offered was 

participating in the conspiracy.

“The word “statement” as used in this instruction includes 

any oral or written verbal expression or the nonverbal conduct of 

a person intended by that person as a substitute for oral or 

written verbal expression.” 

The trial court gave other instructions regarding the 

charged conspiracy: CALJIC No. 6.10 (conspiracy and overt act 

defined), CALJIC No. 6.11 (conspiracy, joint responsibility), 

CALJIC No. 6.12 (proof of express agreement of conspiracy 

unnecessary), CALJIC No. 6.13 (association alone does not prove 

membership in conspiracy), CALJIC No. 6.14 (acquaintance with 

all co-conspirators not necessary), CALJIC No. 6.18 (commission 

of act in furtherance of conspiracy does not itself prove 

membership in conspiracy), and CALJIC No. 6.22 (conspiracy, 

case must be considered as to each defendant). 
64

In addition, the court gave CALJIC Nos. 6.16 and 6.19:

“Where a conspirator commits an act or makes a 

declaration which is neither in furtherance of the object of the 

conspiracy nor the natural and probable consequence of an 

attempt to attain that object, he alone is responsible for and is 

bound by that act or declaration, and no criminal responsibility 

therefor attaches to any of his confederates.” (CALJIC No. 6.16)

“Every person who joins a conspiracy after its formation is 

liable for and bound by the acts committed and declarations 

made by other members in pursuance and furtherance of the 

conspiracy during the time that he or she is a member of the 

conspiracy.

“A person who joins a conspiracy after its formation is not 

liable or bound by the acts of the co-conspirators or for any crime 

committed by the co-conspirators before that person joins and 

becomes a member of the conspiracy.

“Evidence of any acts done or declarations made by other 

conspirators prior to the time that person becomes a member of 

the conspiracy may be considered by you in determining the 

nature, objectives and purposes of the conspiracy, but for no other 

purpose.” (CALJIC No. 6.19)

B. Any Error in Failing to Instruct Was Harmless.

Hearsay evidence is generally inadmissible. Hearsay 

statements by coconspirators, however, may nevertheless be 

admitted against a party if there is independent evidence to 

establish prima facie the existence of a conspiracy. Once 

independent proof of a conspiracy has been shown, three 

preliminary facts must be established: “‛(1) that the declarant 

was participating in a conspiracy at the time of the declaration; 

(2) that the declaration was in furtherance of the objective of that 
65

conspiracy; and (3) that at the time of the declaration the party 

against whom the evidence is offered was participating or would 

later participate in the conspiracy.’” (People v. Hardy (1992) 2 

Cal.4th 86, 139; Evid. Code, § 1223, subd. (c).)

Although the existence of the conspiracy must be shown by 

independent proof, such showing need only be prima facie 

evidence of the conspiracy. This prima facie showing may be 

circumstantial and may be by means of any competent evidence 

which tends to show that a conspiracy existed. (People v. Beck 

and Cruz, supra, 8 Cal.5th at pp. 627.) Furthermore, the 

independent proof required to establish the existence of a 

conspiracy may consist of uncorroborated accomplice testimony. 

(Id. at p. 628.)

“We review de novo a claim that the trial court failed to 

properly instruct the jury on the applicable principles of law.” 

(People v. Canizalez (2011) 197 Cal.App.4th 832, 850.) “It is 

settled that in criminal cases, even in the absence of a request, 

the trial court must instruct on the general principles of law 

relevant to the issues raised by the evidence. [Citations.] The 

general principles of law governing the case are those principles 

closely and openly connected with the facts before the court, and 

which are necessary for the jury’s understanding of the case.” 

(People v. St. Martin (1970) 1 Cal.3d 524, 531.)

Two courts have held, without analysis of the court’s sua 

sponte duty to instruct, that the failure to instruct with CALJIC 

No. 6.24 is harmless error. (People v. Sully (1991) 53 Cal.3d 1195, 

1231–1232 [assuming CALJIC No. 6.24 should have been given, 

failure to do so harmless error]; People v. Prieto (2003) 30 Cal.4th 

226, 251–252 [same].) We similarly need not determine whether 

there was a sua sponte duty to instruct with CALJIC No. 6.24. 
66

Although given the admissibility of the coconspirators’ 

statements pursuant to Evidence Code section 1223, CALJIC No. 

6.24 would have been appropriate, any failure to instruct was 

harmless. 

Here, in any event, numerous statements independently 

established the existence of the conspiracies to commit murder 

and extortion. McMorries made numerous statements to Solorio, 

Lopez and Salazar regarding the gang’s ongoing extortion, 

Knight’s failure to remit taxes, and planning and execution of 

Knight’s murder. Finally, viewing the extensive instructions on 

conspiracy as a whole, it is not likely that the jury failed to make 

the foundational finding that conspiracies existed and these 

hearsay statements were made in furtherance of the conspiracy. 

C. Counsel Was Not Ineffective. 

The right to effective assistance of counsel derives from the 

Sixth Amendment right to assistance of counsel. (Strickland v. 

Washington (1984) 466 U.S. 668, 684-686.) To state a claim that 

counsel rendered constitutionally ineffective assistance, “‘the 

defendant must first show counsel’s performance was deficient, in 

that it fell below an objective standard of reasonableness under 

prevailing professional norms. Second, the defendant must show 

resulting prejudice, [namely], a reasonable probability that, but 

for counsel’s deficient performance, the outcome of the proceeding 

would have been different.’” (People v. Hoyt (2020) 8 Cal.5th 892, 

958.) 

“When examining an ineffective assistance claim, a 

reviewing court defers to counsel’s reasonable tactical decisions, 

and there is a presumption counsel acted within the wide range 

of reasonable professional assistance.” (People v. Mai (2013) 57 

Cal.4th 986, 1009.) “On direct appeal, a conviction will be 
67

reversed for ineffective assistance only if (1) the record 

affirmatively discloses counsel had no rational tactical purpose 

for the challenged act or omission, (2) counsel was asked for a 

reason and failed to provide one, or (3) there simply could be no 

satisfactory explanation. All other claims of ineffective assistance 

are more appropriately resolved in a habeas corpus proceeding.” 

(Ibid.)

Here, appellant cannot demonstrate prejudice on this 

record because any failure to request this instruction was 

harmless as discussed above.

IX. NEW TRIAL MOTION ON EXTORTION COUNTS.

Appellants McMorries and Solorio argue that the trial court 

abused its discretion in refusing to grant their new trial motion 

on the extortion counts based upon what they contend was 

inflammatory language inadvertently included with a transcript 

of their phone conversations. (Counts 3, 5 and 12.)

A. Factual Background.

Expert testimony at trial on the operations of the Mexican 

Mafia established that its primary activity was extortion. Before 

trial, Lopez moved to exclude the use of the word “extortion” to 

describe the collection and payment of taxes or rent money. The 

trial court granted the motion and ordered the experts would not 

use the word “extortion” when testifying to facts or hypotheticals. 

Experts would only be permitted to use terms such as “payment 

of rent,” and “money paid.” 

During trial, the prosecution played for the jury audio 

recordings of conversations between Lopez and Salazar regarding 

tax collections. Transcripts of the recordings were given to the 

jurors. However, the transcripts contained a footer that contained 
68

the notation “Meet with Ronald Dave Lopez to hand over $2,300 

of extortion money.” Due to use of the word “extortion,” the 

prosecution asked the trial court to admonish the jury. Defense 

counsel asked for fresh copies of the transcripts to be provided to 

the jurors, but the prosecution argued that rather than exchange 

the transcripts for clean copies (because the jurors had already 

made notations on their copies), the prosecution asked for a 

limiting instruction. The trial court gave the jurors black 

markers and asked them to cross out the footers, and stated it 

would provide a limiting instruction. 

Appellants moved for mistrial on the extortion counts. The 

trial court denied the motion, stating, “I don’t think this is so 

prejudicial that we have somehow tainted the jurors to the point 

where they can’t reach a fair and just verdict. The court 

instructed the jury: “If you recall when we were doing voir dire, 

what I told you was that we're putting evidence into an 

imaginary box, and we're talking about evidence that is coming 

from this witness stand, also the audiotapes that you're hearing. 

that is what is going into the imaginary box. [¶] There is 

something that is not going into the imaginary box. So if you go 

back to page—or tab 14 in this same book, tab 14, and you look at 

the bottom—the very bottom right where it says 2 of 12, 3 of 12, 

the paging. there is an extraneous language there with just a 

notation made by somebody who was doing the transcribing or 

something. That is not going into the imaginary box; so you can’t 

consider it. [¶] . . . [¶] When you deliberate you’re not to consider 

what is below the black line. That's why I’m having you take it 

out, to make it easier for you to understand that that is not going 

into the imaginary box. You are not allowed to consider that 

sentence on any of those pages.” 
69

B. Discussion

“‘“A mistrial should be granted if the court is apprised of 

prejudice that it judges incurable by admonition or instruction. 

[Citation.] Whether a particular incident is incurably prejudicial 

is by its nature a speculative matter, and the trial court is vested 

with considerable discretion in ruling on mistrial motions. 

[Citation.]” [Citation.] A motion for a mistrial should be granted 

when “‘“a [defendant's] chances of receiving a fair trial have been 

irreparably damaged.”’”’” (People v. Silveria and Travis (2020) 10 

Cal.5th 195, 298–299.) The defendant bears the burden to show 

the trial court abused its discretion in denying his motion for a 

mistrial. (People v. Maury (2003) 30 Cal.4th 342, 434–437.) We 

review a trial court’s ruling on a motion for a mistrial under the 

deferential abuse of discretion standard. (People v. Schultz (2020) 

10 Cal.5th 623, 673.)

In People v. Navarette (2010) 181 Cal.App.4th 828, upon 

which defendants rely, the defendant was charged with 

committing a lewd act on a four-year-old. (Id. at p. 830.) The trial 

court granted the defense motion to suppress any reference to 

defendant’s confession that was obtained in violation of the 

defendant’s Miranda rights. (Id. at p. 831.) Upset with the court’s

ruling, one of the detectives “promised he ‘was going to show’ the 

court.” (Id. at p. 832.) During that detective’s testimony, he was 

asked why he had decided not to conduct DNA testing on swabs 

taken from the victim’s body. (Id. at p. 831.) The detective 

answered, “‘Well, for several reasons, the first of which it’s a 

court rule that the defendant’s statement is inadmissible. So I 

can’t state the first reason.’” (Ibid.) The trial court struck the 

testimony and gave a curative instruction to the jury. (Id. at pp. 

831–832.) On appeal, the court held the curative instruction was 
70

insufficient because the jury could have reasonably inferred from 

the detective’s testimony that the defendant “had confessed or 

otherwise incriminated himself, rendering DNA evidence 

unnecessary.” (Id. at p. 834.) The court further found the trial 

court’s curative instructions could not undo the damage inflicted 

by the detective's testimony because the instruction “did not 

break the link the jury was likely to perceive between a 

‘statement’ and a ‘confession’ in the context of other evidence the 

jury heard.” (Ibid.)

Appellants contend the description in the footer of the 

transcript provided written confirmation of the prosecution’s 

interpretation of the coded communications. Under these 

circumstances, they argue, the instruction was insufficient to 

break the link the jury was likely to perceive about the exchange 

of money. Further, the remedy of marking out the footer did not 

remedy the situation but instead highlighted the problem. 

We disagree. Unlike Navarette, where the prohibited 

material was deliberately inserted into evidence, the word 

“extortion” was heard at trial in other, proper contexts. The jury 

had already listened to experts describe that the main operation 

of the Mexican Mafia was extortion. Defendants were charged 

with violations of sections 518 and 519 and instructed on 

“extortion.” Serrano testified to his participation in “extortion.” 

Given the ubiquity of the word “extortion” at trial, and the crimes 

with which defendants were changed, the erroneous inclusion of 

the word in a footer did not deprive defendants of a fair trial. 

This is particularly true because the judge took curative steps to 

ensure the jurors understood the footer was not evidence. We find 

no abuse of discretion in the trial court’s decision to deny the new 

trial motion. 
71

X. PITCHESS REVIEW.

Lopez requests this court independently review the record 

of the in-camera hearing on his Pitchess11 motion. He also 

requests review of the sealed materials to determine what 

documents were produced or not produced for the trial court’s 

review and the sufficiency of any explanation of such production. 

The People do not object to our review. 

A. Factual Background

On April 11, 2014, Lopez filed a motion for an order to 

produce documents for inspection and a motion for pretrial 

discovery of law enforcement personnel records for Neslen for the 

previous five years concerning any accusations of violation of civil 

liberties, detention without reasonable cause, falsifying evidence, 

misconduct, excessive use of force, or aiding and abetting another 

officer’s misconduct. (Evid. Code, § 1043.) Lopez also sought 

discovery of former Pitchess motions filed against Neslen. 

Lopez alleged in his supporting affidavits for the state 

wiretaps, that Neslen had asserted he only contacted one 

informant and no other informants were known (“no other 

informants, other than those detailed in this affidavit, are 

currently known or available with the capacity to infiltrate these 

target subjects.” This sole informant was used to justify the 

necessity of the wiretaps. Lopez later learned that in an 

application for a federal wiretap, Neslen represented he had six 

(and later eight) additional informants. 

The prosecution opposed, principally asserting that Lopez 

failed to comply with the good cause and materiality 

11 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
72

requirements of Evidence Code section 1043, subdivision (b)(3) 

because the supporting declaration was deficient. The reasons for 

the discovery, namely, the different number of informants Neslen 

relied on for the wiretap authorizations, was insufficient. 

On June 4, 2014, after argument on the motion, the trial 

court conducted an in camera Pitchess hearing to review the 

officer’s files. The hearing was recorded, transcribed, and filed 

under seal. At the in-camera hearing, outside the presence of the 

parties, the custodians of records for the Bell Gardens Police 

Department testified under oath about the categories of 

documents they reviewed. The trial court found no discoverable 

materials. 

B. Discussion.

“‘[A] criminal defendant may, in some circumstances, 

compel the discovery of evidence in [a] law enforcement officer’s 

personnel file that is relevant to the defendant’s ability to defend 

against a criminal charge.’” (Garcia v. Superior Court (2007) 42 

Cal.4th 63, 69.) By providing that the trial court should conduct 

an in-camera review, the Pitchess review process balances the 

defendant’s need for disclosure of relevant information with the 

law enforcement officer’s legitimate expectation of privacy in his 

or her personnel records. (Ibid.)

If after the defendant files a Pitchess motion, “the trial 

court concludes the defendant has fulfilled [the statutory] 

prerequisites and made a showing of good cause, the custodian of 

records should bring to court all documents ‘potentially relevant’ 

to the defendant's motion. [Citation.] The trial court ‘shall 

examine the information in chambers’ . . . ‘out of the presence and 

hearing of all persons except the person authorized [to possess 

the records] and such other persons [the custodian of records] is 
73

willing to have present’ [Citations.]. Subject to statutory 

exceptions and limitations . . . the trial court should then disclose 

to the defendant ‘such information [that] is relevant to the 

subject matter involved in the pending litigation.’” (People v. 

Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).)

We review the trial court’s decision not to order the release 

of personnel records for abuse of discretion. (People v. Winbush

(2017) 2 Cal.5th 402, 424; Mooc, supra, 26 Cal.4th at p. 1228.) If a 

trial court is found to have abused its discretion in denying 

Pitchess discovery, a defendant is not entitled to relief unless he 

can demonstrate a reasonable probability of a different outcome 

had the evidence been disclosed. (People v. Gaines (2009) 46 

Cal.4th 172, 182–183.)

Having reviewed the record of defendant’s in-camera 

Pitchess motion hearing, we find no abuse of discretion. The court 

appropriately denied the motion. (See Mooc, supra, 26 Cal.4th at 

pp. 1228–1232.)

XI. CLAIMED CUMULATIVE ERROR.

Appellants argue that even if we conclude the individual 

errors at trial do not require reversal or retrial, the cumulation of 

such errors deprived them of a fair trial. Under the cumulative 

error doctrine, the cumulative effect of several trial errors may be 

prejudicial even if they would not be prejudicial when considered 

individually. (People v. Capers (2019) 7 Cal.5th 989, 1017; In re 

Reno (2012) 55 Cal.4th 428, 483.) Because we have found either 

no error or harmless error, we can find no cumulative error. 

XII. STRIKING OF ENHANCEMENTS.

McMorries argues that under SB 136, the prior prison term 

enhancements on his sentence imposed pursuant to section 667.5, 
74

subdivision (b) should be stricken because his prior convictions 

were not for sexually violent offenses. (Welf. & Inst. § 6600, subd. 

(b).) Respondent agrees.

After the filing of the jury’s verdict, appellant admitted the 

truth of the two prior prison terms alleged in the information for 

purposes of former section 667.5, subdivision (b). Based on this 

admission, at sentencing, the trial court sentenced appellant to 

five consecutive one-year terms on Counts 1, 3 and 13. 

Effective January 1, 2020, Senate Bill No. 136 amended 

section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) By this 

revision, the Legislature “amend[ed] section 667.5, subdivision (b) 

to limit its prior prison term enhancement to only prior prison 

terms for sexually violent offenses, as defined in Welfare and 

Institutions Code section 6600, subdivision (b).” (People v. 

Jennings (2019) 42 Cal.App.5th 664, 681.)

On January 1, 2020, the effective date of Senate Bill No. 

136, this appeal was pending. A statute that ameliorates the 

punishment for an offense will generally apply retroactively to 

any case in which the judgment is not yet final before the 

effective date of the statute. (In re Estrada (1965) 63 Cal.2d 740, 

748.) 

Accordingly, we will modify the judgment by striking the 

one-year prior prison term sentencing enhancements that the 

court imposed on Counts 1, 3 and 13 under section 667.5, 

subdivision (b).

XIII. CORRECTION OF ABSTRACT OF JUDGMENT

Appellants argue their abstracts of judgment must be 

modified to delete the fines and assessments shown because at 

the sentencing hearing, the court did not impose any such fines 

or fees, although the minute order and abstract of judgment 
75

states it did so. They request that if we impose such fines or fees, 

that we impose the amounts reflected in the minute order, not 

the abstracts of judgment, and that we remand the matter for an 

ability to pay hearing pursuant to People v. Duenas, supra, 30 

Cal.App.5th 1157 (Duenas)

12 on the court facilities and 

operations assessments and restitution fines imposed under 

sections 1465.8, subdivision (a)(1) and Government Code section 

70373.

A. Factual Background. 

At the sentencing hearing, the trial court did not impose 

any fines or fees on appellants. The minute order of the 

sentencing hearing, however, reflects that it imposed the 

following on each of the appellants: (1) a $40.00 Court operations 

assessment (§ 1465.8, subd. (a)(1)); (2) a $30.00 criminal 

conviction assessment (Gov. Code, § 70373); (3) a $240.00 

restitution fine (§ 1202.4, subd. (b)); and (4) a $240.00 parolesupervision fine (§ 1202.45). 

Solorio: On each of the three abstracts, $240 each for 

sections 1202.4, subd. (b) and 1202.45; and $400.00 for section 

1465.8 and $300 for Gov. Code section 70373. 

Lopez: On each of the three abstracts, $240 each for the 

sections 1202.4, subd. (b) and 1202.45; and $680.00 for section 

1465.8 and $510 for Gov. Code section 70373. 

B. Discussion.

12 Currently, the issue addressed in Duenas is on review in 

the California Supreme Court. (People v. Kopp (2019) 38 

Cal.App.5th 47.)
76

The oral pronouncement of the sentence controls over the 

abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 

185.) 

Government Code section 70373 and Penal Code section 

1465.8, which impose court facilities and court operations 

assessments on every criminal conviction, each provide that the 

assessment “shall be imposed on every conviction for a criminal 

offense” except for parking offenses. (Gov. Code, § 70373, subd. 

(a)(1); Pen. Code, § 1465.8, subd. (a)(1).) These assessments are 

mandatory and non-punitive. (People v. Fleury (2010) 182 

Cal.App.4th 1486, 1493.) 

Because these fees are mandatory, the trial court’s failure 

to impose them constituted an unauthorized sentence. We may 

correct an unauthorized sentence at any time, and thus these 

assessments may be imposed. (People v. Barnwell (2007) 41 

Cal.4th 1038, 1048, fn.7.) However, we decline to remand to the 

trial court to conduct an ability to pay hearing pursuant to 

Duenas, supra. In Duenas, supra, 30 Cal.App.5th 1157, the court 

held that “due process of law requires the trial court to conduct 

an ability to pay hearing and ascertain a defendant’s present 

ability to pay” before it imposes assessments under section 1465.8 

and Government Code section 70373. (Id. at p. 1164.)

Even under Duenas, however, fines and fees are properly 

imposed if the defendant has the ability to pay them. ““‘Ability to 

pay does not necessarily require existing employment or cash on 

hand.” [Citation.] “[I]n determining whether a defendant has the 

ability to pay a restitution fine, the court is not limited to 

considering a defendant’s present ability but may consider a 

defendant’s ability to pay in the future.” [Citation.] This 
77

include[s] the defendants ability to obtain prison wages[.]’” 

(People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.) 

Here, we can infer that appellants can pay the fines and 

fees imposed upon them from their probable future wages, 

including their prison wages. (People v. Avilas, supra, 39 

Cal.App.5th at p. 1076.) “Prison wages range from $12 to $56 per 

month, depending on the prisoner’s skill level.” (Ibid.) The state 

is permitted to garnish a portion of those wages, as well as trust 

account deposits, to satisfy the restitution fine. (Ibid.; see 

§ 2085.5, subd. (a).) Appellants are serving lengthy terms, which 

gives them ample time to earn sufficient funds to pay the fees. 

Accordingly, we need not remand for an ability-to-pay hearing. 

On the other hand, the restitution fines are intended to be, 

and are recognized as, additional punishment for a crime. (See 

People v. Hanson (2000) 23 Cal.4th 355, 362–363.) These fines are 

discretionary because there are situations in which they are not 

required. Subdivision (b) of section 1202.4 provides: “In every 

case where a person is convicted of a crime, the court shall 

impose a separate and additional restitution fine, unless it finds 

compelling and extraordinary reasons for not doing so, and states 

those reasons on the record.” (See also People v. Tillman (2000) 

22 Cal.4th 300, 303.) Respondent concedes that because the court 

did not impose them on the record at sentencing, and the 

prosecution failed to object, these fines must be stricken from the 

abstracts of judgment. 

DISPOSITION

The judgment of conviction is affirmed. The judgment is 

modified to strike the prior prison term enhancements imposed 

pursuant to section 667.5, subdivision (b), on Counts 1, 3 and 13 

as to McMorries, and the fines imposed pursuant to sections 
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1202.4 and 1202.45 are stricken as to all appellants. On remand, 

the trial court shall forward corrected abstracts of judgment to 

the Department of Corrections and Rehabilitation. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J. 

We concur: 

WILLHITE, Acting P.J. 

COLLINS, J.