Filed 11/1/21 P. v. Flores CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

 Plaintiff and Respondent,

v.

HERBERT NIXON FLORES,

 Defendant and Appellant.

 B307423

 (Los Angeles County 

 Super. Ct. No. TA146717)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Connie R. Quiñones, Judge. Affirmed. 

Spolin Law and Aaron Spolin for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael C. Keller and Wyatt E. Bloomfield, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
2

Defendant and appellant Herbert Nixon Flores was 

sentenced to 40 years to life in prison for the shooting death of 

Everardo Soto. He contends the trial court committed 

evidentiary error by excluding impeachment of a prosecution 

witness, instructional error in failing to instruct the jury 

regarding accomplice testimony, and cumulative error. 

Finding no reversible error, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged, along with codefendants Santiago 

Ortega and Anthony Moreno, with one count of murder (Pen. 

Code, § 187, subd. (a); count 1) and one count of assault with a 

semiautomatic firearm (§ 245, subd. (b); count 2). Ortega and 

Moreno were also charged as accessories after the fact (neither 

codefendant is a party to this appeal). Gang and firearm use 

allegations were alleged as to both counts (§ 186.22, 

subd. (b)(1)(C), § 12022.53, subds. (b)–(e)(1), § 12022.5). 

The charges arose from the fatal shooting of Everardo Soto 

on June 22, 2018. That morning, Maximiliano Estrada ran into 

Soto while he was running an errand. Soto was friends with 

Estrada’s older brother and treated Estrada like he was his own 

brother. Estrada had several tattoos, including one that said 

“Watts” and three dots that stood for “my crazy life,” but denied

being a gang member. 

Estrada and Soto were walking down Central Avenue when 

a car turned the corner and slowed down next to them. An adult 

male sitting in the front passenger seat “hit [them] up” (asked 

where they were from). Estrada knew asking where someone 

was from was a “gang thing.” He was scared, tried not to look at 

them, and just kept walking. 
3

After the front passenger asked a second time where they 

were from, Soto responded “Watts.” By then the car had stopped 

and the driver (another adult male) got out. Estrada feared 

something bad was going to happen, so he ran into a nearby 

beauty salon. He heard four gunshots. When Estrada went back 

out to the street, he saw Soto on the ground, bleeding. Several 

people had gathered around. Someone told him not to touch Soto 

and that paramedics were on the way. 

The police officers who responded to the scene found Soto 

lying unresponsive on the sidewalk with multiple gunshot 

wounds. They recovered videotape from security cameras in 

nearby businesses that captured the incident and showed the 

suspects leaving the scene in a white SUV. Four 9-millimeter 

shell casings were recovered from the scene. Soto did not survive. 

An autopsy confirmed Soto died from multiple gunshot wounds, 

including one that entered his lower back and two additional 

“back to front” wounds to his legs. 

One of the responding officers, Officer Agustin Hernandez, 

was told by the owner of the beauty salon that Estrada had been 

with Soto when the shooting occurred and ran into the salon. 

Officer Hernandez spoke with Estrada and asked him if he was 

injured. Estrada looked “shocked” and “scared” but denied being 

injured. 

Detective Mario Aguilar and his partner interviewed 

Estrada at the station after the shooting. Estrada told them Soto 

was known as Solo and was a member of the Colonia Watts street 

gang. Estrada said Soto had picked him up in a car to run an 

errand. They drove into downtown, parked and were walking on 

Central Avenue when a car pulled up next to them. Estrada told 

the detectives both he and Soto yelled out “Watts.” The driver of 
4

the car got out. Estrada then heard shooting and took off 

running. 

Detective Aguilar and his partner reviewed the 

surveillance video that depicted the shooting. It showed the 

suspects were in a white SUV. The driver got out first, then the 

rear passenger behind the driver got out, extended his arm, and 

started shooting in the direction of Soto and Estrada on the 

sidewalk. The driver of the SUV ducked down. The two men got 

back into the SUV and it sped off. Additional videotape recovered 

by the officers from other security cameras showed the SUV 

traveling to Ortega’s house a short distance away and the three 

men getting out and going into Ortega’s home. Officers were 

familiar with the home because Ortega was a known gang 

member. 

Ortega was arrested. Detective Aguilar had Ortega placed 

in a holding cell with a recording device and an informant. 

Ortega and the informant eventually started talking. 

Detective Aguilar interviewed Ortega after listening to the 

holding cell conversation. Ortega expressed concern about 

talking to the detectives, mostly fear that his family members 

would be retaliated against for him snitching on another gang 

member. Ortega eventually identified defendant as the shooter. 

Detective Aguilar believed Ortega’s explanation of the incident 

was largely corroborated by the surveillance videotape they had 

recovered. 

Defendant was interviewed after his arrest. Detective 

Aguilar was unable to confirm many aspects of defendant’s 

statement. Defendant said he was working on the day of the 

incident, but Detective Aguilar confirmed with the alleged 

employer that defendant was not working for them that day. 
5

Defendant denied being at Ortega’s house, but surveillance video 

showed defendant at Ortega’s home on multiple occasions, 

including the day of the incident, and showed defendant take an 

Uber ride from that location after the shooting. 

Detective Aguilar obtained a search warrant for 

defendant’s Facebook account. The records showed a photograph 

of defendant holding a handgun posted to his account the day 

before the shooting, as well as another post on the day of the 

shooting with the message “tryna to go bust.” Detective Aguilar 

worked gang enforcement prior to becoming a homicide detective 

and knew that was gang terminology that meant someone was 

going to shoot someone, often a rival gang member. 

In August 2019, the case went to trial. 

Estrada, Detective Aguilar, the medical examiner, and the 

officers who responded to the scene testified to the above facts. 

During cross-examination, Estrada was impeached on 

several points. Estrada testified inconsistently with what he told 

detectives at the police station. He denied knowing Soto had a 

gang moniker and said he just knew Soto as his brother’s friend 

Everardo. Estrada also denied telling Detective Aguilar that 

Soto was his “big homie.” He conceded he had not been 

cooperative with the police investigating the shooting but said it 

was only because he had moved to Bakersfield to get away from 

the gang violence in his neighborhood. 

Codefendant Ortega testified for the prosecution pursuant 

to an immunity-leniency agreement. He admitted lying to 

investigating officers about many facts. He acknowledged he was 

in custody because of the shooting and was testifying pursuant to 

a leniency agreement in exchange for pleading guilty to being an 

accessory after the fact and admitting the gang allegation. 
6

Ortega admitted his membership in KMT, a clique of the 

South Side Watts street gang. KMT stood for Krazy Mexican 

Town. Ortega said his gang moniker was Dodger. Ortega 

acknowledged having suffered several prior convictions, including 

for vandalism and felony gun possession. He said he had known 

codefendant Moreno since they were children, and he had known 

defendant for several years. Both Moreno and defendant were 

also members of the KMT gang. Defendant’s gang moniker is 

Boxer. Moreno’s gang moniker is Chucky, and in 2018, Moreno 

drove a white SUV. 

Ortega testified he was with defendant and Moreno on the 

morning of June 22, 2018. They were on their way to a funeral. 

Moreno was driving, Ortega was in the front passenger seat, and 

defendant was seated behind Moreno. As they were slowing 

down to stop at a signal, they saw two guys walking on the 

sidewalk. Moreno pointed them out and asked Ortega if he 

thought they were from “Fifth and Hill,” another street gang in 

the area. Moreno stopped the SUV and Ortega called out 

through the front passenger window, “where you fools from?” 

Ortega said the older of the two men answered back 

“Watts” and then said “Colonia.” Colonia Watts was another 

rival gang of KMT. Both Moreno and defendant had been shot in 

the past by members of the Colonia Watts gang. Ortega heard 

defendant yell out “KMT” from the back seat. Ortega thought 

they would get out and beat up the two guys, since it was three 

against two. He started to unbuckle his seat belt to get out when 

he heard gunshots. Everything happened very fast. Moreno and 

defendant were already out of the SUV. Without getting out of 

the car, Ortega saw one of the two guys lying on the sidewalk. 

Ortega realized it was defendant who had been shooting after 
7

defendant jumped back into the SUV with Moreno. They 

immediately drove to Ortega’s house a short distance away. 

Ortega confirmed surveillance videotape showing Moreno’s 

SUV coming to a stop next to Estrada and Soto, Soto exchanging 

words with him, and defendant shooting at Estrada and Soto. He 

said that as they fled the scene, the three of them were yelling 

inside the SUV. Ortega said “it should not have happened . . . . 

It was wrong place, wrong time.” 

Once they got back to Ortega’s house, Ortega changed 

clothes, and he and Moreno went to the funeral. Defendant did 

not go with them because Moreno did not want defendant back in 

his car. Ortega confirmed video footage from security cameras on 

his house showing defendant leaving his house, walking across 

the street, and eventually being picked up by another car. 

Ortega denied having a gun with him that day and denied 

knowing defendant had brought one with him. Ortega said there 

was never any discussion or plan to go out and shoot that day, 

reiterating they were headed to a funeral. Ortega said several 

days later, defendant told him he shot at Soto and Estrada 

because they were rival gang members, and he had been shot by 

members of that gang before. Defendant told Ortega he had 

gotten rid of the gun. 

On cross-examination, Ortega admitted he initially lied to 

the investigating officers about numerous facts. He denied being 

present; he said Estrada and Soto initiated the contact by yelling 

out to him, when in fact, he was the one who “bang[ed]” on them; 

he said both Estrada and Soto yelled out “Watts,” when in fact, 

only the older one (Soto) yelled out a response; he denied knowing 

defendant’s first name or that he knew him very well, although 

he had known defendant for years; and he said only defendant 
8

got out of the SUV, even though Moreno got out with him, 

because he wanted to protect Moreno. 

Ortega testified Soto raised his shirt up when defendant 

and Moreno got out of the SUV, but he did not recall seeing 

anything in Soto’s hands, and he never saw Soto with a weapon. 

Ortega said he was in fear for his life when the shooting started 

because he was not sure where it was coming from. 

Ortega denied disliking defendant or that his trial 

testimony was revenge for defendant flirting with his girlfriend. 

He said that if gang members think another gang member acted 

out of line, they have their own way of disciplining that 

individual. Ortega said he did not immediately tell the truth 

about what happened because he did not want to be a snitch and 

put himself and his family at risk of being harmed. 

Evidence was presented from several officers about the 

KMT gang, including Detective Hebert Ybanez who testified as 

the prosecution’s gang expert. It was generally known that South 

Side Watts KMT and the Colonia Watts gang feuded and were 

regularly confrontational. 

Defendant testified and admitted his membership in KMT. 

He said he had known codefendants Ortega and Moreno for five 

years and they were both members of KMT. One of his gang 

tattoos is three dots meaning “my crazy life,” and one cannot get 

that tattoo without being a member of the gang. 

Defendant said that on the morning of June 22, 2018, he, 

Ortega and Moreno were on their way to a funeral. Moreno was 

driving, defendant was seated behind Moreno, and Ortega was in 

the front passenger seat. Defendant denied having any intention 

of shooting anyone that day. Defendant admitted that prior to 

the shooting he sent a text to a girl he liked that said “tryna go 
9

bust,” which normally means you are going out to shoot someone, 

but he said he was only trying to impress the girl. 

Defendant admitted he had a gun in his waistband, but it 

was only for protection because they were headed to a funeral for 

another gang member. When they saw Soto and Estrada walking 

down the street, Moreno pulled over and Ortega yelled out to 

them, asking where they were from. They did not answer at first, 

but after Ortega asked a second time, they both responded 

“Colonia Watts,” a rival gang. 

Defendant said he was scared when he heard Colonia 

Watts because he had been shot a couple of years before by a 

member of that gang. Moreno got out of the car, and defendant 

got out with him. Defendant saw Soto reach under his shirt, and 

he believed Soto was grabbing for a gun. Defendant saw a small 

black object in Soto’s hand. He feared getting shot, so he fired 

four times in Soto’s direction. Defendant said he did not shoot at 

Estrada because he did not believe Estrada was a threat. He and 

Moreno then immediately got back into the car and they drove 

off. 

Defendant admitted he lied to the investigating detectives 

who interviewed him after his arrest, because he was a gang 

member, and he did not think they would believe him about what 

happened. 

The jury found defendant guilty as charged. 

The court sentenced defendant to 40 years to life on count 1 

(15 to life on the murder charge and a consecutive 25 to life for 

the firearm use enhancement, § 12022.53, subd. (d)). The court 

imposed a concurrent 10-year determinate term on count 2. 

This appeal followed. 
10

DISCUSSION

1. The Trial Court Did Not Commit Error in Excluding 

the Proffered Impeachment.

Defendant contends the court committed error during the 

testimony of prosecution witness Maximiliano Estrada, who was 

walking with Soto just before Soto was shot and killed. 

During cross-examination of Estrada, the court and counsel 

discussed a few matters outside the presence of the jury, 

including the fact Estrada had an open misdemeanor case for a 

violation of Health and Safety Code section 11377 (possession of 

methamphetamine). When cross-examination resumed, defense 

counsel asked Estrada about marijuana use, and he admitted he 

smoked marijuana but denied using other drugs. In response to a 

follow-up question, Estrada specifically denied using or ever 

being “caught with methamphetamines.” 

Defense counsel asked for a sidebar. The prosecutor said 

“[j]ust ask. I’m not going [to] object.” The court asked counsel to 

approach and said, “[y]ou know better [than] to ask about a case 

that is pending. You know you need him to have an attorney.” 

Defense counsel said it was relevant to Estrada’s credibility. The 

court did not think the testimony was admissible. Defense 

counsel responded, “I’ll move on then,” and did not pursue the 

matter further. 

Defendant now contends on appeal he should have been 

permitted to inquire about the pending case to show that Estrada 

was lying about never having been caught with 

methamphetamines in his possession. Defendant says he was 

not planning to inquire further about the facts of that open case. 

Defendant says the prosecutor did not oppose the question being 

asked, and it was important impeachment that would 
11

demonstrate Estrada’s willingness to lie to the jury. Defendant 

contends the preclusion of this evidence violated his Sixth 

Amendment rights to present a defense and to confront the 

witnesses against him. We do not agree. 

“ ‘[T]he federal Constitution guarantees an opportunity for 

effective cross-examination, not a cross-examination that is as 

effective as a defendant might prefer.’ [Citations.]” (People v. 

Homick (2012) 55 Cal.4th 816, 861.) While wide latitude should 

ordinarily be given to cross-examination intended to test the 

credibility of prosecution witnesses in a criminal case, the trial 

court nonetheless retains broad discretion to restrict “ ‘crossexamination which is repetitive or only marginally relevant. 

[Citation.] There is no Sixth Amendment violation at all unless 

the prohibited cross-examination might reasonably have 

produced “a significantly different impression of [the witness’s] 

credibility. . . .” [Citation.]’ ” (People v. Belmontes (1988) 

45 Cal.3d 744, 780 (Belmontes), overruled in part on other 

grounds in People v. Cortez (2016) 63 Cal.4th 101, 118.)

Whether or not Estrada lied about being arrested for 

possession of methamphetamine was collateral and irrelevant to 

the murder charge against defendant. Our Supreme Court has 

said the trial court has broad discretion to exclude such 

impeachment under Evidence Code section 352 in order to 

“prevent criminal trials from degenerating into nitpicking wars of 

attrition over collateral credibility issues.” (People v. Wheeler

(1992) 4 Cal.4th 284, 296 (Wheeler); see also People v. Jennings

(1991) 53 Cal.3d 334, 372 [no infringement on the defendant’s 

Sixth Amendment rights where excluded evidence would have 

impeached “witnesses on collateral matters and was only slightly 

probative of their veracity”].)
12

The proffered impeachment pertained to a misdemeanor 

charge for drug possession only, which is not a crime of moral 

turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317; People v. 

Vera (1999) 69 Cal.App.4th 1100, 1103.) Moreover, the 

misdemeanor charge was pending, and Estrada had not been 

convicted. “Additional considerations apply when the proffered 

impeachment evidence is misconduct other than a prior 

conviction. This is because such misconduct generally is less 

probative of immoral character or dishonesty and may involve 

problems involving proof, unfair surprise, and the evaluation of 

moral turpitude.” (People v. Clark (2011) 52 Cal.4th 856, 931–

932, italics added; accord, Wheeler, supra, 4 Cal.4th at pp. 296–

297.) 

Defense counsel effectively impeached Estrada on crossexamination, by exposing significant inconsistencies in his 

testimony as compared to his initial interview with Detective 

Aguilar. There is no reason to think the jury would have had a 

“significantly different impression” of Estrada had it heard he 

was facing a pending misdemeanor charge for possession of 

methamphetamines. (Belmontes, supra, 45 Cal.3d at p. 780.) 

Nor is there reason to believe defendant would have obtained a 

better outcome at trial.

2. The Instructional Error Was Harmless. 

Defendant contends the trial court erred by failing to sua 

sponte instruct the jury with either CALCRIM No. 334 or 

CALCRIM No. 335 regarding accomplice testimony. Defendant 

says the failure of the court to inform the jury that it must view 

codefendant Ortega’s testimony with caution was prejudicial and 

violated his right to due process and a fair trial. 
13

We agree the court should have given the jury one of those 

instructions but find the instructional error was harmless by any 

standard. “A trial court’s failure to instruct on accomplice 

liability under [Penal Code] section 1111 is harmless if there is 

‘sufficient corroborating evidence in the record.’ ” (People v. Avila

(2006) 38 Cal.4th 491, 562; accord, People v. Manibusan (2013) 

58 Cal.4th 40, 95 (Manibusan); People v. Williams (2010) 

49 Cal.4th 405, 456; & People v. Battle (2011) 198 Cal.App.4th 50, 

68.)

The record contains ample corroborating evidence. 

“ ‘Corroborating evidence may be slight, entirely circumstantial, 

and entitled to little consideration when standing alone. 

[Citations.] It need not be sufficient to establish every element of 

the charged offense or to establish the precise facts to which the 

accomplice testified. [Citations.] It 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.]’ ” 

(Manibusan, supra, 58 Cal.4th at p. 95; accord, People v. 

Williams (1997) 16 Cal.4th 635, 680–681.) 

Defendant’s own testimony, without more, was sufficient to 

corroborate Ortega. Defendant admitted he fired four shots at 

Soto. (People v. Williams, supra, 16 Cal.4th at p. 680 [“The 

necessary corroborative evidence for accomplice testimony can be 

a defendant’s own admissions.”].) 

In light of defendant’s admissions, the only material issue 

in contention was whether defendant shot in self-defense or shot 

without provocation. Despite defendant’s argument to the 

contrary, there was sufficient corroboration, independent of 

Ortega’s testimony, that he did not act in self-defense. 
14

There was videotape of the incident substantially

consistent with Ortega’s version of the shooting. The medical 

examiner testified that Soto suffered three gunshot wounds, all of 

which were “back to front,” suggesting Soto was turned or 

turning away from defendant at the time he was shot, not facing 

and threatening defendant. There was no evidence that a gun 

was recovered from the vicinity of Soto’s body or that he had been 

armed at the time. Detective Aguilar testified that defendant 

had posted, on his Facebook page, photographs holding a 

handgun along with slang terms indicating he was going out to 

shoot someone within 24 hours of the shooting. 

Moreover, Ortega admitted during his testimony he had 

been charged in the shooting and was testifying pursuant to an 

immunity agreement. Defense counsel was able to elicit several 

inconsistencies in Ortega’s pretrial interviews and trial testimony 

and obtain admissions from Ortega that he had in fact lied to the 

police on several matters before agreeing to talk to them and 

accept a deal. The jury would have been inclined to view Ortega’s 

testimony with caution even in the absence of the instruction. 

(People v. Williams, supra, 49 Cal.4th at p. 456 [failure to 

instruct on accomplice testimony harmless where there was 

sufficient corroboration and evidence jury would have viewed 

accomplice’s testimony pursuant to an immunity agreement with 

caution].) 

3. There Was No Cumulative Error. 

Finally, defendant urges us to find cumulative error, 

arguing the two trial errors combined to undercut his defense 

because they cloaked the two main prosecution witnesses 

(Estrada and Ortega) with a false aura of credibility.
15

We are not persuaded. As we already explained, we 

conclude there was no evidentiary error. And, as for the court’s 

instructional error, it was harmless by any standard in light of 

the ample corroborating evidence. Defendant has not 

demonstrated trial errors that combined to render his trial 

fundamentally unfair.

DISPOSITION

The judgment of conviction is affirmed. 

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J. 

OHTA, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.