Filed 4/30/21 P. v. Salinas CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH SALINAS,

Defendant and Appellant.

B300988

(Los Angeles County

Super. Ct. No. NA105346-02)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Judith L. Meyer, Judge. Affirmed in part and 

remanded with directions.

Lynda A. Romero, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Rama R. Maline, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
2

Joseph Salinas was convicted of the first degree murder of 

Juan Zamora (Pen. Code,1 § 187) and possession of a firearm by a

felon (§ 29800, subd. (a)(1)), with numerous enhancement 

allegations found true. On appeal, Salinas contends: (1) there 

was insufficient evidence to support the conviction; (2) he was 

denied due process by the trial court’s erroneous exclusion of 

evidence; (3) he was denied due process when the court instructed 

the jury with CALCRIM No. 315; (4) cumulative error requires 

reversal; and (5) the sentence enhancements under section 667.5, 

subdivision (b) and section 667, subdivision (a) must be stricken. 

We affirm the conviction, conclude the challenged enhancements 

must be stricken, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Zamora was shot to death outside his home on Wilmington 

Boulevard at approximately 8:30 p.m. on April 23, 2016. Salinas

and his girlfriend Yvette Vasquez, both members of a rival gang,

were charged with first degree murder and possession of a 

firearm by a felon The information alleged Salinas used a 

firearm in the commission of the murder within the meaning of 

section 12022.53, subdivisions (b), (c), and (d), and that he 

committed the murder for the benefit of, at the direction of, or in 

association with a criminal street gang so as to require he serve a 

minimum of 15 years in prison before becoming eligible for parole

(§ 186.22, subd. (b)(5)). In conjunction with the possession of a 

firearm by a felon charge, it was also alleged Salinas committed 

this offense for the benefit of, at the direction of, or in association 

with a criminal street gang. Salinas was alleged to have served 

1 All undesignated statutory references are to the Penal 

Code.
3

three prior prison terms for purposes of section 667.5, subdivision 

(b) enhancements, and to have one prior strike offense within the 

meaning of the “Three Strikes” law (§§ 667, subds. (b)-(j), 

1170.12, subds. (a)–(d)).

The central issue at trial was identity. A witness who had 

been sitting in her car in the alley behind Zamora’s home 

described seeing a car similar to that known to be under 

Vasquez’s control pull into the alley around 8:30 p.m. A person 

exited the passenger side of the car and walked through a gate 

toward Zamora’s home. The female driver stayed for a little 

while, then backed the car out of the alley. Footage from 

surveillance cameras in the alley was consistent with the 

witness’s account.

At about 8:30 p.m., 12-year-old Dennis G. was sitting on a 

wall dividing apartment complexes near Zamora’s home when he 

saw a man wearing a black hoodie and dark clothing walk away 

from the alley and toward Wilmington Boulevard. Dennis G. 

watched the man for approximately 10 seconds as he passed The 

lighting was dim and the man’s hood was pulled up, but Dennis 

G. could see the top of the man’s head and the right side of his 

face. The man was bald and had a mole beneath his right eye. 

His hands were in his pocket.

2 The man turned north on 

Wilmington Boulevard, toward Zamora’s home. Seconds later,

Dennis G. heard gunshots. He later selected Salinas’s photo from 

a photographic lineup, writing on the lineup document, “I don’t 

know for sure, but it looks like Number 2.”

2 At trial, Dennis G. testified he did not see the man holding 

anything and he had never said the man was holding something. 

The court took judicial notice of Dennis G.’s preliminary hearing 

testimony that the man was holding something.
4

Zamora’s sister, who lived with Zamora, was standing in 

the front yard at the time of the shooting. She saw a Hispanic 

man wearing a gray hoodie and jeans approach Zamora, ask 

where he was from, and shoot him repeatedly. She could not see 

the man’s face because his hood was pulled up. She believed he 

was Hispanic because of the sound of his voice; he also sounded 

young. The man was about the same height as Zamora, five feet 

nine inches tall, although she had initially estimated the 

shooter’s height as approximately five feet two inches tall. The 

shooter turned and ran north on Wilmington, the opposite 

direction from which he had approached; and he turned in the 

area of the next street, G Street. Zamora’s sister immediately 

called 911; the call was made at 8:30 p.m.

A nearby resident heard the gunshots and then saw a 

person running northward on Wilmington, away from the 

location of the shooting. Another neighbor saw a running man 

wearing a dark hoodie and dark pants, and he also found a 

mobile phone in pieces on the sidewalk. Analysis of the damaged 

phone revealed multiple passwords and an account corresponding

to Salinas’s name, gang, and moniker.

Surveillance video of the area showed a man running at full 

speed around the corner from Wilmington Boulevard to G Street 

just after the shooting.

Vasquez and Salinas were arrested. After her arrest, 

Vasquez spoke with a police officer who was pretending to be an 

inmate. Vasquez admitted, “I was driving. That was me.” “I was 

there that day,” but she said the passengers in her car were her 

children and nephew. When the undercover officer asked 

Vasquez if they had done a “jale,” meaning committing criminal 

acts for a gang, Vasquez responded “187,” a reference to the 
5

section of the Penal Code defining murder. In a recorded police 

interview, Vasquez did not deny driving the car, but she 

maintained Salinas had not been with her. She claimed to have 

been dropping off her nephew and that the person seen exiting 

the car was her daughter moving from the back seat to the front

seat. The surveillance footage showed no one in the alley who

exited and then reentered the car.

A February 2016 booking document indicated Salinas was 

five feet eight inches tall and weighed 190 pounds, with black 

hair. A booking document from November 2016 listed his height 

as five feet seven inches and his weight as 180 pounds. Based on 

a photograph, a police officer estimated Salinas’s height as 

between five feet eight inches and five feet nine inches tall. 

Salinas’s hairstyle and weight changed over time. Salinas had 

the name of his gang and other references to the gang tattooed on 

his body. In a surreptitiously recorded conversation after his 

arrest he identified himself with a moniker found on his phone.

The jury convicted Salinas of first degree murder and 

possession of a firearm by a felon, and it found all the 

enhancement allegations true.

3 Salinas admitted one prior strike 

offense and three prior prison terms. The trial court declined to 

strike Salinas’s prior strike and sentenced Salinas to a base term 

of 25 years to life in prison for the murder, doubled pursuant to 

the Three Strikes law, and added a term of 25 years to life for the 

personal discharge of a firearm causing death (§ 12022.53, 

subd. (d)). The court imposed two 1-year sentence enhancements 

3 Vasquez was also convicted of first degree murder and 

being a felon in possession of a firearm. We affirmed the

judgment in part in an unpublished opinion. (People v. Vasquez

(Aug. 26, 2020, B298378).)
6

pursuant to section 667.5, subdivision (b). Although the 

information did not contain an allegation under section 667, 

subdivision (a), it appears the court and parties were unaware of 

that fact at sentencing; the prosecutor requested, and the court 

imposed, an additional five-year prison term under that statute.

The court imposed an upper term sentence of three years 

for the firearm possession conviction and doubled it pursuant to 

the Three Strikes law. It selected the upper term of three years 

for the gang enhancement and designated the 9-year sentence on 

this count to run consecutively to the murder sentence. Salinas’s 

aggregate sentence was 91 years to life in state prison. Salinas 

appeals.

DISCUSSION

I. Sufficiency of the Evidence

Salinas argues there was insufficient evidence to support 

the conviction, specifically with respect to the element of identity. 

“ ‘ “When considering a challenge to the sufficiency of the 

evidence to support a conviction, we review the entire record in 

the light most favorable to the judgment to determine whether it 

contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable 

trier of fact could find the defendant guilty beyond a reasonable 

doubt.” [Citation.] We determine “whether, after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” [Citation.] In so doing, a 

reviewing court “presumes in support of the judgment the 

existence of every fact the trier could reasonably deduce from the 

evidence.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 

1212-1213.)
7

The evidence was sufficient to support the conviction. 

Dennis G. identified Salinas from a photographic lineup as the 

man he saw walking toward Zamora’s home moments before the 

shooting. The testimony of a single witness is sufficient to prove 

a fact (Evid. Code, § 411), and, unless the testimony is physically 

impossible or inherently improbable, to support a conviction. 

(People v. Young (2005) 34 Cal.4th 1149, 1181.) There is no 

indication the testimony was inherently improbable or physically 

impossible. While Dennis G. was not completely certain of the 

identification, the jury was entitled to credit it; and this evidence, 

particularly when supplemented by the presence of Salinas’s 

dropped mobile phone near the scene and the evidence that 

Vasquez drove the car that dropped him off, was sufficient to 

permit a reasonable jury to conclude Salinas was the shooter

beyond a reasonable doubt.

Salinas, however, argues Dennis G.’s identification was 

unreliable. He points out that it was nighttime and the lighting 

was poor; Dennis G. only saw the shooter for about 10 seconds; 

Dennis G. did not see the man’s full face; Dennis G. vacillated as 

to whether the mark on the man’s face was a mole or tattoo;

Dennis G. did not provide a full description of the shooter; and 

the identification was not unequivocal. Salinas’s claims all go to 

the weight of Dennis G.’s identification and were for the jury to 

consider. “ ‘The strength or weakness of the identification, the 

incompatibility of and discrepancies in the testimony, if there 

were any, the uncertainty of recollection, and the qualification of 

identity and lack of positiveness in testimony are matters which 

go to the weight of the evidence and the credibility of the 

witnesses, and are for the observation and consideration, and 

directed solely to the attention of the jury in the first instance.’ ” 
8

(People v. Mohamed (2011) 201 Cal.App.4th 515, 522.) We 

neither reweigh the evidence nor reevaluate the credibility of 

witnesses. (People v. Lindberg (2008) 45 Cal.4th 1, 27

(Lindberg).) If the circumstances reasonably justify the findings 

made by the trier of fact, reversal of the judgment is not 

warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. (Ibid.)

Salinas also argues Dennis G.’s identification was 

unreliable because he was impermissibly coached by detectives.

“ ‘A due process violation occurs only if the identification 

procedure is “so impermissibly suggestive as to give rise to a very 

substantial likelihood of irreparable misidentification.” ’

[Citation.] ‘In order to determine whether the admission of 

identification evidence violates a defendant’s right to due process 

of law, we consider (1) whether the identification procedure was 

unduly suggestive and unnecessary, and, if so, (2) whether the 

identification itself was nevertheless reliable under the totality of 

the circumstances, taking into account such factors as the 

opportunity of the witness to view the suspect at the time of the 

offense, the witness’s degree of attention at the time of the 

offense, the accuracy of his or her prior description of the suspect, 

the level of certainty demonstrated at the time of the 

identification, and the lapse of time between the offense and the 

identification.’ ” (People v. Sanchez (2019) 7 Cal.5th 14, 35.)

The interview in which Dennis G. made the identification 

was recorded, and it was not so impermissibly suggestive as to 

give rise to a likelihood of irreparable misidentification. There 

was no indication of coaching. Dennis G. was told he did not 

have to select a photo, and when he hesitated over the array, the 

detective said, “Okay. It seemed like you were kind of looking at 
9

one, no?” Dennis G. said number two, a photograph of Salinas, 

looked similar to the person he had seen, but he was not sure 

because the man he had seen was bald and had a mole. The 

detective encouraged Dennis G. to focus on the eyes and face 

itself rather than easily changed features such as hair or 

moustache as he examined the photographs. The detective asked 

which person looked like the man he’d seen; Dennis G. 

responded, “Number two.” The detective said, “[K]ind of looks 

like him but not—not 100% sure.” Dennis G. agreed, and

volunteered that the man he saw was a little taller. At that 

point, the officer instructed Dennis G. to write on the 

photographic lineup “[w]hatever you think in your words. I just 

want—I want it to be from—from your words, like from your 

heart, like how you feel about the pictures we showed you.”

Dennis G. wrote, “I don’t know for sure, but it looks like Number 

2.” The detective thanked Dennis G., and the interview 

concluded. The record reveals no indications of coaching or other 

impermissibly suggestive behavior.

Salinas also attacks the other evidence in the case and 

points out discrepancies in the testimony, but again, we do not 

reweigh the evidence on appeal. (Lindberg, supra, 45 Cal.4th at 

p. 27.) He argues the presence of his mobile phone is insufficient 

proof of identification, relying on case law about the limitations of 

fingerprint evidence on portable items (People v. Jenkins (1979) 

91 Cal.App.3d 579; People v. Flores (1943) 58 Cal.App.2d 764;

Birt v. Superior Court (1973) 34 Cal.App.3d 934; and People v. 

Robinson (1964) 61 Cal.2d 373), but here there was evidence of 

identity beyond Salinas’s phone: Vasquez dropped him off in the 

alley and he was identified by an eyewitness as the man walking 

toward Zamora’s home just moments before the murder.
10

The evidence was sufficient to permit a reasonable jury to 

convict Salinas beyond a reasonable doubt. “A jury’s finding will 

not be reversed unless it is clearly shown that under no 

hypothesis is there sufficient evidence to support it. [Citation.]

As long as substantial evidence supports the jury’s finding, the 

possibility that the jury could reasonably have reached a different 

conclusion does not justify reversal.” (People v. Mendez (2011) 

188 Cal.App.4th 47, 59.)

II. Exclusion of Evidence

Salinas sought to present evidence from a prospective 

witness who had approached the police three to four hours after 

the shooting. Defense counsel described the information the 

witness had provided to the police. At an unspecified time that 

evening, the prospective witness was driving northbound on 

Wilmington Boulevard several blocks from the crime scene when 

she saw a red Ford vehicle. Approximately 20 to 25 minutes 

later, she returned to the area and went to a doughnut shop 

located four to five blocks away from the shooting site. There she 

saw a Hispanic man, approximately five feet, nine inches tall, 

wearing a gray hoodie, dark pants, and black gloves. The man 

seemed to be covering his face with his hoodie and was not 

making eye contact with anyone; he appeared anxious. Soon 

thereafter, a 1990 unknown make or model four-door red vehicle, 

the same one she had seen before, pulled into the doughnut shop 

in the drive-through, facing the wrong way. The man quickly got 

into the front passenger seat and exchanged words with the 

driver. The prospective witness could see three Hispanic men in 

the vehicle, and she believed they lived in the same general area 

and were members of the same gang as Salinas. The vehicle then 

sped away from the doughnut shop in an unknown direction. As 
11

the vehicle left, a Hispanic man approached the doughnut shop 

and began telling passers-by that the man who had entered the 

vehicle had just shot someone down the street.

The trial court excluded the evidence, explaining there 

must be direct or circumstantial evidence linking a third party to 

a crime, and what defense counsel had described was “a very nice 

citizen who I think is reading far too much into what she saw, 

and . . . there is just no evidence, even—certainly not direct or—

it’s very nebulous, on a circumstantial level.” Salinas argues this 

was error and it denied him due process.

“[T]hird party culpability evidence may be admitted if it is 

relevant and its probative value is not substantially outweighed 

by the risk of undue delay, prejudice, or confusion, or otherwise 

made inadmissible by the rules of evidence. [Citations.] ‘To be 

admissible, the third-party evidence need not show “substantial 

proof of a probability” that the third person committed the act; it 

need only be capable of raising a reasonable doubt of defendant’s 

guilt. At the same time, we do not require that any evidence, 

however remote, must be admitted to show a third party’s 

possible culpability.’ [Citation.] For example, ‘evidence of mere 

motive or opportunity to commit the crime in another person, 

without more, will not suffice to raise a reasonable doubt about a 

defendant’s guilt. . . . ’ [Citation.] Moreover, admissible evidence 

of this nature points to the culpability of a specific third party, 

not the possibility that some unidentified third party could have 

committed the crime. [Citations.] For the evidence to be relevant 

and admissible, ‘there must be direct or circumstantial evidence 

linking the third person to the actual perpetration of the crime.’ 

[Citation.] As with all evidentiary rulings, the exclusion of third 
12

party evidence is reviewed for abuse of discretion.” (People v. 

Turner (2020) 10 Cal.5th 786, 816–817.)

There was no abuse of discretion or constitutional violation 

here. The prospective witness saw a red vehicle at an unspecified 

time in the same general area as the shooting, later watched an 

unidentified man enter the vehicle, and speculated she might 

have seen the shooter on the basis of a rumor from another 

unidentified man that the first man had been involved in a 

shooting nearby. This did not constitute direct or circumstantial 

evidence linking a third party to the murder of Zamora, and the 

evidence was properly excluded.

III. CALCRIM No. 315

Salinas argues the trial court erred when it instructed the 

jury with CALCRIM No. 315 as to how to evaluate eyewitness 

identifications, because the instruction mistakenly permits the 

jury to consider an eyewitness’s level of certainty in his or her 

identification. The California Supreme Court has held a jury 

may consider an eyewitness’s certainty in evaluating his or her 

testimony. (People v. Sánchez (2016) 63 Cal.4th 411, 462

(Sánchez)); it is currently considering whether the certainty 

factor as articulated in CALCRIM No. 315 remains valid or is a 

violation of a defendant’s due process rights. (People v. Lemcke, 

review granted Oct. 10, 2018, S250108.) Unless and until the 

Supreme Court overrules its prior precedent, the trial court was 

bound by it—and so are we. (See Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455 [“Under the doctrine of 

stare decisis, all tribunals exercising inferior jurisdiction are 

required to follow decisions of courts exercising superior 

jurisdiction”].) We therefore reject Salinas’s argument.
13

Even if the instruction were erroneous, however, there 

could be no possible prejudice to Salinas. The only eyewitness 

who identified Salinas, Dennis G., was not certain in his 

identification. For the jury to consider Dennis G.’s lack of 

certainty in evaluating his identification could only have 

benefitted Salinas. (See Sánchez, supra, 63 Cal.4th at p. 462 

[telling the jury to consider the certainty factor “could only 

benefit defendant when it came to the uncertain 

identifications”].) Any error was harmless under any standard. 

(Chapman v. California (1967) 386 U.S. 18; People v. Watson 

(1956) 46 Cal.2d 818, 836.)

IV. Cumulative Error

We reject Salinas’s contention that the cumulative effect of 

the claimed errors identified in his appeal deprived him of due 

process of law and a fair trial. Because we have found none of 

Salinas’s claimed errors to constitute individual errors, they 

cannot as a group constitute cumulative error. (People v. 

Richardson (2008) 43 Cal.4th 959, 1036.)

V. Recidivist Sentence Enhancements

At sentencing, the court imposed a five-year sentence 

enhancement under section 667, subdivision (a), and two 1-year 

prior sentence enhancements pursuant to section 667.5, 

subdivision (b). These enhancements must be stricken and the 

matter remanded for resentencing.

A. Section 667, Subdivision (a) Enhancement

In the information Salinas was alleged to have served three 

separate prior prison terms pursuant to section 667.5, 

subdivision (b), and the conviction that gave rise to one of those 
14

prison terms was alleged to constitute a strike within the 

meaning of the Three Strikes law. The information did not 

contain any allegation, either in so many words or by citing a 

relevant statute, of a prior serious felony conviction enhancement 

under section 667, subdivision (a) or its associated five-year term. 

Nor was this enhancement mentioned or alluded to when Salinas 

admitted his prior strike and his three prior prison terms.

Because a section 667, subdivision (a) enhancement was 

not pleaded, proven, or admitted, the trial court could not impose 

it at sentencing.4 (People v. Nguyen (2017) 18 Cal.App.5th 260, 

266–267; § 1170.1, subd. (e) [“[a]ll enhancements shall be alleged 

in the accusatory pleading and either admitted by the defendant 

in open court or found to be true by the trier of fact”]; Mancebo, 

supra, 27 Cal.4th at p. 747 [“in addition to the statutory 

requirements that enhancement provisions be pleaded and 

proven, a defendant has a cognizable due process right to fair 

notice of the specific sentence enhancement allegations that will 

be invoked to increase punishment for his crimes”].) That the 

information alleged Salinas had previously committed a serious 

felony within the allegations that he was subject to the Three 

4 We reject the People’s contention Salinas forfeited this 

claim because he failed to object contemporaneously to what they 

describe as the trial court’s exercise of its sentencing discretion.

This was not an exercise of sentencing discretion; the court could 

not legally impose this enhancement. As such, the sentence was 

unauthorized and not subject to waiver or forfeiture. (People v. 

Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 (Mancebo); see also 

People v. Anderson (2020) 9 Cal.5th 946, 961 [pleading failures 

related to sentence enhancements constitute “the type of error we 

should address even though [the defendant] did not bring it to the 

trial court’s attention”].)
15

Strikes law and section 667.5, subdivision (b) was insufficient to 

place Salinas on notice that he was facing a five-year sentence 

enhancement under section 667, subdivision (a). “Charging 

language which expressly states that a fact is alleged to invoke 

one particular statute does not adequately inform the accused 

that the People will use it to invoke a different statute.” (People 

v. Nguyen, at p. 267.) “[W]hen, as here, the People allege a prior 

serious felony conviction, and when they cite the [T]hree [S]trikes 

law but do not cite the prior serious felony conviction statute, we 

can only conclude that they have made ‘a discretionary charging 

decision.’ ” (Ibid.) The five-year enhancement must be stricken.

B. Section 667.5, Subdivision (b) Enhancements

Although the section 667.5, subdivision (b) enhancements 

were properly imposed at the time Salinas was sentenced, the 

Legislature subsequently passed Senate Bill No. 136 (Stats. 2019, 

ch. 590, § 1) (Senate Bill 136) amending section 667.5, 

subdivision (b) to eliminate the prior prison term enhancement 

except in cases involving sexually violent offenses. Salinas’s prior 

convictions were not for sexually violent offenses. Accordingly, 

under section 667.5, subdivision (b), as amended, Salinas would 

no longer qualify for the imposition of one-year sentence 

enhancements for his prior prison terms.

Senate Bill 136 became effective as of January 1, 2020. 

(Cal. Const., art. IV, § 8, subd. (c)(2).) Section 667.5, 

subdivision (b), as amended, applies retroactively to Salinas, 

because his conviction is not yet final and the amended statute 

leads to a reduced sentence. (See People v. Brown (2012) 

54 Cal.4th 314, 323–324; In re Estrada (1965) 63 Cal.2d 740, 748 

[for a non-final conviction, “where the amendatory statute 

mitigates punishment and there is no saving clause, the rule is 
16

that the amendment will operate retroactively so that the lighter 

punishment is imposed”].) Accordingly, as Salinas argues and 

the People agree, the section 667.5, subdivision (b) enhancements 

must be stricken.

C. Resentencing

We remand for resentencing so the trial court may 

reconsider the entire sentencing scheme when it strikes the oneyear prior prison term enhancements and the five-year prior

serious felony conviction enhancement. (See People v. Hill (1986) 

185 Cal.App.3d 831, 834 [on remand for resentencing a trial court 

is “[n]ot limited to merely striking illegal portions” of a sentence 

but “may reconsider all sentencing choices,” “because an 

aggregate prison term is not a series of separate independent 

terms, but one term made up of interdependent components”].)

DISPOSITION

The conviction is affirmed. The matter is remanded to the 

trial court with directions to strike the section 667, subdivision 

(a) and section 667.5, subdivision (b) enhancements and to 

resentence Salinas.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J. WILEY, J.