Filed 7/14/15 P. v. Vargas 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.

CARLOS VARGAS et al.,

Defendant and Appellant.

 B252948

 (Los Angeles County

 Super. Ct. No. BA401305)

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

William N. Sterling, Judge. Affirmed.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant 

and Appellant, Carlos Vargas.

Stephen M. Hinkle, under appointment by the Court of Appeal, for 

Defendant and Appellant, Adrian Barajas.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for 

Defendant and Appellant, Joseph A. Pacheco.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant 

and Appellant, Douglas Cornejo.
2

Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. 

Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and 

Respondent.

___________________________________________

INTRODUCTION

Appellants Carlos Vargas, Adrian Barajas, Joseph A. Pacheco, and Douglas

Cornejo appeal from judgments and sentences following their convictions for 

kidnapping and attempted murder. They contend the trial court erred in admitting 

the preliminary hearing testimony of the victim, on the grounds (1) that the 

prosecution violated its obligations under Brady v. Maryland (1963) 373 U.S. 83

(Brady) by failing to disclose impeachment evidence until after the preliminary 

hearing, and (2) that the admission of the preliminary hearing testimony violated 

their rights to confront and cross-examine the witness. They also contend the trial 

court erred in denying a defense request for a delayed discovery instruction. 

Cornejo separately contends that the trial court abused its discretion in excluding 

two exculpatory statements on the basis of hearsay. Finally, Cornejo and Pacheco 

contend there was insufficient evidence to support certain convictions and 

sentencing enhancements. Finding no reversible error, we affirm.

PROCEDURAL HISTORY

Appellants were each charged in an amended information with attempted

willful, deliberate, and premeditated murder of Valentin Anaya (Pen. Code, 
3

§§ 664/187, subd. (a); count 1),1and kidnapping Anaya (§ 207, subd. (a); count 3). 

As part of a separate incident, Cornejo was charged with having a concealed 

firearm on his person (§ 25400, subd. (a)(2); count 7). It was alleged the offenses 

were committed for the benefit of a criminal street gang (§ 186.22, 

subd. (b)(1)(C)). It was further alleged that Vargas personally and intentionally 

discharged a firearm which caused great bodily injury (§ 12022.53, subds. (b), (c), 

& (d)); that a principal personally and intentionally discharged a firearm (§ 

12022.53, subds. (b), (c), (d) & (e)(1)); and that Cornejo personally used a firearm

(§ 12022.53, subd. (b)). 

Pacheco and Vargas were also charged with possession of a firearm by a 

felon (§ 29800, subd. (a)(1); counts 5 & 9). Vargas was alleged to have suffered

one prior conviction within the meaning of the “Three Strikes Law” (§§ 667, 

subds. (b)-(i), 1170.12, subds. (a)-(d)), and three prior convictions for which he 

served a term in state prison (§ 667.5, subd. (b)). Finally, Pacheco was alleged to 

have suffered two prior convictions for which he served a prison term (§ 667.5, 

subd. (b)). 

A jury found appellants guilty as charged, and found true the firearm and 

gang allegations. Vargas admitted the prior strike allegation and serving two prior 

prison terms. Pacheco admitted one prior prison term, and the court struck the 

other prior. 

The trial court sentenced Vargas to a total term of 68 years to life in state 

prison; Barajas to a total term of 32 years to life; Cornejo to a total term of 39 

years to life; and Pacheco to a total term of 36 years to life. 

Appellants each filed a notice of appeal. 

 

1

All further statutory citations are to the Penal Code, unless otherwise stated. 
4

FACTUAL BACKGROUND

A. The Prosecution Case

According to the prosecution, appellants were members of the Rockwood 

criminal street gang. After obtaining information leading them to believe that a 

fellow gang member, Anaya, was an informant for law enforcement, appellants 

kidnapped Anaya, took him to an alley, and shot him in the head. Anaya survived 

the shooting, and subsequently identified appellants as his assailants. 

1. Anaya’s Preliminary Hearing Testimony

Trial proceedings started August 30, 2013. After Anaya invoked his Fifth 

Amendment rights and declined to testify at trial, the trial court declared him 

unavailable. His October 16, 2012 preliminary hearing testimony was then read 

into the record. The testimony was as follows:

In 2012, Anaya had been a member of the Rockwood gang for several years. 

Appellants were fellow gang members.2 On July 28, at about 8:00 p.m., Anaya 

went to Vargas’s apartment to collect the money Vargas owed him for drugs. 

Appellants were the only occupants. Anaya had two or three guns on him. In 

exchange for $100, he gave appellants one of the guns -- a .357-caliber revolver. 

When Anaya went to the bathroom, he left his cell phone in the apartment to 

charge. Vargas took Anaya’s cell phone and looked through the contacts. Among 

the contacts was a sheriff deputy’s number. Anaya had stored the deputy’s phone 

number on his phone after the deputy had approached him in May 2012 to ask him 

some questions. At the preliminary hearing, Anaya admitted calling the deputy, 

but denied agreeing to work for him. 

 

2

Anaya did not know appellants’ real names, but knew their gang monikers: 

Vargas was “Tico,” Barajas was “Chubbs,” Cornejo was “Little Man,” and 

Pacheco was “Stomper.” 
5

When Anaya came out of the bathroom, Vargas told him to go back inside. 

Cornejo, who was armed with a gun, told Anaya to stay in the bathroom and 

locked him inside. After about an hour, Vargas entered and asked Anaya, “Who 

are you working for?” Anaya replied, “What? What are you talking about?” 

Vargas repeated: “Who are you working for?” He then said, “You fucked up,” 

and stepped outside. Barajas entered, told Anaya that he had “fucked up,” and 

struck him in the face. Cornejo and Pacheco then entered the bathroom separately 

and struck Anaya in the face. 

Barajas came back and told Anaya to get in the tub. Vargas and Pacheco 

then entered. Vargas had the .357 gun and Pacheco was armed with a .45-caliber 

handgun. Vargas then injected Anaya with methamphetamine. Vargas tied 

Anaya’s hands behind his back with shoelaces, placed a hooded sweatshirt over his 

head, and led him out of the apartment to a green truck parked outside. Vargas, 

Cornejo, and Anaya got into the truck. Anaya could not see the driver. Pacheco, 

who was wearing a Global Positioning System (GPS) tracking device as a 

condition of parole, stayed behind in the apartment.

3

 Anaya did not know 

Barajas’s location. When shown still pictures from a video surveillance of the 

building taken at the time, Anaya identified the men in the picture as Vargas, 

Pacheco, and Barajas. 

After about an hour, the truck stopped near an alley. Cornejo exited, and

Vargas pulled Anaya out of the vehicle. Vargas ordered Anaya to go to a corner of 

the alley, but Anaya started to run away. Vargas took out the .357 handgun and 

shot Anaya in the head. The bullet entered the left side of Anaya’s head and exited 

the top. Cornejo took out his gun and attempted to shoot Anaya, but the gun

 

3

The location data from Pacheco’s tracking device showed he entered the 

apartment at 7:05 p.m., and remained there until 6:39 a.m. the next morning. 
6

jammed. Anaya fell to the ground and pretended to be dead. Vargas said, “He’s 

gone.” Vargas and Cornejo then re-entered the truck. Anaya, afraid the truck 

would run him over, got up to run away. The truck driver tried to run him down. 

The side of the truck’s bumper struck Anaya, sending him flying into a trash can. 

Anaya got up and started running. He heard several gunshots and dropped to the 

ground. The truck drove away. Anaya went to a store and called 911 at 4:52 a.m. 

He was taken to a hospital, treated, and released. 

Anaya was questioned by police officers, but he provided them with 

“different stories so I could just get them off my back.” After Anaya was released

from the hospital, he agreed to speak with Los Angeles Police Detective Carlos 

Carias. Detective Carias interviewed Anaya at the police station, and showed him 

photographs in a Rockwood gang photobook. Anaya identified Vargas’s 

photograph and wrote: “This individual was the one who shot me in the head, 

number 3. Tico [Vargas] is the one who tied me down and escorted me to the 

vehicle. I was told by him to get on the floor. Once arriving . . . at the alley, I was

dragged out and shot by Tico.” He also identified photographs of Pacheco and 

Cornejo, writing: “Stomper [Pacheco] number 210, Little Man [Cornejo] number 

211 were involved in the crime of laying hands on me before I got shot in the head. 

I received a few blows from these individuals and had a gun pointing at my head. 

Little Man got -- Little Man’s gun got jammed in the alley. So that’s why I only 

got one shot in the head by Tico.” 

On August 4, 2012, Anaya identified Barajas’s photograph and wrote: “This

individual in photo six I know him as Chubbs from Rockwood for several years. 

Chubbs took me with Tico. And I got beat up. Later that night I was shot in the 

alley. Chubbs was the first one who said I fucked [up].” 

Anaya also identified appellants as his assailants at the preliminary hearing. 
7

2. Other Trial Testimony

At the trial, Los Angeles Police Officer John Boverie testified that at 

approximately 4:55 a.m. on July 28, he responded to a call of a shooting. Arriving 

at the scene, he observed Anaya sitting on a chair, holding a towel to his head. 

Anaya had a gunshot wound to the left portion of his head and a shoe string tied to 

his right wrist. He did not respond to Officer Boverie’s inquiries about who had 

shot him. The paramedics then arrived and took Anaya to the hospital. 

Los Angeles Police Officer Ramon Gracia testified that he also responded to 

Anaya’s 911 call. When he arrived, he observed a male Hispanic bleeding

profusely from his head. When questioned, Anaya was uncooperative and 

provided inconsistent explanations for his injuries. When Anaya was taken to the 

hospital, Officer Gracia followed and interviewed him at the hospital. After 

providing several versions of the events, Anaya told Officer Gracia that he would 

tell him the truth. Anaya stated that he had gone with some of his “homies” to 

purchase beer. After they purchased the beer, they began driving to a different 

location. While in the car, one of his homies punched him and another 

overpowered him and tied his hands behind his back. The car eventually stopped 

at an alley, and one of his homies grabbed him and started to drag him into the 

alley. Another homie then drew a .357 and shot him. Anaya fell to the ground and 

pretended to be dead. After the men left him, he got up and began to run. As he 

was running, the car struck him. Anaya told Officer Gracia that he was an active 

gang member, and that he thought he was shot because his homies thought he was 

a “rat.” 

Detective Carias testified that he was assigned to investigate the shooting. 

He was informed that the victim had been checked into a hospital, and that the

victim had identified himself as Rogelio Garcia. After determining that the 
8

victim’s real name was Valentin Anaya, the detective interviewed Anaya at the 

police station. In addition to identifying appellants as his assailants, Anaya also 

provided information about the location of the shooting. 

Detective Carias also testified that at one point, Anaya said he did not know

the name of the driver of the green truck. At another point, Anaya said he knew 

the name of the driver, but would say only that the driver was a Rockwood gang 

member. Anaya also told the detective that as he was being taken from Vargas’s 

apartment to the truck, he saw a Rockwood gang member by the name of 

“Cricket.” 

After Anaya told Detective Carias that he was afraid for his safety and for 

his family’s safety, the detective moved Anaya and his family to a “safe house.”

Detective Carias paid for the motel directly with emergency funds, and he gave 

Anaya additional money for food. In order to receive the money, Anaya signed a 

form stating that he would not commit any crimes. Detective Carias testified that 

he gave Anaya $60 in cash on July 29, and $40 on July 30. On August 16th and 

September 16th, the detective gave Anaya $350 for food. On October 16th, he

gave Anaya $350 for food and $300 for incidentals. On December 4th, he gave 

Anaya $1100 for food and $225 for incidentals. Finally, on January 4, 2013, he 

gave Anaya $1100 for food. The food allowance was for both Anaya and his 

family. In total, including the housing assistance, $7,750 was provided to Anaya 

and his family. 

After Detective Carias interviewed Anaya, he visited Vargas’s apartment

building and looked at surveillance video taken at the time of the incident. The 

detective used his cell phone to capture the surveillance video and to take still

photographs of the video. On August 8, Detective Carias showed the surveillance 
9

video to Los Angeles Police Detective Antonio Hernandez. Detective Hernandez

recognized Vargas in the video from prior contacts with him. 

The next day, while driving around Rockwood gang territory looking for the 

shooting suspects, Detective Hernandez and his partner, Officer Philip Zalba, saw 

Vargas. Vargas saw the officers and ran away, eventually entering a swap meet or 

flea market. When Vargas exited the business, Detective Hernandez was waiting 

outside and apprehended him. The detective searched Vargas, and found a small 

bag of ammunition on his person, containing fifteen .357-caliber bullets. Inside a 

hole in the wall of the flea market, police officers recovered a loaded .357 revolver. 

Immediately after Vargas was arrested, Detective Hernandez learned that 

Barajas was next door, inside a cell phone store. The officers arrested Barajas 

there. 

Pacheco and Cornejo were arrested the following weeks. On August 14th, 

Los Angeles Police Officer Arthur Meza observed Pacheco and noticed he was 

wearing a GPS tracking device, indicating he was on parole. Officer Meza and his 

partner approached Pacheco to initiate a parole search. As the officers approached, 

Pacheco placed one of his arms into his waistband, and grabbed a woman, placing

her between himself and the officers. Pacheco said, “I don’t want to do this.” The 

officers ordered him to let the woman go, but Pacheco refused. The officers 

sprayed Pacheco with pepper spray, but Pacheco attempted to hide his face in the 

woman’s hair. Officer Meza’s partner then tackled Pacheco and took him to the 

ground. As he fell, Pacheco released the woman. He resisted for about 15 

seconds. After he was handcuffed, Pacheco indicated he was in possession of a 

firearm. The officers recovered a loaded .45-caliber semiautomatic handgun from 

Pacheco’s front waistband. 
10

On August 22, Detective Hernandez saw Cornejo walking in Rockwood 

gang territory. When Cornejo noticed the officer, he ran away in the opposite

direction. As he was being chased, Cornejo threw a revolver over his head. 

Cornejo was apprehended after tripping on the stairs. The handgun was recovered; 

it was a Smith and Wesson chrome .22-caliber revolver, loaded with six bullets.

Los Angeles Police Officer Michael Chang testified he interviewed Cornejo 

after his arrest. After waiving his Miranda rights,4Cornejo told the officer that he 

had stolen the .22-caliber handgun from another Rockwood gang member, whom 

he did not like. He had taken it from “some bushes.” Cornejo stated that he

needed the handgun for protection because he had been “jumped out of Rockwood 

Street [gang] and . . . had been in a fight in juvenile hall with some juvenile.” 

In February 2013, Anaya was arrested for possession of an assault rifle. He 

told Officer Joseph Villagran that he had purchased the rifle for protection against 

the Sinaloa Cartel. He explained that he had lost a pound of methamphetamine 

belonging to the Sinaloa Cartel, and that a “hit” had been placed on him. Several 

days later, Officer Bobby Romo interviewed Anaya. During this interview, Anaya

provided a different explanation for his possession of the rifle. Anaya said that in

July 2012, his fellow gang members had tried to kill him because they believed he 

was a “rat.” He stated: “I bought myself a gun for protection after I was shot in 

the head by former gang members.” 

Detective Hernandez testified as the prosecution gang expert. Detective 

Hernandez personally knew Vargas, Pacheco, and Cornejo to be members of the 

Rockwood gang; they had admitted to him that they were gang members. Vargas 

was known by the gang moniker, “Tico” or “Tiko.” Pacheco was known by the 

gang monikers, “Stomper” and “Thumper.” Cornejo was known by the gang 

 

4 Miranda v. Arizona (1966) 384 U.S. 436. 
11

monikers, “Clash” and “Baby Tiny.” Although Detective Hernandez never had 

any personal contact with Barajas, Detective Hernandez opined that Barajas was a 

Rockwood gang member based on his gang tattoos and Anaya’s statements. 

Given a hypothetical fact pattern based on the facts of this case, Detective 

Hernandez opined that the kidnapping and attempted murder of a suspected gang 

informant was committed for the benefit of and in association with the Rockwood

criminal street gang. The assailants were all gang members from the same gang, 

and the crimes would benefit the gang because they would discourage other gang

members from working with law enforcement. Detective Hernandez also opined 

that when Cornejo was arrested on August 22, he possessed the .22-caliber 

handgun for the benefit of a criminal street gang, because having a gang member 

with a gun in gang territory would allow the gang to protect its territory from rival 

gangs. The detective also explained that a gang would have easily accessible and 

hidden places to store guns -- such as a bush -- for gang members to use. He also 

opined that only gang members would know these locations. 

B. The Defense Case

Appellants did not testify. Dr. Mitchell Eisen, a psychologist, testified on 

behalf of Cornejo. Dr. Eisen testified about possible flaws in a witness’s 

identification of suspects due to factors such as traumatic stress. 

DISCUSSION

Appellants contend they were denied a fair trial because (1) the prosecution 

committed various Brady violations; (2) they were denied their right to confront 

and cross-examine Anaya about witness relocation assistance and his fear of the 

Sinaloa drug cartel; and (3) the trial court erred in denying their request for an 

instruction on the delayed disclosure of Brady evidence. 
12

Pacheco separately contends there was insufficient evidence to support the 

jury’s finding that he aided and abetted in the kidnapping and attempted murder of 

Anaya. Cornejo separately contends there was insufficient evidence to support the 

jury’s findings that he stole the .22 handgun from a Rockwood gang member and 

at the same time that he possessed the handgun to benefit the Rockwood gang. 

Cornejo also contends that the trial court abused its discretion by excluding two 

hearsay statements of Anaya that he saw another gang member -- with the moniker 

Cricket -- when he was being kidnapped. 

A. Purported Brady Violations

Suppression of favorable evidence that is material, either to guilt or 

punishment, violates due process. (Brady, supra, 373 U.S. at p. 87; accord, 

Strickler v. Greene (1999) 527 U.S. 263, 281-282.) Evidence is “favorable” to the 

defense “if it helps the defense or hurts the prosecution, [such] as by impeaching a 

prosecution witness.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132, 

overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, 

fn. 22.) “Evidence is material if there is a reasonable probability its disclosure 

would have altered the trial result.” (People v. Zambrano, supra, at p. 1132.) No 

Brady violation occurs if the previously suppressed evidence is presented at trial. 

(People v. Verdugo (2010) 50 Cal.4th 263, 281.) 

The prosecution’s Brady obligation extends to the preliminary stage of 

criminal proceedings. (People v. Gutierrez (2013) 214 Cal.App.4th 343, 348.) 

However, for preliminary hearings, “the standard of materiality is whether there is 

a reasonable probability that disclosure of the exculpatory or impeaching evidence 

would have altered the magistrate’s probable cause determination with respect to 

any charge or allegation.” (Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 
13

1074, 1087.) “In addition, . . . the duty of prepreliminary hearing disclosure 

extends only to matters within the possession or control of the prosecution team 

before the conclusion of the preliminary hearing.” (Ibid.) “We independently 

review the question whether a Brady violation has occurred, but give great weight 

to any trial court findings of fact that are supported by substantial evidence.”

(People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)

1. Witness Relocation Assistance

Appellants contend the prosecution violated Brady when it failed to disclose 

that Anaya had received witness relocation assistance until after the preliminary 

hearing. 

a. Relevant Factual Background

After the October 16, 2012 preliminary hearing but before trial, defense 

counsel were informed that Anaya had received relocation assistance. The 

prosecution did not provide the actual documentation of the assistance until after 

Anaya’s prior testimony had been read to the jury. After reviewing the 

documentation, the trial court concluded that “the only thing that is relevant and 

the only thing that’s potentially exculpatory or otherwise relevant is an itemization 

of how much was paid.” The court ordered the prosecutor to turn over to the 

defense a copy of the documents under seal and an itemization of the amounts and 

dates of the relocation assistance.5

 

5

Appellants have requested that this court independently review the sealed 

exhibits for any exculpatory or impeachment evidence. Although the sealed 

exhibits could not be located, the record indicates that defense counsel received a 

copy of “exactly what the [trial] court reviewed.” The prosecution and defense 

counsel then redacted the exhibits to provide them to the jury. 
14

When the documents were provided to defense counsel, Vargas’s counsel 

asked whether Anaya had signed any documents, either to receive the money or to 

work as an informant. The prosecutor responded that Anaya had to sign an 

agreement to receive the money, but that he was unaware of any agreement 

showing Anaya was an informant for any law enforcement agency. Defense 

counsel asked the court to review the signed agreement, and suggested that the 

agreement may have required Anaya to commit no further crimes. The court 

agreed, but stated its belief that an agreement to commit no further crimes would 

not be exculpatory. 

As detailed above, defense counsel elicited trial testimony from Detective 

Carias about the relocation assistance provided to Anaya. Specifically, Detective 

Carias testified that Anaya signed a document agreeing to commit no further 

crimes in exchange for the assistance, and that a total amount of $7,750 was 

provided to Anaya and his family. In addition, during closing, Vargas’s counsel 

argued that although Anaya may have been a trustworthy witness because he was 

afraid of his fellow gang members, “[i]t’s just as likely he was a con man and knew 

the system, and tried to rip the system off of $8,000.” 

b. Analysis

In order to demonstrate that the prosecution violated its Brady obligations, 

appellants must show a suppression of evidence that was both favorable and 

material. Here, it is unclear whether evidence of witness relocation assistance is 

favorable. (Compare United States v. Davis (5th Cir. 2010) 609 F.3d 663, 696 

[information that witness was offered witness protection not favorable to defendant 

because jury may have assumed that witness needed protection from defendant] 

with United States v. Talley (6th Cir. 1999) 164 F.3d 989, 1003 [noting that 

relocation benefit for key government’s witness should be disclosed as 
15

impeachment evidence].) Even assuming that evidence that Anaya received 

relocation assistance constituted impeachment evidence, appellants have failed to 

show that the evidence was material, or that it was suppressed at trial. 

As discussed above, for preliminary hearings, evidence is material if “there 

is a reasonable probability that disclosure of the exculpatory or impeaching 

evidence would have altered the magistrate’s probable cause determination with 

respect to any charge or allegation.” (Bridgeforth v. Superior Court, supra, 

214 Cal.App.4th at p. 1087.) Here, it is undisputed that Anaya was shot in the 

head. He identified appellants as his assailants to Detective Carias, and the record 

shows that his identification was made before any offer of assistance. In addition, 

Vargas, Pacheco, and Barajas were identified from still photographs taken from 

video surveillance at the time of the incident. Finally, the relocation assistance was 

not offered in exchange for testimony and was not dependent on Anaya’s testifying 

at trial. (Cf. People v. Westmoreland (1976) 58 Cal.App.3d 32, 44-46 [leniency 

offered in exchange for testimony].) In short, appellants have not shown there was 

a reasonable probability that the evidence of witness relocation assistance would 

have altered the magistrate’s probable cause determination. Thus, no Brady

violation occurred at the preliminary hearing stage.

Similarly, appellants have not shown a Brady violation at the trial stage. 

There was no suppression of evidence because the jury heard about the relocation 

assistance provided to Anaya. (See People v. Verdugo, supra, 50 Cal.4th at p. 281 

[“‘[E]vidence that is presented at trial is not considered suppressed, regardless of 

whether or not it had previously been disclosed during discovery.’ [Citation.]”].) 

After considering the evidence, the jury found Anaya’s identification of appellants 

credible and convicted them. On this record, appellants cannot show a Brady

violation. 
16

2. Anaya’s Statements to Detective Carias About Gang Member 

“Cricket”

At trial, Detective Carias testified that Anaya told him he knew the driver of 

the green truck, but would not disclose any information about the driver other than 

the fact that he was a Rockwood gang member. Anaya also told the detective that 

when he was being taken to the truck, he saw a Rockwood gang member named 

Cricket. Barajas contends the failure to disclose the transcript of this interview 

prior to the preliminary hearing was a violation of the prosecution’s obligations 

under Brady. We disagree.

First, as appellant Barajas concedes, trial counsel failed to object to the late 

disclosure of the transcript on Brady grounds. Thus, this argument has been

forfeited. (People v. McPeters (1992) 2 Cal.4th 1148, 1174.) Even were we to 

consider this issue, we would find no Brady violation. As appellant’s counsel 

admitted in the trial court, prior to the preliminary hearing, he had a copy of the 

recording of the interview, although “a lot of it was in Spanish, translations 

pending.” Moreover, appellant’s counsel had a copy of the transcript at the 

preliminary hearing. Although counsel asserted he did not have the opportunity or 

time to read the entire interview transcript, he never requested a continuance. In 

addition, at trial, Vargas’s counsel elicited testimony about Cricket from Detective 

Carias, and in closing argument suggested the police should have investigated 

whether Cricket had been involved in the crimes. On this record, appellant Barajas 

has not shown that evidence of Anaya’s statements about Cricket was suppressed 

by the prosecution, either at the preliminary hearing stage or at trial. Thus, he has 

failed to demonstrate a Brady violation. (See People v. Verdugo, supra, 50 Cal.4th 

at p. 281.) 
17

B. Whether Admission of the Preliminary Hearing Testimony Violated the 

Confrontation Clause.

“A criminal defendant has a constitutionally guaranteed right to confront and 

cross-examine the witnesses against him or her. [Citations.] The right of 

confrontation is not absolute, however, and may ‘in appropriate cases’ bow to 

other legitimate interests in the criminal trial process. [Citations.] An exception to 

the confrontation requirement exists where the witness is unavailable, has given 

testimony at a previous judicial proceeding against the same defendant, and was 

subject to cross-examination by that defendant. [Citations.] Further, the federal 

Constitution guarantees an opportunity for effective cross-examination, not a 

cross-examination that is as effective as a defendant might prefer. [Citation.]” 

(People v. Carter (2005) 36 Cal.4th 1114, 1172.) This exception is codified in the 

California Evidence Code at section 1291. Section 1291 provides, in relevant part, 

that “[e]vidence of former testimony is not made inadmissible by the hearsay rule 

if the declarant is unavailable as a witness and . . . [¶] . . . [¶] [t]he party against 

whom the former testimony is offered was a party to the action or proceeding in 

which the testimony was given and had the right and opportunity to cross-examine 

the declarant with an interest and motive similar to that which he has at the 

hearing.” When the requirements of Evidence Code section 1291 are met, “the 

preliminary hearing testimony of an unavailable witness may be admitted at trial 

without violating a defendant’s confrontation right.” (People v. Herrera (2010) 

49 Cal.4th 613, 621.) 

Appellants contend the admission of Anaya’s preliminary hearing testimony 

violated their constitutional right to confront him, because they did not have an 

adequate opportunity to cross-examine him about (a) the witness relocation 
18

assistance, (b) his statements relating to Cricket, and (c) his fear of the Sinaloa 

drug cartel. We conclude there was no reversible error. 

Here, the requirements of Evidence Code section 1291 were met. Anaya 

was unavailable to testify at trial because he invoked his Fifth Amendment right to 

remain silent. Anaya was cross-examined by appellants’ counsel at the 

preliminary hearing, including on his identification of appellants as his assailants. 

Appellants’ interest and motive in cross-examining Anaya at the preliminary 

hearing were closely similar, if not identical to, their objectives at trial -- namely, 

to attempt to discredit the prosecution’s theory that they kidnapped and attempted 

to kill Anaya. (See People v. Carter, supra, 36 Cal.4th at p. 1172 [defendant’s 

interest and motive in cross-examining adverse witness -- to discredit prosecution’s 

theory of the case -- were sufficiently similar at the preliminary hearing and at trial 

to satisfy requirements of Evidence Code section 1291].) 

Appellants’ inability to cross-examine Anaya about witness relocation 

assistance at the preliminary hearing did not render their cross-examination 

constitutionally inadequate. Anaya identified appellants as his assailants prior to 

any offer of relocation assistance. Additionally, at trial, appellants were able to 

cross-examine Detective Carias about his payments to Anaya as part of the witness 

relocation program. Thus, the jury was able to consider the relocation assistance in 

determining Anaya’s credibility. On this record, they failed to demonstrate any 

confrontation clause violation.

As to Anaya’s statements relating to Cricket, appellant Barajas has failed to 

demonstrate that he lacked an adequate opportunity to cross-examine Anaya about 

those statements. As detailed above, Barajas’s counsel had a copy of the recording 

of the interview before the preliminary hearing and a copy of the interview 

transcript at the preliminary hearing. Thus, he had an opportunity to cross-
19

examine Anaya about the statements he had made relating to Cricket in that 

interview. As Barajas’s counsel had the opportunity for cross-examination, the 

admission of the preliminary testimony under Evidence Code section 1291 did not 

violate the confrontation clause. (People v. Carter, supra, 36 Cal.4th at pp. 1172 

& 1174 [confrontation clause guarantees an opportunity for cross-examination, not 

a particular form of cross-examination].) Moreover, the jury heard about the 

presence of Cricket outside the apartment on the night Anaya was shot, and was 

urged in closing argument to consider whether Cricket may have been involved. 

On this record, Barajas has failed to demonstrate a confrontation clause violation. 

As to Anaya’s fear of the Sinaloa drug cartel, his statements concerning the 

drug cartel were made on February 15, 2013, four months after the preliminary 

hearing. Those statements were not inconsistent with any of Anaya’s statements at 

the preliminary hearing. Moreover, the statements were presented to the jury 

through the trial testimony of Officer Villagran. In short, the admission of Anaya’s 

preliminary hearing testimony did not violate appellants’ confrontation rights.6 

 

6

Appellants also contend they received ineffective assistance of counsel when 

trial counsel failed to move to strike Anaya’s preliminary testimony on the basis 

that the prosecution had violated Brady and the confrontation clause. In order to 

prevail on a claim of ineffective assistance of counsel, appellant must show (1) that 

counsel’s representation fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) that there is a reasonable probability that but 

for counsel’s unprofessional errors, the result would have been more favorable to 

the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. 

Gray (2005) 37 Cal.4th 168, 206-207; People v. Kelly (1992) 1 Cal.4th 495, 519-

520.) We conclude that appellants have failed to show either prong. First, 

Barajas’s counsel objected to the admission of Anaya’s preliminary testimony on 

the ground his client’s right to confront and cross-examine Anaya during the 

hearing was “hampered,” and Vargas’s counsel made a Brady objection. In light 

of these evidentiary objections, other trial counsel need not raise the same 

objections on behalf of their clients. When the trial court overruled the objections, 
20

C. Jury Instruction on Delayed Disclosure of Evidence

Appellants next contend the trial court abused its discretion in denying a 

defense request to instruct the jury with CALCRIM No. 306, as a sanction for the 

prosecution’s failure to disclose the witness relocation assistance. CALCRIM No. 

306 generally informs the jury that a party has failed to disclose relevant evidence, 

that the failure may deny the other side an opportunity to receive a fair trial, and

that the late disclosure may be considered when evaluating the evidence. The trial 

court denied the request on the ground that evidence of the relocation assistance 

had been presented to the jury. We discern no abuse of discretion. 

As discussed, the prosecution has an obligation under Brady to disclose 

favorable evidence. In addition, “[s]ection 1054.1 (the reciprocal-discovery 

statute) ‘independently requires the prosecution to disclose to the 

defense . . . certain categories of evidence “in the possession of the prosecuting 

attorney or [known by] the prosecuting attorney . . . to be in the possession of the 

investigating agencies.”’ [Citation.] Evidence subject to disclosure includes . . . 

‘[a]ny exculpatory evidence’ [citation]. ‘Absent good cause, such evidence must 

be disclosed at least 30 days before trial, or immediately if discovered or obtained 

within 30 days of trial. (§ 1054.7.)’ [Citation.] [¶] Upon a showing both that the 

defense complied with the informal discovery procedures provided by the statute, 

and that the prosecutor has not complied with section 1054.1, a trial 

court . . . may . . . ‘advise the jury of any failure or refusal to disclose and of any 

untimely disclosure.’ [Citation.] A violation of section 1054.1 is subject to the 

 

trial counsel were not unprofessional for failing to move specifically to strike the 

testimony on the same grounds. Moreover, as we have determined that there was 

no Brady violation and that the admission of the preliminary hearing testimony did 

not violate appellants’ confrontation clause rights, appellants cannot show 

prejudice. 
21

harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. 

[Citation.]” (People v. Verdugo, supra, 50 Cal.4th at pp. 279-280.) 

Here, appellants were not prejudiced because the information was presented 

to the jury through the cross-examination of Detective Carias. (See People v. 

Verdugo, supra, 50 Cal.4th at p. 281 [no Brady violation where previously 

undisclosed evidence was presented at trial; no prejudice from violation of section 

1054.1 where defense counsel had time to prepare for cross-examination on 

previously undisclosed evidence].) As a result, no instruction regarding delayed 

disclosure was required. Moreover, for the reasons stated above, any error in 

failing to instruct the jury regarding delayed discovery was harmless under any 

standard of reversible error. (Chapman v. California (1967) 386 U.S. 18, 22; 

People v. Watson, supra, 46 Cal.2d at p. 836.)

D. Whether the Trial Court Abused its Discretion in Excluding Certain 

Statements Anaya had Made to Detective Carias Regarding Cornejo.

At the preliminary hearing, Anaya testified that when he was dragged into 

the alley, Vargas shot him in the head. Anaya also testified that “Little Man” 

(Cornejo) drew a handgun and tried to shoot him, but the gun jammed. Vargas and 

Cornejo then reentered the truck. As Anaya began running away, two shots were 

fired from the vehicle. 

At trial, the court precluded Cornejo’s counsel from introducing two 

statements Anaya made to Detective Carias, stating that “Little Man” was

screaming after the shots were fired from the vehicle and speculating that Cornejo 

might have shot himself in the foot.7 Defense counsel had sought to introduce the 

 

7

Anaya told Detective Carias: “And then, boom. Then . . . the Expedition 

went in reverse. Then they left again. And . . . at that time, I heard Little Man, that 
22

statements to show that Cornejo was not “Little Man,” because when arrested a 

few weeks later, Cornejo showed no sign of injury. The trial court determined that 

the two statements were not inconsistent with Anaya’s preliminary hearing

testimony: “There was some kind of scream after they were in the car. There’s no 

testimony about it. And there’s no way of knowing whether he was screaming 

because he was frustrated at his gun or he was screaming because Mr. Anaya had 

gotten back up or they were driving away or -- you know, it’s total speculation that 

he was screaming because he shot himself.” The court excluded the statements as 

hearsay, and also under Evidence Code section 352, as being more prejudicial than 

probative. On appeal, Cornejo contends the trial court abused its discretion in 

excluding the statements. We disagree.

Evidence Code section 1235 provides that “Evidence of a statement made by 

a witness is not made inadmissible by the hearsay rule if the statement is 

inconsistent with his testimony at the hearing . . . .” Here, there was no 

preliminary hearing testimony whatsoever about Cornejo screaming. Thus, there is 

no inconsistency between Anaya’s preliminary hearing testimony and the two 

hearsay statements defense counsel sought to introduce. 

Cornejo contends in the alternative that the statements were admissible 

under Evidence Code section 356, which provides: “Where part of an act, 

 

he got off. Because the fool said, get out, get out. He told him, get out, fool. So 

fucking -- I could hear Tico’s voice. You know, I recognized him. And then, when 

Little Man shot, that’s -- oh I don’t know if -- I don’t know if he shot himself 

because the gun -- he was having problems with the gun. So he shot. He goes, 

oh.” Detective Carias asked, “So you heard him?” Anaya replied: “I heard him. 

You know, I don’t know why he was going to scream, you know.” Anaya further 

stated, “ So I think, like, in my head, after all the incident when I was just in the 

hospital thinking like -- this fool fucking shoot himself, or what?” Later the 

detective asked Anaya if he had heard Little Man screaming, and Anaya answered 

in the affirmative. 
23

declaration, conversation, or writing is given in evidence by one party, the whole 

on the same subject may be inquired into by an adverse party; . . . and when a 

detached act, declaration, conversation, or writing is given in evidence, any other 

act, declaration, conversation, or writing which is necessary to make it understood

may also be given in evidence.” (Italics added.) He contends the two statements 

were part of the “same subject matter of the entire shooting incident.” We discern 

no error in the trial court’s exclusion of the statements. They did not resolve any 

ambiguity, clarify or otherwise explain Anaya’s testimony, and the record reflects 

they were unnecessary to understand the testimony.

Moreover, even had the court erred, any error would be harmless. (People v. 

Garcia (1984) 160 Cal.App.3d 82, 93, fn. 12 [evidentiary errors are tested under 

harmless error standard of People v. Watson, supra, 46 Cal.2d at p. 836].) Anaya 

identified Cornejo as one of his assailants. The statements indicated that Cornejo 

had screamed after the shots were fired at Anaya from the truck. Anaya never 

stated that he observed Cornejo shoot himself in the foot, or heard anyone say that 

Cornejo had been shot. Although Anaya speculated that Cornejo may have

screamed because he shot himself in the foot, it is just as likely that Cornejo 

screamed because the shots had missed Anaya. Thus, even had the statements 

been admitted, it is not reasonably probable that the jury would have reached a 

different result. 

E. Sufficiency of the Evidence

Cornejo and Pacheco challenge the sufficiency of the evidence to support

certain of their convictions and sentencing enhancements. “In determining 

whether the evidence is sufficient to support a conviction or an enhancement, ‘the 

relevant question is whether, after viewing the evidence in the light most favorable 
24

to the prosecution, any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.’ [Citations.] Under this standard, ‘an 

appellate court in a criminal case . . . does not ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] 

Rather, the reviewing court ‘must review the whole record in the light most 

favorable to the judgment below to determine whether it discloses substantial 

evidence -- that is, evidence which is reasonable, credible, and of solid value --

such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.’ [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224, 

italics omitted.) 

1. Cornejo’s Conviction for Carrying a Concealed Firearm that was 

Stolen

As detailed above, on August 22, 2012, Detective Hernandez arrested 

Cornejo after a short pursuit. During the pursuit, Cornejo had thrown a loaded .22 

handgun away. When he was interviewed, Cornejo told Officer Chang that he had 

stolen the gun from a Rockwood gang member and that he needed it for protection 

because he had been “jumped out” of the Rockwood gang and had gotten into a 

fight with a juvenile. 

As a result of this incident, Cornejo was charged with having a concealed 

firearm on his person, in violation of section 25400, subdivision (a)(2). It also was

alleged that he committed the offense for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(1)(C)). The jury found Cornejo guilty as charged and found 

true the gang enhancement allegation. It also found true that the firearm was 

stolen, and that Cornejo knew or reasonably should have known that it was stolen. 

The latter finding is significant because it elevates the offense from a misdemeanor 
25

to a felony. (See § 25400, subd. (c)(2).) The trial court sentenced Cornejo to three 

years on count 7, plus four years for the gang enhancement. 

Appellant contends the evidence was insufficient to support the jury’s 

findings that the firearm was stolen and that he committed the offense for the 

benefit of the Rockwood street gang. We disagree. As to the gang enhancement 

allegation, the gang expert’s testimony was sufficient to prove the elements of that 

allegation. (See, e.g., People v. Williams (2009) 170 Cal.App.4th 587, 621; People 

v. Martinez (2008) 158 Cal.App.4th 1324, 1332-1333.) As to whether the handgun 

was stolen, appellant himself told Officer Chang he had stolen the handgun. 

Appellant contends it would be inconsistent for him to possess a concealed 

firearm to benefit the Rockwood gang when he had been “jumped out” of the gang 

and had stolen it from a Rockwood gang member. We disagree. First, the jury 

was not required to believe Cornejo’s statement that he had been jumped out of the 

gang. Indeed, Detective Hernandez opined that only gang members would know 

the hidden locations where a gang would store firearms. Second, nothing 

precludes animosity between members of the same gang. Appellant could have 

stolen the handgun from another gang member for myriad reasons, none of which 

would negate the fact that the Rockwood gang benefitted from having a member 

armed in gang territory to defend it from rival gangs. Stated differently, the gang 

would benefit if Cornejo were willing to defend its interests despite any personal 

animosity toward a specific gang member. In short, a reasonable jury could have 

made both findings, and there was substantial record in the evidence to support 

them.
26

2. Pacheco’s Convictions as an Aider and Abettor in the Kidnapping and 

Attempted Murder of Anaya

As detailed above, Anaya testified that Pacheco, armed with a .45-caliber 

handgun, was present in the apartment and participated in assaulting Anaya in the 

bathroom. Anaya also testified that Pacheco remained in the apartment when 

Anaya was taken to the green truck, driven to the alley, and shot. Pacheco’s GPS 

tracking device showed that Pacheco remained in the apartment. In closing

argument, the prosecutor stated it did not matter that Pacheco remained behind 

because he aided and abetted in the kidnapping and murder. The jury convicted 

Pacheco on all counts.8

Pacheco contends there was insufficient evidence to support the jury’s 

finding that he aided and abetted in the kidnapping and attempted murder of 

Anaya. We disagree. “[P]roof of aider and abettor liability requires proof in three 

distinct areas: (a) the direct perpetrator’s actus reus -- a crime committed by the 

direct perpetrator, (b) the aider and abettor’s mens rea -- knowledge of the direct 

perpetrator’s unlawful intent and an intent to assist in achieving those unlawful 

ends, and (c) the aider and abettor’s actus reus -- conduct by the aider and abettor 

that in fact assists the achievement of the crime.” (People v. Perez (2005) 

35 Cal.4th 1219, 1225.)

Here, the prosecution proved that the other defendants -- the direct 

perpetrators -- kidnapped and attempted to murder Anaya. As to Pacheco’s mens 

rea and actus reus, the jury heard the following: Pacheco was present when Anaya 

gave Vargas the .357 handgun, when Vargas asked Anaya whether Anaya was an 

 

8

The jury was instructed on direct aider and abettor liability. The prosecution 

declined to proceed on a natural and probable consequences or uncharged 

conspiracy theory. 
27

informant, when Vargas told Anaya to remain in the bathroom, and when Cornejo 

threatened Anaya with a gun. Pacheco participated in beating up Anaya, and he 

was present and armed with a .45-caliber handgun when Vargas injected Anaya 

with methamphetamine. Pacheco was also present when Vargas placed a sweater 

over Anaya’s head and took him out of the apartment. On this record, a reasonable 

jury could infer that Pacheco knew that his fellow gang members, who were armed 

with handguns, would take Anaya, who was suspected of being an informant, to 

another location and shoot him. (Cf. People v. Moore (1953) 120 Cal.App.2d 303, 

306 [“‘The presence of one at the commission of a felony by another is evidence to 

be considered in determining whether or not he was guilty of aiding and abetting; 

and it has also been held that presence, companionship, and conduct before and 

after the offense are circumstances from which one’s participation in the criminal 

intent may be inferred’”].) Pacheco aided the offenses by participating in beating 

Anaya and provided an armed presence when Vargas was injecting him with 

methamphetamine, both acts that rendered Anaya more malleable and less likely to 

resist the kidnapping and shooting. Moreover, a reasonable jury could have 

inferred that the only reason Pacheco, who was armed, did not accompany the

other appellants as they kidnapped and shot Anaya was because he had a GPS 

tracking device on his person. In short, there was substantial evidence in the 

record to support Pacheco’s convictions. 

F. Cumulative Error

Finally, appellants contend that, even if harmless individually, the 

cumulative effect of these claimed trial errors mandates reversal of their

convictions. Because we have found no error, their claim of cumulative error fails. 
28

(See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 

18 Cal.4th 297, 335.)

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

EPSTEIN, P. J.

COLLINS, J.