Filed 10/5/26 P. v. Cruz CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B337698
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. VA156329)
v.
SERGIO CRUZ,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Andrew C. Kim, Judge. Affirmed.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, Blake Armstrong, Deputy Attorney
General, for Plaintiff and Respondent.
By amended information filed in November 2023,
defendant Sergio Cruz and codefendant Johnny Perez were
charged with the murder of Joshua Barcelos, assault with a
firearm, and shooting at an occupied motor vehicle. (Pen. Code,
§§ 187, subd. (a), 245, subd. (b), 246.)1 The information further
alleged Perez was armed and personally used a firearm.
(§ 12022.5, subds. (a), (d); Cal. Rules of Court, rule 4.421(a)(2).)
A jury convicted defendant of first degree murder and
acquitted him of the related charges.2 After denying his motion
to modify the verdict (§ 1181, subd. (6)), the court sentenced him
to 25 years to life.
On appeal, defendant challenges the sufficiency of evidence
supporting his conviction for first degree murder as an aider and
abettor. He further contends the court improperly admitted
statements he made to undercover agents. (See Illinois v.
Perkins (1990) 496 U.S. 292 (Perkins).) We affirm.
FACTUAL BACKGROUND
A. Prosecution Evidence
1. Gang Evidence
Sergeant Tera Frudakis testified as a gang expert in this
case. In 2021, the Chivas gang claimed specific territory in the
city of Artesia. Its rivals included the Varrio Hawaiian
1 Subsequent unspecified references to statutes are to the Penal
Code.
2 Perez was further charged with an unrelated count of attempted
murder (§§ 664, 187, subd. (a)) that was severed from trial. He was
convicted of all charges tried to the jury in this case. Perez is not a
party this appeal.
2
Gardens 13 and Varrio Norwalk gangs. Defendant (“Limpo”) and
Perez (“Temper”) were known Chivas gang members.
In Frudakis’s view, gang members generally commit violent
crimes together. If a car appearing to carry gang members were
to drive into a rival gang’s territory, the car may be attacked.
The rival gang attacks to “protect their gang and to hurt the
other gang member which went inside their area.” Shooting a
victim unaffiliated with a gang is frowned upon because the
“purpose of shooting is to target gang members.”
2. The Shooting of Barcelos
Julian Ruvalcaba testified that on May 1, 2021, his high
school friend, Joshua Barcelos, drove him and their other friend,
Brian Velarde, to the beach and dinner. Around 11:00 p.m.,
Barcelos dropped Velarde off in Artesia and headed toward
Ruvalcaba’s home. From the front passenger seat, Ruvalcaba
noticed a gray SUV pull up behind Barcelos’s car when it was
stopped at a traffic light on Elaine Avenue at 166th Street. This
intersection is claimed by the Chivas gang.
As Barcelos turned right onto 166 Street, Ruvalcaba
noticed the SUV pull up next to his car in the left lane. A man
wearing a bandana or beanie looked at them from a partially
opened, rear seat, passenger side window. The SUV moved back
slightly, bringing it “neck to neck” with Barcelos’s car, and began
matching its speed. The man in the rear seat pointed a handgun
at Barcelos and Ruvalcaba and fired one shot that struck
Barcelos. The SUV stayed “next” to Barcelos’s car for
approximately 15 seconds.
As the SUV drove off, Barcelos’s hands dropped from the
steering wheel, but his foot remained on the gas pedal.
3
Ruvalcaba managed to push Barcelos’s foot off the pedal and
bring the car to a stop. Passersby telephoned for help, but it was
too late. Barcelos died from a gunshot wound to the upper back,
carotid artery, and left lung. Neither Ruvalcaba nor Barcelos
belonged to a criminal street gang.
3. Investigation
When sheriff deputies arrived, they found a single bullet
had pierced the driver’s side window of Barcelos’s car. The
deputies pulled surveillance footage from the area surrounding
the shooting, which was later played for the jury. The footage
depicted Barcelos and Ruvalcaba in Barcelos’s sedan and
defendant and Perez in a gray SUV. Both cars turned onto 166th
Street from Elaine Avenue around 11:57 p.m.
Frudakis informed investigating officers that Perez,
defendant, and defendant’s girlfriend, Yuliana Zarate, may have
been involved in the shooting. Officers obtained warrants for
their cellular phone data. Defendant’s data placed his phone in
the area of the shooting shortly before it occurred. Perez’s phone
was placed near the shooting at 12:00 a.m., within .05 miles from
a tower located on Pioneer Boulevard and 166th Street.
A criminalist examined the damaged bullet recovered from
Barcelos’s body and determined it was fired from a firearm in
the .38 caliber family. Videos from Perez’s phone depicting
Polymer 80 firearms capable of firing the bullet were played for
the jury. Officers were unable to locate the gun used to kill
Barcelos.
4
4. Zarate Testimony
On July 8, 2021, Zarate was arrested and interviewed by
the police. At trial, she testified that defendant was her partner
and the father of their child. On the night of the shooting,
defendant drove Zarate in his gray Nissan SUV to Elaine Avenue
and 168th Street where they regularly socialized. Zarate left
defendant to go somewhere else with Perez’s ex-girlfriend.
Defendant and his SUV were at home when Zarate returned
around 2:00 a.m. the following day. Defendant sold his SUV less
than a week later.
5. Arrests, Interviews, and Perkins Operations
The same day of Zarate’s arrest, defendant and Perez were
arrested at different locations, brought to the same station, and
transferred to different cells. Officers placed two Perkins
agents—citizens without formal law enforcement training who
were paid to elicit incriminating information—in each cell. Audio
recordings and transcripts of the interactions were presented to
the jury.
a. Defendant’s Statements
Defendant introduced himself to both Perkins agents as
“Limpo” from the Chivas gang. Defendant told the agents he was
23 years old and said he did not know why he and his girlfriend
were arrested. The agents told defendant they were members of
the Florencia Trece gang who had been arrested for murder. The
agents said they wanted to “keep it 100. We expect the same
thing. Regardless, we’re gonna find out. If you’re bullshitting us,
then you know, we’ll let the homies know, he bullshitting us.”
Defendant maintained he had “no idea” why he was arrested.
5
The agents told him, “[S]omebody’s talking.” They suggested
defendant would receive a two- or seven-year sentence under the
“Gascon law”3 if he cooperated with police.
Two detectives approached the cell and told defendant that
he, Perez, and Zarate were booked for murder. The Department
of Children and Family Services (DCFS) would come to speak to
him about his child. One detective told defendant, “I don’t want
to take her and put her in foster care . . . . We want that car too.”
When the detectives left, defendant told the Perkins agents
that Zarate had “nothing to do with this shit.” The agents asked
about the car. Defendant said it was difficult to talk about, and
he was unwilling to “snitch.” At various times, the agents
suggested Perez had taken a deal and that officers were going to
“take [his] kids away” if he “fuck[ed] around.” If defendant did
not “cut [his] girl loose,” she could spend time in jail. Defendant
replied, “I just want to shut up bro and . . . get my lawyer real
quick.”
While rebuffing the Perkins agents’ questions and
suggestions to “[j]ust come clean,”4 defendant told the agents the
shooting was not gang related, only “[o]ne lucky” shot was fired,
he was not the shooter, and the victims were “at the wrong place
at the wrong time.” Defendant asked the agents what he should
3 “On December 8, 2020, George Gascón (hereinafter Gascón)
assumed office as the Los Angeles County District Attorney.”
(Committee to Support Recall of Gascón v. Logan (2023) 94 Cal.App.5th
352, 359.)
4 When an agent said Perez “just got a deal,” defendant said, “I
don’t even know about that.” Defendant said he did not “want to talk
about it too much,” and “I don’t feel right talking about it right
now, . . .”
6
say if the police asked him to reveal the shooter’s identity. They
directed defendant to tell them, “[Y]ou already know.”
When defendant returned to the cell after being questioned
by the detectives, he told a Perkins agent he had “just snitched”
on himself.5 The detectives had read him his rights, told him
Zarate would be released from custody, and verified DCFS was
out of the picture. Defendant said the detectives had “everything
on point.” They did not ask for the shooter’s identity, but
defendant “kept on telling them that if you know, you know.” He
then revealed “exactly” what he told the detectives: “I was using
the bathroom and seen some suspicious car, driving through the
stop sign, got back in my car, chased it. All I was doing was
driving. I didn’t even know the homie had a burner.”
b. Perez’s Statements6
When placed in his own cell with two Perkins agents, Perez
identified himself as “Temper” from the Chivas gang, said he was
18 years old, and admitted he had been “[b]usted for a hot one.”
The agents told Perez they were also gang members arrested for
murder. Given Perez’s age and clean criminal record, the agents
said he fell “under Gascon” and had “love coming” his way.
Detectives entered the cell and told Perez that he and his
partners were arrested for murder. After the detectives left, a
Perkins agent “school[ed]” Perez on how to handle his dilemma.
5 When he returned to the cell, defendant asked one agent, “What
happened to your homeboy?” The agent replied, “he’s—took him over
there. They took him over there.”
6 Defendant does not challenge the admissibility of Perez’s
Perkins statements.
7
Like defendant, Perez initially told the agents he did not “feel
comfortable telling” his story and had “nothin to say, fool.”
Following additional questioning, Perez told the agents the
shooting was gang related. He believed the car held Varrio
Norwalk or Hawaiian Gardens gang members who were “gang
banging” and “smashing” in Chivas gang territory.7 Perez got
into the rear right seat of defendant’s SUV. After defendant
“chased after ‘em,” Perez told the passengers of the car, “What’s
up fool? Where you from?” Perez “[t]ook out the gun. He [(the
driver)] put down his head,” and Perez fired two shots “[s]ide to
side” and “[n]ot that far” away from the car. “One of ‘em got his
ass.” Perez and defendant “jumped on the freeway” and “went to
the hood” afterward. When asked if defendant knew what would
happen to them “when it first happened,” Perez replied, “No, but
he was just like fool worst comes to worst fool we’ll just take a
deal fool. That’s what he said.”
B. Defense Evidence
Defendant did not present any witnesses.
DISCUSSION
A. Sufficiency of Evidence of First Degree Murder
Defendant contends insufficient evidence supported his
conviction for aiding and abetting an intentional and
premeditated murder. We disagree.
7 According to Frudakis, “‘Gangbang’” refers to when gang
members violently confront others. “‘Smashing’” means to “get away,
to drive fast.”
8
1. Governing Principles
Murder in the first degree is the unlawful killing that is
willful, deliberate, and premeditated. (§§ 187, subd. (a), 189,
subd. (a).) “‘“An intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse.”’” (People v.
Morales (2020) 10 Cal.5th 76, 88 (Morales).)
A person who aids and abets the commission of murder
may be guilty “based on a combination of the direct perpetrator’s
acts and the aider and abettor’s own acts and own mental state.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1117.) For a
premeditated murder, the aider and abettor must share the
direct perpetrator’s intent to kill and must act willfully,
deliberately, and with premeditation. (In re Lopez (2023) 14
Cal.5th 562, 579; People v. Lee (2003) 31 Cal.4th 613, 624.)
When reviewing a conviction for sufficiency of evidence, we
review the record in the light most favorable to the judgment to
determine whether substantial evidence “‘from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Cardenas (2025) 18
Cal.5th 797, 821.) We defer to the jury’s credibility
determinations, draw all reasonable inferences from the evidence
in support of the judgment, and resolve all evidentiary conflicts
in its favor. (People v. Salazar (2016) 63 Cal.4th 214, 242.)
2. Analysis
Substantial evidence supports the finding that defendant
aided and abetted Barcelos’s murder with an intent to kill.
“‘Among the factors which may be considered in making [this]
determination of aiding and abetting are: presence at the scene
9
of the crime, companionship, and conduct before and after the
offense.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054
(Nguyen).)
All three factors exist in this case. Defendant and Perez
were at the scene of the crime and the only people inside the car
from which gunshots were fired. They were close companions,
members of the same gang. They acted deliberately before and
after the killing. Defendant spotted Barcelos’s car, which
appeared to be carrying members of a rival gang in Chivas gang
territory. (See People v. Smith (2005) 37 Cal.4th 733, 741
[“motive is often probative of intent to kill”].) Defendant got in
his SUV, Perez positioned in the back seat, and chased the car.
Moments before the shooting, defendant intentionally
maneuvered his SUV, bringing it “neck to neck” with Barcelos’s
car. Maintaining this position enabled Perez to shoot Barcelos at
close range. After the shooting, defendant’s SUV hovered near
Barcelos’s car before going back to the “hood.” Understood in this
context, defendant’s act of spotting the car, taking action to
pursue the car, and maneuvering his SUV such that Perez could
take a shot at a perceived rival evince defendant’s awareness of
the impending shooting and intent to facilitate it. (See Nguyen,
supra, 61 Cal.4th at p. 1055.)
Substantial evidence also supports the finding that
defendant premeditated Barcelos’s killing. Premeditation means
“‘thought over in advance.’” (People v. Sandoval (2015) 62
Cal.4th 394, 424.) Three categories of evidence aid our review of
premeditation: motive, planning activity, and the manner of
killing. (Morales, supra, 10 Cal.5th at p. 88–89; People v.
Anderson (1968) 70 Cal.2d 15, 26–27.) While these are
“descriptive and neither normative nor exhaustive” (People v.
10
Halvorsen (2007) 42 Cal.4th 379, 420), premeditation will
generally be found with “extremely strong evidence of planning,
or when there is evidence of motive with evidence of either
planning or manner.” (People v. Romero (2008) 44 Cal.4th 386,
401.)
As discussed, defendant had a motive to kill Barcelos. That
this motive was unreasonable, as Barcelos was not gang
affiliated, does not mean it did not exist. (See People v. Wright
(1985) 39 Cal.3d 576, 593 [unreasonable motivations underly
“many senseless killings of this type”].)
The record also supports compelling planning activity.
Defendant got into his SUV to track down a suspected rival in his
own gang’s territory. (See People v. Jackson (1989) 49 Cal.3d
1170, 1200 [following victim].) As defendant maneuvered his
SUV next to Barcelos’s car, Perez readied himself to shoot from
the right rear seat while concealing his head or face with a
bandana or beanie. Such coordination, “in the context of a gang
shooting even though the time between the sighting of the victim
and the actual shooting is very brief” (People v. Sanchez (2001) 26
Cal.4th 834, 849), constitutes strong evidence of planning
activity. (See People v. Francisco (1994) 22 Cal.App.4th 1180,
1192 [“looking for someone to shoot”].)
Finally, the manner of killing supports the finding of
premeditation. Defendant positioned his SUV “neck to neck” and
“[n]ot that far” away from Barcelos’s car, enabling Perez to fire
one or two shots at Barcelos. Shooting an “unarmed and
defenseless victim” from a close distance without any provocation
or evidence of a struggle supports premeditation. (People v.
Marks (2003) 31 Cal.4th 197, 230; People v. Silva (2001) 25
Cal.4th 345, 369.)
11
Defendant’s arguments reweigh the evidence in his favor
and rely on his acquittals on related charges. Our review cannot
reweigh the evidence in this manner (People v. Covarubbias
(2016) 1 Cal.5th 838, 890) or muddle “‘the problems caused by
inconsistent verdicts. Sufficiency-of-the-evidence review involves
assessment by the courts of whether the evidence adduced at
trial could support any rational determination of guilty beyond a
reasonable doubt. [Citations.] This review should be
independent of the jury’s determination that evidence on another
count was insufficient.’ [Citation.]” (People v. Lewis (2001) 25
Cal.4th 610, 656; see also § 954.) Ample evidence supports
defendant’s conviction.8
B. Defendant’s Perkins Statements
Next, defendant contends the court erred by admitting
“coerced and involuntary” (capitalization and boldface omitted)
statements he made to the Perkins agents. The trial court denied
his motion to exclude these statements, finding “nothing coercive
about the environment in which these statements were obtained.”
Reviewing the operation independently (People v. Jackson (2016)
1 Cal.5th 269, 339), we find no error in the statements’
admission.
8 In light of this conclusion, we discern no error in the order
denying defendant’s motion to reduce his conviction to involuntary
manslaughter. (See § 1181, subd. (6) [court may modify verdict “if the
evidence shows the defendant to be not guilty of the degree of the
crime of which he was convicted, but guilty of a lesser degree thereof,
or of a lesser crime included therein”].)
12
1. Governing Law
The due process clauses of the federal and state
Constitutions prohibit the introduction of a defendant’s
involuntary statements at trial. (People v. Boyette (2002) 29
Cal.4th 381, 411.) A statement is involuntary if it is not produced
by a rational intellect and free will. (People v. McWhorter (2009)
47 Cal.4th 318, 346 (McWhorter).) We consider the totality of the
circumstances attending defendant’s statements, including his
personal characteristics and those of the interrogation. (See id.
at p. 347.)
“A finding of coercive police activity is a prerequisite to a
finding that a confession was involuntary under the federal and
state Constitutions. A confession may be found involuntary if
extracted by threats or violence, obtained by direct or implied
promises, or secured by the exertion of improper influence.”
(McWhorter, supra, 47 Cal. 4th at p. 347, citations omitted.)
Coercive police activity “is a necessary predicate to establish an
involuntary confession,” but such activity does not necessarily
render a statement involuntary. (Ibid.) “The statement and the
inducement must be causally linked.” (Ibid.) Deception will not
invalidate a statement or confession unless it “‘is the type likely
to procure an untrue statement.’” (People v. Fayed (2020) 9
Cal.5th 147, 165 (Fayed), quoting People v. McCurdy (2014) 59
Cal.4th 1063, 1088.)
2. Analysis
Defendant contends the Perkins agents exploited a
“jailhouse atmosphere of gang-related tension, violence, and
coercion” that rendered his statements involuntary. We disagree.
13
To begin with, defendant misdirects his arguments toward
conduct by the Perkins agents. People v. Zapata (2026) 118
Cal.App.5th 529 “makes clear the crucial inquiry is not aimed at
the disguised Perkins agent[s]. Instead, the focus is on what the
known law enforcement officer did to stimulate further
conversation after a defendant invoked the Miranda right to
counsel.” (People v. Ramadhan (2026) 120 Cal.App.5th 906, 913,
review granted Aug. 12, 2026, S297072; McWhorter, supra, 47
Cal.4th at p. 347.) Defendant admits he made statements to
operatives not “known by [him] to be law enforcement.” (Zapata,
at p. 541.) This distinction is critical because “[c]oercive police
activity is a necessary predicate to the finding that a confession is
not ‘voluntary.’” (People v. Benson (1990) 52 Cal.3d 754, 778,
italics added.)
Even considering the agents’ conduct from defendant’s
perspective, that conduct did not overbear his will. To be sure,
the agents were more than “passive listener[s]” and at times
“coaxed and prodded defendant when he hesitated to speak . . . .”
(Fayed, supra, 9 Cal.5th at p. 166.) But they did not compel
defendant to make untrue statements or force him to reveal the
actions he took before the shooting. Their statements may have
“fooled” defendant into thinking they were “sympathetic
colleague[s],” but they did not affect the voluntariness of his
statements. (Perkins, supra, 496 U.S. at p. 298.)
In arguing his statements were involuntary, defendant
notes his age and inexperience with the criminal justice system.
Defendant was 23 years old and spoke with persons he believed
were senior gang members. “Nothing in the record shows gang
members customarily defer to traditional figures of authority,
like elders,” particularly if these figures are strangers who claim
14
to be members of a different gang. (People v. Rodriguez (2019) 40
Cal.App.5th 194, 199 [rejecting such theory “as a universal
principle” based on speculation].)
Defendant further suggests the Perkins agents
“intentionally manipulated [his] sense of concern about being
physically harmed in custody via the threats issued in the very
first moments of his interaction” with them. We disagree. The
“threats” defendant identifies appear in the statement, “If you’re
bullshitting us, . . . we’ll let the homies know, he bullshitting us.”
An agent made this statement at the beginning of the operation
while building rapport with defendant. Nothing in this exchange
or thereafter demonstrates that defendant’s will was “overborne
in such a way as to render his confession the product of coercion.”
(Arizona v. Fulminante (1991) 499 U.S. 279, 288.) On the
contrary, defendant rebuffed the agents’ questioning for much of
the operation.
Finally, defendant argues the Perkins agents offered him
leniency and discussed the negative consequences his girlfriend
and child might face if he did not cooperate. Because defendant
had no reason to believe the agents “could affect [his] future
treatment,” any statements they made about any criminal
exposure or the treatment of his child were not coercive.
(Perkins, supra, 496 U.S. at p. 298; see People v. Tully (2012) 54
Cal.4th 952, 985 [“‘person in authority’” must offer leniency].)
Further, even “[l]aw enforcement does not violate due process by
informing a suspect of the likely consequences of the suspected
crimes or of pointing out the benefits that are likely to flow from
cooperating with an investigation.” (People v. Orozco (2019) 32
Cal.App.5th 802, 820; see People v. Howard (1988) 44 Cal.3d 375,
398 [same].)
15
“And significantly, throughout the interrogation defendant
steadfastly maintained that he was innocent, which tends to
undercut the notion that his free will was overborne by the
[agents’] remarks.” (People v. Case (2018) 5 Cal.5th 1, 26.)
Defendant maintained his innocence, claimed he was merely a
driver, and said he had “no idea” Perez had a firearm. Defendant
does not explain which of his statements were untrue (see Fayed,
supra, 9 Cal.5th at p. 165) or show any indication that he was
“intimidated by the atmosphere of the jail.” (Perkins, supra, 496
U.S. at p. 298.) Defendant’s will was not overborne; he simply
“spoke at his own peril.” (Ibid.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
ZUKIN, P. J.
DAUM, J.
16