Filed 9/29/26 P. v. Dorantes CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B336870
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA405435)
v.
JOE JOHN DORANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Mi Kim, 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, Assistant
Attorney General, Idan Ivri and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
A jury convicted defendant Joe John Dorantes of two counts
of second degree murder. The jury found firearm enhancements
and a multiple murder special circumstance not true. We affirm
the judgment.
We reject defendant’s challenge to the sufficiency of the
evidence to support his murder convictions. We conclude
substantial evidence supported his convictions regardless of
whether the jury convicted him as the actual perpetrator or as an
aider and abettor.
Defendant argues the trial court should have instructed the
jury that aiding and abetting implied malice murder (a theory on
which neither side relied at trial) requires that the defendant
must knowingly aid and abet conduct that carries a high
probability of death. Following our Supreme Court’s decision in
People v. Nieto Benitez (1992) 4 Cal.4th 91, 111 we reject this
argument.
We reject defendant’s challenge to admission of gang
evidence because that evidence was relevant to show motive and
intent. In addition, even assuming arguendo admission of
evidence referencing the Mexican Mafia was error, it was not
prejudicial.
We conclude defendant’s argument the trial court
prejudicially erred in failing sua sponte to give limiting
instructions on gang evidence and evidence concerning a prior
shooting involving defendant is not well founded. We also
disagree the trial court erred in not questioning the entire jury
when one juror overheard a conversation in the hallway about an
unidentified person wanting to kill a potential witness. The court
dismissed the juror who overheard the conversation and that
juror confirmed no other juror was present during the
2
conversation. We also reject defendant’s claim that cumulative
error requires a new trial. Finally, defendant forfeited his
argument that the restitution and parole revocation fines are
excessive under the federal or California Constitutions.
PROCEDURAL BACKGROUND
1. Second amended information
In a second amended information, the People charged
defendant with murdering Albert Garcia (count 1) and his father,
Juan Garcia (count 2). The People alleged a multiple murder
special circumstance. The People also alleged the attempted
premediated murders of Emmanuelle (count 3), Ernesto (count 4),
and Marcus (count 5). As to counts 1 through 4, the People
alleged defendant personally used a firearm (Pen. Code,
§ 12022.53, subd. (b)); personally and intentionally discharged a
firearm (id., subd (c)); and personally and intentionally
discharged a firearm causing great bodily injury and death (id.,
subd. (d)).1 As to the attempted murder of Marcus, the People
alleged a firearm enhancement within the meaning of
section 12022.53, subdivisions (b) and (c).
2. 2017 trial
The jury in defendant’s 2017 trial could not reach a verdict
on the two murder counts. (People v. Dorantes (Sept. 3, 2019,
B289777) [nonpub. opn.] (Dorantes I) at p. 2.) The jury convicted
defendant of the three attempted murder counts and found that
defendant personally and intentionally discharged a firearm
causing great bodily injury within the meaning of
1 Undesignated statutory citations are to the Penal Code.
3
section 12022.53, subdivision (d), discharged a firearm within the
meaning of section 1202252, subdivision (c), and used a firearm
within the meaning of section 12022.53, subdivision (b).
(Dorantes I, at pp. 11–12.)
3. Third amended information
On July 9, 2019, the People filed a third amended
information charging defendant with two counts of murder and
firearm enhancements pursuant to section 12022.53,
subdivisions (b)–(d). The People also alleged a multiple murder
special circumstance.
4. First appeal (case No. B289777)
Defendant appealed from the 2017 judgment of conviction.
In 2019, we reversed the conviction for the attempted murder of
Emmanuelle as not supported by substantial evidence.
(Dorantes I, supra, B289777, at p. 2.) We reversed the conviction
for the attempted murder of Ernesto because of instructional
error regarding the kill zone theory of liability. (Id. at p. 2.) We
affirmed the conviction of the attempted murder of Marcus. (Id.
at p. 21.) Upon remand, the People moved to dismiss the count
alleging the attempted murder of Ernesto, and the trial court
granted the motion.
5. 2024 trial
The appeal before us regards defendant’s 2024 trial. At
that trial, defendant did not call any witness. Defendant’s
defense was the prosecution did not prove identity beyond a
reasonable doubt.
After the trial court found Marcus unavailable, it permitted
the prosecution to read his testimony from the 2017 trial to the
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jury. As described in more detail in our Discussion, post, one
juror overheard a conversation in the hallway in which Marcus
said he would not testify because an unidentified person
threatened to kill him if he testified. The trial court dismissed
that juror.
During deliberations, the jury sent the following question
written by one juror: “Would it be possible to reduce the charge
to voluntary manslaughter?” “Based on the circumstances and
evidence of this case and my life experiences, in my opinion I
believe the defendant went to the . . . house to ‘squash a beef’ to
have this feud with Marcus or any available member from
Southside Montebello gang . . . .” The juror continued: “I don’t
think there was malice intent to kill or create great bodily injury.
I believe the gun was present as a scare tactic to make sure
everyone obeys the rules of 1 vs 1. . . . Aparrently [sic] things
didn’t go as expected for the defendant and his peers . . . .” The
court dismissed the juror who wrote the note after the juror
acknowledged he investigated the meaning of voluntary
manslaughter.
The jury also asked the following question, to which the
court answered, “NO”: “Can we equate a deliberate and
premediated intent to harm with a deliberate and premediated
intent to kill?”
The jury convicted defendant of the murders, finding them
to be of the second degree. The jury found the firearm
enhancements and the multiple murder special circumstance not
true.
Defendant moved for a new trial on counts one and two (the
murder counts) arguing the verdicts were contrary to the
evidence. The trial court found, “There are two ways to get to
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second-degree murder,” including unpremeditated murder with
express malice and implied malice murder. The trial court ruled
that considering all the credible evidence, substantial evidence
supported the jury verdicts and the court denied defendant’s
motion for new trial.
6. Sentence
In 2024, the trial court sentenced defendant to consecutive
15 years to life for each murder count and a consecutive 27 years
to life for the attempted murder of Marcus and the firearm
enhancement attached to the conviction of attempted murder of
Marcus (which we affirmed in the prior appeal). The court
ordered defendant to pay, inter alia, a $10,000 restitution fine
(§ 1202.4, subd. (b)) and a $10,000 parole revocation fine
(§ 1202.45).
FACTUAL BACKGROUND
The record is large. We set forth below facts generally
pertinent to defendant’s appellate challenges and provide
additional background in our Discussion, post.
At defendant’s 2024 trial, it was undisputed that on
June 21, 2008, one or more shooters shot and killed Juan Garcia
and his son, Albert Garcia, while they attended a party at a
residence in Montebello.2 Albert Garcia died of a gunshot wound
to his chest causing blood loss. Juan Garcia died from a bullet
inside his right chest. Ballistic evidence showed that the same
firearm did not kill Juan and Albert Garcia.
2 The Factual Background is based exclusively on
testimony from defendant’s 2024 trial, which includes the reading
of Marcus’s testimony from the 2017 trial.
6
There were approximately 50 people at the party, including
then South Side Montebello gang members Danny, Marcus,
Orlando, Roman, and Eduardo. Danny and Eduardo testified at
trial they had moved out of state and were no longer gang
members.
1. Defendant’s nephew, Angel Sosa, is confronted by
South Side Montebello gang members outside the
party
Defendant is Angel Sosa’s uncle. The Southside Montebello
gang members at the June 21, 2008 party had a “beef” with Angel
Sosa’s tagging crew CSC (Can’t Stop Crime). According to
Danny, a “beef” means that a person or a group did not get along
and a “beef” usually ended in violence. CSC was a rival to the
South Side Montebello gang because it was a rival to the tagging
crew FUC (Fucked Up Constantly), which several South Side
Montebello gang members joined prior to entering the gang.
When Angel and two companions walked by the party,
Roman, Danny, and Marcus fought with Angel, and Danny hit
Angel with a 40-ounce beer bottle. Danny yelled, “South Side
Montebello.” Angel left with his companions, and one of them
said, “I’ll be back.” Prior to Danny hitting Angel, according to
Danny, Angel was “just walking by” the party.
After this confrontation, someone asked Danny to leave the
party, and he left with other South Side Montebello gang
members, Roman and Marcus. Eduardo and Orlando stayed at
the party.
2. The shooting of Juan and Albert Garcia
Approximately 30 minutes after the confrontation involving
Angel, Emmanuelle, a guest at the party, was sitting outside
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with her sister when someone came up and asked for Marcus.
That person, whom Emmanuelle identified at trial as defendant,
said he was “Michael” from the South Side Montebello gang.
“Michael” was with another person, who did not identify himself.
Emmanuelle’s sister told “Michael” that other South Side
Montebello gang members, Eduardo and Orlando, were in the
backyard.
“Michael” and his confederate went to the backyard.
“Michael” challenged Eduardo to a fight. According to
Emmanuelle, either “Michael” or his confederate, or both, pulled
out a gun and started shooting.
According to Eduardo, Emmanuelle’s sister told him that
“Michael” was at the party. Eduardo thought “Michael” was a
friend and Eduardo went to see him. As he approached, Eduardo
saw that the person was not his friend. The person who
identified himself as “Michael” made a sign indicating he wanted
to fight. Eduardo did not want to be thrown out of the party so
he decided to return to the backyard. When he turned around to
walk to the backyard, Eduardo heard gunshots. Afterwards,
Eduardo did not tell the police anything because “[t]hat would be
snitching.”
According to Ernesto, he “saw two guys leaning up against
the fence” and it “didn’t seem right” because they were not at the
party. The two guys were “shoulder to shoulder.” Ernesto
walked towards them and said, “Hey, we don’t want any trouble,”
and one of the two males punched the left side of Ernesto’s jaw.
The other male pulled up his shirt and drew a gun. Ernesto ran
back to the house. He heard five shots. A bullet hit Ernesto’s
hip.
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3. The shooting of Marcus
Danny, Eduardo, and Marcus were nearby and heard the
shooting that killed Juan and Albert Garcia. After hearing the
gunshots, Danny, Eduardo, and Marcus started walking towards
the party and saw defendant, who was trying to catch his breath.
When defendant saw them, he drew a gun that he had wrapped
in a t-shirt. Defendant and Marcus shot at each other. Danny
claimed “South Side” while Marcus and defendant were shooting
at each other.
After the shooting, the police interviewed Marcus, but he
did not say anything because he did not want to “snitch.” He
believed, “snitching is breaking . . . [a] very important code that
[he had] as a gang member.” In 2012, Marcus told officers
defendant had shot him. In 2014, Marcus identified defendant
from a photographic lineup as the person who shot him. Marcus
identified defendant at the 2017 trial, which testimony was read
to the jury in the 2024 trial.
4. Eyewitness identifications
As noted, at trial, Emmanuelle identified defendant as the
shooter and she stated she was “100 percent” certain. In
September 2008, when shown a six pack containing defendant’s
photo, she selected defendant as the man she saw with the gun.
Emmanuelle also identified defendant in court in 2017. In
May 2010, however, Emmanuelle identified someone other than
defendant. She could not remember “100 percent” if the person
she identified in 2010 was the shooter. In June 2008, when an
officer interviewed her at the hospital, Emmanuelle identified
someone other than defendant as someone looking similar to the
shooter. Emmanuelle explained it was different seeing someone
9
in person instead of in photographs, and the first time she saw
defendant in person, she recognized him.
At the 2024 trial, Eduardo identified defendant as the
person who claimed to be “Michael.” In 2012, when interviewed
by police, Eduardo identified the person who claimed to be
“Michael” as defendant. At the 2024 trial, Eduardo was confident
about his 2012 identification. Eduardo testified in the 2024 trial
that in the 2017 trial, Eduardo testified defendant may have been
the person at the fence. In 2008, when interviewed by police,
when he was still a gang member, Eduardo did not identify
anyone because that “would be snitching.”
Amanda, a person at the party, selected defendant’s photo
from a lineup as the person who approached the party. She did
not see whether he had a gun. Apparently, Amanda had earlier
identified someone other than defendant because at trial,
Amanda testified she was more confident in her identification of
defendant, which she described as her later identification.
In September 2008, Guillermo, another person at the party
who observed someone initiating a fight and then heard several
gunshots, selected defendant and another person from a
photographic lineup as having features similar to the person who
initiated the fight.
Ernesto identified defendant and another person in a
photographic lineup in September 2008, but he was not
“positive.” Later, Ernesto told the detective, “ ‘I don’t think it’s
them.’ ” At trial, Ernesto testified that he was “not sure.” At
trial, Ernesto also testified he would not be able to identify either
person he saw at the fence.
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Juan Garcia’s girlfriend, who was at the party with him,
identified someone other than defendant from a photographic
lineup. Other partygoers were unable to identify anyone.
After the shootings on June 21, 2008, Danny saw police in
the neighborhood, but he did not speak to them because he did
not want to be a snitch. About four years later, he told police
what he saw the night of June 21, 2008. Danny identified
defendant and identified him in court as the person who shot
Marcus. Danny was not present at the shooting of Juan and
Albert.
5. Marcus’s and defendant’s subsequent encounter
Sometime after the shooting of Juan and Albert Garcia,
Marcus saw defendant at a restaurant, and Marcus told
defendant he “killed a kid.” Defendant responded, “[S]o what?”
and told Marcus, “[Y]ou’re going to get the same.”
6. Evidence of tagging crews and gangs
Omar Rodriguez, a police sergeant, testified gangs and
tagging crews differed based on the criminal activities in which
they participate. Members of tagging crews do not participate in
violent crimes as frequently as members of gangs. Members of
tagging crews sometimes “graduate” into a gang.
Rodriguez testified 95 percent of Hispanic gangs in
Southern California identify as “Surenos,” which is controlled by
the prison gang known as the Mexican Mafia.3 Rodriguez further
testified the “Mexican Mafia controls all the Southern gangs. . . .
3 The court overruled defense counsel’s objection to
evidence of the Mexican Mafia and prison gangs.
11
They control essentially the money inside of the prison system,
the sales of narcotics inside the prison system . . . .”
Rodriguez told the jury gang members are forbidden from
cooperating with law enforcement. “It’s considered snitching.”
The penalty for snitching may be death. A “green light for
snitching” is an order to kill the gang member.
Rodriguez said defendant was known as “Seeks.”
Defendant was a member of the CSC (Can’t Stop Crime) tagging
crew. According to Rodriguez, defendant, however, was not a
gang member. Also according to Rodriguez, Angel Sosa was a
member of the CSC tagging crew. Rodriguez testified Marcus’s
father and brother were South Side Montebello gang members.
Former Southside Montebello gang member Danny
testified it would be “[e]xtremely bad” for a gang member to
cooperate with the police. Danny said a person who wanted to be
a gang member would be beat up for 13 seconds because 13 was
the “Sureno number,” signifying affiliation with the Mexican
Mafia. Danny testified gang members who violate gang rules
could be killed. Danny also told the jury the Mexican Mafia
applies the same rules to every gang.
Upon the defense’s cross-examination, Danny testified
members of tagging crews may commit violence. Also on cross-
examination, Danny testified defendant was a member of a gang.
During cross-examination, Danny stated gang members would
sometimes “back up” members of a tagging crew and the Primera
Flats gang would back up defendant. Marcus testified
defendant’s family members were part of the Primera Flats gang.
Former Southside Montebello gang member Eduardo also
testified about gangs. He said while he was in a tagging crew,
there was a rule not to talk to police. As a member of a tagging
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crew, “[y]ou had to be violent when you see your rivals . . . .” It
was common for members of tagging crews to become gang
members as they aged. The most important rule of gangs was to
never say anything.
DISCUSSION
A. Substantial Evidence Supported the Murder
Convictions
1. Applicable standard of review and law regarding
second degree murder
When assessing the sufficiency of evidence, “we review the
whole record to determine whether any rational trier of fact could
have found the essential elements of the crime or special
circumstances beyond a reasonable doubt. . . . [W]e review the
evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence. . . . A
reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support” ’ the jury’s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.)
The elements of second degree murder are well established:
“Second degree murder is an unlawful killing with malice
aforethought, but without the premeditation or deliberation
required for first degree murder. [Citation.] Malice may be
express or implied. [Citation.] Malice is express when a
defendant intends to kill and implied when a defendant
consciously disregards danger to human life. [Citation.] Implied
malice requires proof of both a physical act and a mental state.
13
Physically, a defendant must perform an act whose natural
consequences are dangerous to life, or put another way,
defendant must perform ‘ “an act that involves a high degree of
probability” ’ of death. [Citations.] To establish the mental state
required for implied malice, the defendant must deliberately
perform the act with a conscious disregard for life, knowing the
act endangers another’s life.” (In re Ferrell (2023) 14 Cal.5th 593,
600.)
The doctrine of transferred intent applies when the
defendant shoots at one victim with malice aforethought but
instead, kills a bystander. The elements of transferred intent are
also well established. “[L]iability for express malice murder does
not require a finding that the defendant specifically intended to
kill the deceased victim(s). ‘A defendant can be liable for the
unlawful killings of both the intended victims and any
unintended victims. “ ‘[T]here is no requirement of an unlawful
intent to kill an intended victim. The law speaks in terms of an
unlawful intent to kill a person, not the person intended to be
killed.’ ” [Citation.]’ [Citation.]” (People v. Nguyen (2024)
103 Cal.App.5th 668, 679–680.) “Under the doctrine of
transferred intent, if a defendant shoots at one victim with
malice aforethought, but instead kills someone else who is
standing nearby, the defendant is deemed liable for murder
notwithstanding the lack of intent to kill that decedent.” (People
v. Lopez (2024) 99 Cal.App.5th 1242, 1247; see also People v. Scott
(1996) 14 Cal.4th 544, 551.) The doctrine of transferred intent
applies to an aider and abettor of a murder. (Lopez, at p. 1250.)
14
2. If defendant was a shooter, substantial evidence
supports the murder convictions
Assuming defendant was a shooter, the following evidence
supports the murder convictions. Defendant and a confederate
approached partygoers and asked for Marcus. Defendant
identified himself as “Michael” from South Side Montebello.
Defendant then pulled out a gun and started shooting. The shots
killed Juan and his son, Albert. Shortly after hearing gunshots,
Danny saw defendant with a gun. Subsequently, when Marcus
saw defendant at a restaurant, and told defendant, “You killed a
kid,” defendant did not deny it.
Defendant does not dispute that if he was a shooter,
substantial evidence would support the murder convictions.
Instead, he argues because the jury found “ ‘not true’ ” all
personal gun-use enhancement allegations, it necessarily found
defendant aided and abetted the attempted murder and was not
the direct perpetrator. (People v. Miranda (2011)
192 Cal.App.4th 398, 405 (Miranda).
Contrary to defendant’s premise, the instructions in this
case indicate the jury may have concluded that defendant
personally discharged a firearm causing death but did not agree
on which victim the defendant personally killed. Specifically, the
court instructed the jury that the “defendant is accused of having
personally discharged a firearm proximately causing death to a
person other than an accomplice. The prosecution has introduced
evidence that there may be more than one victim as to which this
enhancement may apply. The enhancement may be found true if
the proof shows beyond a reasonable doubt that the defendant
personally discharged a firearm proxima[t]ely causing death to
either Juan Garcia or Albert Garcia. However, in order to return
15
a true finding to the enhancement, all jurors must agree that the
defendant personally discharged a firearm proximately causing
death to the same victim. It is not necessary that the particular
victim agreed upon be stated in your verdict.” These instructions
therefore undermine defendant’s argument that the jury
necessarily concluded he was not the shooter. It may have
instead concluded that it could not determine which victim
defendant killed.
Defendant’s argument is also inconsistent with Miranda,
supra, 192 Cal.App.4th 402–403, which held that an appellate
court considering a challenge to the sufficiency of the evidence
may consider all the evidence notwithstanding the jury’s not true
findings on firearm enhancements. In Miranda, the defendant
was charged with, inter alia, attempted premediated murder, and
the People alleged firearm enhancements pursuant to
section 12022.53, subdivisions (b), (c), and (d). (Miranda, at
pp. 402–403.) The jury found the attempted premediated murder
allegation true but found not true the personal firearm
enhancements alleged pursuant to section 12022.53,
subdivisions (b), (c), and (d). (Miranda, at p. 403.) Miranda cited
section 954 for the proposition that an acquittal on one count will
not be deemed an acquittal on any other count if the verdicts are
otherwise supported by substantial evidence. (Miranda, at
p. 405.) Miranda explained, “ ‘An inconsistency may show no
more than jury lenity, compromise, or mistake, none of which
undermines the validity of a verdict. [Citations.]’ [Citation.]”
(Id. at p. 406.)
The same rule applies when the verdict on an enhancement
is inconsistent with the verdict on a substantive offense.
(Miranda, supra, 192 Cal.App.4th at p. 406.) Even when not true
16
findings were logically inconsistent with the defendant being the
direct perpetrator, Miranda held substantial evidence supporting
the conclusion the defendant was the direct perpetrator of the
attempted murder was “by statute” sufficient to uphold the
verdict. (Id. at p. 407.)
Finally, defendant cites People v. Jones (2022)
86 Cal.App.5th 1076, 1085 to support that the jury necessarily
convicted him as an aider and abettor and not the direct shooter.
In contrast to Miranda, the defendant in Jones did not appeal
from the judgment of conviction, but instead, from denial of
resentencing pursuant to former section 1170.95 (now section
1172.6). (Jones, at p. 1079.) The Jones court rejected the
defendant’s argument the trial court was collaterally estopped
from finding the defendant possessed or supplied a firearm used
in a shooting when the jury found not true personal use of a
firearm enhancement. (Id. at pp. 1085–1086.) The application of
collateral estoppel in the context of section 1172.6 resentencing
proceedings is currently pending before our high court. (People v.
Player (2026) 119 Cal.App.5th 931, review granted July 8, 2026,
S296683.) Because the case before us does not concern the
collateral estoppel doctrine or a section 1172.6 proceeding,
defendant’s reliance on Jones is misplaced.
3. If defendant was an aider and abettor, substantial
evidence also supports the murder convictions
The actus reus of aiding and abetting is satisfied where the
aider and abettor “by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” (People v. Beeman
(1984) 35 Cal.3d 547, 561.) An aider and abettor must engage in
“ ‘some affirmative action’ ” to assist or encourage a crime.
(People v. Partee (2020) 8 Cal.5th 860, 868, italics omitted.) The
17
mens rea of murder is malice aforethought. (People v. Gentile
(2020) 10 Cal.5th 830, 844.) If the defendant aids and abets a
murder the defendant must possess malice aforethought. (Ibid.)
Defendant also must have knowledge of the unlawful purpose of
the perpetrator. (People v. Curiel (2023) 15 Cal.5th 433, 468
(Curiel).)
Defendant’s brief focuses on evidence he contends would
demonstrate he did not aid and abet the murders, for example,
the purported weaknesses in the witnesses’ identification of
defendant. That misconceives our standard of review. Under our
substantial evidence standard of review, we interpret the
evidence in the light most favorable to the judgment and do not
reweigh evidence or make credibility assessments.
The following evidence supports the jury’s convictions of
the murders of Juan and Albert Garcia on an aiding and abetting
theory. Defendant was present at the shooting, standing
shoulder to shoulder with his confederate. Defendant had a
motive to retaliate against the South Side Montebello gang
members who, earlier that evening, hit his nephew with a bottle.
According to Emmanuelle, defendant specifically asked for
Marcus, a South Side Montebello gang member, an act that
assisted his confederate in locating the South Side gang members
who were the intended targets of the shootings. According to
Eduardo, defendant made a sign indicating he wanted to fight.
The jury could infer that defendant intended to kill, and knew his
companion would kill based on evidence that he accompanied his
armed companion, helped identify the South Side Montebello
gang members at the party by posing as “Michael,” stayed during
the shooting, and then fled the scene after the killing with a gun
that he tried to hide in a t-shirt. Marcus specifically testified he
18
saw defendant near the scene and defendant shot him with a gun
defendant was hiding in his t-shirt. (See People v. Gomez (2018)
6 Cal.5th 243, 280 [substantial evidence supporting murder
where defendant was either shooter or aided shooting that “was
the object of a joint criminal effort perpetrated by two men
working in concert”].)
4. Defendant’s challenges to the sufficiency of the
evidence lack merit
Defendant argues he did not proximately cause the death of
Juan or Albert Garcia because both died of gunshot wounds and
the jury found the firearm enhancements not true. As explained
above, even if we assume the jury convicted defendant as an
aider and abettor, substantial evidence supports the murder
convictions and under Miranda, any inconsistency regarding the
jury’s firearm findings does not undermine the jury’s murder
verdicts.
Defendant argues no substantial evidence supports a first
degree murder conviction based on conspiracy to commit murder.
This argument does not assist him because the trial court did not
instruct on conspiracy, and the jury did not convict defendant of
first degree murder.
Defendant argues that there is no substantial evidence he
acted with intent to kill. Defendant relies on the jury’s not true
finding on the multiple murder special circumstance, but to no
avail. The court instructed the jury to consider that special
circumstance only if it found defendant guilty of first degree
19
murder.4 The jury did not find defendant guilty of first degree
murder and therefore, under the court’s instructions, the jury did
not consider the multiple murder special circumstance. (People v.
Williams (2022) 86 Cal.App.5th 1244, 1256 [appellate court
presumes jury followed the trial court’s instructions].)
Defendant cites People v. Williams (1997) 16 Cal.4th 635,
688 for the proposition that “when the jury finds the defendant
‘guilty of first degree murder, the trier of fact shall also make a
special finding on the truth of each alleged special
circumstance.’ ” We fail to discern how this proposition assists
defendant given that the jury did not find him guilty of first
degree murder.
Defendant also argues no one pointed a gun directly at
Juan or Albert Garcia. This argument ignores the doctrine of
transferred intent, on which the court also instructed the jury.5
Defendant argues the following jury question combined
with the verdicts demonstrate the jury found intent to harm and
not intent to kill: “Can we equate a deliberate and premeditated
intent to harm with a deliberate and premediated intent to kill”
to which the court answered, “NO.” We fail to see the import of a
question concerning the elements of first degree murder, a theory
rejected by the jury. The fact the jury rejected the conclusion
that defendant premediated and deliberated does not also
4 The court also instructed the jury that it must consider
the multiple murder special circumstance if it found defendant
guilty of first degree murder.
5 The court instructed the jury, “When one attempts to kill
a certain person, but by mistake or inadvertence kills a different
person, the crime, if any, so committed is the same as though the
person originally intended to be killed, had been killed.”
20
support that the jury concluded defendant did not harbor intent
to kill.
“[P]remeditated” means “considered beforehand” and
“deliberate” means “formed or arrived at or determined upon as a
result of careful thought and weighing of considerations for and
against the proposed course of action.” (People v. Houston (2012)
54 Cal.4th 1186, 1216.) A defendant may intend to kill without
premediating or deliberating the killing.6
Defendant argues there is no substantial evidence he aided
and abetted an implied malice murder. We have concluded there
was substantial evidence he was the shooter and substantial
evidence he aided and abetted an express malice murder. We
need not also consider whether substantial evidence would also
support an implied malice murder theory. (People v. Sandoval
(2015) 62 Cal.4th 394, 424 [where jury instructed on two theories
of first degree murder, verdict upheld if one theory supported by
substantial evidence].)
B. Defendant Does Not Show Reversable Error From
the Court’s Instructions on Aiding and Abetting an
Implied Malice Murder
Defendant argues the trial court “failed to instruct the jury
that appellant had to knowingly aid and abet conduct carrying a
high probability of death,” and therefore did not properly instruct
the jury on aiding and abetting an implied malice murder. We
review a claim of instructional error de novo. (People v. Mitchell
(2019) 7 Cal.5th 561, 579.) Although defendant did not object to
6 The court also instructed the jury that if it had a
reasonable doubt whether the murders were of the first or second
degree it must find them of the second degree.
21
the instructions below, we consider his argument on the merits
because defendant claims his substantial rights were affected.
(See id. at pp. 579–580.)
1. The trial court’s instructions
When the court instructed the jury, the court defined
principals as those who “actively commit the act constituting the
crime” or those who “aid and abet the commission of the crime.”
The court defined aiding and abetting the commission of a crime
as promoting encouraging or instigating the commission of an act
with knowledge of the unlawful purpose of the perpetrator and
with the intent of encouraging or facilitating the commission of
the crime.
The court defined murder as the unlawful killing of a
human being done with malice aforethought and then defined
express7 and implied malice. The court told the jury: “Malice is
implied when: [¶] 1. The killing resulted from an intentional act;
[¶] 2. The natural consequences of the act are dangerous to
human life; and [¶] 3. The act was deliberately performed with
knowledge of the danger to, and with conscious disregard for,
human life.”
2. Defendant does not demonstrate instructional error
Defendant relies on People v. Reyes (2023) 14 Cal.5th 981
(Reyes) to argue the trial court omitted informing the jury that
defendant “had to knowingly aid and abet conduct carrying a
high probability of death.” As set forth below, our high court has
7 The court instructed the jury on express malice as
follows: “Malice is express when there is manifested an intention
unlawfully to kill a human being.”
22
opined proximate cause for a killing exists when one engages in
conduct knowing the danger to, and with conscious disregard to
human life. Our high court has also held aiding and abetting an
act with conscious disregard for human life as opposed to with
knowledge that act will carry a high probability of death is not
“linguistically” dissimilar.
Reyes involved a defendant’s petition for resentencing
pursuant to section 1172.6. (Reyes, supra, 14 Cal.5th at p. 984.)
Reyes was 15 years old when he was in a park with a group of
other young men, all of whom were members of a gang or an
affiliated gang. (Id. at p. 985.) A witness testified about the
following events leading to the victim’s death: “[A] member of the
group of bicycle riders called out for a passing car to stop, saying,
‘Hey, Homey, stop. We want to talk to you.’ The car sped up, and
the group chased after it, with riders in front yelling to those in
back to ‘keep up’ and those in back yelling for the riders in front
to slow down. The group came together and stopped at an
intersection, and the car made a U-turn and drove past them.
Moments later, there was a gunshot, and the riders fled in
different directions. The evidence showed that a single gunshot
had struck the driver Pedro Rosario in the head, killing him.”
(Ibid.) On the same day as the killing, Reyes possessed the
murder weapon and used it in an assault leading to a street
terrorism charge. (Id. at pp. 985–986.)
At trial, a gang expert testified when gang members
accompany a fellow gang member who commits a murder, the
accompanying gang members are there for backup. (Reyes,
supra, 14 Cal.5th at p. 986.) The prosecutor argued Reyes was
guilty of murder based on a natural and probable consequence
theory and an aiding and abetting murder theory. (Ibid.) The
23
trial court denied Reyes’s resentencing petition and the Court of
Appeal affirmed. (Id. at p. 987.) The high court reversed because
the trial court’s findings were based on an error of law. (Id. at
p. 991.)
The high court explained the proximate cause element of
implied malice murder: Implied malice murder occurs when
“ ‘the killing is proximately caused by “ ‘an act, the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’ ” ’ [Citation.]” (Reyes, supra, 14 Cal.5th at
p. 988.) The high court acknowledged, “Reyes proceeded to an
area on the edge of territory belonging to a rival gang and,
alongside the other bikers, [and] chased after Rosario’s car.” (Id.
at p. 989.) It held, however, “[A]cts that merely create a
dangerous situation in which death is possible depending on how
circumstances unfold do not, without more, satisfy this causation
requirement.” (Ibid.) The court observed that Reyes’s conduct
traveling to rival gang territory with other gang members, one of
whom was armed, did not involve a high degree of probability
that it would result in death and therefore did not support the
conclusion that Reyes committed an implied malice murder.
(Ibid., italics added.)
Turning to the theory of aiding and abetting an implied
malice murder, the high court explained that theory is based on
the combined actus reus of the participants and aider and
abettor’s mens rea. (Reyes, supra, 14 Cal.5th at pp. 990–991.)
The perpetrator’s actus reus “is the commission of a life-
endangering act.” (Id. at p. 991.) The aider and abettor’s actus
reus “includes whatever acts constitute aiding the commission of
24
the life-endangering act.” (Ibid.) “ ‘The mens rea, which must be
personally harbored by the direct aider and abettor, is knowledge
that the perpetrator intended to commit the act, intent to aid the
perpetrator in the commission of the act, knowledge that the act
is dangerous to human life, and acting in conscious disregard for
human life.’ [Citations.]” (Ibid.)8
Here, the trial court was not required to sua sponte
instruct the jury that “defendant had to knowingly aid and abet
conduct carrying a high probability of death.” In People v. Nieto
Benitez, supra, 4 Cal.4th 91, our high court rejected adding to an
implied murder malice instruction that the aider and abettor
have assisted in an act knowing the act has a high probability of
resulting in death: “[T]he two linguistic formulations — ‘an act,
the natural consequences of which are dangerous to life’ and ‘an
act [committed] with a high probability that it will result in
death’ are equivalent and are intended to embody the same
standard.” (Id. at p. 111.) In People v. Knoller (2007) 41 Cal.4th
139, 152, cited by respondent, our high court reaffirmed that “a
conviction for second degree murder, based on a theory of implied
8 Defendant asserts that subsequent to Reyes, the Judicial
Counsel modified CALCRIM No. 526, which describes the
elements of aiding and abetting an implied malice murder and
defines an act “dangerous to human life” as one “involve[ing] a
high degree of probability that it would result in death.”
Defendant, however, acknowledges Supreme Court authority
stating that pattern instructions themselves are not the law. As
noted in the text, the modified instruction notwithstanding, out
high court has held an act, the natural consequences of which are
dangerous to life, and an act with a high probability that it will
result in death, are the same.
25
malice, requires proof that a defendant acted with conscious
disregard of the danger to human life.” (Id. at p. 156.)
Reyes does not change the holding in Nieto Benitez that
linguistically, “ ‘an act, the natural consequences of which are
dangerous to life’ ” and act with a high probability that it will
result in death are the same. (People v. Nieto Benitez, supra,
4 Cal.4th at p. 111.) In its post-Reyes decision, Curiel, supra,
15 Cal.5th 433, the high court cited Reyes for the proposition that
“in the context of implied malice murder, the aider and abettor
must know the perpetrator intends to commit a life-endangering
act, intend to aid the perpetrator in the commission of that act,
know the act is dangerous to human life, and act in conscious
disregard for human life.” (Curiel, at p. 468.) Curiel does not
define as an element of aiding and abetting implied malice
murder that there must be a high probability the act will result
in death. In short, defendant has failed to demonstrate
instructional error.
C. Gang Evidence Was Relevant
Defendant argues that the court abused its discretion in
admitting gang evidence and the error violated his right to a fair
trial where its prejudicial effect outweighed what limited
relevance the evidence had. Specifically, and contrary to the
prosecution’s arguments, defendant argues (1) CSC is not a
criminal street gang; (2) defendant was not a gang member;
(3) there was “nothing inherent” in the facts of the shooting
suggesting it was gang related; the record does not support that
Angel and others disrespected South Side Montebello; (4) the
gang evidence “had little to no probative value” on identity or
Danny’s and Eduardo’s credibility; and (5) the gang evidence was
cumulative. (Boldface omitted.)
26
We review evidentiary rulings for abuse of discretion.
(People v. Caro (2019) 7 Cal.5th 463, 503.)
1. Gang evidence was relevant
Defendant argues because the information did not charge a
gang enhancement and the murders were not committed for gang
but rather personal purposes, the gang evidence was not
relevant.
As defendant concedes, gang evidence can be relevant to
show intent and motive or to show the crime was “intended as
retaliation for prior gang activity.” Gang evidence was relevant
here to understand motive and intent. (People v. Cardenas (2025)
18 Cal.5th 797, 819 [holding that gang evidence was relevant to
show defendant’s motive and intent].) Although Rodriguez
testified defendant was not a gang member, defense counsel
elicited evidence from Danny that defendant was a gang member
when he asked, “Going back to the night in question of 2018, as
far as you knew, my client was a member of a tagging crew;
correct” and Danny responded, “From what I know, he was from
a gang.”
Defendant himself injected gang affiliation into the context
of the crimes by telling Emmanuelle he was “Michael” from South
Side Montebello, and using that ruse to locate other South Side
Montebello gang members at the party. Further Eduardo
testified defendant challenged him to a fight by making a gesture
that was well known in the “gang world.” Eduardo thought that
defendant was an “enemy.”
Defendant’s reliance on People v. Albarran (2007)
149 Cal.App.4th 214 to argue the gang evidence was not relevant
to motive is not convincing. In Albarran, the appellate court held
the trial court erred in admitting gang evidence to show the
27
motive for a shooting was to gain respect in his gang. (Id. at
p. 227.) The appellate court found no evidence to support that
the shooter harbored that motive. (Ibid.) In addition, the gang
expert had testified he did not know the reason for the shooting.
(Ibid.)
Here, in contrast, there was evidence that the reason for
the shooting was the South Side Montebello gang members’
earlier assault on defendant’s nephew supporting the testimony
that defendant would retaliate against South Side Montebello
gang members.
2. Assuming the trial court abused its discretion in
admitting evidence of the Mexican Mafia, defendant
does not show prejudice
Assuming arguendo the trial court erred in admitting
evidence about the Mexican Mafia, we conclude the admission of
that evidence was not prejudicial and did not deprive defendant
of a fair trial. The error was harmless regardless of whether we
apply the federal constitutional standard of prejudice in
Chapman v. California (1967) 386 U.S. 18, 24, or the state
standard in People v. Watson (1956) 46 Cal.2d 818, 836. The
prosecutor did not rely on evidence of the Mexican Mafia in his
closing argument and did not link defendant and the Mexican
Mafia. Although defendant asserts gang evidence will create “ ‘a
near certainty’ the jury will believe the defendant guilty of the
charged crimes,” that did not occur here. The jury did not convict
defendant of first degree murder, did not find the special
circumstance true, and did not find the firearm allegations true.
Additionally, evidence that the Montebello gang members were
initially unwilling to snitch was admitted irrespective of the
28
Mexican Mafia evidence. We thus conclude any error in
admitting evidence about the Mexican Mafia was not prejudicial.
D. Defendant Demonstrates No Reversible Error Based
on the Trial Court’s Failure Sua Sponte To Give
Limiting Instructions on Defendant’s 2005 Shooting
Evidence and Gang Evidence
Defendant argues reversal is in order because the trial
court failed sua sponte to give a limiting instruction on gang
evidence and evidence regarding defendant’s involvement in a
2005 shooting incident. We consider these arguments separately
below.
1. Limiting instruction on gang evidence
CALCRIM No. 1403 is an instruction that limits the subject
matter for which the jury may consider gang evidence and
prohibits considering the evidence to conclude the defendant is a
person of bad character or has a disposition to give crimes.9 The
9 CALCRIM No. 1403 provides: “You may consider
evidence of gang activity only for the limited purpose of deciding
whether:
“• [The defendant acted with the intent, purpose, and
knowledge that are required to prove the gang-related (crime[s]/
[and] enhancement[s]/ [and] special circumstance allegations)
charged(;/.)]
“[OR]
“• [The defendant had a motive to commit the crime[s]
charged(;/.)]
“[OR]
29
trial court does not have a sua sponte obligation to give this
instruction. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051–
1052; Evid. Code, § 355.)10 Defendant did not request a limiting
instruction. Assuming arguendo defendant preserved the issue,
and further assuming the court should have provided such a
limiting instruction, the absence of a limiting instruction did not
prejudice defendant. The danger in admitting gang evidence can
be that the jury will infer the defendant has a disposition to
“• [The defendant actually believed in the need to defend
(himself/herself/ [or] someone else) and acted under fear of
imminent death or great bodily injury to (himself/herself/ [or]
someone else)(;/.)]
“[OR]
“• [The defendant acted in the heat of passion(;/.)]
“[OR]
“• [<insert other reason court admitted gang evidence>.]
“[You may also consider this evidence when you evaluate
the credibility or believability of a witness and when you consider
the facts and information relied on by an expert witness in
reaching his or her opinion.]
“You may not consider this evidence for any other purpose.
You may not conclude from this evidence that the defendant is a
person of bad character or that (he/she) has a disposition to
commit crime.”
10 Evidence Code section 355 provides: “When evidence is
admissible as to one party or for one purpose and is inadmissible
as to another party or for another purpose, the court upon
request shall restrict the evidence to its proper scope and instruct
the jury accordingly.”
30
commit crimes. (See People v. Cardenas (1982) 31 Cal.3d 897,
905.)
In this case, the jury found in defendant’s favor as to the
first degree murder charges, the multiple murder special
circumstance, and the firearm allegations. The jury’s verdict and
findings demonstrate the gang evidence did not lead the jury to
find defendant had a propensity to commit crimes.
2. Limiting instruction on prior shooting evidence
Prior to trial, defense counsel requested the court exclude
evidence of a prior shooting where, according to Marcus,
defendant shot at Marcus’s residence. The prosecutor argued,
“[T]he motivation for this killing is the animus between these two
people.” The prosecutor also argued evidence of the prior
shooting supported that Marcus could identify defendant and was
also relevant to motive and intent. The court agreed with the
prosecutor. The court indicated the evidence would be admissible
“with proper limiting instructions.”
At trial, Marcus’s prior testimony was read to the jury,
including testimony that in 2005, Marcus shot at defendant’s car
and “somebody” shot the front of Marcus’s house. Marcus
believed defendant was the shooter because it occurred on the
same day that Marcus shot towards defendant’s car. Marcus did
not report defendant to the police because he did not want to
“snitch.”
Despite previously indicating it would do so, the court
did not give a limiting instruction, and it does not appear defense
counsel reminded the court to give such an instruction.
We assume arguendo that defendant did not forfeit
challenging the trial court’s failure to give the limiting
instruction and conclude the failure to give that instruction
31
was not prejudicial. We review the failure to give a limiting
instruction under the Watson standard to determine whether it is
reasonably probable defendant would have received a more
favorable verdict if the trial court had given the instruction.
(People v. Mateo (2016) 243 Cal.App.4th 1063, 1074.)
During closing argument, the prosecutor argued that on
August 10, 2005, defendant and Marcus were “shooting at each
other.” Marcus told the officer, “ ‘I don’t know nothing,’ when he
knew damn well that he’d been hit by Joe Dorantes . . . and that
he believed Joe Dorantes had come back for retaliation on that
same day.”
Defendant argues the trial court should have informed the
jurors, “that the prior shooting evidence was admitted for the
limited purpose for identity, motive, and intent” and could not be
considered for any other purpose. Defendant further argues the
failure to give the limiting instruction “permitted the jury to
convict appellant of murder based on bad character and criminal
disposition, rather than because the jury found beyond a
reasonable doubt that appellant had committed the crimes.”
The trial court instructed the jury defendant is presumed
innocent and the “presumption places upon the People the
burden of proving him guilty beyond a reasonable doubt.” The
court also instructed the jury, “The burden is on the People to
prove beyond a reasonable doubt that the defendant is the person
who committed the crime with which he is charged. [¶] If, after
considering the circumstances of the identification and any other
evidence in this case, you have a reasonable doubt whether
defendant was the person who committed the crime, you must
give the defendant the benefit of that doubt and find him not
guilty.” Thus, the jury could not convict defendant without
32
finding beyond a reasonable doubt he committed the murders. As
important, defendant’s proposed limiting instruction would not
have assisted defendant in furthering his only defense —
mistaken identity. The instruction defendant argues the trial
court should have given would have allowed the jury to consider
the evidence for purposes of proving identity.
E. The Trial Court Did Not Fail To Conduct Sufficient
Inquiry into Juror Misconduct
On the first day of trial during the luncheon break,
Juror No. 12 overheard a conversation in the hallway between
Albert’s mother and Marcus. The juror reported the conversation
to the judicial assistant and said that he might be compromised.
After the court questioned the juror with counsel present, the
court excused the juror. The court refused defense counsel’s
request to question the other jurors. On appeal, defendant
argues the trial court should have questioned the remaining
11 jurors to find out if they also heard the conversation, and the
court’s failure to do so deprived defendant of a fair and impartial
jury.
1. Additional background
After learning that Juror No. 12 overheard a hallway
conversation, the court, in the presence of counsel, questioned
Juror No. 12. Juror No. 12 told the court he was in the hallway
and saw a man and the victim’s mother come out of the
courtroom. He explained the mother wanted to talk to the man,
who replied, “I don’t want to be a witness. They threatened to
kill me. They’re going to kill my family.” In response to the
court’s question of whether “any of the other jurors [was] in the
area when you heard this,” Juror No. 12 said, “No. I was alone.”
33
The court asked, “You were the only one?” Juror No. 12
responded, “Yes.” The court asked Juror No. 12 if he could set
that aside and judge this case solely on the evidence from the
witness stand and the law given by the court. Juror No. 12 said,
“If I was leaning towards that. I was wondering if that would
have compromised me.” The court asked the juror again if he
could set it aside and the juror said, “I can try. Yes.” The court
asked the juror whether if he found out he could not set the issue
aside, he would tell the court. The juror agreed to do so: “Sure.”
When defense counsel asked the court to inquire of the
other jurors, the court said it was unnecessary because Marcus
was in the court at 8:30 a.m. and the jurors came in only at
9:30 a.m. Additionally, Juror No. 12 stated, “[T]here was no one
else around.”
Defense counsel argued Juror No. 12 should be excused.
The court agreed, “in an abundance of caution.” Defense counsel
then stated he would “defer” to the court’s “discretion” and asked
whether it “would . . . be wise” to question the remaining jurors.
The court asked what “basis” there was to question the remaining
jurors and defense counsel argued it would be “cautionary.” The
court found no reason to question the remaining jurors.
2. Defendant demonstrates no abuse of discretion
In general, the trial “ ‘court must conduct a sufficient
inquiry to determine facts alleged as juror misconduct “whenever
the court is put on notice that good cause to discharge a juror
may exist.” [Citation.]’ [Citations.]” (People v. Bell (2019)
7 Cal.5th 70, 120.) The decision whether, and to what extent,
investigation into possible juror bias is required “ ‘ “rests within
the sound discretion of the trial court.” ’ [Citations.]” (Ibid.)
34
We conclude under our deferential standard of review, that
the trial court did not abuse its discretion in not questioning the
11 other jurors.
People v. Mora and Rangel (2018) 5 Cal.5th 442 (Mora and
Rangel) supports our conclusion. In that case, defendants Joseph
Mora and Ruben Rangel were sentenced to death after the jury
convicted them of two counts of first degree murder and
attempted robberies and found multiple murder and felony
murder special circumstances true. (Id. at p. 451.) Defendant
Rangel argued the trial court failed to conduct an adequate
inquiry and failed to remove Juror No. 7 in violation of his right
to an impartial jury after Juror No. 7 learned before voir dire
commenced that Mora or Rangel might have rejected a plea
bargain. (Id. at p. 481.) Juror No. 7 learned this information
from either Mora’s mother or Rangel’s mother while in the court
cafeteria. (Ibid.) After the jury was impaneled and Juror No. 7
recognized the mother in the court room, Juror No. 7 informed
the court she had spoken to the mother without knowing who the
mother was. (Id. at pp. 481–482.) Upon questioning by the court
and counsel, Juror No. 7 said her ability to evaluate the guilt and
penalty phase of case was not impaired. (Ibid.) The court denied
Rangel’s request to excuse Juror No. 7. (Id. at p. 482.) Mora did
not ask that the juror be excused but requested an admonition to
the audience to “refrain from making statements about the case,”
which the court gave. (Ibid.)
Our high court held the trial court conducted an adequate
investigation by immediately questioning Juror No. 7. (Mora and
Rangel, supra, 5 Cal.5th at p. 483.) The court noted although
Rangel had an opportunity to question Juror No.7, Rangel did not
ask Juror No. 7 if she discussed the encounter with any other
35
juror. (Ibid.) The court concluded, “[T]he trial court did not err
by declining to examine the effect, if any, of Juror No. 7’s
conversation with the mother on other jurors.” (Ibid.) The court
stated other than Juror No. 7, “[n]o other juror’s ability to
impartially serve was in issue. Rangel does not allege that the
court was deficient because it should have questioned some or all
of the other jurors; of course, the court would have been obliged to
do so if any other juror’s ability to perform his or her duty had
been in doubt.” (Id. at p. 484.) The high court further stated,
“The court was not obliged to evaluate whether Juror No. 7’s
conversation affected the other jurors when there was no
suspicion that any other juror became unable to impartially serve
(or even that another juror became aware of Juror No. 7’s
conversation with the mother).” (Ibid.)
Similarly, here there was no suspicion that any other juror
could not continue to serve impartially or was even aware of
Marcus’s conversation with Albert’s mother. Under Mora and
Rangel, the trial court did not err in not questioning the other
jurors when there was no suspicion they could not be impartial.
Defendant’s citation to People v. McNeal (1979)
90 Cal.App.3d 830 does not assist him. In McNeal, on the first
day of deliberations, the jury foreman sent a note that according
to the in-chambers colloquy, indicated another juror had “some
personal knowledge” that “definitely had a bearing on the way
she [the juror] would vote.” (Id. at p. 835.) The next day, the
prosecutor and defense counsel asked the judge for a formal
hearing under section 1120, to interrogate the juror, and to
“further ascertain if other jurors had been tainted.” (Ibid.) The
court did not hold a hearing. Instead, the court asked the
foreman in chambers whether the juror had asked that the note
36
be sent and the foreperson affirmed that was the case. The
foreperson also recounted the juror indicated she “ ‘had too much
to lose, and it would definitely affect her decision now.’ ” (Id. at
p. 836.) The court then questioned the juror as to whether she
could deliberate fairly and impartially, to which she first
indicated she could not find guilt if she did not believe the
defendant was guilty, but eventually, she said she could
deliberate fairly and impartially and put aside outside
information she had and base her decision on the evidence.
(Ibid.) The court never asked her about what outside information
she learned. The court did not excuse the juror and allowed the
jury to resume deliberating. The appellate court reversed and
held the trial court’s inquiry was “inadequate under the
circumstances.” (Ibid.) In contrast to McNeal, here the trial
court held a hearing and dismissed the juror who learned
information not in evidence.
In People v. Hem (2019) 31 Cal.App.5th 218 (Hem), also
cited by defendant, the appellate court concluded the trial court’s
inquiry was inadequate when the trial court learned four jurors
deliberated amongst themselves outside the jury room, including
discussing a less serious charge and worrying about letting the
defendant “out” so he could “ ‘kill someone else’s kid.’ ” (Id. at
pp. 221–222.) Defense counsel requested a mistrial; the court
denied the request because the juror misconduct could be cured
by an admonition. (Id. at p. 222.) The trial court admonished the
jurors they needed to deliberate as a group. (Id. at p. 223.) After
that admonition, defense counsel requested further investigation
to assess whether there was any bias. (Ibid.) The trial court
refused. Subsequently, there were juror notes inquiring into
37
second degree murder and voluntary manslaughter. (Id. at
pp. 224–225.)
The appellate court held the trial court should have
conducted a more robust inquiry to determine whether “any of
the jurors did anything that would have disqualified them from
further service.” (Hem, supra, 31 Cal.App.5th at p. 229.) The
appellate court also held the prosecution failed to rebut the
presumption of prejudice from the jurors’ misconduct, especially
given the “pointed written questions submitted by the jury, a
reported deadlock, and what seems to have been a compromise
verdict.” (Id. at p. 220.) The court faulted the trial court for not
asking why “four jurors were not following their oaths regarding
how to deliberate . . . .” (Id. at p. 226.)
Contrary to defendant’s argument, Hem does not require
that the trial court here should have questioned every juror. It
does not support defendant’s argument that dismissing the juror
who overheard the conversation was inadequate absent such
additional inquiry. In Hem, the court “knew a full third of the
jury had — in violation of their oath — discussed the case by
themselves, and further knew that one or more had expressed
worry about ‘letting [defendant] out so he could kill someone
else’s kid’ ” and that the jury may have been contemplating a
compromise verdict in order to “assuage a holdout’s concerns.”
(Hem, supra, 31 Cal.App.5th at pp. 226–227.) In contrast, here,
these circumstances did not exist. Instead, the court dismissed
the juror who overheard the conversation and there was no
suggestion that any other juror was aware of that conversation,
either by directly overhearing the conversation or through Juror
No. 12.
38
Defendant also cites In re Hamilton (1999) 20 Cal.4th 273.
That case concerned whether one juror was biased against the
defendant, an argument the defendant asserted in his effort to
obtain habeas relief. (Id. at pp. 279–307.) The Supreme Court
issued an order to show cause limited to the issue of whether a
juror, Geneva Gholston, was biased or incompetent, and whether
she had concealed bias during the jury selection process. (Id. at
p. 279.) In a declaration, Gholston “stated that (1) before trial,
Gholston learned petitioner blamed a ‘Canadian’ for Gwendolyn’s
murder, (2) Gholston and a neighbor agreed this ‘ridiculous’ story
showed petitioner himself was guilty, (3) Gholston ‘prayed’ to sit
on petitioner’s jury after the spirit of her deceased Uncle Frank, a
bank robber and killer, exhorted her to atone for his wrongs by
‘aveng[ing]’ petitioner’s crimes, and (4) during trial, Gholston saw
the ‘skinnier’ of petitioner’s sisters watching her from a car in the
alley behind Gholston’s home, which prompted Gholston to
request increased police patrols. None of these matters had been
brought to the attention of court or counsel at petitioner’s trial.”
(Id. at pp. 282–283, fn. omitted.) In an evidentiary hearing,
Gholston corrected the declaration and indicated she answered
all voir dire questions accurately and that at that time, she had
no way of knowing whether the petitioner was guilty. (Id. at pp.
286–287.) The court held even if Gholston “understated her
pretrial awareness and impressions about the case . . . her
omissions did not lead to the seating of a biased juror.” (Id. at pp.
298, 308.) The high court did not opine on the issue before us —
whether a trial court must question the entire jury when one
juror commits misconduct. We thus do not address Hamilton
further. (People v. Chavez (2020) 54 Cal.App.5th 477, 480.)
39
Because we conclude there was no abuse of discretion, we
do not consider defendant’s claim of prejudice.
F. Defendant Forfeited His Argument that the
Restitution and Parole Revocation Fines Are
Excessive In Violation of the Excessive Fine Clauses
in the State and Federal Constitutions
The trial court imposed a $10,000 restitution fine and
imposed but stayed a $10,000 parole revocation fine. Defendant
argues these fines are excessive in violation of the excessive fines
prohibitions in the California and federal Constitutions11 even
though he did not assert that challenge below. He argues we
should remand to allow him to challenge the fines as
impermissibly excessive. Respondent argues defendant forfeited
the issue by failing to raise it below. We agree because by the
time of defendant’s 2024 sentencing hearing, an excessive fines
challenge to these fines was well known.
In 2019, People v. Dueñas (2019) 30 Cal.App.5th 1157 held
defendant could challenge fines and fees based on the due process
clause. (Id. at pp. 1166–1169, disapproved in People v. Kopp
(2025) 19 Cal.5th 1, 23.) That same year, People v. Aviles (2019)
39 Cal.App.5th 1055, 1059–1060 held a defendant’s challenge to
fines and fees should proceed under the Eighth Amendment
instead of due process. (Aviles, at pp. 1059–1060.) In 2019, the
Attorney General recognized a potential excessive fines challenge
during the appellate court’s consideration of People v. Kopp
(2019) 38 Cal.App.5th 47, review granted November 13, 2019,
S257844. (Kopp, at p. 57.)
11 United States Constitution, Eighth Amendment;
California Constitution, article I, section 17.
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“In general, a defendant who fails to object to the
imposition of fines and fees at sentencing forfeits the right to
challenge those fines and fees on appeal.” (People v. Ramirez
(2023) 98 Cal.App.5th 175, 224.) This principle is applicable to
constitutional claims. (People v. McCullough (2013) 56 Cal.4th
589, 593). Upon review of the appellate decision in Kopp, our
Supreme Court in People v. Kopp, supra, 19 Cal.5th at p. 23 held
even though the defendant did not challenge the fines as
impermissibly excessive in the trial court, the case should be
remanded to give the defendant “the opportunity to assert the
legal analysis applicable to such a challenge and argue how the
particular facts of this case inform such an inquiry.” (Ibid.)
In 2019, the relationship between the restitution and
parole revocation fines and a defendant’s ability to pay was an
evolving issue. By 2024, when defendant was sentenced, the
constitutional bases for challenging these fines were well known,
including that the fines are excessive under our state and federal
Constitutions. The sentencing in this case occurred five years
after appellate courts had decided Dueñas, Aviles, and Kopp,
undermining defendant’s argument that an excessive fines
challenge was not known at the time of defendant’s sentencing in
2024. Although it may have been a relatively new argument at
the time of the appellate opinion in Kopp, thus explaining the
Supreme Court’s remand of that challenge, it was not a new
argument at the time of defendant’s sentencing in 2024.
Finally, assuming arguendo this court would have
discretion to consider defendant’s argument on the merits, as he
claims, we decline to exercise our discretion to do so. In sum,
defendant has forfeited his claim on appeal that the restitution
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and parole revocation fines are excessive under our state and
federal Constitutions.
G. No Cumulative Error Warrants a New Trial
Defendant argues that the cumulative error requires a new
trial. Defendant argues that the errors created “a negative
synergistic effect” rendering his trial unfair. “In examining a
claim of cumulative error, the critical question is whether
defendant received due process and a fair trial.” (People v.
Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
We have assumed the trial court should have excluded
evidence of the Mexican Mafia and the court should have given a
limiting instruction on the prior shooting evidence. Assuming
these are cumulative errors, defendant nevertheless received a
fair trial. His defense at trial was mistaken identity.12 No
12 Defense counsel described his defense as “identification
or lack thereof and that Mr. Dorantes was not present on that
June summer day of 2008.” The trial court instructed the jury:
“Eyewitness testimony has been received in this trial for the
purpose of identifying the defendant as the perpetrator of the
crimes charged. In determining the weight to be given
eyewitness identification testimony, you should consider the
believability of the eyewitness as well as other factors which bear
upon the accuracy of the witness’ identification of the
defendant . . . .” The court then identified numerous factors for
the jury to consider.
In his closing argument, defense counsel argued that if he
had only “two sentences” he would argue: “One, identity must
have been proven to you, to each of you, beyond a reasonable
doubt, and to an abiding conviction. ‘The prosecution has failed
to meet the burden of proof in proving identity.’ ” Defense
counsel highlighted the jury instruction concerning identity.
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assumed error, individually or combined, affected that central
issue. Defendant argued this defense to the jury and the jury
necessarily decided against him. The record does not support
that he was denied a fair trial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
WEINGART, J.
M. KIM, J.
Counsel argued most witnesses did not identify defendant and
those who did were not reliable because they were not certain, or
had been inconsistent in their identifications of defendant.
43