Filed 10/22/26 P. v. Estrada CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B338119
(Super. Ct. No. 2014019638)
Plaintiff and Respondent, (Ventura County)
v.
ERICK ESTRADA,
Defendant and Appellant.
Erick Estrada appeals from the judgment after the jury
convicted him of first degree murder (Pen. Code,1 §§ 187, subd.
(a), 189, subd. (a); count 1), two counts of attempted murder
(§§ 664/187, subd. (a); counts 2 and 3), and two counts of assault
with a firearm (§ 245, subd. (a)(2); counts 4 and 5). The jury
found true the lying-in-wait special circumstance as to count 1
(§ 190.2, subd. (a)(15)) and the firearm and great bodily injury
allegations as to all counts (§ 12022.53, subd. (d) (counts 1–3);
1 Further unspecified statutory references are to the Penal
Code.
§ 12022.5, subd. (a) (counts 4, 5); § 12022.7, subd. (a) (counts 2–
5)). The trial court found true the prior strike (§§ 667, subds. (b)–
(i), 1170.12) and serious felony conviction (§ 667, subd. (a))
allegations. Estrada was sentenced to life without the possibility
of parole for count 1 and 126 years to life for the remaining
counts.
Estrada contends reversal is required because of
prosecutorial misconduct. He also raises, and the Attorney
General concedes, several sentencing errors. We accept the
concession and remand for resentencing, but otherwise affirm
Estrada’s convictions.
FACTS AND PROCEDURAL HISTORY
July 2013 murder—count 1
Gabriel Gutierrez, a Cyclones Klick gang member, went to
the Ventura County fair with his friend and gang associate, Y.P.
They ran into Timothy Adams, a rival gang member of Bad Ass
Thugs. Adams was with Estrada and others. Estrada was a
member of the Ventura Avenue gang (VAG). He was introduced
to Y.P. by his moniker, “Shady.”
Gutierrez and Adams got into an argument, and Adams
tried to start a fight. The two decided to fight outside the
fairgrounds. Gutierrez, Adams, Y.P., and Estrada began walking
down the railroad tracks away from the fairgrounds. Estrada
was wearing gloves. Y.P., Adams, and Gutierrez walked down an
embankment to the river bottom where Adams and Gutierrez
fought. After the fight was over, Adams headed back up the
embankment. While Y.P. and Gutierrez gathered their items,
Estrada began shooting from the top of the embankment toward
their direction. Y.P. estimated five or six shots were fired.
Gutierrez fell to the ground, and Estrada and Adams ran off.
2
Gutierrez suffered a fatal gunshot wound.
Y.P. ran and called 911. She identified Adams as the
fighter and Estrada as the shooter. She was placed in witness
protection.
Witnesses testified they were at the fairgrounds on the
evening of the shooting and saw Estrada and Adams. Ivan Ruiz
testified that Adams said he had “personal beef” with Gutierrez.
Ruiz knew Adams was not armed that night. Before that
evening, Ruiz saw Estrada in possession of a .22 caliber revolver.
The police interviewed Joshua Rowland, who was at the
fair and saw his friend, Adams. Adams was with Estrada, who
introduced himself to Rowland as “Shady.” Rowland was talking
to Estrada in the bathroom when Estrada reached into his front
pocket, pulled out latex gloves, and put them on. Estrada said he
wanted to avoid getting his fingerprints on anything. Rowland
recognized Gutierrez from school. He saw Adams and Gutierrez
get into an argument and leave the fair to fight. Rowland walked
out with the group through the back exit near the train tracks,
but Rowland walked in a different direction. Later, Rowland ran
into Estrada, who said that during the fight, Gutierrez lifted his
shirt as if he was grabbing something, so he shot Gutierrez.
Cell phone records placed Estrada and Adams’s phones
together in the area of the fairgrounds and moving north around
the time of the shooting.
June 2013 attempted murders—counts 2 through 5
Michael Owens and Thomas Bakkila were “bar hopping” in
Ventura. They passed by two men, J.C. and Estrada. J.C. was
“confrontational” and mentioned his gang. Estrada said, “ ‘Don’t
mind [J.C.]. He’s on one.’ ”
J.C. got closer to Owens and Owens pushed him. J.C. hit
3
Owens in the face. Owens grabbed J.C. and took him to the
ground. Bakkila came over to try to help Owens. Estrada pulled
out a .22 caliber revolver and pointed it at Owens and Bakkila.
Owens and Bakkila did not have a weapon. Owens put his hands
up and said they were unarmed and leaving. Estrada fired his
firearm until it was empty. Estrada and J.C. ran away.
Bakkila was shot in the chest, left thigh, and right
shoulder. Owens was shot in the chest, right elbow, and
abdomen. Bakkila called 911. The bullets recovered from
Bakkila and Owens’s bodies were examined and determined to be
from a .22 caliber firearm.
One witness said he heard “loud bangs” and saw two men
running away. He called 911. He saw the “heavier-set” and
shorter man (describing Estrada) carrying a firearm. A
surveillance video captured the two men running away.
Another witness heard people fighting and went over to see
what was happening. He saw four people fighting. He heard
“loud pops” and saw two men run away. The two other men
stayed at the scene, and one of them held his torso and was
screaming. When interviewed by the police, the witness said he
saw one man pull out a handgun and fire toward two men who
were about 10 to 12 feet away.
J.C. testified that he and Estrada were VAG members.
Estrada’s moniker was “Shady.” J.C. was with Estrada the
evening of the shooting. At the time, J.C. believed Estrada was
armed because he had shown him a .22 caliber revolver prior to
that evening. J.C. and Estrada ran into Owens and Bakkila, who
stared at them. After the men exchanged some words, one of the
victims punched J.C. in the face. There was a “back and forth”
fight and Estrada showed them his firearm. J.C. testified that
4
the victims started chasing him, and J.C. tripped and fell. When
he fell, he heard about six shots. He got up and ran away with
Estrada. They went to J.C.’s mother’s house.
J.C.’s mother testified that her son and Estrada arrived at
her front door late in the evening of the shooting. She identified
Estrada in a six-pack of photos.
DISCUSSION
Prosecutorial misconduct
Estrada contends he was deprived of due process and a fair
trial because of prosecutorial misconduct during closing
argument. We disagree.
A prosecutor commits misconduct when their conduct
“infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive
or reprehensible methods to attempt to persuade either the trial
court or the jury. Furthermore, and particularly pertinent here,
when the claim focuses upon comments made by the prosecutor
before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.” (People v.
Morales (2001) 25 Cal.4th 34, 44.)
While it is prosecutorial misconduct to misstate the law or
misstate the evidence or go beyond the record, the prosecutor is
given “ ‘wide latitude in commenting on the evidence.’ ” (People v.
Fayed (2020) 9 Cal.5th 147, 204.) “ ‘The argument may be
vigorous as long as it amounts to fair comment on the evidence,
which can include reasonable inferences, or deductions to be
drawn therefrom. [Citations.] It is also clear that counsel during
5
summation may state matters not in evidence, but which are
common knowledge or are illustrations drawn from common
experience, history or literature.’ ” (People v. Wharton (1991) 53
Cal.3d 522, 567.)
1. Comments regarding defense counsel
Estrada contends the prosecutor improperly disparaged
defense counsel during closing argument. For the murder charge,
the prosecutor argued, “I believe [defense counsel] is going to
argue a number of things. I often refer to this as the spaghetti on
the wall approach. I don’t know if you ever were in college and
you made spaghetti and you didn’t really know if it was done, you
just take some noodles and throw them up against the wall, and
if it sticks, the spaghetti is done. And that’s kind of what the
approach is going to be here from [counsel] is that spaghetti
approach[]. ‘I’m going to make out a bunch of defenses, and I’m
hoping one of them sticks with you.’ ” Defense counsel objected
and the trial court overruled the objection.
The prosecutor continued, “The first is, ‘My client didn’t
shoot Gabriel. It was Tim Adams.’ Also, ‘It was dark.’ ‘[Y.P.] is a
liar.’ ‘[Y.P.] I.D.’d [Estrada] just for the money, for witness
relocation.’ ‘Tim Adams is a bad person with a motive.’
‘Defendant didn’t know Gabriel, so why would he shoot him?’
‘Defendant tried to give his gun to J.C.’ We’ve already talked
about all of that. [¶] But if that doesn’t work, the next step is
going to be ‘All right. Okay. My client did shoot Gabriel, but he
was acting in self-defense of another.’ ”
A prosector commits misconduct if they attack the integrity
of defense counsel. (People v. Shazier (2014) 60 Cal.4th 109, 150.)
“Such attacks on counsel’s credibility risk focusing the jury’s
attention on irrelevant matters and diverting the prosecution
6
from its proper role of commenting on the evidence and drawing
reasonable inferences therefrom.” (People v. Bemore (2000) 22
Cal.4th 809, 846 (Bemore).) “Nevertheless, the prosecutor has
wide latitude in describing the deficiencies in opposing counsel’s
tactics and factual account. . . . Misconduct claims . . . have been
rejected where the prosecutor anticipates the flaws likely to
appear in counsel’s closing argument based on evidence that was
introduced [citation], and where the prosecutor criticizes the
defense theory of the case because it lacks evidentiary support
[citation].” (Ibid.)
We conclude there was no misconduct because the
prosecutor’s comments were “leveled at the argument, not at
counsel.” The prosecutor did not personally attack defense
counsel’s credibility. In our view, there was no impropriety in the
prosecutor anticipating purported flaws in defense counsel’s
closing argument and criticizing them based on the evidence.
(Bemore, supra, 22 Cal.4th at p. 846.)
Estrada’s reliance on People v. Herring (1993) 20
Cal.App.4th 1066 and People v. Pitts (1990) 223 Cal.App.3d 606 is
misplaced. Herring involved an “extreme instance[]” of
misconduct (People v. Gionis (1995) 9 Cal.4th 1196, 1220), where
the “prosecutor’s comments accused defense counsel of fabricating
a defense, implied that appellant lied on instructions from his
counsel, and asserted that defense counsel did not believe his
own client.” (Herring, at p. 1077.) Pitts also involved an
“accusation that defense counsel knowingly presented perjured
testimony.” (Pitts, at p. 705.) But here, the prosecutor’s
comments do not resemble those in Herring and Pitts. The
comments did not attack defense counsel’s credibility or imply
she was deceitful. There was no error.
7
2. Reference to “sociopath”
Estrada asserts the prosecutor committed prejudicial
misconduct by referring to facts not in evidence when he labeled
Estrada a “sociopath.” The prosecutor stated: “There is a word
that I believe often gets misused. But when used in the right
context, it can accurately describe a person’s actions. This word
describes the actions of a person who acts with deceit, aggression,
violence, and a lack of empathy or remorse, a person who likes to
inflict pain on others. This word is sociopath.”
The prosecutor later stated: “I think the evidence shows a
lot of things, and one of those is that there was something more
sinister going on just underneath the surface, something we
couldn’t see, but we could feel it. And I think what those were,
what the evidence shows is they were the actions of a man driven
by deceit, aggression, violence, and a lack of empathy and
remorse, the actions of a man who enjoys inflicting pain on
others, the actions of a sociopath.”
“ ‘For a prosecutor’s remarks to constitute misconduct, it
must appear reasonably likely in the context of the whole
argument and instructions that “ ‘the jury understood or applied
the complained-of comments in an improper or erroneous
manner.’ ” ’ [Citation.] ‘ “ ‘Closing argument may be vigorous
and may include opprobrious epithets when they are reasonably
warranted by the evidence.’ ” ’ ” (People v. Nadey (2024) 16
Cal.5th 102, 185–186; People v. Quintero (2024) 107 Cal.App.5th
1060, 1074; see People v. Thomas (2012) 54 Cal.4th 908, 943
[referring to the defendant as a “ ‘predator’ ” and “ ‘sociopath’ ”
among other terms “constituted permissible ‘opprobrious epithets
warranted by the evidence’ ”].)
Here, considered in the context of the whole argument, the
8
prosecutor’s comparison of Estrada’s actions to the “actions of a
sociopath” does not constitute prosecutorial misconduct. The
prosecutor prefaced the use of the word “sociopath” by explaining
that the term “often gets misused” and provided his own
nonmedical definition. The prosecutor used the “language in
common currency to describe his interpretation of the evidence,”
rather than improperly state evidence outside the record or
provide a medical diagnosis requiring expert testimony. (People
v. Friend (2009) 47 Cal.4th 1, 84 [labeling the defendant a
“ ‘sociopath’ ” was not improperly stating expert opinion]; see
People v. Zambrano (2007) 41 Cal.4th 1082, 1173 [no misconduct
by using the “label of sociopath—someone who acts without
conscience or remorse—certainly fit defendant, based on the facts
of his crimes”], disapproved on other grounds by People v. Doolin
(2009) 45 Cal.4th 390.)
“Even where a defendant shows prosecutorial misconduct
occurred, reversal is not required unless the defendant can show
he suffered prejudice. [Citation.] Error with respect to
prosecutorial misconduct is evaluated under Chapman v.
California (1967) 386 U.S. 18 [citation] to the extent federal
constitutional rights are implicated, and People v. Watson (1956)
46 Cal.2d 818 [citation] if only state law issues were involved.”
(People v. Fernandez (2013) 216 Cal.App.4th 540, 564.) Here, any
error would have been harmless under either standard.
The prosecutor’s brief comments are harmless beyond a
reasonable doubt given the overwhelming evidence including
victim testimonies, witness testimonies, a surveillance video
related to counts 2 through 5, and cell phone evidence in count 1.
The court also instructed the jury that the prosecutor’s
statements in the closing argument were not evidence. We
9
presume the jury understood and followed these instructions.
(People v. Gonzalez (2018) 5 Cal.5th 186, 202.)
Sentencing errors
Estrada contends, and the Attorney General concedes,
several sentencing errors. We accept the concession.
1. Prior strike and prior serious felony conviction
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 699, §§ 3, 4), effective January 1, 2022, amended section
186.22 to narrow the definition of “benefit” to mean “to provide a
common benefit to members of a gang where the common benefit
is more than reputational.” (§ 186.22, subd. (g).) The
amendment applies retroactively to cases that are not final on
appeal to determine whether a prior violation of section 186.22
constitutes a strike or a prior serious felony conviction. (People v.
Fletcher (2025) 18 Cal.5th 576, 586–587 (Fletcher).)
The Attorney General correctly concedes that Assembly Bill
No. 333 applies to Estrada’s prior strike and serious felony
conviction (§§ 667, subds. (a), (b)–(i), 1170.12) based on a 2008
assault conviction committed for the benefit of a street gang
(§§ 186.22, subd. (b)(1), 1192.7, subd. (c)(28).) Thus, the trial
court’s true findings must be vacated. We remand to permit the
prosecution the opportunity to establish that the prior 2008
conviction constitutes a strike and a prior serious felony
conviction under current law. (Fletcher, supra, 18 Cal.5th at
pp. 607–608.) Because we vacate the true finding on the prior
serious felony conviction, we do not reach Estrada’s additional
contention that the trial court erred in imposing three five-year
prior serious felony enhancements pursuant to section 667,
subdivision (a), instead of one.
10
2. Aggravating circumstances
The trial court erred in imposing the upper term on counts
2 through 5 because Estrada neither waived jury on the
aggravating circumstances nor stipulated to all the aggravating
factors relied upon by the court to impose high terms.
Section 1170, subdivision (b)(1) provides that “[w]hen a
judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).”
Pursuant to subdivision (b)(2), “the trial court may impose a
sentence exceeding the middle term only when circumstances in
aggravation of the crime justify imposition of an upper term
sentence, and ‘the facts underlying those circumstances have
been stipulated to by the defendant or have been found true
beyond a reasonable doubt’ at a jury or court trial.” (People v.
Wiley (2025) 17 Cal.5th 1069, 1078 (Wiley); see also People v.
Lynch (2024) 16 Cal.5th 730, 759–760 (Lynch); § 1170, subd.
(b)(2).)
California Rule of Court, rule 4.4212 provides a list of
aggravating circumstances that must be “stipulated to by the
defendant” or determined “beyond a reasonable doubt at trial by
the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) A
“defendant is entitled to a jury trial on all aggravating facts,
other than the bare fact of a prior conviction and its elements,
that expose the defendant to imposition of a sentence more
2 Further unspecified rule references are to the California
Rules of Court.
11
serious than the statutorily provided midterm.” (Wiley, supra, 17
Cal.5th at p. 1086, fn. omitted.)
After a court trial, the court here imposed the upper terms
for counts 2 through 5, specifically relying on these aggravating
factors: (1) “the crime involved great violence, great bodily harm,
threat of great bodily harm, and other acts disclosing a high
degree of cruelty, viciousness, and callousness” (rule 4.421(a)(1);
special allegation 6); (2) Estrada “was armed with and used a
weapon at the time of the commission of the crime” (rule
4.421(a)(2); special allegation 7); (3) Estrada’s “prior convictions
as an adult and sustained petitions in juvenile delinquency
proceedings are numerous and of increasing seriousness” (rule
4.421(b)(2); special allegation 10); and (4) Estrada “served a prior
term in prison and county jail under section 1170(h)” (rule
4.421(b)(3); special allegation 11).
The trial court found special allegations 6 and 7 true based
on the jury’s true findings on the firearm and great bodily injury
allegations. This was error because of the prohibition against the
dual use of facts to impose an upper term sentence based on the
facts of an enhancement. (§ 1170, subd. (b)(5); People v. Scott
(1994) 9 Cal.4th 331, 350.) Moreover, our Supreme Court has
held that a defendant is entitled to have a jury determine the
facts justifying an upper term based on the “increasing
seriousness” of a defendant’s prior convictions. (See Wiley, supra,
17 Cal.5th at p. 1085 [increasing seriousness of a crime required
a jury determination]; rule 4.421(b)(2).)
“[T]he facts supporting every aggravating circumstance
upon which the trial court relies to ‘justify’ imposition of the
upper term must be properly proven as the statute requires.”
(Lynch, supra, 16 Cal.5th at p. 757.) Because the aggravating
12
factors here were not admitted by Estrada nor proven to a jury,
we conclude remand is required. On remand, the trial court shall
conduct a new resentencing hearing in which the prosecution
may elect to seek a jury trial on the aggravating factors should
Estrada not personally waive jury or admit the aggravating
factors.
3. Count 3
The trial court imposed two consecutive 18-year terms for
each of the attempted murder counts (counts 2 and 3), which
consisted of the upper term of nine years doubled for the prior
strike. The parties agree, as do we, that the trial court erred in
imposing a full consecutive upper term on count 3. (§ 1170.1,
subd. (a).) “The trial court imposes the full term, either lower,
middle, or upper, for the principal term. However, in general
(there are exceptions), the court imposes only ‘one-third of the
middle term’ for subordinate terms.” (People v. Felix (2000) 22
Cal.4th 651, 655.) Accordingly, count 3, as the subordinate term,
should be corrected to one-third the middle term.
4. Presentence custody credits
The parties agree Estrada should be awarded 3,823 days of
presentence custody credit, and not 3,733 days of credit, because
he was arrested on October 24, 2013, and sentenced on April 11,
2024. The trial court shall prepare an amended abstract of
judgment and ensure that Estrada is awarded presentence credit
for the 3,823 days served. (§ 2900.5, subd. (a).)
DISPOSITION
We reverse the true finding on the prior strike and prior
serious felony conviction and vacate the sentence. On remand,
the trial court shall conduct a retrial of the strike and prior
serious felony, if the People elect to do so, or shall resentence
13
without the enhancements. The trial court shall also conduct
further proceedings on the aggravating factors attached to counts
2 through 5 and shall ensure the sentence for count 3 is one-third
the middle term pursuant to section 1170.1, subdivision (a).
Upon resentencing, the trial court shall ensure the new abstract
of judgment includes 3,823 days of presentence custody credits as
of April 11, 2024. A copy of the amended abstract of judgment
shall be forwarded to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
CODY, P. J.
YEGAN, J.
14
David R. Worley, Judge
Superior Court County of Ventura
______________________________
Derek K. Kowata, 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, Shezad H. Thakor and Kenneth C. Byrne,
Deputy Attorneys General, for Plaintiff and Respondent.