Filed 9/29/26 P. v. Parra CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088935
Plaintiff and Respondent,
(Super. Ct. No. BF191473B)
v.
SEBASTIAN PARRA,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Judith K.
Dulcich, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and
Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2022, appellant Sebastian Parra was with his codefendant Robert Roberts when
Roberts attempted to rob an individual and, during the brief interaction, Roberts shot that
victim to death.1 For his role in this fatal incident, the jury convicted appellant of
attempted robbery (Pen. Code, §§ 664, 212.5, subd. (c);2 count 2) and first degree felony
murder (§ 187, subd. (a); count 4). Appellant was sentenced to prison for an
indeterminate term of 25 years to life.
Appellant raises four claims in this appeal. First, he argues that the evidence was
insufficient to establish that he acted as a major participant and with reckless indifference
to human life. Second, he contends that the trial court abused its discretion in denying his
motion for separate trials or juries. Finally, he raises two separate claims of instructional
error. We reject appellant’s assertions and affirm.
BACKGROUND
We summarize the material facts supporting the judgment. We provide additional
details later in this opinion when relevant to the specific issues raised.
I. The Fatal Shooting.
The victim in this matter, Benny Alcala, Jr., was shot to death on August 24, 2022,
at approximately 8:26 p.m. This murder occurred near a commercial parking lot in
Bakersfield, California. Just before he was killed, Alcala was charging his electric
vehicle in that parking lot.
Alcala’s lifeless body was found on an adjacent sidewalk near the charging
stations. Alcala had been shot twice, and both shots were fired at him from behind. One
1 Roberts is not a party in this appeal. Roberts received a prison sentence of life
without the possibility of parole, with an additional 25 years to life for a firearm
enhancement, along with a consecutive five years for a prior serious felony conviction.
In April 2026, a different panel from this court affirmed Roberts’s judgment in an
unpublished opinion. (People v. Roberts (Apr. 28, 2026, No. F088797).)
2 All future statutory references are to the Penal Code unless otherwise noted.
2.
shot entered his lower left back and exited his chest. The other shot went through his
right arm. No soot or stippling was present for either gunshot.
Law enforcement recovered six expended shell casings at the scene. All six
casings were nine-millimeter and from the same manufacturer, Blazer. All six shots were
fired by the same firearm. Based on the location of the shell casings and blood droplets
on the sidewalk, it appeared Alcala was shot closer to the charging stations near a short
walkway that connected the parking lot to the adjacent sidewalk. It appeared that Alcala
stumbled westbound before collapsing on the sidewalk.
There was no evidence that any of Alcala’s possessions had been stolen. When
his body was found, Alcala still had his wallet, the key fob for his vehicle, and two cell
phones. He was wearing a necklace and a watch. Appellant’s vehicle, which was new
and charging nearby, had no signs of forced entry or damage.
II. The Eyewitness Accounts.
Two witnesses caught brief glimpses of the fatal encounter. The first witness was
a passenger in a vehicle. She heard popping sounds. She turned and saw a suspect on the
sidewalk with an extended arm, as if holding a gun. She also saw a shadowy figure under
nearby trees about six to seven feet away. She saw no weapon or muzzle flash and could
not discern any faces.
The second witness was a passing driver who saw two men standing close together
on the sidewalk, facing each other, as if exchanging words or about to fight. A third
person was off to the side, about 15 yards away. This witness could not identify anyone.
Shortly after driving past this incident, this second witness heard three bangs. A
bullet, possibly a ricochet, struck this witness’s vehicle.
III. Law Enforcement Identifies the Suspects.
From video surveillance in the area, authorities identified appellant and Roberts as
persons of interest. About one day after this incident, law enforcement learned that a
local citizen had received odd text messages from an unknown number on the night of
3.
this murder starting at about 10:50 p.m. The first text stated, “I just killed somebody”
and the second stated, “[W]atch the news.”
Law enforcement traced the origin of these text messages back to Roberts’s cell
phone. At trial, the prosecution established that Roberts inadvertently sent these texts to
the wrong number on the night of this murder.
IV. Appellant’s Initial Statements to Law Enforcement.
Appellant was initially not charged as a defendant in this matter. Instead, he was
treated as a witness. A few days after Alcala was murdered, law enforcement brought
appellant in for questioning.
Appellant reported that he was homeless and living out of his backpack. He
admitted he was near this fatal incident when it occurred, and he identified Roberts as the
shooter, whom appellant knew as “AWOL.”
Appellant said he had first met Roberts on the night of this incident, and they
drank alcohol together. Appellant reported that Roberts had appeared drunk.
According to appellant, as he was walking through a parking lot with Roberts,
they spotted Alcala, and Roberts identified Alcala as a target for a robbery because it
looked like he had money. Earlier in the evening, Roberts had stated he wanted to get
home or go back to the East Side, or words to that effect. According to appellant,
Roberts said he would do whatever it took to get home, like taking somebody’s car.
Appellant said he remained about 12 feet away when Roberts approached Alcala.
Appellant agreed he stood in a flower bed when this incident occurred. Appellant’s
shoeprints were located and identified in that flowerbed.
According to appellant, both Roberts and Alcala moved out of sight. Appellant
claimed he was partly obscured by bushes. Appellant said he heard one shot, he got
spooked, and he walked away. He claimed that Roberts followed him and they both
walked together to a different commercial area in the city. As they walked together,
4.
Roberts said to appellant that Alcala had “tried to run” or he “shouldn’t have ran” or
words to that effect.
Appellant denied ever seeing a gun. He denied knowing that Roberts was going to
rob anyone.
V. Roberts is Arrested.
Law enforcement located and arrested Roberts on September 2, 2022. While
being booked into county jail, Roberts was casually chatting with an officer. According
to the officer, Roberts said something like “if he were meant to do it, he would have
chosen a place with less cameras.” Shortly thereafter, Roberts advised that “he didn’t
mean to do it.”
VI. Roberts’s Social Media Posts and Messages.
Officers recovered records from Roberts’s Facebook account in which he referred
to himself as “Zaddy AWOL.” Through this account, he made some notable posts on his
home page, and he sent some notable messages.
On July 14, 2022—a little over one month before this shooting—Roberts sent
messages about wanting to shoot “a new thang” he had just bought, his “trigger finga
itching,” and he lamented how being “legit” was hard. He added, “[I]t’s not[] [e]asy
working part time for nothing when I can just take it.”
On July 31, 2022, Roberts posted, “I’m gonna be one sneaky MF with that pew,
pew.” According to a detective, “pew, pew,” referred to a firearm.
On August 1, 2022, Roberts posted, “[W]e can go outside, but let me grab my
Glock.”
On August 28, 2022—four days after this shooting—Roberts sent a Facebook
message to a person saying, “Y’all can’t get that reaction out of me no more I got out it
[sic] my system cuz I slung my iron.” The jury learned that “iron” is a slang word for a
firearm.
5.
VII. Appellant’s Testimony at the Preliminary Hearing.
At the preliminary hearing in this matter, appellant testified as a witness for the
prosecution. At that time, he had still not been charged for his involvement in Alcala’s
murder.
In general, appellant testified that he met Roberts for the first time on the day of
this homicide. They drank alcohol together in a nearby park. Roberts said that he needed
to get home, which he expressed as needing to “get back to the hood” or words to that
effect. Roberts stated he would “do anything to get home.”
According to appellant, Roberts saw Alcala charging his vehicle. Roberts said that
Alcala looked like someone who had money.
Both appellant and Roberts approached Alcala. Appellant claimed he remained
closer to the charging stations in a dirt area while Roberts confronted Alcala. Both
Roberts and Alcala moved out of sight while appellant remained about 12 feet away.
Appellant testified that he heard one shot, and, once he heard that single shot, he walked
away. He claimed that he never saw Roberts with a gun, and he could not see either
Roberts or Alcala when he heard the gunshot.
Appellant claimed that, after hearing the gunshot, he was afraid of Roberts.
Appellant testified that Roberts caught up with him and they walked together. Roberts
said, “ ‘He shouldn’t have walked away.’ ” They walked together to another commercial
area in the city. They fell asleep later that night. Appellant said that when he woke up,
Roberts was gone, and he did not see him again. However, he also testified that he
(appellant) woke up first and left.
Appellant asserted that he was unable to call 911 because his cell phone did not
have service and he could only use it with an Internet connection. He testified that he
never reported this incident to authorities because he did not know that Roberts had
actually killed anyone.
6.
VIII. Appellant’s Testimony About His Own Firearm.
On cross-examination at the preliminary hearing, evidence about appellant’s own
firearm first came to the attention of law enforcement. Appellant was asked by defense
counsel about his registered firearm. Appellant said he used to have a nine-millimeter
firearm but claimed that he no longer had it. He denied having his gun or ammunition
with him on the day of this shooting.
Critically, appellant claimed he had left his nine-millimeter handgun at his friend’s
house for safekeeping. At the preliminary hearing, appellant denied that his firearm was
used in this incident.
IX. With Law Enforcement, Appellant Changes His Story About His Firearm.
The jury learned that, in July 2021, appellant had purchased a nine-millimeter
Smith & Wesson semiautomatic handgun. He took physical possession of this gun in
August 2021. That same day, appellant purchased nine-millimeter Blazer ammunition.
This murder occurred just over one year later, on August 24, 2022.
After the preliminary hearing, law enforcement again met with appellant, who was
not under arrest. Appellant admitted to law enforcement that he had a small nine-
millimeter semiautomatic handgun. Appellant continued to claim that he had left his
handgun with his friend about four or five months before. Law enforcement informed
appellant that his friend had denied that appellant’s gun was at his residence.
Appellant then claimed, during his interview with detectives, that his firearm was
in a storage facility. Eventually, appellant admitted that his gun had been in his backpack
the entire time. He claimed he had discovered his firearm missing from his backpack
after the shooting, and he suspected Roberts had taken it from him. Appellant claimed he
had left his backpack with Roberts while he used a restroom.
7.
X. Appellant is Indicted.
A grand jury reviewed appellant’s involvement in this matter. In December 2022,
it issued an indictment against appellant for his role in Alcala’s murder. Appellant was
arrested that month.
XI. While in Custody, Appellant Speaks with a Journalist.
In February 2023, a journalist from a local newspaper, The Bakersfield
Californian, interviewed appellant about this homicide while appellant was in jail
awaiting trial in this matter. This interview was recorded and played for the jury.
In general, appellant insisted he was not involved in Alcala’s murder. However,
during this interview, he admitted that his firearm was with him on the day of this
shooting. Appellant claimed he carried his nine-millimeter in his backpack.
Appellant denied ever touching his gun on the day of this homicide. He asserted
that, the following day, he noticed that his gun was missing from his backpack.
Appellant told the journalist that Roberts must have taken his gun from his backpack
without his knowledge, but he did not know when that might have occurred.
According to appellant, he and Roberts happened to encounter Alcala, who was
charging his car. They approached Alcala. Appellant claimed that he did not know
Roberts’s intentions. He reported that he saw Roberts walk towards Alcala, and then
appellant could not see them anymore. They “disappeared” and he stood back.
Appellant said he had heard two gunshots. Appellant claimed he walked away and
Roberts joined him. Appellant stated that he did not know that somebody had died.
According to appellant, Roberts had stated that Alcala “should not have tried to walk
away.”
Appellant told the journalist that he had been afraid of Roberts once he heard the
gunshots. He was worried to question or anger Roberts.
8.
Appellant reported that he and Roberts both walked to a different area of the city.
Appellant learned of Alcala’s death from the news.3 Appellant denied during this
interview that he had killed Alcala, believing it was Roberts who had killed him.
Appellant claimed he never saw Roberts with any firearm on the day of this
homicide. He reiterated that he did not know his gun was missing until the following
day. Appellant thought Roberts must have taken his gun when he left his backpack alone
with him. Appellant admitted that his gun had been inside his backpack when he and
Roberts first met earlier on the day of the homicide.
Appellant admitted during his interview with the journalist that his testimony at
the preliminary hearing about his gun had not been the truth.
XII. Appellant’s Friend Denies Holding Appellant’s Firearm.
At trial, appellant’s friend and the friend’s mother both testified that appellant had
never left a firearm at their house for safekeeping. The jury learned that law enforcement
had searched that residence, and appellant’s firearm was not there.
Throughout the course of this investigation, law enforcement never located
appellant’s firearm.
XIII. Appellant and Roberts Changed Some of Their Clothes Before This Murder.
The jury learned that, in the hours before this murder, appellant and Roberts were
seen together on surveillance videos at various commercial establishments in the
shopping area where this shooting occurred.
In the hours leading up to this shooting, appellant was seen wearing a white T-
shirt and Roberts was wearing sandals. However, when they left the Target store minutes
before this killing, appellant was wearing the maroon-colored shirt over the white T-shirt,
and Roberts had changed from sandals into tennis shoes. Neither defendant had their
3 The jury learned that, in the early morning hours of August 25, 2022, the morning
after this shooting, appellant conducted Internet searches on his cell phone for news about
this shooting.
9.
backpack. Both defendants wore baggy athletic shorts. As he walked, appellant kept his
left hand close to the left pocket of his shorts, as if something heavy was in that pocket.
XIV. Appellant and Roberts Fled Together.
After this shooting, appellant and Roberts walked together to a different part of
town and remained together until past midnight. During that period, Roberts told
appellant that Alcala “shouldn’t have ran” or something similar.
Starting at about 10:52 p.m. that night, appellant exchanged text messages with his
girlfriend.4 Appellant never expressed any fear of Roberts or that he needed help.
Appellant never mentioned the encounter with Alcala.
DISCUSSION
I. Substantial Evidence Supports Appellant’s Murder Conviction.
The prosecutor argued to the jurors that Roberts was the one who had shot and
killed Alcala.5 The prosecutor proceeded against appellant based on the theory of major
participation and reckless indifference to human life.
During closing argument to the jury, Roberts’s counsel asserted that it was
appellant who had shot Alcala, appellant had acted alone, and Roberts was not guilty.
According to Roberts’s counsel, appellant had tucked his firearm under his maroon shirt,
which is why he was wearing that extra shirt as they exited the Target just before this
crime occurred. Roberts’s counsel further argued that appellant would not have given his
backpack and gun to Roberts, whom he had just met. In any event, the gun and
ammunition would have been heavy in that backpack, so appellant would have known it
4 Appellant did not pay for cell phone service, and he relied on a Wi-Fi connection
to communicate.
5 The jury convicted Roberts of first degree murder. It found true that Roberts
personally discharged a firearm which caused death (§ 12022.53, subd. (d)) and that
Roberts committed this murder while in the commission of attempted robbery (§ 190.2,
subd. (a)(17)(A)). Neither this firearm enhancement nor the special circumstance
allegation was alleged against appellant.
10.
was missing. Based on the trail of shell casings, Roberts’s counsel argued that appellant
had been the shooter who had ambushed Alcala. The casings started in the area where
appellant had been standing in the flower bed and ended closer to Alcala’s lifeless body.
In contrast, appellant’s counsel argued to the jury that Roberts had been the
shooter, and Roberts had acted alone.6 Defense counsel contended that appellant never
called 911 because Roberts had been with him after the crime. Appellant’s counsel
asserted that Roberts could have used his own gun and later stole appellant’s firearm
while appellant was asleep. It was noted to the jury that appellant had always cooperated
with law enforcement. His counsel maintained that appellant was not involved in the
confrontation with Alcala, and he was not guilty.
Based on the verdicts rendered, the jury accepted the prosecution’s theory of the
case and rejected the defense positions. Both defendants were found guilty of all charges.
Indeed, appellant concedes that the verdicts show the jury “believed the prosecution’s
theory regarding the roles Roberts and [appellant] played in the fatal shooting.”
In the present claim, appellant seeks reversal of his murder conviction. He
contends the evidence was insufficient to establish that he was a major participant in the
underlying attempted robbery or that he acted with reckless indifference to human life, as
required for his felony-murder liability under section 189, subdivision (e)(3).
We reject appellant’s various arguments. This record contains substantial
evidence from which a rational jury could find appellant guilty of murder beyond a
reasonable doubt.
6 The jury learned that Alcala worked as a counselor supervisor for California’s
Department of Corrections and Rehabilitation. During closing argument, appellant’s
counsel argued to the jury that Roberts killed Alcala because Roberts happened to spot a
correctional officer and decided to shoot him.
11.
A. The applicable law regarding murder.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
subd. (a).) Murder committed in the perpetration of robbery or its attempt is murder of
the first degree. (§ 189, subd. (a).)
Following the enactment of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill 1437), malice may not be imputed to a person based solely on his or her participation
in a crime. (§ 188, subd. (a)(3).) When a death occurs during the perpetration or
attempted perpetration of an enumerated felony such as robbery, a participant is liable for
murder only if the person was the actual killer, acted with the intent to kill in aiding and
abetting the actual killer in the commission of first degree murder, or “was a major
participant in the underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(1)–(3).)
Section 190.2 defines the special circumstances that, when found true in
connection with a first degree murder conviction, may subject a defendant to death or life
imprisonment without the possibility of parole. (§ 190.2, subds. (a), (d).) As relevant
here, subdivision (d) provides that a defendant who is not the actual killer and lacks an
intent to kill may nevertheless be subject to a felony-murder special circumstance if the
defendant was a major participant in the underlying felony and acted with reckless
indifference to human life. (Id., at subd. (d).) When the Legislature amended section 189
through Senate Bill 1437, it incorporated those same standards into the definition of
felony-murder liability. (§ 189, subd. (e)(3); People v. Strong (2022) 13 Cal.5th 698,
710.) Thus, although no felony-murder special circumstance was alleged against
appellant in this case, section 190.2, subdivision (d) remains relevant because
section 189, subdivision (e)(3) expressly incorporates its major participant and reckless
indifference standards. (§ 189, subd. (e)(3).)
12.
Respondent concedes that substantial evidence does not support any other
potential theory of murder liability for appellant. We agree.7 The prosecutor admitted to
the jury that nothing demonstrated appellant’s own intent to kill. Our own review of the
record confirms that nothing suggests appellant intended to kill Alcala. Accordingly, the
question is whether substantial evidence supports the required elements under
section 189, subdivision (e)(3), of major participation and reckless indifference.
B. The standard of review.
When a defendant challenges the sufficiency of the evidence, we review the entire
record in the light most favorable to the judgment to determine whether it contains
reasonable, credible, and solid evidence from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. We presume every fact the jury
reasonably could have deduced from the evidence and do not reweigh the evidence,
resolve conflicts, or reevaluate credibility. Nor may we reverse merely because the
evidence could reasonably support a contrary finding. (People v. D’Arcy (2010)
48 Cal.4th 257, 293.)
The same standard applies when the conviction rests primarily on circumstantial
evidence. If the circumstances reasonably justify the jury’s findings, reversal is not
warranted merely because they might also reasonably support a contrary conclusion.
(People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.)
Appellant recognizes the significance of this standard. In his opening appellate
brief, he concedes that—viewing the evidence in the light most favorable to the
judgment—we “must assume” he gave his handgun to Roberts “to use in the attempted
robbery.”
7 In addition to felony murder, the jury was instructed on a theory of premeditated
first degree murder, which was a theory the prosecutor used only as a basis for Roberts’s
liability.
13.
C. Major participation and reckless indifference to human life.
The concepts of major participation and reckless indifference originated in
Enmund v. Florida (1982) 458 U.S. 782 and Tison v. Arizona (1987) 481 U.S. 137.
These concepts were developed for purposes of California law in People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
For purposes of finding major participation, Banks identified nonexclusive factors
to consider, including the defendant’s role in planning the criminal enterprise; his role in
supplying or using lethal weapons; his awareness of particular dangers posed by the
nature of the crime, weapons used, or past conduct of the other participants; whether the
defendant was present at the scene and in a position to facilitate or prevent the actual
killing; and what the defendant did after lethal force was used. (Banks, supra, 61 Cal.4th
at p. 803.) No one consideration is necessary or independently sufficient. (Ibid.)
Reckless indifference has subjective and objective components. The defendant
must be aware of and willingly involved in the violent manner in which the offense is
committed and consciously disregard the significant risk of death his or her actions
created. Objectively, the risk must be of such a nature and degree that disregarding it
constitutes a gross deviation from the conduct of a law-abiding person in the defendant’s
situation. (Clark, supra, 63 Cal.4th at p. 617; see In re Scoggins (2020) 9 Cal.5th 667,
676–677.) Our high court notes that the major participant and reckless indifference
elements often overlap significantly. (People v. Strong, supra, 13 Cal.5th at p. 706;
Clark, supra, 63 Cal.4th at p. 615.)
Mere participation in an armed robbery, without more, is insufficient to establish a
reckless indifference to human life. (Clark, supra, 63 Cal.4th at pp. 617–618.) Clark
identified nonexclusive considerations relevant to this inquiry, including knowledge
concerning weapons; presence and opportunity to restrain the crime or aid the victim;
duration of the interaction; knowledge of a confederate’s propensity for violence or
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likelihood of using lethal force; and efforts to minimize the risk of violence. (Id. at
pp. 618–622.)
More recently, People v. Emanuel (2025) 17 Cal.5th 867 (Emanuel) reiterated that
a “ ‘ “garden-variety armed robbery,” ’ ” standing alone, does not establish the requisite
mental state. (Id. at p. 884.) Rather, the record must show the defendant “was aware of
and willingly involved in the violent manner in which the felony was committed” and
consciously disregarded the significant risk of death that his or her actions created. (Id. at
p. 895.) Emanuel further instructs that a failure to restrain a confederate cannot be
assigned undue weight absent evidence the defendant had a meaningful opportunity to act
and awareness of an impending risk of lethality. (Ibid.) The Emanuel court cautioned
that the presence or absence of evidence relating to each factor should be first considered
before a determination is made from the totality of the record whether the required
culpability was established. (Id. at p. 888.)
Finally, appellant’s age at the time of the offense was also a relevant consideration
in determining whether he was a major participant who acted with reckless indifference
to human life. (In re Moore (2021) 68 Cal.App.5th 434, 454; see People v. Harris (2021)
60 Cal.App.5th 939, 960.)
D. We review the evidence supporting each factor.
This jury was instructed on the various factors to consider when deciding if
appellant was a major participant who acted with reckless indifference to human life.
The jurors were directed to consider all the evidence, including appellant’s age, his
knowledge concerning lethal weapons, his proximity to the crime, his opportunity to
prevent the killing or aid Alcala, the duration of the crime, his knowledge concerning the
likelihood Roberts would kill, his efforts to minimize violence, and his conduct after
lethal force was used. The jury was told that no single circumstance was necessary or
necessarily sufficient.
15.
We turn to each factor, examining the evidence that might support whether
appellant acted as a major participant and with reckless indifference to human life.
1. Planning and preparation.
The evidence indicates that the selection of this particular victim was spontaneous.
Appellant and Roberts apparently met for the first time earlier that day, and nothing
establishes they previously identified Alcala or planned in advance to rob him
specifically. According to appellant, Roberts saw Alcala shortly before the offense,
believed Alcala had money, and said that “he wanted to rob the guy.” In that sense, the
attempted robbery of Alcala was a crime of opportunity.
The jury, however, was not required to find that the plan to commit a robbery
itself arose only when Roberts saw Alcala. Shortly before this offense, both defendants
altered aspects of their attire. Earlier in the evening, both defendants were seen carrying
backpacks. Appellant wore a white T-shirt, with a maroon shirt draped over his shoulder.
Roberts was wearing open-toed sandals. However, when they left the Target store
minutes before this killing occurred, appellant was wearing the maroon-colored shirt over
the white T-shirt, and Roberts was wearing tennis shoes. Neither defendant had their
backpack. It is undisputed that one of the defendants possessed the loaded firearm as
they left the Target.
During closing argument, the prosecutor asserted to the jurors that the defendants’
change in attire showed they were “up to no good” and “looking for an opportunity”
before they crossed paths with Alcala. Roberts’s counsel argued to the jurors that
appellant put on the extra maroon shirt because his firearm was tucked underneath it.
The jury could draw a reasonable inference that appellant gave his gun to Roberts, an
inference which appellant concedes is apparent from this record.
Based on this record, the jury could reasonably infer that appellant participated in
preparing for a robbery before this particular victim was selected. Moreover, appellant
accompanied Roberts when the initial confrontation with Alcala occurred, and he
16.
remained at the scene. Consequently, ample evidence supports a finding under this factor
that appellant was a major participant because reasonable inferences may be drawn that
he took part in planning for criminal activity. We reject appellant’s contentions to the
contrary.
2. The duration of the crime.
The attempted robbery and shooting occurred rapidly. We agree with appellant
that the entire fatal incident lasted less than two minutes. In fact, the prosecutor argued to
the jury that this incident lasted about one minute, and perhaps less.
Emanuel clarifies that a lengthy interaction may heighten risk, but a short, rapidly
escalating event typically does not. (Emanuel, supra, 17 Cal.5th at p. 892.) Here, there
is no evidence of an extended confrontation before lethal force was used. Thus, the
evidence does not establish that appellant had a meaningful opportunity to prevent
Roberts from firing. Given the short duration of this crime, this factor does not support a
finding of reckless indifference.
3. The firearm.
The firearm evidence bears substantially on both appellant’s role as a major
participant and his reckless indifference to human life.
Prior to this crime, appellant owned a registered nine-millimeter handgun and had
purchased Blazer nine-millimeter ammunition. Alcala was shot with a nine-millimeter
firearm using Blazer ammunition. Appellant ultimately admitted possessing his handgun
on the day of the shooting. There was no evidence showing that Roberts independently
possessed another firearm. Appellant’s handgun disappeared in connection with the
homicide and was never recovered.
Appellant gave shifting explanations concerning his weapon. He initially failed to
disclose the existence of his firearm and denied knowing that Roberts possessed one.
After investigators learned appellant owned a firearm, he falsely claimed he had left it
with a friend for safekeeping. That account was shown to be false, and police did not
17.
find the firearm when they searched that property. Appellant then claimed his gun was at
a storage shed before he admitted possessing the gun on the day of the shooting.
Appellant claimed Roberts must have taken it from his backpack without his knowledge.
Based on the verdicts rendered, it is apparent that the jury rejected appellant’s
account. Appellant himself concedes that the circumstantial evidence suggests Roberts
used appellant’s handgun to fatally shoot Alcala. Appellant further concedes that we
“must assume” appellant supplied his firearm “to use in the attempted robbery.”
Appellant nevertheless argues that supplying his firearm to Roberts only established a
foreseeable risk inherent in any armed robbery. He emphasizes that he was not
personally armed during the confrontation and no evidence showed he instructed or
encouraged Roberts to shoot.
Appellant’s contentions are unpersuasive. Appellant did not merely discover that
a confederate had independently armed himself. The jury could reasonably find that
appellant personally supplied his own loaded handgun to Roberts to facilitate a
contemplated robbery. Moreover, appellant said he had met Roberts for the first time that
same day, from which a reasonable inference may be drawn that appellant knew very
little about Roberts. From his own account, appellant watched Roberts consume most of
a 12-pack of beer followed by liquor. Appellant told authorities that Roberts had
appeared drunk.
The circumstances known to appellant when he supplied the firearm to Roberts are
critical. The jury could find that appellant entrusted Roberts with a loaded handgun for
use in a forcible robbery, even though appellant did not know Roberts and Roberts was
under the influence of alcohol.
The evidence surrounding appellant’s firearm supports a finding that appellant was
a major participant in the underlying felony. This evidence also reasonably supports a
conclusion that appellant acted with reckless indifference to human life.
18.
4. Knowledge of Roberts’s propensity for violence.
Based on statements Roberts made to him, appellant understood that Roberts had a
criminal history, which might have included theft of a vehicle. At the preliminary
hearing, appellant testified that, before this shooting occurred, Roberts had told him that
he was “going to turn himself in” to authorities for some unknown reason.
The evidence demonstrates that appellant and Roberts met each other for the first
time on the day of this murder. Nothing in this record establishes or even reasonably
suggests that appellant knew Roberts had a propensity to use lethal force. As such, this
factor does not support a finding of reckless indifference.
5. Efforts to minimize the risk of violence.
Appellant told detectives that after Roberts expressed his desire to rob Alcala,
appellant said, “No, like, we’re good, like, let’s go.” The jury was not required to credit
appellant’s contention that he tried to dissuade Roberts from approaching Alcala. To the
contrary, it is undisputed that appellant accompanied Roberts when Alcala was initially
approached, and appellant remained at the scene. None of this evidence reasonably
demonstrates that appellant made efforts to minimize the risk of violence.
Appellant notes that this attempted robbery occurred in a public area near open
retail establishments and a busy street. As such, he argues that the location of this crime
tended to minimize the danger. We disagree.
This shooting occurred at approximately 8:26 p.m. in August, when some light
remained, but darkness was approaching. According to appellant, Alcala was alone when
Roberts selected him, and the evidence permitted a conclusion that the initial approach
occurred in a relatively dark portion of the parking lot before Alcala moved to the
adjacent sidewalk. One witness testified that there was some “green light” emanating
from the nearby electric vehicle chargers, but there were no other lights in that area.
Although the sidewalk bordered a busy thoroughfare, nothing establishes appellant
or Roberts selected the location of this crime because its public nature might reduce the
19.
risk of violence. Nor could appellant have anticipated that Alcala would move from the
parking lot onto the adjacent sidewalk. We therefore treat the location of this crime as
essentially neutral. It neither supports a finding of reckless indifference nor does it
demonstrate a meaningful effort by appellant to minimize the possibility of lethal
violence.
6. Appellant’s presence and proximity to the shooting.
In his opening brief, appellant concedes he and Roberts were both present when
Alcala was shot. He also states he was “ ‘on the scene’ ” throughout the attempted
robbery and shooting. However, he maintains that, although he was there, he was “not in
the immediate proximity” of Roberts.
The evidence supports the conclusion that appellant was separated to some degree
from the immediate confrontation. With detectives, appellant agreed he was about
12 feet from Roberts. Witnesses likewise described a third individual standing apart from
the two men involved in the immediate confrontation. We therefore do not base our
conclusions on appellant having stood immediately next to Roberts when the shots were
fired.
However, appellant was not removed from the crime. In his opening brief, he
states he was “at least several feet if not several yards away from Roberts and Alcala at
the moment Roberts tried to rob and ultimately shot him.” In his reply brief, appellant
states he was at least “several feet away and could have been as far away as 15 yards,”
based on the testimony of a passing witness.
Regardless of his actual distance from this incident, the evidence demonstrates that
appellant accompanied Roberts towards Alcala and remained in the vicinity throughout
the attempted robbery and shooting. His shoeprints placed him in the nearby flower bed.
Two witnesses passing on the nearby thoroughfare were able to observe a third
individual standing apart from the two men engaged in the confrontation. It is reasonable
to infer that this third individual was appellant. The fact that those witnesses could see
20.
appellant from the street supports a reasonable inference that appellant had an
unobstructed view of Roberts and Alcala and was not hidden in a manner that prevented
him from seeing the shooting as it occurred. In any event, the jury was not required to
accept appellant’s assertions minimizing what he saw and heard.
Given his continuous presence, his proximity to the confrontation, and the
physical and eyewitness evidence, the jury could reasonably reject appellant’s
minimizing account and determine that he perceived the crime as it unfolded. The
evidence under this factor therefore supports a finding that appellant was a major
participant in the attempted robbery, and, together with the other circumstances, also
permitted the jury to find that he acted with his own reckless indifference to human life.
7. The opportunity to restrain Roberts.
Emanuel cautions that courts must not place undue weight on what more a
defendant might have done to prevent violence once a crime is underway, particularly
where events unfold rapidly. (Emanuel, supra, 17 Cal.5th at p. 891.) The relevant
inquiry is not whether the defendant did enough to stop the shooter’s unplanned act of
violence, but whether the evidence supports a finding that the defendant acted with the
requisite mens rea. Efforts at restraint serve as only one of several factors that should be
assessed under the totality of the circumstances to decide whether the defendant acted
with reckless indifference to human life. (Ibid.)
Here, the evidence does not suggest appellant had a meaningful opportunity to
intervene or otherwise restrain Roberts after Roberts began firing. These events unfolded
very rapidly. Thus, this factor does not support a finding of reckless indifference to
human life.
8. Appellant’s conduct after lethal force was used.
Six cartridge casings were recovered at the scene, and Alcala sustained two
gunshot wounds, including a fatal wound entering his lower back. Appellant concedes
that he left the area without calling 911 or rendering aid.
21.
We do not assume that appellant knew that Alcala had been mortally wounded,
nor do we treat appellant’s failure to render aid as independently establishing his reckless
indifference. (See In re Taylor (2019) 34 Cal.App.5th 543, 559 (Taylor).) Nevertheless,
appellant’s conduct after the shots were fired is relevant regarding his state of mind
during the fatal incident. He was present throughout the episode and admittedly heard
gunfire. The jury could reject his inconsistent accounts minimizing the number of shots
he heard and find that he knew six shots had been fired during the attempted robbery.
The jury could further consider his decision, with that knowledge, to leave without
checking on Alcala, summoning assistance, or alerting authorities.
Appellant claimed to investigators that, after hearing gunfire, he became
frightened and walked away. He asserted that Roberts followed him, and he
unsuccessfully attempted to lose him. The jury was not required to accept that
explanation.
After this shooting, appellant and Roberts walked together to a different part of
town and remained together until past midnight. During that period, Roberts told
appellant that Alcala “shouldn’t have ran” or something similar. Several hours after the
shooting, appellant exchanged text messages with his girlfriend. Appellant never
expressed any fear of Roberts or that he needed help, and he never mentioned the
encounter with Alcala.
Throughout this investigation, appellant repeatedly attempted to distance himself
from his firearm. He initially failed to disclose it and denied knowing that Roberts
possessed a gun. Appellant later falsely claimed he had left his firearm with a friend.
When that account was disproved, he falsely claimed his gun was in a storage shed before
he admitted possessing the gun that day but claimed Roberts must have taken it without
his knowledge. Appellant’s nine-millimeter was never recovered.
Emanuel cautions that a defendant’s mens rea must exist at the time of the
underlying felony. “While postflight conduct may shed light on a defendant’s state of
22.
mind, conduct temporally removed from the violent act must clearly evince a culpable
mental state.” (Emanuel, supra, 17 Cal.5th at p. 894.)
Appellant’s postcrime actions exhibited a culpable mental state relating to his
knowledge of the fatal shooting. Particularly significant were appellant’s targeted efforts
to conceal the connection between himself, his firearm, and this homicide. The jury
could reasonably view those efforts as evidence that appellant understood the lethal
significance of what had occurred and knew his firearm had been used in fatally injuring
Alcala. Such evidence also permitted the jury to reject appellant’s broader portrayal of
himself as an unwitting participant who neither knowingly supplied the firearm nor
appreciated the lethal violence that occurred during the robbery. Hours after this crime,
appellant was still with Roberts, and appellant never alerted his girlfriend that he felt
threatened by Roberts.
The totality of appellant’s conduct after lethal force was used supports a finding
that he held a reckless indifference to human life when this crime occurred.
9. Appellant’s age.
The jury was instructed that it could consider appellant’s age in deciding whether
he acted with a reckless indifference to human life.
Appellant was 22 years old at the time of this offense. This record does not
establish that his age meaningfully diminished his ability to appreciate the grave risk
created by his conduct. This factor is neutral regarding a finding of reckless indifference.
E. The totality of the circumstances.
Having considered the evidence supporting the individual factors, we now analyze
the totality of the circumstances. (Emanuel, supra, 17 Cal.5th at p. 888.) Viewed in the
light most favorable to the judgment, substantial evidence supports both findings required
by section 189, subdivision (e)(3).
23.
1. Major participation.
The jury could reasonably conclude appellant was a major participant in the
attempted robbery. Appellant prepared for a contemplated robbery, supplied his own
handgun specifically for its commission, accompanied Roberts towards Alcala after
learning that Roberts intended to rob him, and remained “ ‘on the scene’ ” throughout the
attempted robbery and shooting. Substantial circumstantial evidence further permitted
the jury to find that appellant’s handgun was the firearm used to kill Alcala, and that it
was loaded and ready for use when appellant supplied it for an anticipated robbery.
Appellant fled with Roberts after this shooting, and they remained together for many
hours.
Appellant therefore materially facilitated the attempted robbery and supplied the
lethal weapon used to kill Alcala. Under the standards articulated in Banks, a rational
jury could find beyond a reasonable doubt that appellant was a major participant.
2. Reckless indifference.
The evidence likewise permitted the jury to find that appellant acted with reckless
indifference to human life.
Appellant did substantially more than participate in a robbery knowing that a
confederate happened to possess a firearm. According to appellant, he had met Roberts
only hours earlier and knew little about him, yet furnished him with a firearm for use in a
forcible robbery. Appellant also believed Roberts had consumed substantial quantities of
alcohol and appeared drunk. The jury could consider those circumstances in determining
the degree of risk appellant knowingly undertook when he armed Roberts.
The jury could reject appellant’s account minimizing what he perceived once the
confrontation became violent. Six cartridge casings were recovered. Appellant remained
in the vicinity throughout the shooting but gave inconsistent accounts concerning how
many shots he heard. From appellant’s presence, his proximity to the fatal incident, the
number of shots fired, and his inconsistent accounts, the jury could reasonably find that
24.
appellant perceived the multiple gunshots and understood the lethal violence occurring
during the attempted robbery as it unfolded.
Appellant’s subsequent conduct after this fatal incident—including leaving
without seeking assistance, remaining with Roberts for hours, and attempting to conceal
his connection to the firearm—did not itself establish the requisite mental state, but
permitted the jury to reject his contrary portrayal of his participation and awareness.
While texting with his girlfriend that evening, appellant never expressed any concerns
about Roberts, and he never alerted his girlfriend about this shooting. With law
enforcement, appellant repeatedly lied regarding his connection to the very firearm
linking his precrime conduct to the lethal violence. Appellant’s conduct, considered
together with the evidence of his actions and knowledge before and during the attempted
robbery, permitted the jury to assess the credibility of his account concerning his role in
the offense and his awareness of the risk to life he had created.
Considered together, the evidence permitted the jury to find that appellant did
more than merely participate in a “ ‘garden-variety armed robbery.’ ” (Emanuel, supra,
17 Cal.5th at p. 884.) These circumstances permitted a rational jury to find that appellant
“was aware of and willingly involved in the violent manner in which the felony was
committed” and consciously disregarded the significant risk of death his actions created.
(Id. at p. 895.) Thus, substantial evidence supports the jury’s finding of reckless
indifference under section 189, subdivision (e)(3).
F. Appellant’s authorities do not compel reversal of his murder conviction.
Appellant cites various cases in which courts concluded the evidence was insufficient to
establish that a nonkiller was a major participant who acted with reckless indifference to human
life. We summarize the five opinions.
1. In re Bennett.
In In re Bennett (2018) 26 Cal.App.5th 1002 (Bennett), the defendant played an
instrumental role in planning and facilitating a robbery. He knew the victim, arranged the
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meeting, drove the perpetrators to the location, and telephoned the victim to lure him
outside. (Id. at pp. 1019–1020.) When the fatal encounter occurred, however, the
defendant remained across the street in a parking lot while his confederates confronted
the victim. (Id. at p. 1025.) Although the evidence supported an inference the defendant
knew his confederates were armed, there was no evidence he supplied the firearms. (Id.
at p. 1020.) After the shooting, the defendant drove the group from the scene. (Ibid.)
The appellate court concluded the evidence was insufficient to establish either that
the defendant was a major participant or that he acted with reckless indifference to human
life. (Bennett, supra, 26 Cal.App.5th at p. 1026.) The court vacated a robbery-murder
special-circumstance finding. (Id. at pp. 1026–1027.)
2. In re Ramirez.
In In re Ramirez (2019) 32 Cal.App.5th 384 (Ramirez), the defendant and several
companions came into possession of two handguns about three days before deciding to
commit a robbery. (Id. at pp. 389–390.) The evidence permitted an inference that the
defendant supplied the firearms ultimately used in the attempted robbery and murder,
knew they were loaded and operable, knew his confederates were carrying them, and
knew an armed robbery was contemplated. (Id. at p. 404.) The defendant agreed with
the group’s proposal to “ ‘jack’ ” someone, transported one of the eventual perpetrators to
the location on his bicycle, waited for a victim, and acted as a getaway driver after the
shooting. (Ibid.) Although the defendant was sufficiently close to hear and possibly see
what occurred, he was not at the immediate location where his armed confederates
confronted the victim. (Id. at pp. 390, 405.)
A different panel from this court concluded that the defendant in Ramirez was
neither a major participant in the underlying felony nor did he hold his own reckless
indifference to human life. (Ramirez, supra, 32 Cal.App.5th at pp. 405–406.) This court
granted the defendant’s petition for writ of habeas corpus, vacating a robbery-murder
special-circumstance finding. (Id. at p. 408.)
26.
3. People v. Keel.
In People v. Keel (2022) 84 Cal.App.5th 546 (Keel), the defendant was 15 years
old when he participated in a crime in which a death occurred. According to the Keel
court, the crime was “unplanned, spontaneous, and short in duration.” (Id. at p. 562.)
There was no direct evidence that the defendant carried a loaded weapon during the
crime, and there was no evidence that he knew his confederate’s weapon was loaded, or
that he supplied his confederate with a weapon or instructed him to use one. (Ibid.)
There was no evidence that the confederate had a propensity or reputation for violence.
(Ibid.)
The appellate court also considered the defendant’s youth in assessing whether he
subjectively appreciated the risk his conduct created. (Keel, supra, 84 Cal.App.5th at
p. 562.) Considering the totality of the circumstances, the court concluded the evidence
was insufficient to establish reckless indifference and reversed the order denying the
defendant’s petition for resentencing. (Id. at pp. 562–563.)
4. People v. Guiffreda.
In People v. Guiffreda (2023) 87 Cal.App.5th 112 (Guiffreda), the defendant and
two confederates planned to rob a motel guest. (Id. at pp. 117–118.) The totality of the
evidence showed that the defendant knowingly participated in the plan to commit an
unarmed assault and robbery, and one of her accomplices deviated from that plan by
arming himself after the plan was in motion. (Id. at p. 131.) Nothing showed that the
defendant knew her cohorts were likely to use lethal force. (Ibid.) The appellate court
concluded the evidence was insufficient to establish reckless indifference, and it directed
the trial court to grant her petition for resentencing. (Id. at pp. 126, 132.)
5. Taylor.
In Taylor, supra, 34 Cal.App.5th 543, the appellate court held that substantial
evidence did not support a determination that the defendant had acted with reckless
indifference to human life. (Id. at p. 557.) The defendant did not supply the perpetrator
27.
with the murder weapon, and the evidence was inconclusive as to whether the defendant
knew the perpetrator had a gun that night. (Ibid.) Nothing showed that the defendant
knew there would be a likelihood of resistance, which might elevate the risk of violence.
(Id. at p. 558.)
The planned duration of the snatch-and-grab robbery was short, and the defendant
had no indication the perpetrator had a propensity for violence. (Taylor, supra,
34 Cal.App.5th at p. 558.) The defendant remained in a car “parked on the street near
where the killing occurred,” but he “never got out of the car and had no opportunity to
prevent the shooting.” (Id. at p. 559.) Finally, the defendant fled without assisting the
victim and later expressed callous indifference to her death and encouraged another
participant to remain silent. Despite this conduct after the crime, the appellate court
concluded that such evidence did not show that the defendant had knowingly created a
serious risk of death, which was required to find a reckless indifference. (Id. at pp. 559–
560.) The appellate court granted the defendant’s petition for writ of habeas corpus and
vacated a robbery-murder special-circumstance finding. (Id. at p. 563.)
6. Appellant’s opinions are distinguishable.
Appellant’s cited authorities do not compel reversal here. Bennett, Ramirez, and
Taylor arose from habeas challenges to special circumstance findings made before Banks
and Clark clarified the governing standards. (Bennett, supra, 26 Cal.App.5th at
pp. 1006–1007; Ramirez, supra, 32 Cal.App.5th at p. 392; Taylor, supra, 34 Cal.App.5th
at p. 546.) Keel and Guiffreda arose from resentencing petitions after the substantive
murder laws had been amended. (Keel, supra, 84 Cal.App.5th at p. 550; Guiffreda,
supra, 87 Cal.App.5th at p. 117.)
Here, by contrast, appellant was tried after the Legislature had already amended
section 189. The jury was instructed that it could convict him of felony murder as a
nonkiller only if the prosecution proved beyond a reasonable doubt that he was a major
participant in the attempted robbery and acted with reckless indifference to human life.
28.
Therefore, our task is to determine whether substantial evidence supports those findings,
viewing the record in the light most favorable to the judgment and drawing all reasonable
inferences in its support. (People v. D’Arcy, supra, 48 Cal.4th at p. 293; People v. Kraft,
supra, 23 Cal.4th at p. 1053.)
The factual differences are significant between appellant’s cited authorities and
this matter. Although individual circumstances in appellant’s cited opinions overlap with
some circumstances here, none presents the same combination of evidence. In Bennett,
despite Bennett’s instrumental role in planning and facilitating the robbery, there was no
evidence he supplied the firearms, and he remained across the street while his armed
confederates confronted the victim. (Bennett, supra, 26 Cal.App.5th at pp. 1019–1020,
1025.) In Taylor, although Taylor participated in planning the robbery and knew a
firearm was available, the evidence was inconclusive whether he knew the perpetrator
actually possessed it that night, and Taylor remained in the getaway vehicle. (Taylor,
supra, 34 Cal.App.5th at pp. 557, 559.) In Guiffreda, although the planned crime
contemplated an assault, there was no substantial evidence Guiffreda knew her
confederates had obtained a weapon or that one would be used. (Guiffreda, supra,
87 Cal.App.5th at p. 131.) In Keel, the crime was unplanned and spontaneous. There
was no evidence Keel supplied his confederate with the murder weapon, instructed him to
use it, or knew the weapon was loaded. (Keel, supra, 84 Cal.App.5th at p. 562.)
Here, by contrast, the jury could reasonably find that appellant participated in
preparing for a robbery, he supplied his loaded firearm to Roberts, who appeared drunk,
and appellant personally accompanied Roberts as they approached Alcala, knowing that
Roberts intended to rob Alcala. The jury could reasonably conclude that Roberts used
appellant’s gun to kill Alcala. In short, appellant directly facilitated this armed
encounter. Bennett, Taylor, Guiffreda, and Keel are distinguishable.
Ramirez presents the closest factual comparison, but it does not dictate a different
result. There, the evidence permitted an inference Ramirez supplied the firearms
29.
ultimately used in the crimes, knew they were loaded and operable, knew his
confederates possessed them, and knew an armed robbery was contemplated. (Ramirez,
supra, 32 Cal.App.5th at p. 404.) Significantly, however, Ramirez and his companions
came into possession of the firearms before planning a robbery. (Ibid.) As People v.
Jones (2022) 86 Cal.App.5th 1076 subsequently observed in distinguishing Ramirez, “the
firearms were provided before any criminal conduct was contemplated.” (Jones, at
p. 1089.) Ramirez’s participation in planning went no further than agreeing that the
group should “ ‘jack’ ” someone, and although he was nearby, he remained removed
from the immediate location where his armed confederates confronted the victim.
(Ramirez, supra, 32 Cal.App.5th at pp. 404–405.)
In this matter, the jury could find a more direct connection between appellant, his
firearm, and this homicide. Appellant supplied his firearm for use in a contemplated
robbery and then personally accompanied an armed Roberts as they approached Alcala.
Appellant’s role in supplying the firearm was therefore directly tied to the contemplated
offense, and he participated in carrying it out rather than remaining removed from the
immediate confrontation. Those circumstances permitted the jury to assess appellant’s
participation and mental state differently from those of Ramirez.
Appellant’s conduct after the shooting provides additional context, but we do not
rely on that conduct to supply a mental state otherwise absent from the evidence. Taylor
makes clear that postcrime conduct demonstrating indifference to the loss of life,
although relevant, cannot alone establish that the defendant acted with a “reckless
disregard to the risk to human life posed by the planned robbery.” (Taylor, supra,
34 Cal.App.5th at p. 559.) Guiffreda likewise cautions against treating postcrime conduct
as a substitute for evidence that the defendant “participated in the robbery knowing that
the violent manner in which it would be committed carried a grave risk of death.”
(Guiffreda, supra, 87 Cal.App.5th at p. 130.)
30.
Here, there was evidence preceding the shooting from which the jury could find
that appellant’s own conduct demonstrated his reckless indifference to human life. The
jury could find that appellant barely knew Roberts, believed Roberts was drunk, but
nevertheless supplied Roberts with a loaded firearm in contemplation of a robbery.
Appellant accompanied Roberts as they approached Alcala.
Moreover, appellant remained nearby while Roberts fired six times. After the
shooting, appellant fled with Roberts and remained with him until after midnight.
Appellant’s firearm was never recovered, and he gave false and shifting accounts about
its location. Appellant’s postcrime conduct could not itself establish the requisite mental
state, but the jury could consider it in assessing appellant’s credibility and in evaluating
his role in the offense.
We do not disregard the circumstances favoring appellant that resemble those
present in some of his cited authorities. The attempted robbery and shooting unfolded
rapidly; the evidence did not establish that appellant had a meaningful opportunity to
prevent Roberts from firing; and there was no evidence appellant knew Roberts had a
propensity for violence. Those circumstances, however, are not dispositive. No single
Banks or Clark consideration is necessary or sufficient; the inquiry turns on the totality of
the circumstances. (Banks, supra, 61 Cal.4th at p. 803; Clark, supra, 63 Cal.4th at
p. 618; Emanuel, supra, 17 Cal.5th at p. 885.)
Appellant’s authorities illustrate why the inquiry cannot be reduced to matching
isolated facts from one case to another. Instead, the question before us is whether a
rational jury could find appellant guilty based on the totality of the circumstances. Here,
the jury could consider appellant’s subjective awareness when he gave a loaded firearm
to an inebriated man he did not know in preparation for a robbery. The jury could find
that appellant accompanied Roberts, knowing Roberts intended to rob Alcala. Appellant
remained in the vicinity throughout the attempted robbery and shooting. Appellant’s
31.
subsequent flight with Roberts and his lies to law enforcement permitted the jury to
assess the credibility of his account concerning his knowledge and role.
Viewed in the light most favorable to the judgment, the evidence permitted a
rational jury to find beyond a reasonable doubt that appellant was a major participant in
the attempted robbery and acted with reckless indifference to human life. Consequently,
substantial evidence supports both findings required by section 189, subdivision (e)(3).
Therefore, appellant’s cited authorities are distinguishable, and they do not compel
reversal. Sufficient evidence supports appellant’s first degree felony murder conviction,
and this claim fails.8
II. The Trial Court Did Not Abuse Its Discretion in Denying Appellant’s Motion
for Separate Trials or Juries, and Any Presumed Error is Harmless.
Appellant contends the trial court abused its discretion by denying his request for a
separate trial or, alternatively, a separate jury. We find no abuse of discretion.
A. The governing law.
Section 1098 expresses a legislative preference for joint trials. (People v. Montes
(2014) 58 Cal.4th 809, 834.) It provides that when two or more defendants are jointly
charged with a public offense, “they must be tried jointly, unless the court order[s]
separate trials.” (§ 1098.) When defendants are charged with common crimes arising
from common events and involving a common victim, the court is presented with a
“ ‘ “classic case” ’ ” for a joint trial. (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 40 (Coffman and Marlow).)
Nevertheless, a trial court has discretion to order separate trials or separate juries.
In exercising that discretion, the court may consider such nonexclusive circumstances as
an incriminating confession, prejudicial association with codefendants, likely confusion
resulting from evidence on multiple counts, conflicting defenses, or the possibility that a
8 Because substantial evidence supports appellant’s murder conviction, we do not
address the parties’ disputed points regarding a remedy.
32.
codefendant would provide exonerating testimony at a separate trial. (Coffman and
Marlow, supra, 34 Cal.4th at p. 40.) A joint trial may also be warranted when there is a
serious risk it would compromise a specific trial right or prevent the jury from making a
reliable determination of guilt or innocence. (Ibid.) However, conflicting or antagonistic
defenses do not themselves require severance merely because codefendants seek to shift
responsibility to one another. (Id. at p. 41; People v. Souza (2012) 54 Cal.4th 90, 110.)
B. The standard of review.
We use the abuse of discretion standard to review the denial of a motion for
severance. This review is based on the facts as they appeared to the trial court when it
ruled. (People v. Avila (2006) 38 Cal.4th 491, 575; Coffman and Marlow, supra,
34 Cal.4th at p. 41.) Even if the trial court abuses its discretion in denying severance,
reversal is required only if it is shown to a reasonable probability the defendant would
have obtained a more favorable result in a separate trial. (Coffman and Marlow, at p. 41.)
A separate inquiry applies even when the denial of severance was proper when
made. In that circumstance, a judgment may nevertheless be reversed if the defendant
demonstrates that the joint trial as actually conducted resulted in gross unfairness
amounting to a denial of due process. (People v. Jackson (2016) 1 Cal.5th 269, 305;
People v. Montes, supra, 58 Cal.4th at p. 834.)
C. The trial court did not abuse its discretion.
This case fell squarely within section 1098’s preference for a joint trial. Appellant
and Roberts were prosecuted for their respective participation in the same attempted
robbery and resulting homicide. The charges arose from the same events, involved the
same victim, and depended substantially on the same evidence. That each defendant
sought to minimize his own responsibility or place greater responsibility on the other did
not itself require severance.
Appellant’s present claim focuses on a prior robbery conviction that Roberts
suffered in 2011. The trial court ruled that Roberts’s prior robbery conviction was
33.
inadmissible in this joint trial. According to appellant, had the defendants been tried
separately or before separate juries, Roberts’s prior robbery conviction would have been
admissible. Appellant argues that Roberts’s prior conviction would have strengthened his
defense by showing that Roberts was the “driving force” behind the decision to rob
Alcala, thereby diminishing the likelihood the jury would find appellant was a major
participant in the attempted robbery who acted with reckless indifference to human life.
Roberts’s 2011 robbery conviction occurred approximately 11 years before the
present homicide. In that prior robbery, Roberts yanked a chain from an elderly man,
resulting in a struggle. Roberts was unarmed during that prior incident.
The trial court considered the admissibility of Roberts’s prior conviction in
connection with the parties’ motions in limine. The court recognized that the prior
robbery “could be relevant” to intent under Evidence Code section 1101, subdivision (b),
but ultimately excluded it under Evidence Code section 352. In doing so, the court
considered substantially more recent social-media statements attributed to Roberts,
including statements that he wanted to “catch one more,” that his “trigger finga” was
“itching,” and that working part time for little money was difficult “when I can just take
it.” The court determined those statements posted on social media, made within weeks of
the charged offenses, were substantially more probative of Roberts’s intent or motive. In
light of that evidence, the court concluded that the considerably older robbery was less
probative and that its prejudicial effect outweighed its probative value.
When seeking separate trials or separate juries, appellant again raised the
possibility of introducing into evidence Roberts’s 2011 robbery conviction. The court
expressly considered whether separate proceedings would change its analysis regarding
the admissibility of that evidence and concluded it would not. The court emphasized that
the prior robbery was remote, it involved the taking of a chain necklace, and it did not
involve a weapon. The court further observed that appellant’s proposed use of Roberts’s
prior conviction appeared more akin to using it for propensity evidence rather than
34.
establishing a permissible noncharacter purpose under Evidence Code section 1101,
subdivision (b). The court denied separate trials or juries. We find no abuse of
discretion.
Although the least degree of similarity between an uncharged act and charged
offense is required when prior misconduct is offered to prove intent, the acts must still be
sufficiently similar to support an inference that the person probably harbored the same
intent on each occasion. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Here, when
considering the probative value of the prior conviction, the trial court could reasonably
consider the substantial passage of time and the factual differences between the unarmed
taking of a chain in 2011 and the attempted robbery charged in this matter. The court
could also consider the availability of substantially more recent evidence bearing on
Roberts’s intent.
Appellant’s arguments on appeal rest substantially on the premise that prejudice to
Roberts was the obstacle to admission of the 2011 conviction, and that separate
proceedings would have removed that obstacle. The record does not support that
premise. When denying the motion to have separate trials, the court expressly considered
whether separate proceedings would alter its prior analysis regarding the admissibility of
Roberts’s 2011 conviction. The court concluded that separate proceedings would not
alter its earlier ruling. In doing so, the court identified concerns independent of the joint
trial setting: the conviction’s remoteness, its factual dissimilarity, and the tendency
toward impermissible character reasoning.
We need not ultimately determine whether Roberts’s 2011 robbery conviction
would have been admissible in a separate trial. Instead, the legal question before us is
whether the court abused its discretion based on the known circumstances when it denied
severance. (People v. Avila, supra, 38 Cal.4th at p. 575; Coffman and Marlow, supra,
34 Cal.4th at p. 41.) We conclude that the trial court exercised its considerable discretion
in a reasonable manner. It considered the parties’ arguments, it reviewed the applicable
35.
evidence, and it reached a reasoned conclusion. We will not disturb the court’s ruling on
appeal.
Moreover, appellant was not deprived of evidence supporting his trial theory that
Roberts independently contemplated this robbery. The court permitted admission of
Roberts’s social media messages, which were substantially more recent statements
bearing directly on his intent and motive. Appellant therefore remained able to argue to
the jury from the admissible evidence that Roberts was the impetus for the charged
attempted robbery. In any event, evidence that Roberts conceived, initiated, or more
strongly desired the robbery would not negate appellant’s knowing participation in it.
Roberts could have been the “driving force” behind the decision to rob Alcala while
appellant nevertheless knowingly participated in the attempted robbery and satisfied the
requirements for felony-murder liability under section 189, subdivision (e)(3).
Considering the circumstances known when the court ruled, appellant did not
establish that separate trials or separate juries were necessary to protect his ability to
present his defense. The charges arose from the same criminal episode and depended
substantially on common evidence. The defendants’ efforts to shift responsibility to each
other did not require severance. The court reasonably rejected appellant’s premise that
separate proceedings would materially change the admissibility analysis concerning
Roberts’s remote prior robbery. The trial court therefore did not abuse its discretion.
D. The trial did not result in gross unfairness amounting to a denial of due
process.
Our conclusion that the trial court did not abuse its discretion when it ruled does
not end the inquiry. Even a severance ruling that was correct when made may require
reversal if the joint trial, as actually conducted, resulted in gross unfairness amounting to
a denial of due process. (People v. Jackson, supra, 1 Cal.5th at p. 305; Montes, supra, 58
Cal.4th at p. 834.)
36.
Appellant argues the joint trial prejudiced him because exclusion of Roberts’s
prior robbery conviction deprived him of further showing that Roberts was the “driving
force” behind the charged robbery. He characterizes the evidence of his own role in the
robbery as “underwhelming” and contends the prior conviction would have strengthened
his argument that Roberts independently conceived and drove the crime. Although
appellant acknowledges the jury learned about Roberts’s social-media statements bearing
on his intent to rob, he argues the jurors could have dismissed those statements as “mere
social media blustering.” In appellant’s view, the prior conviction would have
demonstrated that Roberts was willing to act on the sentiments expressed in those
statements.
Appellant’s arguments are unpersuasive. The joint trial as actually conducted did
not prevent appellant from presenting the substance of his defense. The jury heard about
Roberts’s substantially more recent statements bearing on his desire and motive to obtain
property through criminal means. Appellant therefore had evidence from which to argue
that Roberts independently contemplated robbery and was the impetus for the charged
offense. Indeed, during closing argument, appellant’s trial counsel argued that Roberts
was a felon with an “itchy trigger finger” who acted alone in shooting Alcala, and
appellant was not guilty. The exclusion of an approximately 11-year-old robbery
conviction did not foreclose that defense theory.
More fundamentally, the inference appellant sought to strengthen—that Roberts
was the “driving force” behind the robbery—did not exculpate appellant. Roberts’s
motivation and appellant’s culpable participation were not mutually exclusive. Even if
the jury concluded that Roberts conceived the robbery and was principally responsible for
setting it in motion, it still could find from the evidence concerning appellant’s own
conduct that appellant knowingly participated in the attempted robbery and satisfied the
requirements for felony-murder liability under section 189, subdivision (e)(3).
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The evidence admitted at trial permitted the jury to make that determination based
on appellant’s own conduct rather than his mere association with Roberts. The jury could
find that appellant knowingly participated in preparing for a contemplated robbery,
supplied his loaded handgun for its commission, accompanied Roberts toward Alcala
after Roberts announced his intention to rob him, and remained at the scene throughout
the attempted robbery and shooting. Evidence that Roberts committed a factually
different robbery approximately 11 years earlier neither contradicted that evidence nor
prevented appellant from challenging it. Accordingly, appellant has not demonstrated
that the joint trial as actually conducted compromised his ability to present his defense,
prevented the jury from reliably determining his culpability, or otherwise resulted in
gross unfairness amounting to a denial of due process.
E. Any assumed abuse of discretion was harmless.
Even assuming the trial court abused its discretion in denying appellant’s request
for separate trials or separate juries, reversal is not required unless a reasonable
probability exists that appellant would have obtained a more favorable result in a separate
trial. (Coffman and Marlow, supra, 34 Cal.4th at p. 41.) This standard is not met here.
Appellant argues he was prejudiced. He contends the evidence concerning his
participation in the attempted robbery was “underwhelming.” He maintains that the prior
robbery conviction would have provided stronger evidence than Roberts’s social-media
statements that Roberts was willing to commit robbery. Finally, he asserts that evidence
identifying Roberts as the “driving force” would have made the jury less likely to find
appellant culpable of attempted robbery and first degree murder. We are not persuaded.
Even assuming a separate proceeding would have resulted in admission of the
2011 conviction, it principally would have supplied additional evidence of Roberts’s
intent to commit robbery—a proposition already supported by substantially more recent
evidence. Stronger proof that Roberts intended, initiated, or drove the robbery would not
materially undermine the evidence of appellant’s own knowing participation. The prior
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conviction would not have established that appellant was unaware of, uninvolved in, or
opposed to the charged attempted robbery. Thus, even assuming an abuse of discretion
and further assuming the prior conviction would have been admitted in separate
proceedings, there is no reasonable probability appellant would have obtained a more
favorable result. Consequently, prejudice is not shown, and reversal is not warranted
even if the trial court abused its considerable discretion.
F. Conclusion.
The trial court did not abuse its discretion in denying appellant’s request for
separate trials or separate juries. Appellant has not demonstrated that the joint trial as
actually conducted resulted in gross unfairness amounting to a denial of due process.
Finally, even assuming an abuse of discretion occurred, there is no reasonable probability
appellant would have obtained a more favorable result had separate proceedings
occurred. For all these reasons, this claim fails.
III. Appellant Forfeited His Claim of Instructional Error Under CALCRIM
No. 370 and Any Assumed Error is Harmless.
During this trial, the jury heard evidence concerning appellant’s homelessness and
his apparent poverty. With CALCRIM No. 370, appellant’s jury was instructed that the
prosecution was not required to prove motive but that the jury could consider whether
appellant had a motive to commit the charged offenses.
Appellant does not challenge the admissibility of the evidence concerning his
apparent poverty. Rather, relying on People v. Koontz (2002) 27 Cal.4th 1041 (Koontz),
he argues that the instruction under CALCRIM No. 370 was incomplete and misleading
because it did not inform the jury that poverty generally may not be considered as
evidence of a motive to commit robbery or theft. Based on this alleged instructional
error, he maintains that both his murder and attempted robbery convictions must be
reversed.
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We reject appellant’s arguments. This claim is deemed forfeited. In any event,
any assumed instructional error is harmless and appellant fails to demonstrate ineffective
assistance of counsel.
A. This claim is forfeited.
A trial court must instruct on general principles of law closely and openly
connected with the evidence and necessary to the jury’s understanding of the case.
(People v. Diaz (2015) 60 Cal.4th 1176, 1189.) However, there is no sua sponte duty to
instruct on a pinpoint instruction, which relates particular evidence to a legal issue.
(People v. Hughes (2002) 27 Cal.4th 287, 361; People v. Lujano (2017) 15 Cal.App.5th
187, 191.) Likewise, a defendant may not complain that an instruction correct in law was
too general or incomplete without requesting appropriate clarifying or amplifying
language. (People v. Hudson (2006) 38 Cal.4th 1002, 1011–1012.)
Here, appellant acknowledges that a trial court ordinarily has no sua sponte duty to
give a pinpoint instruction. However, he maintains that the court had an independent
duty to correctly instruct the jury on how it could consider motive. He therefore argues
that his present claim was not forfeited even though he failed to object below or request a
clarifying instruction. In contrast, respondent contends appellant has forfeited this claim
by failing to request an instruction limiting the manner in which the jury could consider
his financial circumstances.
We agree with respondent and reject appellant’s position. CALCRIM No. 370
correctly stated the general law governing motive. Appellant’s proposed qualification
would not have corrected an erroneous statement of that law; it would have instructed the
jury that particular evidence—his financial circumstances—could not be used to infer a
motive to rob. Such a particularized instruction was not required sua sponte because it
was a pinpoint instruction.
Koontz does not assist appellant. Koontz states that evidence of poverty is
generally inadmissible to establish a motive to commit robbery or theft. (Koontz, supra,
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27 Cal.4th at p. 1076; see People v. Clark (2011) 52 Cal.4th 856, 929 [evidence of
defendant’s poverty is typically inadmissible to establish motive for robbery or theft].)
However, Koontz did not consider whether that limitation must be incorporated sua
sponte into an otherwise correct motive instruction. Cases are not authority for
propositions not considered. (People v. Baker (2021) 10 Cal.5th 1044, 1109.) Koontz
does not establish the sua sponte instructional duty appellant now asserts.
Appellant emphasizes that his claim concerns the permissible use of an evidentiary
fact rather than the admissibility of the evidence itself. That distinction, however, does
not create a sua sponte instructional duty. The additional instruction still would have
restricted the jury’s use of particular evidence rather than supplied a general principle
necessary to its understanding of the charged offenses. Nor does the fact that the
proposed qualification may have been legally correct and supported by substantial
evidence transform it into an instruction the court was required to give on its own motion.
Because CALCRIM No. 370 correctly stated the general law and appellant did not
request the additional instruction he now claims was necessary, the present claim of
instructional error is deemed forfeited on appeal. In any event, we also conclude that any
assumed instructional error is harmless.
B. Any assumed instructional error is harmless under any standard.
Appellant characterizes the evidence of his role in the felony murder as
“underwhelming.” He maintains that his poverty—and the motive it potentially
supplied—“tipped the balance in favor of the prosecution.” He notes that, during closing
arguments, the prosecutor described appellant as “broke.” Roberts’s counsel suggested to
the jurors that appellant approached Alcala because he was homeless and needed money.
Appellant’s counsel responded by emphasizing that appellant had a job9 and sometimes
stayed with his girlfriend or in a hotel, although he generally lived in the park. According
9 Despite living in the park, appellant worked at a local pizza restaurant.
41.
to appellant, even his counsel’s effort to counter the poverty inference increased the
prominence of his financial circumstances and the likelihood the jury considered them as
evidence of motive.
Appellant contends that the court’s failure to instruct the jury on how to view his
poverty violated his federal due process rights and therefore requires reversal under
Chapman v. California (1967) 386 U.S. 18 (Chapman). Alternatively, he maintains
reversal is required under the state law standard of People v. Watson (1956) 46 Cal.2d
818 (Watson).
We reject appellant’s various arguments, and we conclude that Watson controls.
Instructional error is typically assessed under the Watson standard. (People v. Flood
(1998) 18 Cal.4th 470, 490 (Flood); People v. Jandres (2014) 226 Cal.App.4th 340, 359.)
Pinpoint instructions relate particular facts to a legal issue in the case, and the failure to
give such an instruction is reviewed for prejudice under Watson. (People v. Larsen
(2012) 205 Cal.App.4th 810, 830; People v. Earp (1999) 20 Cal.4th 826, 887.) In
contrast, Chapman review applies to instructions that omit an element of the offense, or
that provide an incomplete or misleading description of what is necessary to establish an
element of the offense. (People v. Schuller (2023) 15 Cal.5th 237, 257.) In such a
situation, the defendant’s due process rights under the federal Constitution have been
impacted. (Jandres, at p. 359; see Larsen, at p. 829 [accord].)
Here, the alleged instructional error falls under Watson, and appellant’s due
process rights were not implicated. CALCRIM No. 370 correctly stated the general law
governing motive. Appellant does not identify any element of murder or attempted
robbery that was omitted or incorrectly described, nor did the instruction relieve the
prosecution of its burden to prove any element beyond a reasonable doubt. Rather,
appellant contends the court should have supplemented the otherwise correct motive
instruction by telling the jury that particular evidence—his poverty—could not be used to
infer a motive to rob. That was a particularized instruction concerning the permissible
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inference to be drawn from specific evidence. Its omission therefore did not implicate
appellant’s federal constitutional rights merely because appellant characterizes the
omission as a due process violation.
The parties dispute whether the trial evidence established appellant’s poverty. We
need not resolve that dispute. For purposes of assessing prejudice, we assume the
evidence permitted the jury to regard appellant as impoverished, that the closing
arguments highlighted his financial circumstances, and that the jury could have
considered those circumstances as evidence of a motive to rob Alcala. Even on those
assumptions, there is no reasonable probability of a more favorable result absent the
asserted error.
A poverty-based inference supplied, at most, a possible reason why appellant
might have participated in the attempted robbery; it did not establish whether he did so.
The prosecution’s evidence regarding appellant’s involvement did not depend on
appellant’s financial circumstances. As discussed in connection with appellant’s
sufficiency claim, the evidence permitted the jury to find that appellant supplied his
loaded handgun for use in a contemplated robbery, appellant accompanied Roberts
toward Alcala after Roberts announced his intention to rob him, and appellant remained
at the scene throughout the attempted robbery and shooting. That evidence supported a
finding of appellant’s knowing participation independent of any inference concerning his
financial motive.
For the same reason, appellant’s contention that the poverty inference “tipped the
balance in favor of the prosecution” is unpersuasive. Motive was not an element the
prosecution was required to prove, and appellant’s defense was not that he participated in
the robbery but lacked a financial motive. To the contrary, appellant’s defense was that
he did not meaningfully participate, and Roberts acted alone in shooting Alcala. The
proposed instruction would not have undermined the evidence from which the jury could
find that appellant knowingly participated in this attempted robbery and murder.
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Based on this record, there is no reasonable probability appellant would have
obtained a more favorable result had the jury received the proposed instruction. (Watson,
supra, 46 Cal.2d at p. 836.) Although Chapman does not govern, the result would be the
same under that more stringent standard: given the independent evidence of appellant’s
participation, we are satisfied beyond a reasonable doubt that the asserted instructional
omission did not contribute to the verdicts. (Chapman, supra, 386 U.S. at p. 24.)
Accordingly, prejudice is not established under either standard, and this claim fails.
C. Appellant fails to demonstrate ineffective assistance of counsel.
Appellant contends that, if the trial court had no sua sponte duty to give the
proposed clarifying instruction, then his trial counsel rendered ineffective assistance by
failing to request it. We disagree.
To prevail on this claim, appellant must establish both deficient performance and
resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland);
People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, we reject a claim of
ineffective assistance where the record does not disclose counsel’s reason for the
challenged omission and a satisfactory explanation exists. (Mai, at p. 1009.)
In this matter, appellant’s trial counsel argued that appellant did not participate in
the attempted robbery and Roberts acted alone. Based on our review of the record,
appellant’s trial counsel could have reasonably elected not to request an instruction
addressing whether appellant’s poverty supplied a motive to rob because doing so risked
focusing the jury on why appellant might have committed a crime the defense maintained
he did not commit. Instead, defense counsel addressed appellant’s financial
circumstances factually, emphasizing that appellant worked and sometimes stayed with
his girlfriend or at a hotel. Thus, based on the defense actually presented to the jury, a
rational tactical explanation exists for defense counsel’s alleged failure to request the
proposed instruction. Consequently, appellant has not established deficient performance,
and his claim of ineffective assistance fails.
44.
This ineffective assistance claim also fails for lack of prejudice. For the reasons
discussed above, appellant cannot demonstrate a reasonable probability that the result
would have been different had his counsel requested and obtained the proposed
instruction. Accordingly, appellant has failed to meet his burden in establishing the
required showings for ineffective assistance of counsel, and this claim fails. (Strickland,
supra, 466 U.S. at p. 687.)
Based on this record, appellant’s present instructional claim lacks merit. He failed
to preserve this issue by raising it below, resulting in its forfeiture. Furthermore, any
presumed instructional error is harmless under any standard. Finally, he fails to establish
ineffective assistance of counsel. Consequently, we reject his assertion that his
convictions must be reversed.
IV. Any Presumed Instructional Error with CALCRIM No. 319 Is Harmless.
Appellant did not testify at trial. However, before he was indicted by the grand
jury, he testified at Roberts’s preliminary hearing. During that hearing, he admitted for
the first time that he had a firearm registered in his name, but he claimed he had left his
gun with a friend for safekeeping prior to this shooting incident. A video recording of
appellant’s preliminary hearing testimony was played in this trial and admitted into
evidence.
With CALCRIM No. 319, the trial court instructed the jury that appellant had not
testified in the trial, but his prior testimony had been played in court, and the jurors had
heard evidence that appellant “made other inconsistent statements prior to that
testimony.” The jurors were instructed that, if they concluded appellant made those other
statements, then they could consider them only in deciding whether to believe appellant’s
testimony. The jurors were instructed that they could not consider appellant’s other
statements for their truth.
In the present claim, appellant contends the trial court erred when it instructed the
jury with CALCRIM No. 319. He argues that the jury should have been allowed to
45.
consider for its truth his out-of-court statements that were inconsistent with his
preliminary hearing testimony.
The prior statements that appellant puts at issue in this claim are his comments
made to the journalist and detectives after his preliminary hearing testimony.
Specifically, after he testified at the preliminary hearing, appellant told these individuals
in separate interviews that he had discovered his firearm missing from his backpack after
the shooting, and he suspected Roberts had taken it from him. Appellant claimed he had
left his backpack with Roberts while he used a restroom.
Appellant argues it was imperative for the jurors to accept the truth of his prior
statements, which constituted the core of his defense. He maintains that the instruction
under CALCRIM No. 319 effectively told the jurors to disregard his prior statements for
their truth. He contends that CALCRIM No. 319 was prejudicial, and his convictions for
attempted robbery and murder must be reversed.
Before addressing appellant’s specific arguments, some context concerning
CALCRIM No. 319 is helpful. This instruction governs a unique situation where an
unavailable witness’s prior testimony is admitted at trial. As explained in CALCRIM
No. 319, any prior inconsistent statements from that witness may be used for
impeachment to evaluate the credibility of the witness’s former testimony, but the prior
inconsistent statements themselves may not be considered for their truth. In People v.
Thomas (2023) 14 Cal.5th 327 (Thomas), the Supreme Court upheld this limitation. In
Thomas, an unavailable witness’s inconsistent out-of-court statements constituted hearsay
and were admissible under Evidence Code section 1202 to impeach the witness’s former
testimony. However, the unavailable witness’s prior hearsay statements could not be
considered for their truth, which CALCRIM No. 319 correctly instructed. (Thomas, at
pp. 394–395.)
Here, the circumstances are different. Appellant did not testify at trial, but his
preliminary hearing testimony was played for the jury. The prosecution also introduced
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into evidence appellant’s prior statements made to the detectives and the journalist.
Unlike the situation in Thomas, appellant’s out-of-court statements were admissible
against him for their truth as a party admission. (Evid. Code, § 1220.) Thus, the hearsay
concern underlying CALCRIM No. 319’s limitation was not present here. Therefore, we
acknowledge that CALCRIM No. 319 may not have been an appropriate instruction
under these circumstances. However, we need not definitively decide whether giving this
instruction constituted error because any presumed error is harmless.
A. We decline to deem this claim forfeited.
Respondent contends that appellant has forfeited his challenge to CALCRIM
No. 319 by failing to object to this instruction below or requesting that it be modified.
Appellant concedes that his trial counsel failed to object or request modification.
Nevertheless, appellant relies on section 1259, arguing his substantial rights were
impacted from this allegedly improper instruction.
In Thomas, our high court relied on section 1259 to review the merits of a claim
involving CALCRIM No. 319, even though no objection was made in the trial court.
(Thomas, supra, 14 Cal.5th at p. 392.) We follow the same approach here and assume
appellant’s claim is cognizable.10 However, as we explain below, this claim fails on its
merits due to a lack of prejudice.
B. Any presumed error is harmless.
Appellant contends that Chapman must apply because this alleged instructional
error impacted his federal due process rights. In the alternative, he asserts that reversal is
required even under the state standard of Watson.
We disagree that Chapman applies here. Instructional errors are typically assessed
for prejudice under the Watson standard. (Flood, supra, 18 Cal.4th at p. 490; People v.
Jandres, supra, 226 Cal.App.4th at p. 359; People v. Larsen, supra, 205 Cal.App.4th at
10 Because we decline to find forfeiture, we do not address appellant’s alternative
claim of ineffective assistance of counsel.
47.
p. 830.) Chapman review applies to instructions that omit an element of the offense, or
that provide an incomplete or misleading description of what is necessary to establish an
element of the offense. (People v. Schuller, supra, 15 Cal.5th at p. 257.) The alleged
error here did not relieve the prosecution of the burden of proving beyond a reasonable
doubt each element of the charged offense. As such, appellant’s due process rights under
the federal Constitution were not violated.
Even though Watson is the correct standard of review, this record amply
demonstrates that appellant did not suffer harm under either standard. Viewed as a
whole, the instructions given to the jury dispel any concern that the jurors may have
understood they were prohibited from considering the potential truth of appellant’s
statements to the journalist and the detectives.
With CALCRIM No. 318, the jury was instructed that it had heard evidence of
statements made by a witness before trial. The jury was told that, if it found the witness
made those statements, it could use them both to evaluate the witness’s testimony and “as
evidence that the information in those earlier statements is true.”
With CALCRIM No. 358, the jurors were told that they had “heard evidence that a
defendant made oral or written statements before trial” and, if they found the defendant
made such a statement, to “consider the statements along with all the other evidence in
reaching your verdict.” The instruction further left it to the jurors to determine “how
much importance to give to the statement.” Thus, while CALCRIM No. 319 arguably
imposed an inappropriate limitation on one category of appellant’s statements, the other
instructions affirmatively directed the jury to consider his pretrial statements for their
truth.
The language of CALCRIM No. 319 itself further reduces any possibility of
prejudice. As given, the instruction referred specifically to evidence that appellant made
“other inconsistent statements prior to” his preliminary hearing testimony played for the
jury. (Italics added.) The statements appellant contends were essential to his defense—
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his later statements to investigators and the journalist that the firearm had been in his
backpack and Roberts must have removed it without his knowledge—were made after his
testimony at the preliminary hearing. On its face, therefore, CALCRIM No. 319 did not
prohibit the jurors from finding those statements true.
Appellant argues that this chronological distinction places too fine a point on the
instruction and that jurors would not have parsed its language so carefully. We are
unpersuaded. We presume the jurors were capable of understanding and following this
instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Nothing reasonably rebuts
this presumption.
More importantly, we do not rely on the chronological distinction alone. It is
significant when considered together with CALCRIM Nos. 318 and 358, which expressly
authorized substantive consideration of appellant’s statements. Nothing in this record
reasonably suggests the jurors may have believed they could not give those statements
any substantive weight.
The manner in which the case was argued further demonstrates the absence of
prejudice. Appellant’s counsel relied on the substance of appellant’s prior statements in
presenting the defense. Counsel admitted that appellant lied about having a gun.
However, counsel asserted that appellant had a lot of things in his backpack, so he would
not notice if his gun was missing. Counsel noted that Roberts could have used his own
gun to shoot Alcala and later stole appellant’s firearm while appellant was asleep. These
arguments supported counsel’s broader position that Roberts acted alone in the attempted
robbery and killing.
The prosecutor never argued to the jurors that they were prohibited from
considering the truth of appellant’s statements to the detectives and the journalist.
According to the prosecutor, appellant lied about his gun because he supplied it to use in
an attempted robbery and he was involved. We do not suggest the prosecutor’s argument
somehow modified or cured CALCRIM No. 319. The significance is narrower: nothing
49.
in the arguments directed the jury to apply CALCRIM No. 319 in the manner appellant
now hypothesizes. Instead, the parties presented appellant’s account to the jury as a
factual proposition whose credibility the jury was required to assess.
This record does not support appellant’s contention that CALCRIM No. 319
deprived him of his defense. The jury heard about appellant’s prior statements wherein
he claimed he never knew his gun was missing until the day after this fatal shooting, and
he expressed his belief that Roberts must have stolen his gun from his backpack.
CALCRIM Nos. 318 and 358 permitted the jurors to conclude that these statements were
true. CALCRIM No. 319 itself expressly prohibited the jurors from considering the truth
of appellant’s statements made before he testified in court, whereas the statements critical
to his backpack theory came afterward. Defense counsel affirmatively relied on the later
statements as true and presented that theory to the jury. The prosecutor used appellant’s
inconsistent statements as evidence against him that he was a major participant in these
crimes. The jury thus had appellant’s defense squarely before it.
Finally, as discussed in connection with appellant’s sufficiency claim, the
prosecution presented substantial evidence from which the jury could find that appellant
knowingly participated in the attempted robbery. That evidence provided a basis for the
verdict independent of any possible misunderstanding concerning the permissible use of
appellant’s statements to the detectives and the journalist.
Considering the instructions as a whole, the express language of CALCRIM
No. 319, the manner in which appellant’s defense was actually presented and argued, and
the evidence supporting the verdicts, there is no reasonable probability appellant would
have obtained a more favorable result absent the presumed instructional error. (Watson,
supra, 46 Cal.2d at p. 836.) Moreover, even if appellant were correct that Chapman
applies, we are satisfied beyond a reasonable doubt that the alleged instructional error did
not contribute to the verdicts. (Chapman, supra, 386 U.S. at p. 24.) Thus, under either
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standard, any assumed error in giving CALCRIM No. 319 was harmless, and this claim
fails.
DISPOSITION
The judgment is affirmed.
LEVY, Acting P. J.
WE CONCUR:
MEEHAN, J.
GUERRA, J.
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