Filed 7/17/26 P. v. Contreras CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084485
Plaintiff and Respondent, (Super. Ct. No. SCD205434)
v.
SERGIO CONTRERAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Melinda J. Lasater, Judge. Special circumstance findings vacated in part;
judgment otherwise affirmed.
Robert E. Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Seth M.
Friedman and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff
and Respondent.
One night during Labor Day weekend in 2000, Sergio Contreras gave
Michael Plummer $30 worth of meth. When Plummer refused to pay,
Contreras fired more than a dozen rounds into Plummer’s apartment, killing
Plummer, his 18-year-old friend, and his one-year-old nephew.
After the shooting, law enforcement immediately suspected Contreras
based on the drug deal gone bad. But at that time, there were no witnesses
to confirm that he was the shooter, and no physical evidence tying him to the
scene. The case went cold until the partner of Contreras’s coparticipant,
Victor Calderon, reported them to law enforcement. This reactivated the
investigation, and murder charges were filed against Contreras soon after
that. But then came another wrinkle: Contreras was serving a lengthy
prison sentence in Mexico under a different name. Local law enforcement
successfully sought Contreras’s extradition, but the process took years, and
Calderon died in the meantime. Trial ultimately began in March 2024.
On appeal, Contreras challenges the nearly 23-year delay between the
shooting and his prosecution. He maintains that Calderon’s death prejudiced
his defense. We conclude the trial court fairly rejected his motion to dismiss
the case based on pre- and post-charging delay, as the record supports its
findings that the reasons for the delay outweighed the asserted prejudice.
Indeed, Calderon consistently identified Contreras as the shooter.
Contreras also contends the trial court erred in making two evidentiary
rulings, in answering a question the jury sent out during deliberations, and
in permitting duplicative multiple-murder special circumstance findings. For
reasons we explain, we agree that two of the special circumstance findings
must be vacated, but otherwise reject his claims and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
In September 2000, Julio Rangel, Sr., his partner Michelle Rayo, their
seven-year-old daughter Michelle (“Mimi”), and their one-year-old son Julio
2
Rangel, Jr. (“Julito”) had been living in a one-bedroom apartment on Bancroft
Street in Normal Heights for about three months. Plummer, Rayo’s older
brother, had been staying with them for about a month as well.
Vanessa Madrid lived in the apartment next door with her mother
figure, Donna Dement. At the time of the shooting, Dement’s niece Charlene
Horsley and Horsley’s boyfriend Brian Haslip were also staying there.
Madrid had recently started dating Contreras. Rangel and Rayo had noticed
Contreras spending time with Madrid.
On Labor Day that year, the Rangel-Rayo family spent the day grilling
and watching football. Plummer’s friend, 18-year-old Adah Pearson, came
over to join the festivities. Plummer was “messing around” with an
inoperative BB gun that looked like “a black automatic” that day. He carried
it around in his waistband, beneath his shirt. Meanwhile, Madrid and
Contreras were spending the day together.
Around 8:00 or 9:00 p.m., Plummer got about $20 or $30 worth of meth
from Contreras but did not pay. Rayo was worried because she did not know
what Contreras was “capable of doing.” She urged Plummer to pay Contreras
and offered to give him some money, but he refused.
Contreras was mad and felt disrespected. He asked Madrid to knock
on her neighbors’ door and collect the money. When she did so, Plummer
indicated he would not pay—saying something to the effect of “kiss my ass”—
and shut the door. This made Contreras “very mad.” Madrid and Contreras
parted ways soon after that.
By 11:00 p.m., the children were asleep in the bedroom, Pearson was
asleep on the couch in the living room, and Rangel, Rayo, and Plummer were
in or near the kitchen. Suddenly, the front door opened. Plummer rushed to
the door, Rangel heard “a little bit of confrontation like pushing and
3
grunting,” and then several shots were fired. Rangel and Rayo dropped to
the floor. When the shooting stopped, they saw Plummer dead on the ground
near the doorway. He was shot 12 times in the front and back of his body,
and in his head. The BB gun was lying on the ground beside him, between
his arm and his waist. Pearson had been shot in her chest, but she was still
breathing and groaning. Rayo rushed to the bedroom and saw that Julito
had been shot in the back of his head, but he remained conscious. Rangel
called 911. Pearson and Julito were taken to the hospital, where they soon
succumbed to their injuries.
B. Initial Investigation
Neither Rangel nor Rayo saw the shooter. Rayo only saw the long
barrel of a gun coming through the door. But they immediately suspected
Contreras based on the earlier dispute about the drugs. In his 911 call,
Rangel described the shooter as a “20 something” “Hispanic” or “Mexican”
wearing a white shirt and blue pants. He shouted that the people next door
knew who did this.
When the police arrived, there was “some chatter” in “the crowd” that
Madrid might know the shooter. An officer located Madrid and she told him
about Contreras and asking the neighbor for money. She told police that
Contreras was wearing a plain blue shirt, a black sweater, baggy jeans, and
white tennis shoes.
Madrid’s roommates at the time, Horsley and Haslip, were visiting a
friend in an upstairs unit of the same apartment complex at the time of the
shooting. Haslip heard the gunshots, looked outside, and saw one person
running away. He saw a “flash of white” that could have been a shirt.
Horsley heard four or five gunshots and then saw “two males running in their
courtyard.” According to her description, one was a Black or Hispanic male
4
with a white bandana or nylon cap and the second was a Hispanic male
wearing a blue shirt and carrying “some type of 2x4 or stick.”
Two women who shared an apartment across the street also heard the
shooting. When the shooting stopped, one of the women looked outside and
saw somebody get into a van and drive down the alley behind the Bancroft
Street apartments. Her roommate heard two vehicles speeding away.
Earlier that night, she had noticed an unfamiliar maroon van parked nearby.
There was a “tan” man wearing a “nice” shirt talking loudly on the phone
inside the van.
Police found blood drops leading from the apartment complex to the
adjacent alley. There were two .22 caliber casings found inside the
apartment—on a windowsill next to the front door and on the ground near
the kitchen—and 14 found outside. There were bullet holes in the front door,
the couch, the wall dividing the living room and bedroom, and the bedroom
wall. The shots appeared to come from outside the front door and were all
fired from the same weapon, likely a Marlin rifle.
Based on the witness interviews, the police immediately focused on
Contreras. A composite drawing of him was broadcast on the news. But the
police were unable to find him until August 2003, when they learned that he
was in federal immigration custody in El Centro, California. In an interview
with local police, Contreras denied knowing Madrid, Plummer, or Calderon
and denied having any issues related to drugs. He claimed to be in Mexico at
the time of the shooting. The police obtained a DNA sample from Contreras
and had it compared to the blood trail left at the crime scene. He was not a
match.
Contreras remained the prime suspect, and the police suspected he had
an accomplice. But without a witness identifying Contreras as the shooter or
5
physical evidence placing him at the scene, Detective Stephen McDonald
decided to inactivate the case in June 2004.
C. A Break in The Case
The case remained inactive until February 2005, when a district
attorney (DA) investigator from Talladega, Alabama, Mike McBurnett,
contacted Detective McDonald. In Talladega, a man named Victor Calderon
had been recently convicted of vehicular homicide. In connection with that
case, McBurnett contacted Calderon’s partner, Diana Gonzalez. In addition
to discussing the Talladega case, Gonzalez told McBurnett that Calderon was
involved in a shooting in San Diego. The shooting had always haunted her,
but she did not feel safe telling the police about it until Calderon, who abused
her, was in prison. The following month, McDonald traveled to Talladega to
interview Gonzalez and Calderon.
According to Gonzalez, she and Calderon lived in San Diego in 2000. In
the months preceding the shooting, Contreras—whom she identified in a
photographic lineup—visited their home multiple times, and at some point,
she saw Calderon and Contreras in the backyard cutting a shotgun down. On
the evening of the shooting, Contreras came by the house looking for
Calderon, but he was not home. Contreras asked Gonzalez to have Calderon
call him, stating it was “an emergency.” When Calderon returned less than
an hour later, Gonzalez relayed the message, and Calderon left again.
Later that night, she woke up to the sounds of sirens and helicopters.
She looked outside and saw Calderon running down the street with his
shirt—a blue Hawaiian shirt—wrapped around his arm, which was bleeding
profusely. He came inside and walked through the house straight to the
backyard. Peering out a back window, Gonzalez saw Contreras and an older,
bald, “heavyset” man join Calderon in the yard. Calderon burned his shirt on
6
the grill and the older man took a gun from Calderon or Contreras and then
left. Gonzalez heard Calderon call Contreras a “dumbass” and blame him for
the wound in his arm. Contreras replied that “[h]e didn’t mean to” but
Calderon “got in the way.”
Gonzalez then turned on the news and learned there had been a
shooting. When Calderon and Contreras came inside, Gonzalez asked
Calderon whether they had something to do with the shooting. Initially, the
men did not respond. Gonzalez asked again, and Calderon explained that he
had given Contreras some drugs to sell, but the “guy” did not pay. They went
to the guy’s home, and when he opened the door, Calderon stabbed him with
an ice pick while Conteras started shooting.1 At some point during this
conversation, Contreras left the house.
Contreras returned the next morning with his mother. Calderon
repeated the story for the mother, stating they went to collect some money.
The guy refused to pay and began closing the door. Calderon pushed the door
open and started stabbing the guy while Contreras started shooting.
Contreras, again, did not say anything. Days later, Calderon and Gonzalez
moved to Alabama.
Calderon offered a much different version of events. Calderon told
McDonald, “Right at the door, he started shooting at the people. I tried to
take the rifle and he stepped back and shot me. When he shot me in the
hand, I ran.” Calderon also stated that Contreras “went over there trying to
get money” and he urged Contreras to “forget about the money.” When
1 At trial, the medical examiner opined that likely one but potentially up
to three of Plummer’s nonfatal wounds could have been inflicted by an ice
pick.
7
shown a photo lineup, Calderon identified Contreras as the shooter.
McDonald saw a through-and-through scar on Calderon’s right forearm.
Later that same month, March 2005, the blood trail was matched to
Calderon.
DA investigators interviewed Calderon again in October 2006. In this
interview, Calderon provided slightly more and different details to his
account. Calderon stated that he arrived at the apartment complex and
waited for Contreras in his van. After several minutes, he went to see what
was taking Contreras so long. He approached the apartment and saw
Contreras arguing with a man about money. Contreras was holding a sawed-
off rifle down by his leg. Suddenly, he raised the rifle and began shooting.
Calderon tried to take the rifle away from Contreras, but Contreras shot him
in the arm. Calderon then ran away.
D. The Charges
The prosecution filed a felony complaint against Contreras in March
2007. He was charged with three counts of first degree murder (Pen. Code,2
§ 187, subd. (a)) and, as to each count, it was alleged that he personally and
intentionally discharged a firearm causing great bodily injury and death (§
12022.53, subd. (d)). The multiple-murder special circumstance (§ 190.2,
subd. (a)(3)) was alleged as to all three counts as well.3 A warrant for
Contreras’s arrest was issued in April 2007.
2 Further undesignated statutory references are to the Penal Code.
3 The prosecution originally alleged the lying-in-wait special
circumstance (§ 190.2, subd. (a)(15)) too but this allegation was removed from
the information before trial.
8
E. The Extradition
In October 2007, law enforcement tried to locate Contreras by name in
Mexico, with no success. In April 2010, they asked Mexican authorities to
search for him by his fingerprints. This search revealed that since 2009 he
had been in custody in Mexico for robbery and homicide under a different
name. The following month, in May 2010, local DA investigators met with
the prosecutor in the Mexican case and learned that Contreras was serving a
22-year prison sentence. The DA’s office proceeded to prepare an extradition
request, which was submitted to Mexico in March 2012.
In 2015, while the extradition request was pending, Calderon died.4
Contreras’s prison sentence was cut short when an appellate court
overturned his conviction in Mexico. He was extradited and placed in local
custody on March 22, 2023, and arraigned on the complaint two days later.
Trial began one year later.
F. The Trial
At trial, an additional witness identified Contreras as the shooter.
Madrid’s mother figure Dement testified that she heard Contreras and
Plummer arguing about a drug deal. She looked outside and saw Contreras
with a gun—a small handgun, as she recalled. She hid behind her couch and
heard several shots fired. Dement, however, did not tell any of this to the
police when she was interviewed at the time of the shooting. She claimed she
was afraid of being harmed and did not want to get involved. She moved out
of her apartment soon after the shooting.
4 Before trial, the parties initially stipulated that Calderon died on
September 15, 2006. For the rest of trial and on appeal, however, the parties
agreed that he died in 2015.
9
A jury found Contreras guilty as charged and found true all allegations.
The trial court sentenced him to three consecutive terms of life without the
possibility of parole (LWOP), plus three consecutive terms of 25 years to life
for the firearm enhancements.
DISCUSSION
A. Motion to Dismiss Based on Delayed Prosecution
Contreras contends the trial court abused its discretion by denying
his motion to dismiss the case based on delayed prosecution, violating his
rights to a fair trial and to due process of law under the state and federal
Constitutions as well as his state constitutional right to a speedy trial. We
conclude the record supports the trial court’s determination that any
prejudice to Contreras was greatly outweighed by the legitimate reasons for
the delay.
1. Additional Background
Before jury selection began, Contreras moved to dismiss the case based
on pre- and post-charging delay. In articulating the prejudice he suffered
from the delay, he emphasized Calderon’s death. Had Calderon been alive for
his trial, Contreras posited, the defense could have elicited testimony about
“a third person involved, named Tito or Felipe who looked like Mr. Contreras
and who according to Mr. Calderon was in the mix, was involved, was riding
with them and who . . . came back with the gun and hid the gun.” Defense
counsel suggested that this third person “was maybe at the door instead of
[Contreras]” or was “maybe the getaway driver.” The prosecutor, in response,
maintained that Calderon would have supported the prosecution more than
the defense, since he would have testified that Contreras was the shooter.
As to the pre-charging delay, Contreras argued that law enforcement
had sufficient evidence to arrest and charge him with the murders when they
10
located him in El Centro in August 2003, and their failure to do so was
unjustified. Even assuming law enforcement did not have enough evidence
until Calderon and Gonzalez came forward in March 2005, there was no
explanation as to why he was not charged until March 2007. In response, the
prosecutor asserted that the pre-charging delay was due to the ongoing
investigation. While the police suspected Contreras early on, they did not
have physical evidence placing him at the scene nor any witnesses identifying
him as the shooter until Gonzalez and Calderon gave their statements and
the blood trail was matched to Calderon. Gonzalez and Calderon were re-
interviewed in October 2006, and charges were filed against Contreras in
March 2007. The prosecutor explained that this process took two years
because “this is a serious case” involving multiple murders, and law
enforcement was, of course, working on several cases at the same time.
Turning to the post-charging delay, Contreras contended that law
enforcement should have tried searching for him by his fingerprints much
sooner. Moreover, in his view, there was no justification for why it took two
years to prepare the extradition request, and there was no indication that
law enforcement “follow[ed] up” on the request to urge Mexico to permit
Contreras to stand trial in the United States before his prison sentence was
completed in Mexico—a so-called temporary surrender. At the same time,
defense counsel conceded that the extradition request was a “big packet” and
there was nothing the United States could do to “force” Mexico to release
Contreras.
In response, the prosecutor pointed out that searching for Contreras by
his fingerprints would have been futile until he entered Mexican custody in
2009. Regarding the extradition request, the prosecutor explained that
preparing the request involves an iterative process between the DA’s office
11
and the United States Department of Justice, Office of International Affairs
(OIA). Once these agencies agree on the contents of the request, a judge and
the DA must approve it, and then the OIA transmits it to Mexico. It is a
lengthy, formal process that simply takes time. And although temporary
surrender is rarely requested, the OIA considered it in this case. The OIA
ultimately decided against pursuing temporary surrender “due to ongoing
legal and policy deliberations.” In any event, the prosecutor maintained it
was speculative to think that Mexico would have agreed to temporary
surrender had it been requested, particularly given the seriousness of
Contreras’s convictions there.
The trial court denied the pretrial motion to dismiss. It saw no
prejudice to the defense—it was “so speculative” to think that Calderon would
have testified at trial, since he had a Fifth Amendment right against self-
incrimination. At the same time, the court found that law enforcement acted
reasonably under the circumstances. After the shooting, the police searched
for Contreras for years until locating him in immigration custody in August
2003. The court believed “it would have been irresponsible, frankly” to
charge Contreras at that point given the state of the evidence. Once
Calderon named Contreras as the shooter, and the blood trail was matched to
Calderon, law enforcement was “able to pull together a case.” The court could
not fault the prosecution for the delay in locating Contreras after the
complaint was filed, since he was using a different name. And when law
enforcement did find Contreras, the subsequent delay was attributable to the
fact that he was serving a lengthy sentence in Mexico. The court did not
believe the prosecution needed to seek temporary surrender or otherwise
“check in” with Mexico.
12
After trial, Contreras renewed his motion to dismiss. He maintained
that he was denied a fair trial because he was unable to cross-examine
Calderon “to show the depth of his lies and the deficiencies in his credibility”
and explore whether a third person was the shooter. The court denied the
motion, noting that it had paid attention to whether actual prejudice to the
defense developed during trial, and it detected none. The court did not
believe the trial would have been much different had Calderon been
available. It otherwise remained convinced that law enforcement acted
reasonably.
2. The Balancing Test
“The due process clauses of the Fifth and Fourteenth Amendments to
the United States Constitution and article I, section 15 of the California
Constitution protect a defendant from the prejudicial effects of lengthy,
unjustified delay between the commission of a crime and the defendant’s
arrest and charging.” (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan).)
Since the law under the California Constitution “is at least as favorable for”
defendants as the law under the United States Constitution in this context,
our courts apply California law in assessing such claims. (People v. Nelson
(2008) 43 Cal.4th 1242, 1251 (Nelson).) Under California law, “ ‘ “[a]
defendant seeking to dismiss a charge on this ground must demonstrate
prejudice arising from the delay. The prosecution may offer justification for
the delay, and the court considering a motion to dismiss balances the harm to
the defendant against the justification for the delay.” ’ ” (Cowan, at p. 430.)
Article I, section 15 of our state Constitution also guarantees a
defendant’s right to a speedy trial in criminal cases. This right is triggered
by the filing of a felony complaint. (People v. Martinez (2000) 22 Cal.4th 750,
765.) As in the pre-charging context, a defendant asserting a speedy trial
13
violation based on delay occurring between the filing of the complaint and
being held to answer must affirmatively demonstrate that the delay
prejudiced his ability to defend against the charges. (Id. at p. 766.) The court
must then weigh the prejudicial effect of the delay against the asserted
justification for the delay. (Id. at pp. 766–767; see also id. at pp. 767–768
[recognizing that the same test is used to analyze claimed due process
violations based on pre-charging delay and speedy trial violations based on
post-charging delay under the state Constitution].)
Prejudice from delay may take the form of lost material witnesses,
faded memories, or lost evidence. (Cowan, supra, 50 Cal.4th at p. 430.) The
level of prejudice required to establish a constitutional violation depends on
the justification for the delay. Since “ ‘[p]urposeful delay to gain advantage is
totally unjustified,’ ” a weaker showing of prejudice may “ ‘suffice to tip the
scales’ ” toward a violation. (Id. at p. 431.) If the delay was merely negligent,
a greater showing of prejudice is required. (Ibid.) “The justification for the
delay is strong when there is ‘investigative delay, nothing else.’ ” (Ibid.)
We review the trial court’s ruling on a motion to dismiss based on
prejudicial delay for abuse of discretion, deferring to its factual findings if
supported by substantial evidence. (Cowan, supra, 50 Cal.4th at p. 431.)
3. Any Prejudice Is Outweighed by The Reasons for Delay
Here, the trial court reasonably assigned relatively little weight to the
prejudice Contreras suffered. In the trial court and on appeal, Contreras has
emphasized the intervening death of Calderon. Even assuming Calderon
would not have invoked his Fifth Amendment right against self-incrimination
at trial, the record indicates that his testimony would have strengthened the
prosecution case more than the defense. Based on his statement to DA
investigators in 2006, Calderon would have confirmed that Contreras shot
14
Plummer in the head at close range, Plummer did not have a gun, and
Contreras proceeded to fire more than a dozen rounds into the apartment.
The notion that Calderon would have supported the defense theory that
a third person was the shooter is both a stretch and speculative at best.
Contreras relies on portions of Calderon’s statements to law enforcement that
were excluded from the evidence at trial. (See Section B, post.) In particular,
Calderon told Detective McDonald that he and “Tito” agreed to follow
Contreras to the apartment complex in Tito’s white car so that Contreras
would have a ride back. When they arrived, Calderon saw Contreras
approach the apartment with a rifle. Calderon and Tito followed him to the
doorway, where they both tried taking the rifle away. Calderon later told DA
investigators that he and Tito followed Contreras to the complex in
Calderon’s burgundy van. When they arrived, they waited in the van for a
while, and then Calderon went to see what was taking so long. He saw
Contreras and Plummer arguing about money in the doorway, then
Contreras started shooting. Calderon again claimed that he tried taking the
rifle to stop Contreras. This time, however, Calderon stated that Tito
remained in the van.
Thus, although Calderon could have placed Tito at the scene, there was
no basis to think he would have ever testified that Tito was the shooter.
Across multiple interviews with law enforcement, he consistently stated that
Contreras was the shooter and specifically denied that Tito was the shooter.
Contreras also suggests that the defense was harmed because
Calderon’s statements were presented to the jury at trial via Gonzalez, yet
the defense was unable to discredit Calderon since he was not available for
cross-examination. The degree to which the defense might have further
discredited Calderon, however, appears marginal. The defense was able to
15
present the heart of the story that Calderon gave to law enforcement—that
when Contreras started shooting, he tried taking the rifle, was shot himself,
and then ran away—through the testimony of the detective and investigator
who interviewed him. This account differed significantly from the version of
events Calderon provided to Gonzalez and Contreras’s mother, as related by
Gonzalez at trial—he and Contreras were selling drugs together, and he
stabbed Plummer with an ice pick while Contreras was shooting.
Accordingly, the jury could see that Calderon was not always truthful, at
least not as to his own involvement in the shooting.
To be sure, Calderon gave law enforcement inconsistent statements on
some other details not presented to the jury, such as the vehicle he and Tito
drove to the apartments, whether Tito came to the door or remained in the
van, and whether he saw Contreras again after the shooting. And he was
reluctant to share other information—most notably the extent of his prior
relationship with Contreras. But any benefit the defense would have
achieved by teasing out these additional inconsistencies would have been
greatly overshadowed by Calderon’s direct testimony that Contreras was the
shooter, the critical point on which he was steadfast.
By contrast, the record amply supports the trial court’s finding that the
reasons for the delay were relatively strong. The prosecutor affirmed that his
office did not believe there was proof beyond a reasonable doubt that
Contreras was responsible for the shooting until Gonzalez and Calderon came
forward and law enforcement identified the blood trail in March 2005. This
makes sense. Up until that point, the prosecution could reasonably show
that Contreras had a motive—the drug deal gone bad—and might have been
wearing a shirt the same color as the shooter or accomplice. But there was no
evidence connecting him to the murder weapon, the blood trail, or the
16
getaway car, and there were no witnesses at that time who would testify they
saw Contreras fire a gun. It was not until Gonzalez and Calderon gave their
statements that the prosecution had evidence showing Contreras was the
shooter and explaining who left the blood trail, how the burgundy minivan
was involved, and what happened to the gun. We generally “should not
second-guess the prosecution’s decision regarding whether sufficient evidence
exists to warrant bringing charges” (Nelson, supra, 43 Cal.4th at p. 1256),
and we have no basis to do so here.
The record indicates that after Gonzalez and Calderon came forward in
March 2005, law enforcement continued to investigate, as shown by the fact
that DA investigators traveled to Alabama to more extensively interview
Calderon across two dates in October 2006. Charges were filed soon after
that, in March 2007. Perhaps in a perfect world law enforcement could have
finished investigating the case and filed charges more quickly after the break
in the case. But as the prosecutor represented below, “this is a serious case”
involving multiple murders and “these cases don’t happen in a vacuum. The
detectives have other cases; the district attorneys have other cases.” Two
years does not strike us as a clearly unreasonable amount of time to prepare
a special circumstance murder case for prosecution after a period of
inactivity. (See Nelson, supra, 43 Cal.4th at p. 1257 [“It is not enough for a
defendant to argue that if the prosecutorial agencies had made his or her case
a higher priority or had done things a bit differently they would have solved
the case sooner.”].)
The trial court fairly declined to fault the prosecution for the post-
charging delay. As the court noted, law enforcement was initially unable to
locate Contreras because he was using a different name in Mexico. When he
was found, he was in custody for serious offenses there. (See People v.
17
DePriest (2007) 42 Cal.4th 1, 28 [rejecting state constitutional speedy trial
claim where “defendant’s actions contributed to much of the foregoing
delay”].) The DA’s office nonetheless promptly began the extradition request
process, and there was nothing derelict about the government showing comity
toward Mexico and allowing Contreras to serve his time there without
repeated “check ins” on its request. Indeed, formally making the extradition
request despite Contreras’s lengthy prison sentence facilitated his immediate
transfer to local custody when he was released from Mexican custody earlier
than expected. (Cf. id. at p. 28 [delay was justified where California “showed
comity toward Missouri authorities, who had custody of defendant” for
serious charges and sought defendant’s return “[w]ithin a brief and
reasonable time after Missouri finished serially prosecuting” him].)
In sum, while the nearly 23-year delay in prosecuting Contreras was
certainly lengthy, the record supports the trial court’s determination that the
reasons for the delay were reasonable and legitimate, and the prejudice
flowing from the delay—the death of Calderon, who would have named
Contreras as the shooter—was comparatively weak.
B. Calderon’s Statements to Law Enforcement
Contreras next argues the trial court erred in excluding certain
statements that Calderon made to law enforcement in March 2005 and
October 2006, before his death sometime in 2015. We see no error, as the
statements were hearsay and Contreras did not establish their admissibility.
As discussed above, Gonzalez came forward in February 2005 and told
law enforcement that her partner, Calderon, was involved in a triple
homicide in San Diego in 2000. According to her, the night of the shooting,
she heard Calderon call Contreras a “dumbass” for shooting his arm, to which
Contreras replied that “[h]e didn’t mean to” but Calderon “got in the way.”
18
When she later saw a news report about the shooting and accused Calderon
and Contreras of being involved, Calderon explained that the “guy” refused to
pay for his drugs, so they went to his house and Calderon stabbed him with
an ice pick while Contreras was shooting. Contreras was present for at least
part of this explanation and said nothing. When Contreras returned the next
morning with his mother, Calderon repeated the story, stating they went to
collect some money but the guy refused to pay and began closing the door.
Calderon pushed the door open and started stabbing the guy while Contreras
started shooting. Contreras, again, said nothing.
At the prosecution’s request, the trial court allowed Gonzalez to relate
the foregoing to the jury under the party admission (Evid. Code, § 1220),
statements against penal interest (id., § 1230), and adoptive admission (id.,
§ 1221) exceptions to the hearsay rule. In response, Contreras sought to
introduce Calderon’s statements to law enforcement in March 2005 and
October 2006 in the defense case in chief. The prosecutor objected to the
admission of these interviews in their entirety, asserting that Calderon’s
statements constituted hearsay. Defense counsel argued that Calderon’s
statements were admissible to the extent they were against his penal interest
(id., § 1230) and/or inconsistent with his statements already related by
Gonzalez (id., § 1202). The court deferred ruling on the issue until it had an
opportunity to review the interview transcripts.
The next day, the court agreed that Contreras could present Calderon’s
statements to law enforcement that were inconsistent with his statements to
Gonzalez and Contreras’s mother, as related by Gonzalez. As for the against-
penal-interest theory, the court did not see any such statements in the
transcripts, since the story Calderon told law enforcement minimized his
culpability. The court nevertheless invited defense counsel to identify any
19
such statements that it might have missed. Counsel agreed there were no
such statements and offered no other theories of admissibility.
At trial, Contreras called Detective McDonald and a DA investigator to
recount what Calderon said about the shooting, to the extent it differed from
what Calderon said in front of Gonzalez. As set forth above, this included his
statements that he discovered Contreras and the man inside the apartment
arguing about money, and that he tried taking the rifle when Contreras
started shooting but was shot himself.
Under the inconsistent-statement theory, however, Contreras could not
present the portions of Calderon’s statements discussing “Tito.” Although
Gonzalez saw an older, bald, “heavyset” man—whose name she did not know
but thought might have also been Victor—with Contreras and Calderon in
the yard, Calderon never mentioned Tito or any third accomplice in the
account related by Gonzalez.
After the jury returned its verdict, Contreras moved for a new trial,
arguing, in part, that the trial court denied his right to confrontation by
allowing Gonzalez to repeat Calderon’s hearsay statements while limiting his
ability to impeach Calderon with his later statements to law enforcement.
Contreras again highlighted the fact that he could not present evidence that
“Tito” was at the scene of the shooting. The trial court denied the motion,
noting that the admissibility of Calderon’s various statements was
thoroughly discussed and carefully decided before and during trial.
On appeal, Contreras does not contest the trial court’s application of
the inconsistent-statement theory. Relying on People v. Conrad (2006) 145
Cal.App.4th 1175 and People v. Booth (2016) 3 Cal.App.5th 1284, he instead
argues he was entitled to introduce Calderon’s complete statements as a
remedy for the delayed prosecution. In Conrad, the trial court dismissed the
20
case because a defense witness died during a delay in the prosecution, for
which the prosecutor offered no explanation or justification. (Conrad, at p.
1182.) The prosecution appealed and the appellate court reversed, holding
that a remedy less severe than dismissal was warranted because the lost
testimony, while material, did not conclusively establish the defendant’s
innocence. (Id. at p. 1186.) The appellate court directed the trial court to
instruct the jury as to what the witness would have testified on remand.
(Ibid.) In Booth, the defendant filed a petition for writ of habeas corpus
alleging his counsel rendered ineffective assistance in failing to file a motion
to dismiss based on pre-charging delay. (Booth, at p. 1301.) The appellate
court granted the petition, discerning no good reason for defense counsel to
forgo the motion, and concluding it was at least reasonably probable the
motion would have been granted considering the “substantial” prejudice the
defendant suffered—the loss of a witness who would have exonerated him—
and the weakness of the prosecution’s case. (Id. at pp. 1305, 1312.) The
appellate court ordered a retrial and directed the trial court to present the
new jury with the missing witness’s statements to police. (Id. at p. 1313.)
Unlike in Conrad and Booth, however, there is no occasion in this case to
fashion a lesser remedy because (1) as we have already discussed, Contreras’s
motion to dismiss was properly denied, and (2) Contreras did not develop this
theory in the trial court.
Contreras also suggests that the trial court’s hearsay rulings excluding
some of Calderon’s statements impaired his constitutional right to present a
defense. It is well settled, however, that applying the ordinary rules of
evidence generally does “not impermissibly infringe on the accused’s right to
present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834.) In any event,
defense counsel was able to argue in closing that a third party could have
21
been the shooter based on Gonzalez’s testimony that she saw an older, bald,
“heavyset” man in her backyard take a gun from Contreras or Calderon after
the shooting. Evidence that “Tito”—who was not necessarily the man
Gonzalez saw in the backyard—may have driven Calderon to the apartment
complex and/or joined him in attempting to wrestle the rifle away from
Contreras would just as likely have undercut rather than strengthen this
theory, and most certainly would have left the jury confused.5
C. Evidence of Plummer’s Prior Violence
Contreras additionally asserts the trial court abused its discretion and
violated his federal and state constitutional rights to confront witnesses,
present a defense, and due process of law by excluding certain evidence of
Plummer’s prior violence, which would have supported his alternative claim
of self-defense by suggesting that Plummer was the aggressor.
Specifically, Contreras argues the court should have admitted three
pieces of evidence: (1) Rayo’s statement to police that she feared Plummer,
her older brother; (2) Plummer’s history of domestic violence; and (3) some
comments Plummer made to Madrid when she attempted to collect payment
for the drugs. These were: “I know [Contreras] is here with you, if he wants
to come to me it is gonna be a shootout”; “I know he’s around here
somewhere. Why don’t you tell him to ask me for it? I’ll just beat him up”;
and “Tell him to come and we’ll shoot it out.”
5 In his reply brief, Contreras appears to argue that the trial court
should have allowed him to introduce Calderon’s interviews in their entirety
under the rule of completeness (Evid. Code, § 356). This was not an
argument Contreras advanced below. Rather, the trial court noted that the
prosecution could potentially present additional portions of the law
enforcement interviews under that rule.
22
Before trial, Contreras moved to admit evidence of Plummer’s character
for violence under Evidence Code section 1103, subdivision (a)(1), to show
that he was “looking for a fight” and “want[ed] to do violence” the night of the
shooting. The prosecution asked the court to exclude all such evidence on
relevance grounds, arguing that Rayo’s relationship with her brother was
unrelated to the crime, Plummer’s past criminal conduct was unknown to
Contreras, and there was no evidence that Plummer’s remarks to Madrid
were ever communicated to Contreras. In addition, the comments were
hearsay. On the latter point, Contreras claimed the statements were offered
to show Plummer’s state of mind at the time of the shooting and therefore
were not hearsay (Evid. Code, § 1250).
At the in limine hearing, defense counsel conceded that Rayo’s opinions
of her brother were irrelevant. As to Plummer’s history of domestic violence,
the trial court ruled that the evidence was irrelevant, vague, and unduly
prejudicial. Regarding Plummer’s threatening statements to Madrid, the
court determined they were only relevant if there was some evidence that
they were communicated to Contreras or that Plummer “was the instigator of
the firing at the door.”6 Counsel did not anticipate any such evidence, and
none came to light at trial.
At the request of counsel, the trial court instructed the jury on self-
defense and imperfect self-defense based on the evidence that Plummer
rushed to the door and that the BB gun, which looked like a real gun, was
6 The Attorney General argues that Contreras forfeited his challenge to
the exclusion of the statements to Madrid because he never obtained a final
ruling. But the record shows the court initially took the matter under
submission and then confirmed its decision to exclude the evidence a day
later.
23
found beside his body after the shooting. The court questioned the sufficiency
of the evidence to give those instructions, however, especially the lack of
evidence that Contreras subjectively believed in the need to defend himself.
On appeal, Contreras very briefly argues that the trial court erred in
excluding evidence of Plummer’s violent behavior because it was significantly
probative. As noted, he conceded that Rayo’s fear of Plummer was irrelevant
and therefore waived his right to assert error as to that evidence. With
respect to Plummer’s past domestic violence and his remarks to Madrid, we
acknowledge that this kind of evidence can be relevant to show whether the
victim was the aggressor in cases involving self-defense. (See People v.
DelRio (2020) 54 Cal.App.5th 47, 54–55 [evidence of the victim’s past
domestic violence “ ‘tends to show that the victim was probably the
aggressor’ ”]; People v. Romero (2007) 149 Cal.App.4th 29, 36–38 [self-defense
places the victim’s state of mind at issue and thus statements reflecting their
own mental state may be admitted under Evid. Code, § 1250].)
But here, even assuming the court erred in excluding such evidence,
there is no reasonable probability the jury would have accepted the self-
defense or imperfect self-defense theories had the evidence been presented.
(See People v. Wright (1985) 39 Cal.3d 576, 586 [applying Watson standard to
error in excluding evidence supporting self-defense claim].) “The subjective
elements of self-defense and imperfect self-defense are identical. Under each
theory, the [defendant] must actually believe in the need to defend himself
against imminent peril to life or great bodily injury.” (People v. Viramontes
(2001) 93 Cal.App.4th 1256, 1262.) There was no evidence in this case that
Contreras actually believed he needed to defend himself. He did not testify at
trial and he made no statements to that effect to any other witnesses.
24
The circumstances of the shooting itself are not exactly clear. But the
evidence that was presented does not point to Contreras responding to a
perceived threat and actually believing in the need to defend himself.
Rangel, Rayo, and Plummer were talking in kitchen when they heard the
front door open. Rangel heard no words exchanged, only a bit of “pushing
and grunting” like Plummer was trying to push the door closed, and then
shots fired. Rangel and Rayo did not see Plummer pull out the BB gun when
he rushed to the door. Neighbor Dement testified that she saw Contreras
with a gun while he was arguing with Plummer. Calderon, as we know, told
multiple versions of what transpired, but Contreras was the aggressor in all
of them. As Gonzalez related, Calderon and Contreras started stabbing and
shooting Plummer as soon as he opened the door, or as he tried to shut the
door on them. Calderon told Detective McDonald, “Right at the door, he
started shooting at the people.” He similarly told a DA investigator that
Contreras was holding the rifle during the argument and then suddenly
began shooting. And although Rayo found the inoperative BB gun beside
Plummer’s body, there was no evidence he ever brandished it. It is entirely
possible that the BB gun fell out of his waistband as he was shot to death.
Regardless of whether Plummer had been violent in the past or had an
aggressive mental state the night of the shooting, the jury could not find self-
defense or imperfect self-defense absent any direct or circumstantial evidence
that Contreras actually believed he needed to defend himself against
imminent harm from Plummer. Accordingly, any error was harmless.
D. Jury Question
Contreras claims the trial court further erred in responding to a note
the jury sent out during deliberations. More specifically, on the second full
day of deliberations, the jury asked, “Would [Contreras] still be guilty if he
25
did not pull the trigger but the deaths are a direct result of his drug deal gone
bad?” The court’s response, while indirect, adequately answered the
question.
The trial court convened the parties to discuss the note on the record.
It proposed to answer the question as follows: “As phrased, this question
appears to involve potential factual findings that make the question not
answerable. Jurors must first decide what the facts are based on all the
evidence that was presented during the trial. Then the jury applies the facts
that the jury found to the law as I have given it to you. You may find it
helpful to look at CALCRIM 520, but in conjunction with all the other
instructions you have been given.”
Defense counsel thought it would be better to more directly answer the
question, “No.” As counsel reasoned, the only theory of homicide liability
presented to the jury was that Contreras was the actual shooter; no vicarious
theories of liability were given. And the evidence was undisputed that the
cause of each victim’s death was one or more gunshot wounds. So, if the jury
did not find Contreras was the shooter, then he could not be convicted of
murder. Counsel believed that directing the jury to review CALCRIM No.
520 would be confusing because “there’s no act that anyone could possibly
identify where the defendant could have caused the death other than a fatal
gunshot.”
The court was uncomfortable giving a direct “[n]o” because the question
as phrased was predicated on hypothetical factual findings—that Contreras
did not pull the trigger but the deaths resulted from the drug deal gone bad—
and the court did not want to signal it adopted any such findings. It
therefore answered the jury as proposed. The jury reached its verdict the
next day.
26
Under section 1138, when a deliberating jury expresses “desire to be
informed on any point of law arising in the case . . . the information required
must be given . . . .” “Where the original instructions are themselves full and
complete, the court has discretion under section 1138 to determine what
additional explanations are sufficient to satisfy the jury’s request for
information.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The primary
duty of the court is to make sure the “jurors must understand the legal
principles they are charged with applying” and “facilitate such an
understanding by any available means.” (People v. Thompkins (1987) 195
Cal.App.3d 244, 250.) While the court is not always required to elaborate on
the standard instructions (Beardslee, at p. 97), merely repeating “technically
correct” legal principles often does “little to insure that jurors can apply the
law to a given set of facts” (Thompkins, at p. 250). Generally, the court
should carefully consider the jury’s question, clarify it if necessary, study the
applicable legal principles, and respond “in as simple and direct a manner as
possible.” (Id. at p. 253.) We review the decision to provide further
instruction for abuse of discretion, and the correctness of any such instruction
de novo. (People v. Franklin (2018) 21 Cal.App.5th 881, 887, fn. 4.)
Here, Contreras insists the court should have simply answered, “No.”
He maintains that because the prosecution’s sole theory of liability was that
he was the actual shooter—i.e., no theories of vicarious liability were
presented—the court should have instructed the jurors to find him not guilty
if they determined he was not the shooter. The answer given, he claims, was
confusing and could have encouraged the jury to reconsider a finding that he
was not the shooter or convict him despite believing he was not the shooter.
To be sure, “[n]o” would have been the simplest way to respond. But
assuming one or more jurors were unsure whether Contreras was the shooter
27
when the note was sent out, the court’s answer would have guided them to
reach the same conclusion. In its response to the question, the court correctly
reminded the jurors that it was their duty to find the facts based on the
evidence presented and apply those facts to the law given. (See CALCRIM
No. 200.) In suggesting they review CALCRIM No. 520, in conjunction with
the other instructions given, the court then focused their attention to the
elements of murder, which required them to find Contreras “committed an
act that caused the death of another person” and “had a state of mind called
malice aforethought” when he acted. Taking these directions together, any
juror harboring reasonable doubt as to whether Contreras was the shooter
could not have found him guilty of murder because, as defense counsel
asserted below, there was “no act that anyone could possibly identify” in the
evidence presented at trial “where the defendant could have caused the death
other than a fatal gunshot.” For that reason, the court’s response, while
indirect, was not confusing or misleading.
E. Cumulative Prejudice
To the extent there were legal errors, but none of the foregoing claims
amounted to prejudicial error, Contreras maintains the asserted errors in
combination rendered his trial fundamentally unfair. Because we have
generally found no errors, and the one error we assumed was decidedly
harmless, there is no basis for finding cumulative prejudice. (See People v.
Vieira (2005) 35 Cal.4th 264, 305.)
F. Duplicative Multiple-Murder Findings
Contreras lastly contends that two of the three multiple-murder special
circumstance (§ 190.2, subd. (a)(3)) findings must be stricken. The Attorney
General concedes the issue, and we accept the concession.
28
When a defendant kills multiple people, the prosecution should allege
only one multiple-murder special circumstance. (People v. Jones (1991) 53
Cal.3d 1115, 1148.) But here, the prosecution alleged three multiple-murder
special circumstances, one as to each count of murder, and the jury
accordingly returned three true findings on that allegation. The Supreme
Court has “consistently found that an error of this nature is harmless,”
however, and the remedy is to simply strike the superfluous findings. (Id. at
pp. 1148–1149.) We will do so here.
Contreras suggests that we must further modify the judgment to reflect
a single term of LWOP. He is incorrect on this point. When a defendant has
been convicted of more than one count of murder in the same proceeding, he
may be sentenced to a consecutive term of LWOP as to each count. (§ 190.2,
subd. (a)(3); People v. Garnica (1994) 29 Cal.App.4th 1558, 1562–1564.)
DISPOSITION
Two of the multiple-murder special circumstance findings are stricken.
In all other respects, the judgment is affirmed.
DATO, J.
WE CONCUR:
O'ROURKE, Acting P. J.
RUBIN, J.
29
