People v. Perez

Decision Date17 May 2021
Docket NumberE060438
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS PEREZ et al., Defendants and Appellants.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed in part and reversed in part; remanded with directions.

Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant Jose Luis Perez.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Ivan Chavez Navarro.

Randall Bookout and Ronda G. Norris, under appointment by the Court of Appeal, and H. Russell Halpern for Defendant and Appellant Pablo Sandoval.

Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Senior Assistant Attorney General, and Scott C. Taylor, Christopher P. Beesley, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

A drug dealer identified only as "Max" owed money to a group of other drug dealers for some methamphetamine that had gone missing. He decided to ambush his creditors, tie them up, rob them of any drugs and money they might have, and kill them.

Max delegated the actual commission of these planned crimes to at least nine men. Some of them, including defendant Pablo Sandoval, worked for him; others, including defendant Edgar Ivan Chavez Navarro,1 worked for a fellow drug dealer named Eduardo Alvarado; and still others, including defendant Jose Luis Perez, worked for (or with) another drug dealer named Flor Iniguez. According to the prosecution's designated gang expert, most, if not all, of the participants — including all three of the defendants named in this case — were members or associates of the Sinaloa drug cartel; the victims were members or associates of a different cell of the same cartel.

The participants carried out the plan, but not flawlessly. One of the victims, although shot in the face and chest, survived, and he was able to provide information that led the police to defendant Perez and to Sabas Iniguez (Flor Iniguez's nephew). Perez gave statements to the police incriminating himself. Iniguez testified at trial pursuant to a plea bargain.

Defendants were convicted of multiple first degree murders, with special circumstances, as well as other crimes. They now appeal.

We will hold that there was insufficient evidence to support the gang special circumstance. We also hold that the trial court erred by failing to instruct on the financial-gain special circumstance. Hence, we will reverse these two special circumstances. We will also direct the trial court to consider whether to strike the firearm enhancements under Penal Code section 12022.53, pursuant to newly enacted Senate Bill No. 620. Otherwise, however, we find no prejudicial error.

I

SUMMARY OF DEFENDANTS' CONTENTIONS

In this appeal,2 defendants raise the following contentions regarding:

1. Insufficiency of the evidence:

a. There was insufficient evidence of first degree murder on a theory of:

i. Premeditation.

ii. Either robbery murder or kidnapping murder.

iii. Lying-in-wait murder.

b. There was insufficient evidence that defendants had the intent to kill, or, when applicable, that they acted with reckless indifference to human life, to support any of the special circumstances. c. There was insufficient evidence that defendants had the intent to kill for purposes of the attempted murder of the victim who survived.

d. There was insufficient evidence that a kidnapping or a robbery was still underway when the shooting occurred to support the kidnap-murder and robbery-murder special circumstances.

e. There was insufficient evidence that the shooting occurred during a period of lying in wait to support the lying-in-wait special circumstance.

f. There was insufficient evidence to support the financial-gain special circumstance.

g. There was insufficient evidence of asportation of two of the victims to support the convictions of kidnapping them for robbery.

h. There was insufficient evidence to support the gang-related convictions and allegations.

2. Erroneous admission of evidence:

a. The trial court erred by admitting evidence that witness Iniguez had been assaulted in jail.

b. Much of the gang expert's testimony consisted of case-specific hearsay, which was inadmissible under the Confrontation Clause and under state law.

3. Erroneous jury instructions:

a. The jury was allowed to find defendants guilty of murder and attempted murder on theories that have since been legislatively abrogated. b. The jury was erroneously allowed to find defendants guilty of premeditated first degree murder, as aiders and abettors, under the natural and probable consequences doctrine.

c. The jury was erroneously allowed to find defendants guilty of conspiracy to commit attempted murder.

d. The trial court failed to instruct on the financial-gain special circumstance.

e. The trial court failed to instruct that the multiple-murder special circumstance, as to an aider and abettor, required the intent to kill.

f. The trial court failed to instruct on the escape rule for purposes of felony murder.

g. The trial court failed to instruct on the defense of duress.

4. Prosecutorial misconduct in closing argument:

a. The prosecutor improperly argued:

i. A felony-murder theory of attempted murder.

ii. A lying-in-wait theory of attempted murder.

iii. A theory of conspiracy to commit attempted murder.

b. The prosecutor violated defendants' right to remain silent by commenting on their failure to contradict witness Iniguez's testimony.

5. Sentencing error:

a. The trial court erroneously failed to state reasons for imposing the upper term for the crime of active gang participation. b. The trial court violated Penal Code section 654 by imposing separate and unstayed sentences on the three kidnapping for ransom counts, in addition to the sentences on the murder and attempted murder counts.

c. A remand is required to allow the trial court to consider whether to strike any of the firearm enhancements.

d. The trial court erred by imposing fines and fees without holding a hearing regarding defendants' ability to pay.

II

FACTUAL BACKGROUND

A. The Crime Scene.

On June 23, 2009, around 10:30 p.m., a motorist on Highway 395 near Victorville stopped because he saw a man "stumbling in the middle of the road." The man had been shot in the forehead and in the chest. The motorist phoned 911.

When the police responded, the victim gave his name as Luis Romero. He told them that he and two other men had been kidnapped in South Gate, driven to Victorville, robbed, and shot. He identified the kidnappers as "Lalo" and "Junior."

A trail of Romero's blood led to a black Chevrolet Silverado pickup truck that was parked a few blocks away. In it, the police found the dead bodies of victims Alejandro Martin and Eduardo Gomez. They had each been shot multiple times. Empty cartridge casings showed that at least two guns had been fired — a 9-millimeter and a .40-caliber.

The hands and feet of the bodies were bound with zip ties. A set of zip ties that Romero had managed to remove was also found at the scene.

Inside the pickup, there was a black hooded sweatshirt. After defendant Sandoval was identified as a suspect, DNA from this sweatshirt was tested and found to be his.

B. The Investigation.

Romero told the police that victims Martin and Gomez dropped him off at a certain house on Center Street in South Gate. When he went inside, he was taken captive and forced to phone the others. The next day, they came to the house, where they, too, were taken captive.

On July 2, 2009, the police searched the house on Center Street. It was associated with one Flor Iniguez. The living quarters were upstairs, over a garage. The house was vacant. However, the police found zip ties like those found on the victims. They also found a box of latex gloves.

That same day, based on what they learned at the house on Center Street, the police also searched a house on California Street in South Gate, also associated with Flor Iniguez. In a van parked out front, they found approximately 70 pounds of marijuana. While there, they encountered one Sabas Iniguez.

Inside the house, the police found a card for a storage unit in South Gate. On July 3, 2009, they went to the storage facility. There they encountered defendant Perez, who was driving a BMW. A search of the BMW turned up a loaded shotgun.

Surveillance video and sales records from a Target store in South Gate showed that, on the day of the shooting, at about 12:40 p.m., three men — including defendant Perez and defendant Chavez — bought a box of latex gloves identical to the one found at the Center Street house.

Cell phone records showed that on the day of the shooting, defendant Sandoval made 24 calls from the vicinity of the Center Street house. Additional calls made between 9:45 and 10:30 p.m. showed him going toward Victorville. Calls made between 10:30 p.m. and midnight showed him coming back from Victorville.

C. Testimony of Sabas Iniguez.

Sabas Iniguez, nicknamed "Junior," testified at trial pursuant to a plea bargain. It called for him to plead guilty to the same crimes as defendants were charged with and to testify truthfully in this case, in exchange for a reduced sentence.

1. The formulation of the plan.

Iniguez distributed drugs, including methamphetamine, cocaine, and marijuana. He had several suppliers, including victim Romero. Victim Martin was victim Romero's boss, and victim Gomez was victim Martin's driver.

Flor Iniguez was Iniguez's aunt. She worked for Romero as a "mule...

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