Opinion
F073111
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. ELOY ROMERO, JR., Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Gregory B. Wagner, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14905684)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Gregory B. Wagner, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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Eloy Romero, Jr. (defendant) stands convicted, following a jury trial, of two counts of first degree murder, during the commission of which he personally used and intentionally discharged a firearm. (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subd. (d); counts 1 & 2.) The jury found true a multiple-murder special circumstance. (§ 190.2, subd. (a)(3).) In a bifurcated proceeding, defendant admitted having served two prior prison terms. (§ 667.5, subd. (b).) He was sentenced to prison for two years plus life without the possibility of parole (LWOP) plus 50 years to life, and ordered to pay restitution, along with various fees, fines, and assessments.
All statutory references are to the Penal Code unless otherwise stated.
On appeal, we hold: (1) The trial court did not err by instructing on adoptive admissions; (2) Defendant is not entitled to reversal based on ineffective assistance of counsel; (3) The parole revocation restitution fine must be stricken; (4) Defendant is not entitled to a remand for the court to exercise its discretion whether to strike either firearm enhancement; and (5) The abstract of judgment contains clerical errors that must be corrected. We will modify the judgment to delete the parole revocation restitution fine and direct correction of the abstract of judgment, but otherwise affirm.
FACTS
I
PROSECUTION EVIDENCE
The Homicides and Surrounding Events
In May 2014, Joseph Blunt was in a dating relationship with defendant's aunt. Blunt, who lived in Santa Clara, came to Clovis to visit defendant's aunt on Mother's Day weekend. He spent the weekend at her house, or in the company of his children and nephew. Defendant's aunt last saw Blunt around 11:00 a.m. on Sunday, and last had telephonic contact with him around 8:00 p.m. She called him around 10:00 p.m. and again at 11:00 p.m., but he did not answer either time. Blunt did not indicate he was meeting up with defendant, whose nickname was Goober, or with George Duarte, whose nickname was Cuco.
Unspecified references to dates in the statement of facts are to the year 2014.
A.D. last saw Duarte, his son, around 10:15 or 10:20 p.m. on Sunday, May 11. They were at the family residence on Buttonwillow, south of Jefferson, near Reedley. Duarte was talking to Blunt, who had just arrived, alone, in his car. Duarte and Blunt both seemed to be in good moods. They left the house around 10:30 or 10:45 p.m. Duarte told his mother that he and Blunt were leaving, and that he would be right back. A.D. went to sleep.
At some point on May 11, Blunt telephoned one of his adult nephews. Blunt said he was planning on moving out of state within the month and wanted to say goodbye. He and Duarte, Blunt's best friend, arrived that evening in Blunt's car, an hour to an hour and a half after Blunt had called. They met at the liquor store across the street from the nephew's home in Parlier. This was around 11:00 p.m. or 11:15 p.m. Blunt and his nephew talked, then Blunt and Duarte left around 11:35 p.m. Blunt said they were going back to Duarte's house in Reedley, which was about a six-minute drive away. Blunt said nothing about defendant.
R.M. had known defendant most of his life, and had once been involved in a gang with him. He personally knew Duarte, and had heard of Blunt, although he did not know him personally. Around 11:00 p.m. on May 11, or midnight of May 12, R.M. spoke with defendant by phone. Defendant said he was waiting to meet up with Blunt. Defendant did not say where or why, although he said it was Blunt who wanted the meeting. A week or so earlier, defendant showed R.M. a revolver he had. It was chrome with a black grip. Defendant had it with him everywhere he went.
R.M. told Fresno County Sheriff's Detective Flores it was a snubbed-nose, .357-caliber, short-barrel revolver. He said defendant kept it in his waistband.
Throughout much of the evening of May 11, defendant's sister-in-law had a conversation with defendant, by text message, about him wanting to pick up one of his children at his wife's house. At 12:01 a.m. on May 12, defendant asked his sister-in-law to tell his wife that he loved her. That was the last contact the sister-in-law received from defendant from the phone number she associated with him.
As of at least May 5, defendant — who had two young sons — had one of the boys, while his wife had the other. The conversation between defendant and his sister-in-law had been going on, sporadically, since that date. At this time, defendant and his wife were not living together, and were talking of divorce. His wife and children lived in an apartment near Ashlan and Blackstone, in Fresno.
Shortly after midnight on May 12, Duarte's nephew, who lived at the family residence on Buttonwillow, was in his bedroom when he heard three popping noises and a big crash. The popping sounded like gunshots or firecrackers.
Around 5:30 or 5:40 a.m. on May 12, an individual driving down Buttonwillow on his way to work noticed an overturned car in an orchard on the side of the road, a short distance from the Duarte residence. He called 911.
California Highway Patrol (CHP) Officer Munoz arrived within minutes. He found Blunt in the driver's seat and Duarte in the right front passenger seat. Paramedics arrived a short time later and determined both men were dead. Munoz did not observe any signs of a shooting. The front seatbelts both had blood on them, indicating they were being used during the collision. The right and left rear seatbelts, which were lap and shoulder combinations, were retracted back. Munoz was able to conclude they were not in use at the time of the collision. The middle rear seatbelt, which was just a lap belt, was lying on the seat with the buckle extended all the way to the end of the seatbelt. Munoz could not tell whether it had been in use.
Deputy Coroner Andrews arrived on scene just before 8:00 a.m. She located a T-Mobile cellular phone on the headliner of the overturned vehicle. Duarte had a Samsung/AT&T cellular phone in a case on his belt. This caused Andrews to believe the phone that was loose in the vehicle belonged to Blunt. She took possession of both phones. She did not see any other telephones in the vehicle.
Later that morning, Dr. Gopal was performing an autopsy on Blunt, when he discovered Blunt had a bullet wound to the head. He stopped the autopsy, and the sheriff's office was contacted.
Initially, the crash location was processed, and the incident investigated, as a motor vehicle accident. After Gopal's discovery, however, the car, which was being held at a tow yard, was processed. A Nokia cellular phone was seized from the driver's seat. Subsequent DNA analysis showed blood samples collected from various locations inside the vehicle came from Blunt and Duarte, and, in some instances, a mixture of three or more persons who could not be identified because the mixture was too complex. The area around the crash site was searched, including with a metal detector. No shell casings, bullets, or gun-related evidence were found. Likewise, no such evidence was found in the car.
Gopal resumed the autopsy on Blunt once sheriff's personnel arrived. Blunt had a gunshot entrance wound above and slightly behind the right ear. The adjacent intact skin had some powder tattooing, but the hair was not singed or burned, indicating an intermediate range shot fired from approximately six inches to 24 to 30 inches away. Copper jacket fragments were recovered from the track of the bullet, while a large fragment of the lead bullet itself was lodged in the sphenoid bone. The direction of the gunshot wound was above downward, and slightly back to front. Blunt also had a second gunshot entrance wound below and behind the right ear. The bullet fragmented and lodged in the left side of the brain. There was powder tattooing around the entrance wound, but no soot depositions or singeing or burning of the hair, again meaning it was an intermediate range shot. Copper jacket fragments, fragments of lead, and the base of a medium caliber bullet were found along the wound track. There were no exit wounds or other obvious injuries to Blunt's body. Gopal opined that the cause of death was perforation of the brain due to multiple gunshot wounds. The manner of death was homicide. Blunt could have lived for several minutes after being shot, but he may have been immediately incapacitated.
Gopal also conducted an autopsy on Duarte, and again found two gunshot entrance wounds. The first was above and slightly behind the left ear. It was an intermediate range shot, although possibly from slightly closer than the shots to Blunt, since the powder tattooing was a little more dense in Duarte's case. The wound path was from above downward and very slightly back to front. Gopal recovered a medium caliber, copper jacketed lead bullet. The second gunshot entrance wound was an intermediate shot to the left temporal region, in front of the left ear. The wound path was left to right. Recovered from the wound track was a piece of copper jacket, a fragment of lead bullet, and the lead core of the bullet. There were no exit wounds, but there were abrasions to the neck and jaw that could be consistent with being involved in a traffic collision. Gopal opined that the cause of death was perforation of the brain due to multiple gunshot wounds to the head. The manner of death was homicide.
Robert Benavidez, a criminalist in the Fresno County Sheriff's Office forensic laboratory, examined the bullet, bullet fragments, and bullet jacket fragments found during the autopsies. They fell within the nominal .38-caliber class, which would include a .357 magnum and a nine-millimeter. All four bullets were fired from the same gun. The absence of shell casings at the crime scene suggested the gun used was a revolver and so did not eject cartridge casings, or the shooter picked up the casings.
On the morning of Tuesday, May 13, defendant showed up at his mother-in-law's house in Fresno. He was acting "[a] little nervous." He said an accident had happened. He said he did something stupid, was in trouble, and was leaving and going to Las Vegas. He asked his mother-in-law to tell his wife that he loved her and his children. He asked to use his mother-in-law's cellular phone, because, he said, he had thrown his phone away. She did not notice any kind of injuries on his face or body. He later contacted her from a phone with a different area code than the number she associated with him.
Two or three days after the shooting, defendant called R.M. from a number R.M. had not seen before. When R.M. asked what happened that night with Blunt, defendant hung up on him. R.M. tried to call him back, but there was no answer. Defendant called back the next day. They did not talk about the shooting.
Around midnight on May 29, defendant came to his mother-in-law's house and dropped his children off with her. She told him the police were looking for him. He said he did not do anything. She responded that if he did not do anything, to go talk to the police. He said he did not want to go to jail. She said he would not go to jail if he did not do anything, but that if he was hiding, it was because he did something. Defendant had no response. He then said he was leaving again, because he knew the police were looking for him. At some point, she received a communication from defendant in which he used someone else's Facebook account. He wanted to see his children.
On June 6, M.S., a friend of defendant, told police she recently was in contact with defendant. She had seen him on the news. She asked him what was going on, and he said it was all a lie. When she asked why he had changed his telephone number, he said he had lost his phone. He asked if she wanted to go on the run with him. She refused.
On June 11, Fresno County Sheriff's Detective McEwen, who was assigned to the fugitive apprehension team, received information concerning defendant's location. As a result, a number of law enforcement officers and the department's helicopter went to an address in Reedley. Defendant was taken into custody without incident.
A silver chain necklace defendant was wearing at the time of his arrest tested positive for the presence of blood. The DNA profile was a mixture of three or more people who could not be identified due to the complexity of the mixture. Athletic shoes defendant was wearing showed the possible presence of blood, but not necessarily human blood. The DNA obtained from them was too low to be interpretable.
Defendant was transported to the Fresno County Sheriff's Office, where he was turned over to Detectives Grajeda and Flores. During their interview with him (a video recording of which was played for the jury), defendant was asked for his phone number. He said he had had a cell phone, but had sold it to buy drugs. He denied killing Blunt and Duarte or knowing what happened. He said he had known Blunt a long time and described him as a friend. He said that when he (defendant) became a drop-out, so did Blunt.
Defendant stated that the last time he talked to Blunt was the night before Mother's Day. Defendant met Blunt and Duarte at St. Anthony's Catholic Church in Reedley. This was about 9:30 p.m. or 10:00 p.m. Defendant knew to meet them at the church, because Blunt called him. Defendant was taking a lot of drugs during that time. Defendant had walked to the church from the College Motel, which was at Manning and Reed in Reedley. Defendant stayed there for three or four days.
Motel records showed defendant stayed at the motel May 3 through 6, and checked out May 7.
Blunt and Duarte arrived at the church in an old car. Blunt was driving. They were the only ones in the car. Defendant got in the backseat and commented that there were a lot of cops around. It appeared Blunt did not want to be seen. Defendant asked if Blunt had any drugs. Blunt said no, and defendant said to let him know if Blunt knew anyone who wanted to buy defendant's phone. Blunt said he would buy it, and defendant said he would take $20 for it. Defendant sold Blunt the phone, then hugged Blunt and Duarte and left. This was around 10:00 p.m. Defendant left on foot to go and buy methamphetamine, which he had been using for two or three weeks. He refused to tell detectives who sold him the drugs, which he got in Reedley. He "kick[ed] back" with the person, then returned to the motel. It was around 12:30 a.m.
Eventually, defendant said he was with S.H., but he did not want anyone to know because the father of her child, an active Norteño, would get mad. S.H. subsequently denied seeing defendant Mother's Day weekend.
Defendant thought it was "kinda weird" when Blunt arrived with Duarte, because Blunt was a drop-out and Duarte was an active Northerner. Defendant dropped out in 2010, after he was shot. It was not because of who shot him; he just decided it was not worth it, and that a color was not something worth dying for. Defendant said Blunt dropped out about a year earlier, but defendant did not know why. Defendant had nothing against either Blunt or Duarte, who was also good friends with defendant.
Defendant said he checked out of the motel on Sunday. He spent Sunday at a friend's house with the friend and friend's family, then walked around, then got a ride to Los Angeles.
Electronic Communications Evidence
Cell phone company records showed the T-Mobile phone found in the headliner of Blunt's vehicle was registered to defendant. Henry Cam, a criminalist with the California Department of Justice, performed forensic examinations, including user and deleted data extractions, on the T-Mobile and Nokia phones.
Forensic extraction conducted on the phone on May 16 gave detectives their first indication the phone belonged to someone named "Eloy" or "Goober." It contained photographs of that person. There were also conversations with the phone number identified as belonging to Blunt. The messages suggested "Goober" and Blunt were going to meet up. At this point, because the phone belonged to someone whose body was not recovered from the car, law enforcement began looking for that person. Through searches of law enforcement databases, they identified defendant as the suspect. Within the photo gallery of the phone was a picture of a gun that appeared to fit the description of the gun R.M. said defendant carried. An arrest warrant was issued for defendant on May 29. The media was notified on May 30 that defendant was wanted as a suspect in a double homicide.
On May 7, two text messages were sent from defendant's phone to the phone of a contact listed in defendant's phone as "Sarah." The first read, "I want to get rid of a 357." The second, which followed a minute later, read, "300." This was followed by a multi-media message showing a photograph of a small revolver that looked to have chrome finish and a black handle.
The first telephone contact between defendant and Blunt that occurred on May 11 was a text message sent from Blunt's phone to defendant's phone at 10:50 a.m. During the day, there were multiple text messages, and several incoming and outgoing calls, between defendant's and Blunt's phones. At 9:13 p.m., a text was sent from defendant's phone to the contact "M" that read, "Take me to pistol whip this n[***]a." There was an incoming text message from Blunt's phone at 11:07 p.m., then, at 11:13 p.m., an incoming text message from M.H.'s phone. Within the next approximately 10 minutes, there were several incoming and outgoing text messages to and from M.H.'s phone. At 11:21 p.m., an outgoing message to M.H.'s phone read, in part, "I have to go meey [sic] Joseph." At 11:22 p.m., there was an incoming telephone call of 10 seconds' duration from Blunt's phone. At 11:36 p.m., there was an incoming telephone call from Blunt's phone. It ended at 11:44 p.m. At 11:48 p.m., there was a three-second outgoing call to Blunt's phone. At 11:49 p.m., there was an incoming call from Blunt's phone. It ended at 11:53 p.m. There were four unsent messages in the out-box folder of defendant's phone, all showing the time 11:56 p.m. and addressed to different contacts, saying, "N[***]a I don't feel safe." At 12:01 a.m. on May 12, there was an outgoing text message to the phone of defendant's sister-in-law that read, "Tell her I love her."
The times listed in the records with respect to text messages were when the phone had access to the network. These could vary from when a particular message actually was sent, due to variations in types of cellular phones.
Flores determined that if the phone was unable to connect to the network to send a message, the phone would try to send for approximately 30 seconds, then the message would be saved in the out-box and not automatically resent when the signal was regained. The time stamp placed on the message was when the message was saved, not when it was created. On some of the possible driving routes between St. Anthony's church and the crash site, the phone lost signal. The message would also go to the out-box if the user of the phone chose the delay send option.
There was no other outgoing activity on defendant's phone after that text message. Phone company records showed incoming text messages and incoming telephone calls, but the calls automatically rolled over to voice mail.
Cell phone records for the phone found on Duarte showed no telephone calls were sent or received after the evening of May 7. A text message was sent or received late on the afternoon of May 9, after which there was no text message activity until shortly after noon on May 12. After that time, all text messages were incoming and unread. Forensic extraction revealed defendant's and Blunt's phone numbers stored in the phone.
Messages and calls extracted from Blunt's cell phone matched those extracted from defendant's phone, in terms of trying to meet up on May 11. At 10:25 p.m. on that date, Blunt sent defendant a text message, saying he was at Duarte's residence. At 10:59 p.m., defendant texted Blunt that he was on the way. At 11:07 p.m., Blunt texted defendant, "Wait for us there" and "Be there in 10." There was no text message activity between the two phones on May 12.
The last four telephone calls recorded on defendant's phone prior to 12:01 a.m. on May 12, were all telephone calls either to or from Blunt's phone. The cell tower that recorded those phone calls was located in the 800 block of Reed Avenue, in Reedley. The user of defendant's phone would have to have been within two and a half miles of that address when sending or receiving those calls.
Facebook records showed defendant maintained an account until June 21. On Facebook, messages from one account to another can only be seen by the users of those accounts.
We sometimes refer to messages from defendant's account as being from defendant. We recognize, however, that the evidence showed any person could access another person's Facebook account, if the first person had the account holder's user name and password.
On May 31 and June 1, there was a message conversation between defendant's account and the account of Robert and Angie T. A message was sent from the latter account that read, "WTF . . . . You're on da news wanted for a double homicide." Later that day, a message was sent from that account, asking if defendant was okay. Defendant responded that he was good. A subsequent message from Robert and Angie T.'s account read, "A my boy did you do it. Between us delete these messages." Defendant responded, "I'll holla at you."
Facebook records gave the dates and times of messages using "UTC" (Universal Time Coordinated), which is the same as Greenwich Mean Time. Fresno County would have been seven hours earlier.
On June 2, messages were exchanged between defendant's Facebook account and N.M. N.M. asked what happened and what defendant was thinking. Defendant responded by telling N.M. not to believe it and that he was sorry. When N.M. advised that if it was not defendant, then defendant should not run and should take care of it, defendant responded with a sad face emoticon.
On June 6 and 7, messages were exchanged between defendant's account and S.R. On June 7, a message was sent from S.R. to defendant's account that read, "You killed my uncle huh." There was no response from defendant's account.
Motive Evidence
On July 15, 2007, Reedley police located Pedro Lopez, a high-ranking Fresno County Norteño gang member and wanted felon also known as Scoobie, in the backyard of the Reedley home of Socorro Perez Romero, defendant's mother. Blunt was inside the house with Socorro at the time.
For clarity, we refer to defendant's mother by her first name. No disrespect is intended.
Fresno Police Officer Kramer, who had been assigned to the Multi-Agency Gang Enforcement Consortium (MAGEC) since March 2005, was familiar with defendant, Socorro, and Blunt, who was known as Toro. MAGEC had contacted Norteño gang members at Socorro's home on occasion. As of 2008, Blunt was a member of the gang's northern structure, also known as Nuestra Raza. He was suspected of being a member of Nuestra Familia, the prison gang that controls the northern organization, of which Norteños are the street-level members. Blunt essentially was the Norteño in charge of the activities of the Norteño gang within Fresno County from 2005 or 2006 to approximately 2010. In 2010, people within the organization began to question Blunt's status. At some point around that time, he became considered "no good," which was kind of like a forced drop-out. Such a person would be at risk of attack from, and could even be marked for death by, active gang members. Someone who was marked for death would have a "green light" on him, meaning he could be attacked without repercussions. If an active gang member came in contact with such a person, the active gang member potentially could be disciplined within the gang for not taking action. An active Norteño is not supposed to associate with a person who is "no good" or a drop-out. A good indication someone was "no good" would be if he was shot at by a member of the gang.
On September 16, 2009, defendant was the victim of a shooting. When interviewed by Fresno County Sheriff's Detective Palma, defendant identified Abel Meza, who lived in Reedley, as the perpetrator. Defendant's wife had dated Meza for a couple of years, before she started dating defendant in around 2008.
According to CHP Officer Yetter, a gang investigator with MAGEC, for one Norteño member to sleep with another member's girlfriend or significant other would be a violation of the gang's rules. Yetter would expect retaliation. Norteños handle rule violations with varying levels of discipline, most of which involve violence.
Defendant related that on the evening of the shooting, his mother dropped him off in Dinuba so he could visit a girl named Gabby. Defendant eventually used Gabby's phone to call Meza, because defendant needed a ride. Eventually, Meza arrived, and he and defendant drove off in Meza's pickup. Along the way, they had to stop for gas. As they continued to drive, Meza began apologizing. Defendant had been told by his mother that Meza had called defendant a bitch, and he thought this was why Meza was apologizing. Defendant previously had threatened to beat Meza up for the insult.
Defendant asked Meza to take him to defendant's mother's house in Reedley. Instead, they drove in the country outside of Reedley. At some point, Meza said he was tired and asked if defendant wanted to drive. Defendant agreed, and Meza pulled over. As defendant got out and was making his way to the driver's side, he heard a sound he recognized as the racking of a handgun. He began to run, heard gunshots, and was struck in the right buttock. He made it to a house, where he was able to use a phone.
Defendant related to Palma that he had known Meza since eighth grade, and considered him a good friend up until the shooting. Defendant said he had no idea why Meza would shoot him. Defendant said Meza was a Norteño. Defendant said he himself had joined the Norteño gang when he was 15 years old, but he dropped out the day he got shot, because he got shot. Defendant agreed with Palma that if someone inside the Norteño gang was going to "take out" another Norteño member, someone higher up in the gang has to give the order. The lower ranking member has to follow the order. Defendant described his own rank in the Norteño structure as a street soldier, the lowest rank. Defendant realized his own gang wanted to kill him, and he would have been killed had he not escaped. He did not know why the gang wanted him dead.
Yetter explained that for one Norteño to shoot another, the shooter would need to get permission first from a person higher up in the organization. Yetter's investigation into defendant confirmed defendant left the Norteño gang in approximately 2009. Yetter investigated Blunt, and determined he was once in a position of leadership at least as high as the Northern structure, which was the intermediary between the Nuestra Familia prison gang and the street soldier Norteños.
Yetter's investigation showed Blunt was no longer a member of the Norteño gang at the time of his death. In late 2010, Blunt was attacked in prison by another Northern structure member. This would have required permission, and was an excellent indicator Blunt was a drop-out, or at least no longer in good standing. In September, Blunt's name appeared on a "bad news" list, which was a list made at the Nuestra Familia level of people who were being targeted by the gang. People on the list were to be attacked and even killed if they were seen by gang members.
Yetter also investigated Duarte. Duarte remained a member of the Norteño criminal street gang until his death. It did not appear, however, that he was particularly active in the gang. Active gang members were not supposed to associate with dropouts, who were viewed as traitors.
Socorro's body was discovered in her home in Reedley on May 9, 2013. She had been dead for at least two weeks. Defendant and his mother were very close. He was in jail at the time her body was discovered. Although Socorro had medical problems, defendant's father and his sister were suspicious that her cause of death was not natural, based on rumors they had heard. There were concerns defendant's enemies in the gang might retaliate against his mother, whose house had been shot at previously and who had had a fire set in her driveway. Reedley Police Officer Garza conducted some investigation, but concluded the case was not a homicide. The autopsy was not completed, due to Socorro's medical history and the decomposition of the body, although a toxicology test was performed. Alcohol and methamphetamine were found in her system. The cause of death, which was determined by her primary doctor, was listed on the death certificate as pulmonary embolism and venous thrombosis.
According to M.S., defendant's demeanor changed after his mother's death. The way he talked was angry. He told her he thought the Norteños had something to do with Socorro's death. He said he had a list of Norteños he thought were connected to her death. He talked about getting the "homies" he thought were connected to Socorro's death.
R.M. was acquainted with defendant's mother. At some point, defendant told R.M. that it just did not seem right that she had passed away and nobody knew anything. Defendant said he thought she had been given some bad drugs or might have been strangled. He thought Northerners might have had something to do with her death. Defendant said he had a list of people he "needed to get to" in association with his mother dying, and it was a list of Norteños. Defendant was "heated" about his mother's death and wanted some answers. Defendant used the word "revenge," but did not say how he was going to get it.
Defendant told R.M. that Blunt had said Blunt "never hit a PC yard." A PC, or protective custody, yard is where someone in custody goes when he or she has dropped out of a gang. It separates the drop-out from the gang for his or her own safety. Defendant said he thought Blunt was still active in the gang, but was on walk-alone status, meaning he was being investigated and monitored by the gang.
II
DEFENSE EVIDENCE
Records for the Motel 6 near Blackstone and Ashlan in Fresno showed defendant checked in sometime between 6:00 a.m. on May 11 and 4:59 a.m. on May 12. He checked out sometime before 2:00 p.m. on May 12.
Facebook records showed that early on June 5, defendant and S.C. messaged each other several times. When defendant said ". . . nothing has changed just a different war . . . ," S.C. responded that drugs had changed defendant. Defendant answered, "na mamas jus anger." When S.C. said she had anger, too, but had put all her issues aside when she had a child, defendant responded that he was the same, but his mother was his life and it took him a year to come back. When S.C. said Socorro would want so much more for defendant and his boys, defendant responded, "i know i let her down but whenyou have somethin on your shoulder it will haunt you . . . ." (Sic.)
DISCUSSION
I
CALCRIM NO. 357
Defendant contends the trial court erred by instructing, pursuant to CALCRIM No. 357, on adoptive admissions. He says there was insufficient evidence of an adoptive admission to justify the giving of the instruction, and the error violated his federal constitutional right to a fair trial. We disagree. A. Background
The People requested that the trial court give CALCRIM No. 357 (Adoptive Admissions). Defendant objected.
The prosecutor argued the instruction was appropriate because there were three instances in which defendant was confronted with a statement: when R.M. asked defendant what happened and defendant hung up on him; during the Facebook conversation with Robert and Angie T. in which defendant was asked if he did it and responded, "I'll holla at you"; and when, again on Facebook, S.R. accused defendant of killing her uncle, and defendant did not respond. The prosecutor argued there was sufficient evidence for the jury to determine whether the four requirements for an adoptive admission, as stated in the instruction, were met.
Defense counsel argued the instruction was "powerful" and could turn a negative into a positive. He asserted that, as to R.M., it was unknown whether defendant hung up or cell phone coverage was terminated by, for instance, being out of range; and "I'll holla at you" was not a negative response, and it could not be said defendant naturally would have denied the statement.
The court stated it could not be sure, with regard to R.M., whether the phone went down. As to the statement about killing the uncle, the conversation thread was not picked up later, so again there was the possibility defendant never saw the statement. The thread of the conversation with Robert and Angie T. continued, however. The court stated it had no reason to believe that communication was not with defendant.
The court ruled the R.M. and S.R. statements did not qualify as a basis for the giving of the instruction. As for the Facebook conversation with Robert and Angie T., however, the court found the standard evidentiary rules applied despite the method of communication, and it found the instruction appropriate. It subsequently instructed the jury, pursuant to CALCRIM No. 357:
"If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime, and the defendant did not deny it, you must decide whether each of the following is true. One, the statement was made to the defendant or made in his presence; two, the defendant heard and understood the statement; three, the defendant would under all the circumstances naturally have denied the statement if he thought it was not true; and four, the defendant could have denied it, but did not.A. Analysis
"If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."
A trial court has no duty to instruct on adoptive admissions absent a request. (People v. Davis (2005) 36 Cal.4th 510, 539.) A trial court does, however, have a "duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.] 'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.) "Instruction on an entirely permissive inference is invalid as a matter of due process . . . if there is no rational way the jury could draw the permitted inference. [Citations.]" (People v. Pensinger (1991) 52 Cal.3d 1210, 1243-1244.)
"Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." (Evid. Code, § 1221.) The statute "contemplates either explicit acceptance of another's statement or acquiescence in its truth by silence or equivocal or evasive conduct. 'There are only two requirements for the introduction of adoptive admissions: "(1) the party must have knowledge of the content of another's hearsay statement, and (2) having such knowledge, the party must have used words or conduct indicating his adoption of, or his belief in, the truth of such hearsay statement." [Citation.]' [Citation.]" (People v. Combs (2004) 34 Cal.4th 821, 843.)
Under Evidence Code section 1221, " '[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on [his constitutionally guaranteed] right of silence . . . , and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.' [Citations.] 'For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential.' [Citation.] 'When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
"The right of confrontation is not violated when the jury hears evidence, from a witness subject to cross-examination, relating a defendant's own out-of-court statements and adoptive admissions. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 117.)
We reject any suggestion written electronic communications made by means of social media, such as Facebook, are not subject to the foregoing rules. Although how a jury assesses a defendant's response or lack thereof may change somewhat, depending on whether the communication at issue is made face to face or electronically, the determination to be made by the trial court in the first instance remains the same.
" '[A] trial court has broad discretion to determine whether a party has established the foundational requirements for a hearsay exception [citation] and "[a] ruling on the admissibility of evidence implies whatever finding of fact is a prerequisite thereto . . . ." [Citation.] We review the trial court's conclusions regarding foundational facts for substantial evidence. [Citation.]' [Citation.]" (People v. Chism (2014) 58 Cal.4th 1266, 1297.) "We review the trial court's ultimate ruling for an abuse of discretion [citations], reversing only if ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' [Citation.]" (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
The evidence asserted by the prosecutor here to constitute adoptive admissions was admitted without objection. The question is whether the trial court properly found "I'll holla at you" warranted permitting the jury to treat it as an adoptive admission by the giving of CALCRIM No. 357. We conclude the trial court correctly determined the instruction was appropriate.
Because defendant objected to the instruction, his claim of instructional error was preserved for appeal. Accordingly, we need not address his claim that any forfeiture constituted ineffective assistance of counsel.
"In determining whether a statement is admissible as an adoptive admission, a trial court must first decide whether there is evidence sufficient to sustain a finding that: (a) the defendant heard and understood the statement under circumstances that normally would call for a response; and (b) by words or conduct, the defendant adopted the statement as true.' [Citations.]" (People v. Davis, supra, 36 Cal.4th at p. 535.) " '[I]t is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide.' [Citation.]" (People v. Riel, supra, 22 Cal.4th at pp. 1189-1190.)
"The proper standard is that of preponderance of the evidence. In other words, the trial court must determine whether the evidence is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence [citation], even if the court personally would disagree [citations]." (People v. Marshall (1996) 13 Cal.4th 799, 832-833.) The preponderance standard is met if there is "sufficient evidence to enable a reasonable jury to conclude that it is more probable that the fact exists than that it does not. [Citation.]" (People v. Herrera (2000) 83 Cal.App.4th 46, 61.) " 'The decision whether the foundational evidence is sufficiently substantial is a matter within the court's discretion.' [Citations.]" (People v. Bacon (2010) 50 Cal.4th 1082, 1103.)
Here, substantial evidence established defendant read ("heard") and understood the question whether he did it. Defendant responded to the question, and the Facebook conversation continued on. The evidence was also sufficient to sustain a finding, by a preponderance, that the question normally would call for a negative response if untrue, and that, under the circumstances, "I'll holla at you" was evasive and constituted an adoptive admission.
"The circumstances afforded defendant the opportunity to deny responsibility, to refuse to participate, or otherwise to dissociate himself . . . ; he did not do so." (People v. Fauber (1992) 2 Cal.4th 792, 852.) Because the foundational requirements for an adoptive admission were adequately established, the trial court did not err by giving CALCRIM No. 357. (See People v. Medina (1990) 51 Cal.3d 870, 891, affd. sub nom. Medina v. California (1992) 505 U.S. 437.)
II
INEFFECTIVE ASSISTANCE OF COUNSEL
As previously described, the trial court determined the R.M. and S.R. statements did not qualify as a basis for the giving of an instruction on adoptive admissions. In his argument to the jury, however, the prosecutor asserted defendant's nondenials to R.M. and S.R., as well as his response to Robert and Angie T. and his use of a sad face emoticon in response to N.M., arguably fell under CALCRIM No. 357. Defendant now contends his trial attorney rendered ineffective assistance by failing to object to the prosecutor's argument, insofar as it was based on anything other than the Facebook conversation with Robert and Angie T. Defendant says the prosecutor committed misconduct by arguing the evidence could constitute adoptive admissions, despite the fact the trial court had found the foundational requirements for constituting such admissions had not been met. We conclude defendant is not entitled to reversal.
"When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 462.)
A prosecutor commits misconduct by misleading the jury as to the evidentiary facts or the law (People v. Gray (2005) 37 Cal.4th 168, 217; People v. Farnam (2002) 28 Cal.4th 107, 169), or by violating the trial court's ruling (People v. Friend (2009) 47 Cal.4th 1, 33; People v. Crew (2003) 31 Cal.4th 822, 839; People v. Ochoa (1998) 19 Cal.4th 353, 430). On the other hand, when evidence is admitted without objection, as it was here, it is difficult to fault the prosecutor for referring to it. (People v. Blacksher (2011) 52 Cal.4th 769, 828.) "The prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom. [Citation.]" (People v. Edwards (1991) 54 Cal.3d 787, 816.)
We need not decide whether the prosecutor committed misconduct in the present case, since defendant's failure to object forfeited the issue. "A defendant who does not object and seek an admonition to disregard improper statements, argument or inquiry by the prosecutor waives any such error unless the harm caused could not have been corrected by appropriate instruction or retraction. [Citation.]" (People v. Clark (1993) 5 Cal.4th 950, 1014, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, e.g., People v. Panah, supra, 35 Cal.4th at p. 462; People v. Crew, supra, 31 Cal.4th at p. 839.) A timely objection here would have cured any harm. (See People v. Maciel (2013) 57 Cal.4th 482, 528; People v. Silva (2001) 25 Cal.4th 345, 373.)
"A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel." (People v. Lopez (2008) 42 Cal.4th 960, 966.) The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) "To secure reversal of a conviction upon [this] ground . . . under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
"An attorney may choose not to object for many reasons" (People v. Kelly (1992) 1 Cal.4th 495, 540), and counsel's decision in this regard "is inherently tactical" (People v. Maury (2003) 30 Cal.4th 342, 419). "[I]f the record does not preclude a satisfactory explanation for counsel's actions, we will not, on appeal, find that trial counsel acted deficiently. [Citations.]" (People v. Stewart (2004) 33 Cal.4th 425, 459.)
The record before us does not preclude a satisfactory reason. Defense counsel may well have determined that, inasmuch as the evidence mentioned by the prosecutor had been admitted and the jury was instructed on adoptive admissions, it was preferable for counsel to counter the prosecutor's argument and the instruction with argument of his own, as he did. Defendant disputes the reasonableness of this tactic, asserting that any effort to counter the prosecutor's arguments would not be as beneficial as objecting and prohibiting the arguments in the first instance. That counsel might have chosen a more beneficial path does not, however, demonstrate the tactic counsel in fact chose was not a reasonable one. (See People v. Jennings (1991) 53 Cal.3d 334, 379-380.)
Because we are unable to say, on the record before us, that counsel could have had no satisfactory explanation for his failure to object, defendant's claim of ineffective assistance of counsel fails. (See People v. Lopez, supra, 42 Cal.4th at p. 966.)
III
THE SECTION 1202.45 FINE
On counts 1 and 2, the trial court sentenced defendant to consecutive terms of LWOP for the murders plus 25 years to life for the section 12022.53, subdivision (d) enhancements. In pertinent part, the trial court ordered defendant to pay a restitution fine of $10,000 pursuant to section 1202.4, then imposed, but suspended, the same amount pursuant to section 1202.45.
Consecutive terms of four years were imposed but stayed with respect to the section 12022.5, subdivision (a) enhancements. Two consecutive years were added to the sentence for the section 667.5, subdivision (b) enhancements.
Defendant now contends the parole revocation restitution fine (§ 1202.45) must be stricken, because his sentence does not include the possibility of parole. The Attorney General agrees. The parties are correct. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183; cf. People v. Brasure (2008) 42 Cal.4th 1037, 1075.)
That defendant's sentence included non-LWOP enhancements is immaterial. Section 1202.45, subdivision (a) provides for imposition of a parole revocation restitution fine "[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole . . . ." Enhancements are not convictions. (People v. Manning (1992) 5 Cal.App.4th 88, 91.) They "do not define a crime but merely impose an additional punishment to that which accompanies the criminal offense itself. [Citation.]" (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; see Cal. Rules of Court, rule 4.405(3).) Accordingly, a period of parole is not included in a sentence by virtue of an enhancement when parole is precluded by the conviction itself. (See People v. Jenkins (2006) 140 Cal.App.4th 805, 809, 819.) --------
IV
SENATE BILL NO. 620
At the time defendant was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." Thus, the trial court was required to enhance defendant's sentence on each count by 25 years to life, pursuant to section 12022.53.
After defendant was sentenced, the Legislature enacted Senate Bill No. 620 (Stats. 2017, ch. 682, § 2.) As of January 1, 2018, subdivision (h) of section 12022.53 provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Relying primarily on People v. Francis (1969) 71 Cal.2d 66, 75-76, the Attorney General concedes the foregoing amendment applies retroactively to defendant's case, which was not yet final when the amendment went into effect (see People v. Vieira (2005) 35 Cal.4th 264, 306.) We accept the concession without further analysis.
Nevertheless, we conclude, as the Attorney General argues, a remand is not appropriate. The trial court made a lengthy statement at the sentencing hearing. Speaking directly to defendant, it concluded: "You could have just as easily become a very productive member of this society . . . . But you didn't choose that route. And now you are facing [sic] with this consequences [sic] that truly this Court has absolutely no discretion. And even if I did, I would not have exercised that discretion." (Italics added.)
In light of the trial court's comments and the senseless, cold-blooded nature of the murders, a remand would serve no purpose. It is clear the trial court would not exercise its new discretion to strike either of the section 12022.53, subdivision (d) enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
V
THE ABSTRACT OF JUDGMENT
The court ordered that defendant pay restitution to the Victim Compensation and Government Claims Board in the amount of $7,629.42, and to Baltazar Duarte in the amount of $5,666.73. The abstract of judgment incorrectly lists the restitution fund as the payee of the latter amount. The court also ordered that restitution be reserved as to claims A145005137, A144991188, A144966651, A144966669, and A144858486. The abstract of judgment omits claim A144966669. The parties agree these errors must be corrected.
DISPOSITION
The parole revocation restitution fine, imposed pursuant to Penal Code section 1202.45, is stricken. As so modified, the judgment is affirmed.
The trial court is directed to cause to be prepared an amended abstract of judgment (1) showing said modification, (2) naming Baltazar Duarte as the payee of the restitution ordered in the amount of $5,666.73, and (3) adding claim A144966669 to the list of claims for which restitution was reserved. The trial court shall cause a certified copy of the amended abstract of judgment to be transmitted to the appropriate authorities.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.