Opinion
H044577
11-07-2019
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL HERNANDEZ-DELGADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS140129B)
Defendant Juan Manuel Hernandez-Delgado was convicted by jury trial of two counts of first degree murder (Pen. Code, §§ 187, 189). As to each count, the jury found true allegations that defendant personally used a firearm causing death or great bodily injury (§12022.53, subd. (d)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1), (b)(5)). The trial court sentenced defendant to a prison term of 100 years to life.
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant argues that (1) the trial court prejudicially erred by not instructing the jury that one accomplice's out-of-court statements required corroboration, (2) the trial court prejudicially erred by failing to give appropriate accomplice instructions as to two other accomplices, (3) the case must be remanded so that the trial court can exercise its discretion under section 12022.53, subdivision (h) to strike one or more firearm enhancements, and (4) defendant is entitled to remand for the purpose of making a record of facts relevant to a future youth offender parole hearing.
We conclude that defendant is entitled to a limited remand to determine whether he was given an adequate opportunity to make a record of information that will be relevant in a future parole eligibility hearing. We reject defendant's other contentions and affirm the judgment.
I. Background
Between 2009 and 2013, the Sureno and Norteno criminal street gangs were "at war" in Seaside, California. In July 2012, Nortenos killed South Side Locos (SSL) member George Gonzalez. SSL was an active subset of Surenos in Seaside, consisting of about 10 to 15 members. In response to Gonzalez's killing, SSL agreed to avenge his death by killing Nortenos. After Gonzalez's death, it was rare "to see an active Norteno gang member walking the streets of Seaside alone" at night.
On July 11, 2013, at around 9:21 p.m., Eric Curiel was shot dead while leaving his girlfriend's house in Seaside. In the past, Curiel had "associated" with Nortenos. Curiel was shot in the head and left leg. The angle of the leg wound suggested he was shot while lying on the ground. A .22 caliber bullet was recovered from Curiel's body. Birdshot was also found in the leg wound. Police recovered material from a shotgun shell at the scene. They did not find bullet casings, which suggested the perpetrator used a revolver.
A nearby resident saw Curiel, whom she recognized from "around the neighborhood," walking about 12 to 14 feet in front of another man. The man lifted a "smallish" gun, pointed it at Curiel's upper back, and shot him. The resident ran away and did not see anything else. Another resident heard gunshots. She then saw two "[y]oung" men, one "[s]horter and chunkier" than the other, running away from the area where the sound of gunshots came from. The men ran to a car, entered the backseat, and left at a "pretty high speed." Another witness recalled hearing "maybe" three gunshots, followed by a pause, then a louder gunshot.
On July 30, 2013, Hugo Ricalde was shot in his driveway after exiting a taxi cab. Ricalde had previously been an active Norteno. He was shot in the neck, chest, and back. Three .22 caliber bullets were recovered from his body.
A nearby resident heard a conversation, followed by "a gunshot, then a scream, and then another gunshot." The resident looked outside and saw a person running to an early 1990's Ford Thunderbird that was waiting with the passenger door open.
At around 8:00 p.m. on August 10, 2013, a police officer saw an early 1990's Thunderbird parked behind some bushes on an access road in Seaside. The officer watched the car. Defendant and Francisco Chacala eventually approached the car. They were arrested. Defendant was five feet, four inches tall and 140 pounds. Chacala was six feet tall and 180 pounds. Officers later searched Chacala's home and found gang paraphernalia associated with the Sureno gang. They also found shotgun shells and .22 caliber ammunition.
A. John Doe 1's Trial Testimony
John Doe 1 grew up in Seaside and was a Sureno. He had known defendant for about five years. He also knew Chacala. In 2011, defendant tried to start a new Sureno subset, Puros Vatos Locos (PVL). In April 2013, the local Sureno leadership told defendant he could not start his own Sureno subset. He was given a choice: be killed or join SSL. To join SSL, defendant would have to "put in work," which meant "[y]ou basically go look for rival gang members" and "[h]urt them."
On the day of Curiel's murder, Doe 1 and Luis Flores met up with Chacala and John Doe 2 in Castroville, California. The group eventually decided to drive to Seaside, with Flores driving. On the way, Chacala "flashed" a .22 caliber revolver, "saying that he was packing." While in Seaside, the group "bought more beer [and] got drunk."
Eventually, the group decided they would have to steal a car because Flores was leaving later to see his girlfriend. Using a shaved key, Doe 1 stole an early 2000's Honda. The group then went to an apartment complex to finish their beers and discuss their plans. The group, now without Flores, "decided to go and look for rival gang members . . . . [¶] Look for enemies, Nortenos. Try to look at them to shoot, shoot at them, because [we] had a gun." Doe 2 wanted to come along, but Doe 1 told him to "[j]ust go to work" because Doe 2 was scheduled to work at a bakery that night. Doe 1 and Chacala got in the car and Doe 1 drove away.
By around 9:00 p.m., Doe 1 and Chacala had not found any Nortenos. They called defendant, "thinking he might know where can we [sic] find some." Defendant agreed to join them, so they picked him up.
Doe 1 continued to drive defendant and Chacala around. Eventually, the group saw Curiel walking on the side of the street. Defendant said he thought Curiel was a Norteno. Doe 1 parked the car. He saw defendant and Chacala "jog off" to catch Curiel, who had turned a corner. A few minutes later, Doe 1 heard shooting, "basically little pops." He then heard "a bigger explosion." About a minute later, Doe 1 saw defendant and Chacala "kind of like jogging, like walking really fast" back to the car.
Defendant later told Doe 1 about the shooting. Defendant said Chacala asked Curiel "where he was from," which was meant as a "challenge" to see "if you are part of a gang." Curiel replied, "I don't bang." Chacala "was not going to shoot," but defendant recognized Curiel and told Chacala "he's a gang member, he's a Norteno." Then, with "no hesitation," Chacala shot Curiel in the head and "towards the face and chest." Curiel fell to the ground. Chacala turned to leave, and defendant shot Curiel with a shotgun.
Defendant also told Doe 1 about the Ricalde shooting. Defendant said that he, Chacala, and Doe 2 were driving in Chacala's Thunderbird when they saw Ricalde. Defendant exited the car and asked Ricalde "where he was from?" Ricalde turned around, saw defendant, and "started screaming, saying he didn't bang." Using the same .22 caliber gun that Chacala used to shoot Curiel, defendant shot Ricalde three times in the chest.
In June 2015, Doe 1 was arrested for Curiel's murder. He initially admitted he drove the car that day, and he confirmed defendant and Chacala were the shooters, but denied knowing they intended to kill Curiel. He later decided to "just tell everything." Doe 1 pleaded guilty to first degree murder and admitted a gang enhancement allegation. As a part of his plea, he agreed to testify truthfully against defendant. If he did so, as determined by a judge, the first degree murder charge would be reduced to second degree murder. His prison term would then be reduced from 50 years to life to 15 years to life.
B. John Doe 2's Trial Testimony
John Doe 2 grew up in Seaside and was a Sureno. On the day of Curiel's murder, he met up with Doe 1, Chacala, and Flores in Castroville. Chacala had a .22 caliber revolver. After "chilling there for a minute and [drinking] a little more beers [sic]," they decided, " 'Let's head to Seaside, let's head to Seaside and look for Nortenos.' " The group was "still looking for revenge for [Gonzalez's] murder." They arrived in Seaside and "bought a sack of weed from some white boy named Tom."
At one point, as they drove around looking for Nortenos, Chacala got out of the car and walked up to someone who they suspected was a Norteno. Chacala asked him, "Where you from?" The man responded, " 'I don't bang, I don't bang.' " Chacala then "realized it was just a normal person" and "got back in the car." After driving around for about an hour, or "maybe an hour-and-a-half," the group had not found any Nortenos. They went back to Doe 2's house, where he changed, and "they dropped him off at work." Doe 2 clocked in at work at 9:39 p.m.
Defendant later told Doe 2 about Curiel's murder. Defendant explained "that [Curiel] was walking" when defendant "recognized him as a Northerner." They pulled over, and Chacala walked up to Curiel and "[s]hot him a couple times . . . in the head, leg." Curiel fell down. Chacala ran back to the car, and defendant "got down and shot him with the shotgun."
Doe 2 was present at Ricalde's murder. That day, Doe 2, defendant, and Chacala were driving around in Chacala's Thunderbird. As they were driving, they saw Ricalde exiting a taxi. Doe 2 recognized Ricalde as a Norteno. Chacala parked and told defendant to shoot Ricalde. Defendant "was hesitant." Chacala said, "Fuck that, give [the gun] to me then." Defendant replied, "Na, Fuck," and he got out of the car and jogged toward Ricalde. When Ricalde saw defendant, he put up his hands and said, "I don't bang, I don't bang." Defendant shot him three times.
Doe 2 was later arrested and charged with Ricalde's murder. He pleaded guilty to conspiracy to commit murder with a gang enhancement and conspiracy to commit assault with a firearm, also with a gang enhancement. As part of the plea agreement, if Doe 2 testified truthfully in defendant's trial, as determined by a judge, the conspiracy to commit murder conviction would be dropped.
C. John Doe 3's Trial Testimony
John Doe 3 was a Sureno from Seaside. When defendant was told he had to "put in work" for SSL, defendant was put under Doe 3's supervision.
Between July and September 2013, Doe 3 was in juvenile hall. At some point, Chacala "came in." Doe 3 had known Chacala since at least July 2012. While in juvenile hall, Chacala and Doe 3 had "a long talk about some of the crimes" Chacala had committed. Chacala told Doe 3 that he and defendant were over by some "sand dunes" in Chacala's car, an "[o]lder model" Thunderbird, when officers approached. Chacala and defendant hid a .380 caliber handgun nearby, approached the car, and were arrested.
Chacala talked about Curiel's murder. He said that he and defendant were driving around in a stolen car when they saw Curiel and recognized him as a Norteno. Chacala said that he and defendant got out of the car and "asked [Curiel] if he was a member of a gang." Curiel did not answer, and Chacala "fired six shots to his face." Curiel "dropped on the floor." Then, according to Chacala, defendant "pumped the shotgun and hit him in the body area." Chacala's gun was a .22 caliber revolver, and defendant used a "sawed-off pump-action shotgun."
As to Ricalde's murder, Chacala told Doe 3 that "they were driving in the Thunderbird" when the group saw Ricalde exit a taxi. Chacala told defendant that it was "time to put in his work" and handed him "the same .22 that was used in [Curiel's] murder," explaining " '[t]here's three shots left, since six were used with [Curiel].' " When defendant hesitated, "Chacala said he would do it, [and] to give him the gun." Defendant then got out of the car, "walked up to [Ricalde] [and] just opened fire on him."
Doe 3 completed his sentence in juvenile hall and was released. He later told his probation officer he wanted to get out of the gang. His probation officer put him in touch with police investigators, and he told them about what Chacala had related to him.
D. Defendant's Admissions
Doe 3 agreed to work with investigators, who had come to believe defendant was involved in Curiel's and Ricalde's murder. Investigators put recording devices in Doe 3's car. In January 2014, Doe 3 engaged defendant in conversation about the murders.
During the recorded conversation, Doe 3 related that Chacala had claimed that before they killed Curiel, Chacala recognized Curiel as a Norteno. Defendant called Chacala "a liar" and said that he, not Chacala, was the one who recognized him. Defendant claimed that when he saw Curiel he said, "That dude is a Northerner[,]" and he told Doe 1 to stop the car. To demonstrate to Chacala "that it wasn't a game," defendant "pumped" his shotgun. After stopping, Chacala approached Curiel and said, "Hey, what's up homie?" Chacala told him, " 'You are a Norteno,' " and "then shot him in the head" six times. Defendant shot Curiel once, trying to "shoot him in the heart," but Curiel turned over.
Doe 3 also told defendant that Chacala claimed that defendant had hesitated and only killed Ricalde after Chacala said he would do it himself. Defendant said, "That is a lie." He explained that as they drove past Ricalde, defendant said, " 'Park here.' " Chacala "yelled at [defendant]," which "pissed [defendant] off." Chacala said, " 'If you don't get off, I will get off!' " Defendant responded, " 'Calm down dude, I know when.' " Chacala asked for the gun, but defendant "opened the door and . . . left." Defendant said to Ricalde, " 'Hey, what's up?' " Ricalde tried to move away from defendant, but defendant "got him and [he] fell on the driveway of his house . . . . [¶] . . . [¶] There in the driveway, he died."
II. Discussion
A. Omission of Accomplice Instructions as to Chacala
Defendant contends that the trial court should have instructed the jury that Chacala was an accomplice to both murders and that his out-of-court statements required corroboration.
1. Background
Defense counsel moved in limine to exclude Chacala's statements to Doe 3, arguing that the statements were not reliable and constituted inadmissible hearsay. The prosecutor contended that the statements were reliable, noting they were made in juvenile hall between "these kids [who] are basically in their rooms at night." She also argued that they were admissible as declarations against interest because the statements inculpated Chacala in the murders and Chacala was unavailable as a witness. The court determined the statements were admissible as declarations against interest.
With respect to the jury instructions, defense counsel argued that the jury should be instructed that Chacala was an accomplice whose statements to Doe 3 required corroboration. Counsel acknowledged that the California Supreme Court had found the corroboration requirement inapplicable where an accomplice's out-of-court statements "were not given under suspect circumstances," but contended that Chacala's statements were made under suspect circumstances. The court denied counsel's request for the instruction.
2. Analysis
Out-of-court statements by a nontestifying accomplice require corroboration only if " ' "made under questioning by police or under other suspect circumstances." ' " (People v. Rangel (2016) 62 Cal.4th 1192, 1229.) However, " '[t]he usual problem with accomplice testimony—that it is consciously self-interested and calculated—is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence.' [Citations.]" (People v. Brown (2003) 31 Cal.4th 518, 555-556 (Brown).) Where an accomplice's out-of-court statements "were themselves made under conditions sufficiently trustworthy to permit their admission into evidence despite the hearsay rule[,] . . . no corroboration [is] necessary, and the court [is] not required to instruct the jury to view [an accomplice's] statements with caution and to require corroboration." (Id. at p. 556.)
In this case, Chacala's out-of-court statements to Doe 3 were admitted despite the hearsay rule as statements against interest. Thus, in analyzing defendant's contention that an accomplice instruction was required, we merely review whether the statements "were themselves made under conditions sufficiently trustworthy to permit their admission" as statements against interest. (Brown, supra, 31 Cal.4th at p. 556.) If the statements were properly admitted, then no accomplice instruction was necessary. (Ibid.)
" 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation.]" (People v. Grimes (2016) 1 Cal.5th 698, 711.) "[T]he least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others. 'Once partners in crime recognize that the "jig is up," they tend to lose any identity of interest and immediately become antagonists, rather than accomplices.' [Citation.] However, the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures." (People v. Greenberger (1997) 58 Cal.App.4th 298, 335.)
Here, Chacala's statements to Doe 3 were sufficiently trustworthy to be admissible as statements against interest. The statements were made in juvenile hall between two people who had known each other for at least a year. Nor was there any indication Chacala believed he was a suspect in the murders. Thus, he had no motive to dissemble. In addition, Chacala did not try to minimize his involvement in the murders. To the contrary, Chacala admitted to first shooting Curiel and to urging defendant to shoot Ricalde. Under these circumstances, Chacala's statements to Doe 3 were sufficiently trustworthy and reliable.
Because the statements were admissible as statements against interest, no accomplice instruction was necessary, and the trial court did not err by refusing to give the instruction. (Brown, supra, 31 Cal.4th at p. 556.)
B. Scope of Accomplice Instructions as to Doe 1 and Doe 2
Defendant contends that the trial court erred by instructing the jury that Doe 1 was an accomplice to Curiel's murder and that Doe 2 was an accomplice to Ricalde's murder but not instructing the jury that Doe 1 was an accomplice to Ricalde's murder or that Doe 2 was an accomplice to Curiel's murder. He argues that Doe 2 was a coconspirator to Curiel's murder because he was part of the group that was looking for Nortenos that day. He argues that Doe 1 was a coconspirator to Ricalde's murder because he was part of the "small group of Seaside Surenos who agreed to kill Nortenos in retaliation for" Gonzalez's killing. Defendant therefore contends that each was an accomplice to both murders as a matter of law.
1. Background
The prosecutor sought modification of the instruction on accomplice testimony, CALCRIM No. 335, to state that, with respect to Doe 1 and Doe 2, each was an accomplice only "to the crime they actively participated in, as either a driver or a backseat passenger." Defense counsel disagreed, arguing that Doe 1 and Doe 2 were both accomplices to both murders. He reasoned that as Surenos, they were part of "a broader conspiracy to do harm to any Norteno during that period of time, subsequent to George Gonzalez' death, that this is a broader conspiracy." Counsel also noted that Doe 2 was "actively participating in looking" for Nortenos before he left to go to work.
The court granted the prosecutor's request to modify the instruction. The court explained that it would not "expand gang liability for every gang member, for every crime, because the organization has as its objective, generally, all of these crimes." The court also observed that it had "never seen a case that . . . expanded conspirator or accomplice liability that greatly." As to Doe 2, the court acknowledged that, in this case, "[y]ou have what clearly could have been an accomplice to murder, if he'd hung around." But what happened, the court said, was that Doe 2 "announce[d] openly to his friends that he is no longer involved. He's got to go to work, he's late to work and he's done with that specific concrete crime -- or mission . . . . It's the mission, not the crime itself, but the mission." The court concluded: "And so I think he has withdrawn."
The court instructed the jury as follows: "If the crime of murder was committed, then John Does 1 and 2 were accomplices to the crimes they testified they participated in. John Doe 1 was an accomplice to the killing of Eric Curiel; John Doe 2 was an accomplice to the killing of Hugo Ricalde."
2. Legal Principles
Section 1111 provides: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
"The law is clear that '[w]hether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed.' " (People v. Johnson (2016) 243 Cal.App.4th 1247, 1269 (Johnson).) CALCRIM No. 335 should be given " 'only if the court concludes that the witness is an accomplice as a matter of law or the parties agree about the witness's status as an accomplice.' " (Johnson, at p. 1269.) Where a dispute exists as to whether a witness is an accomplice, CALCRIM No. 334 should be given. (Johnson, at p. 1269.)
"We review a claim of instructional error de novo." (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) "Whether or not the trial court should have given a 'particular instruction in any particular case entails the resolution of a mixed question of law and fact,' which is 'predominantly legal.' [Citation.] As such, it should be examined without deference." (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.) "The rules governing a trial court's obligation to give jury instructions without request by either party are well established. 'Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jury's understanding of the case.' " (People v. Roberge (2003) 29 Cal.4th 979, 988.)
3. Analysis
The evidence in this case did not establish Doe 1 and Doe 2 were accomplices as a matter of law to the crimes for which they were not present, but there was evidence from which a reasonable jury could have concluded that Doe 1 and Doe 2 were accomplices to those crimes.
Coconspirators to a crime are accomplices. (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) " 'A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy.' [Citation.]" (People v. Smith (2014) 60 Cal.4th 603, 616.) Thus, "all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder." (People v. Cortez (1998) 18 Cal.4th 1223, 1237.) However, "[e]ven where an act has the effect of giving aid and encouragement, there can be no accomplice liability in the absence of knowledge of the criminal purpose of the person aided." (People v. Mohamed (2016) 247 Cal.App.4th 152, 161 (Mohamed).)
Here, the evidence established that Doe 2 and Doe 1 were part of a small subset of Surenos in Seaside who, in the wake of Gonzalez's death, agreed to kill Nortenos. Doe 2 testified that before Curiel's murder, he, Doe 1, and Chacala decided to "head to Seaside and look for Nortenos." On the way to Seaside, Chacala "flashed" his .22 caliber revolver to indicate "he was packing." Doe 2 explained that they were "still looking for revenge" for Gonzalez's death. Doe 1, in his testimony, said that the group went to go look "for rival gang members," for Nortenos, to "shoot at them . . . because [we] had a gun." Doe 1 stole a car, which facilitated the mission of looking for rival gang members. At some point, Chacala challenged a man walking on the street before realizing he "was just a normal person." The group drove around for over an hour looking for Nortenos before Doe 2 left to go to work. This evidence could have supported a jury finding that "more likely than not" (CALCRIM No. 334) Doe 1 and Doe 2 had the specific intent to commit deliberate and premeditated murder, that there was an agreement to commit murder, and that several overt acts were committed in furtherance of the conspiracy.
The Attorney General contends that Doe 2 could not have been an accomplice to the murder of Curiel because he "left the group prior to Curiel's murder with no plans to return." We disagree.
"Each [coconspirator] is responsible for everything done by his confederates . . . ." (People v. Morante (1999) 20 Cal.4th 403, 417 (Morante).) "Thus, '[i]t is not necessary that a party to a conspiracy shall be present and personally participate with his co-conspirators in all or in any of the overt acts.' " (Ibid.) Withdrawal from a conspiracy requires "an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirators." (People v. Crosby (1962) 58 Cal.2d 713, 730 (Crosby).) "A defendant's mere failure to continue previously active participation in a conspiracy . . . is not enough to constitute withdrawal . . . ." (Ibid.)
In this case, Doe 2 left the group to go to work. The evidence did not establish that he repudiated or rejected the conspiracy to kill Nortenos. Doe 2's confederates continued the conduct that they had agreed upon and proceeded to murder Curiel. Since the evidence presented at trial was sufficient to show that Doe 2 had agreed to the object of the conspiracy, participated in the acts leading up it before he left for work, and not withdrawn from the conspiracy, a jury could have found that Doe 2 was liable as a coconspirator for the murder of Curiel. This is particularly true in light of his participation in the subsequent murder of Ricalde, which was pursuant to the same conspiracy.
Far from repudiating the plan, Doe 1 testified that Doe 2 wanted to come along, but that Doe 1 told him to "go to work."
A similar analysis applies to Doe 1. The murder of Ricalde occurred just 19 days after Curiel's murder when three of the four coconspirators were continuing their conduct of driving around and looking for Nortenos to shoot. Although Doe 1 was not physically present for Ricalde's murder, the evidence did not establish that he had withdrawn from the conspiracy after his participation in the Curiel murder. In the short period of time between Ricalde's murder and Curiel's murder, there is no evidence that Doe 1 repudiated his agreement to participate in the mission to kill suspected Nortenos or otherwise communicated to his confederates his withdrawal from the conspiracy.
Although there was strong evidence that Doe 1 and Doe 2 could have been held liable as conspirators (and thus accomplices) to Curiel's and Ricalde's murders, it was not undisputed, so it was not established that they were accomplices as a matter of law. A jury could have concluded that that one or both of them did not share "the criminal purpose of the person aided" at the time of the murders for which they were not present. (Mohamed, supra, 247 Cal.App.4th at p. 161.) Under these circumstances, the trial court was obligated to instruct the jury pursuant to CALCRIM No. 334 that Doe 1 and Doe 2 could be found to be accomplices to the murders for which they were not present. (Johnson, supra, 243 Cal.App.4th at p. 1269.) Its failure to do so was error.
4. Prejudice
Failure to give an accomplice instruction is deemed harmless so long as there is "sufficient" evidence of corroboration. (People v. Lewis (2001) 26 Cal.4th 334, 370 (Lewis).) " 'Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]' [Citation.] The evidence 'is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' [Citation.]" (Ibid.) " 'A defendant's own conduct, declarations and testimony may furnish adequate corroboration for the testimony of an accomplice.' " (People v. Williams (1997) 16 Cal.4th 635, 680.)
In this case, there was more than "slight" independent evidence to corroborate Doe 1's and Doe 2's testimony. Their testimony mirrored Chacala's account of the events leading up to Curiel's murder in numerous respects: the use of a stolen car, Chacala's possession of a .22 caliber revolver, and defendant's use of a shotgun. Doe 1 and Doe 2's testimony about Ricalde's murder was also mirrored by Chacala's account. Chacala, like Doe 2, said that they saw Ricalde exiting a taxi. Chacala also confirmed Doe 1's and Doe 2's accounts that Chacala was driving a Thunderbird. An eyewitness recalled seeing a Thunderbird at the scene of Ricalde's murder with its door open.
Finally, defendant's own recorded statements provided independent corroboration of Doe 1's and Doe 2's testimony. As to Curiel's murder, defendant confirmed that Chacala shot Curiel in the head, and that defendant had a shotgun. As to Ricalde's murder, defendant confirmed that he and Chacala argued before he shot Ricalde. Because the record contains sufficient evidence corroborating Doe 1's and Doe 2's testimony, any error in failing to give accomplice instructions as to both murders was harmless.
C. Firearm Allegations
Defendant contends remand is required so that the trial court can exercise its discretion to strike the firearm enhancements pursuant to section 12022.53, subdivision (h).
1. Background
At the time of the sentencing hearing in this case, former section 12022.53, subdivision (h) provided: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Stats. 2010, ch. 711, § 5.)
Effective January 1, 2018, Senate Bill No. 620 amended section 12022.53, subdivision (h) to provide: "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. . . ." (Stats. 2017, ch. 682, § 2.)
At sentencing, defendant spoke on his behalf, stating: "To the family, if it matters, I want to say to the family that -- how sorry I am. And that there are people who were truly guilty of this and they walked. They are out free. [¶] And I hope that your children rest in peace. That's all."
In response, and before sentencing defendant, the court stated that there was "no question from the evidence that was presented that you were directly involved in the murders of these two young men." The court continued: "And for you to suggest that there is some -- there is somebody else out there that got away with it, and that you were not responsible for it is -- it just defies all the evidence that was presented, including statements from your own mouth. [¶] So the court has no -- no doubt at all about your criminal responsibility for the cold-blooded murders of these two men, young men, with long lives they will never be able to live. [¶] So the court's intention is to impose the maximum sentence that can be -- that's permitted under the law, so that's clear."
2. Analysis
In People v. McDaniels (2018) 22 Cal.App.5th 420 (McDaniels), the court determined that, in light of amended section 12022.53, subdivision (h), a "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (McDaniels, at p. 425; accord, People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.)
In determining whether remand is required, the salient question is whether the trial court "express[ed] its intent to impose the maximum sentence permitted." (McDaniels, supra, 22 Cal.App.5th at p. 427.) "When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Ibid.) Thus, in People v. McVey (2018) 24 Cal.App.5th 405 (McVey), where the trial court made a "deliberate choice of the highest possible term for the firearm enhancement," the record showed "no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether." (Id. at p. 419.)
We conclude that the record "clearly indicate[s]" the trial court would not have exercised discretion to strike the former section 12022.53, subdivision (d) firearm allegations had the court known it had that discretion. (McDaniels, supra, 22 Cal.App.5th at p. 425.) At sentencing, the trial court stated that in light of the nature of the crimes and defendant's lack of contrition, the court intended to "impose the maximum sentence . . . permitted under the law." Because the initial sentence shows the trial court's "intent to impose the maximum sentence permitted," a remand for resentencing "would be an idle act." (Id. at p. 427.) On this record, there is "no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the [firearm] enhancement altogether." (McVey, supra, 24 Cal.App.5th at p. 419.)
D. Section 3051
Defendant contends that he is entitled to a remand for the purpose of making a record of facts relevant to the youth offender parole hearing that he will receive during his 25th year of incarceration.
In a separately filed motion, defendant requests that we take judicial notice of legislative history documents concerning section 3051. We grant the unopposed request. (Evid. Code, §§ 452, subd. (c), 459 subd. (a)(2).) --------
Section 3051, which became effective January 1, 2014, was enacted to bring juvenile sentencing into conformity with the limitations imposed by the Eighth Amendment. (People v. Franklin (2016) 63 Cal.4th 261, 268, 277 (Franklin).) As originally enacted, section 3051 provided that "[a] person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is a life term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (Stats. 2013, ch. 312, § 4.) Effective January 1, 2016, the Legislature amended section 3051 to extend its application to offenders who were under 23 years of age at the time of their controlling offense. (Stats. 2015, ch. 471, § 1.) As of January 1, 2018, section 3051 applies to those who committed controlling offenses when they were 25 years of age or younger. (Stats. 2017, ch. 675, § 1.)
Defendant was born on September 21, 1988. The shootings that resulted in the murder convictions occurred on July 11, 2013 and July 30, 2013. Thus, defendant was 24 years old when he committed the controlling offenses. Defendant's sentencing hearing was held on April 20, 2017. At that time, section 3051 applied only to defendants who committed their controlling offenses before their 23rd birthdays.
The California Supreme Court has held that section 3051 applies retrospectively to all eligible youth offenders regardless of the date of conviction. (Franklin, supra, 63 Cal.4th at p. 278.) In Franklin, the court remanded "the matter to the trial court for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Id. at p. 284.) The court stated that "[i]f the trial court determines that Franklin did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. Franklin may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law.' " (Ibid.)
Here, as in Franklin, "[i]t is not clear whether [defendant] had sufficient opportunity to put on the record the kinds of information . . . relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The Attorney General concedes that a remand is appropriate. Accordingly, we will remand the matter for the trial court to determine whether defendant had an adequate opportunity to make an adequate record of his characteristics and circumstances at the time of his offense in anticipation of a future youth offender parole hearing.
III. Disposition
The judgment is affirmed. The matter is remanded for the limited purpose of determining whether defendant was afforded an adequate opportunity to make a record of information that will be relevant in a future parole eligibility hearing held pursuant to section 3051, and, if not, to allow defendant and the prosecution an adequate opportunity to make such a record.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.