People v. Perez

Full title: THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS PEREZ et al.…

Court: California Court of Appeals, Fourth District, Second Division

Date published: Sep 22, 2022

No. E060438 (Cal. Ct. App. Sep. 22, 2022)

Opinion

E060438

09-22-2022

THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS PEREZ et al., Defendants and Appellants

Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant Jose Luis Perez. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Ivan Chavez Navarro. Randall Bookout and Ronda G. Norris, under appointment by the Court of Appeal, and H. Russell Halpern for Defendant and Appellant Pablo Sandoval.

RAMIREZ P. J.

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FVI901482. John M. Tomberlin, Judge. Affirmed in part and reversed in part; remanded with directions.

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

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

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

OPINION

RAMIREZ P. J.

Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Senior Assistant Attorneys General, and Scott C. Taylor, Christopher P. Beesley, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

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

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

1 In accordance with Spanish-language naming conventions, this defendant takes the surname Chavez from his father and the surname Navarro from his mother. He prefers to be called "Mr. Chavez" or "Mr. Chavez Navarro" rather than "Mr. Navarro." We will therefore refer to him as Chavez.

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

Defendants were convicted on two counts of first degree murder, with special circumstances, one count of attempted murder, three counts of kidnapping for robbery, and three counts of kidnapping for ransom. They now appeal.

We will hold that defendants are entitled to the benefit of statutory amendments since they were convicted that ameliorate punishment. One such change limited the felony-murder rule and abrogated the natural and probable consequences doctrine with respect to murder. As a result, the instructions on the felony-murder rule and the natural and probable consequences doctrine, although correct when given, must be deemed erroneous. We cannot say that the error was harmless. Hence, we must reverse the murder and attempted murder convictions and vacate the appurtenant enhancements and special circumstances.

Another such ameliorative statutory amendment changed the definition of "criminal street gang" for purposes of (1) the crime of active gang participation, (2) a gang enhancement, (3) a gang special circumstance, and (4) a gang-related firearm enhancement (collectively gang allegations). As the People concede, it follows that the instructions on the gang allegations, too, must be deemed erroneous, and moreover, that the evidence at trial was insufficient to satisfy the requirements of the gang allegations, as amended. Accordingly, we must reverse all of the gang allegations.

Finally, we will hold that, even under prior law, there was insufficient evidence to support the gang special circumstances. Thus, they cannot be retried.

Otherwise, we find no prejudicial error. Therefore, defendants properly stand convicted on three counts of kidnapping for robbery and three counts of kidnapping for ransom. Except for the gang special circumstances, the People have the option of retrying all other charges, enhancements, and special circumstances.

I

SUMMARY OF DEFENDANTS' CONTENTIONS

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

2 Perez also filed a related petition for writ of habeas corpus (case No. E064866). We denied that petition by separate order.

(1) Post-conviction changes in the law:

(a) Under newly enacted legislation, the instructions on the natural and probable consequences doctrine and on felony-murder were erroneous.

(b) Under newly enacted legislation, the jury was not correctly instructed on the gang allegations, and there was insufficient evidence to support them.

(c) Under newly enacted legislation, the trial court erroneously failed to bifurcate the trial of the gang allegations.

(d) Under newly enacted legislation, defendants are entitled to a remand to allow the trial court to consider whether to strike any of the gang-related firearm enhancements.

(e) Under newly enacted legislation, the trial court erred by imposing upper terms.

(f) Under newly enacted legislation, defendants are entitled to a remand so the trial court can consider which terms to stay under Penal Code section 654.³

3 All further statutory references are to the Penal Code, unless otherwise indicated.

(2) Insufficiency of the evidence:

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

(i) Premeditation.

(ii) Felony murder.

(iii) Lying-in-wait murder.

(b) There was insufficient evidence that defendants had the intent to kill, or, when applicable, that they acted with reckless indifference to human life, to support any of the special circumstances or the attempted murder conviction.

(c) There was insufficient evidence that a kidnapping or a robbery was still underway when the killing occurred to support the kidnap-murder and robbery-murder special circumstances.

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

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

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

(g) There was insufficient evidence to support the gang allegations.

(3) Erroneous admission of evidence:

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

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

(4) Erroneous jury instructions:

(a) The jury was erroneously allowed to find defendants guilty of conspiracy to commit attempted murder.

(b) The trial court failed to instruct on the financial-gain special circumstance.

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

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

(e) The trial court failed to instruct on the defense of duress.

(5) Prosecutorial misconduct in closing argument:

(a) The prosecutor improperly argued:

(i) A felony-murder theory of attempted murder.

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

(iii) A theory of conspiracy to commit attempted murder.

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

(6) Sentencing error:

(a) The trial court erroneously failed to state reasons for imposing the upper term for the crime of active gang participation.

(b) The trial court violated section 654 by:

(i) Imposing separate and unstayed sentences on the three kidnapping for ransom counts, in addition to the sentences on the murder and attempted murder counts.

(ii) Imposing a separate and unstayed sentence on the gang participation charge, in addition to the other counts.

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

II

FACTUAL BACKGROUND

A. The Crime Scene.

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

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

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

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

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

B. The Investigation.

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

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

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

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

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

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

C. Testimony of Sabas Iniguez.

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

1. The formulation of the plan.

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

Flor Iniguez was Iniguez's aunt. She worked for Romero as a "mule," transporting drugs. Romero lived in Mexico; whenever he visited the United States, he would stay with Flor.

One "Max" owed victim Martin money for methamphetamine. Martin had sent "collectors" to Max's home in Mexico. Max wanted to eliminate the debt and also to get revenge on Martin and his people.

A few weeks before the shooting, Max held a meeting at a Denny's. Max brought along defendant Sandoval; this was the first time that Iniguez had ever met Sandoval. Sandoval, in turn, brought along three men Iniguez did not know. They were members of a gang called the Bell Gardens Locos. They were referred to at trial as the "unknowns." Iniguez understood that Sandoval and the unknowns worked for Max.

Also present at the meeting was Eduardo Alvarado, known as "Lalo." Alvarado was another one of Iniguez's suppliers. Alvarado was accompanied by defendant Chavez and one Cesar Rodriguez; they both worked for him.⁴

4 Alvarado and Rodriguez were tried separately and convicted. We affirmed their convictions. (People v. Alvarado (Dec. 19, 2013, E054118) 2013 Cal.App. Unpub. LEXIS 9154 [nonpub. opn.].)

Max did most of the talking. The discussion included the fact that "[s]omebody" owed a debt to the victims and that "the debt needed to be handled ...." During the meeting, a plan was developed to "get" the victims "[s]o the debt wouldn't have to be paid." To "collect extra," they would rob the victims of money and drugs.

A few days before the shooting, Max held another meeting, at an El Pollo Loco. This time, defendant Perez was also there. Perez lived with Flor Iniguez and worked for her as her babysitter. Until then, he had not been involved in the drug business.

They discussed having all three of the victims come to the Center Street house, where the participants would grab them and tie them up. Iniguez and Perez were to act as "bait," because the victims knew them and would be comfortable around them. They were told that they "would have to go along with it, or else it was going to be [them] along with [the victims] ...."

2. The execution of the plan.

On Sunday (i.e., two days before the shooting), Iniguez, defendant Perez, defendant Sandoval, defendant Chavez, Alvarado, Cesar Rodriguez, and the unknowns took up stations at the Center Street house.

At one point, Iniguez left for a few hours. While he was away, he got a phone call saying that Romero had arrived at the house and had been tied up. When he got back, the others were making Romero phone victim Martin and victim Gomez to get them to come back to the house.

Alvarado told Iniguez and defendant Perez to go out in front of the house and wash Flor's black GMC pickup truck, so the victims would feel comfortable.

Meanwhile, two other participants hid in the garage and two more waited in a parked car.

Martin and Gomez arrived, in a black Chevrolet pickup truck. They said hi and walked upstairs. The participants who had been hiding ran up the stairs behind them and pushed them into the house. There were sounds of fighting.

About 20 minutes later, someone told Iniguez and Perez to come upstairs. All of the other participants were wearing latex gloves. They had a shotgun and four handguns, including a 9-millimeter and a .40-caliber, which they "passed around"; whoever was guarding the victims would hold a gun.

The participants relieved the victims of their cell phones and took Martin's expensive watch. They blindfolded the victims, zip-tied their hands behind their backs, and duct-taped their feet together. For a while, the victims were kept in separate bedrooms. Defendant Chavez and others then brought them out to the living room and seated them on the couch. Defendant Chavez, armed with a gun, acted as a guard.

Alvarado ordered the victims to get money and drugs. Victim Martin arranged for someone to bring 20 pounds of marijuana to the house. He also arranged the pickup of $100,000 in Bellflower. Several participants left to get it, taking victim Romero with them.

Alvarado told everyone that after dark, they were going to take the victims out of the house and drop them off somewhere.

Once it started to get dark, Iniguez and defendant Perez were told to drive Flor's pickup around the neighborhood and keep a lookout. They circled the neighborhood several times. On one pass, they saw victim Romero being walked down the stairs.

Four vehicles then left the Center Street house in convoy. Alvarado was driving the victims' pickup, with defendant Sandoval as his passenger. Sandoval was wearing a black hooded sweatshirt. Presumably the victims were in the back of that pickup, where their bodies were later found, but Iniguez could not see inside because the windows were tinted. Rodriguez was driving Alvarado's pickup, with defendant Chavez as his passenger. Two of the unknowns were in a gold Chevrolet Tahoe.

Iniguez and Perez, still in Flor's pickup, were told to follow the others. However, they made a wrong turn and got separated from the group. They had not yet caught up when they got a phone call saying, "it's over with" and they should go home.

At Iniguez's direction, defendant Perez phoned Flor and asked to borrow some money. Iniguez waited at a Denny's while Perez went to pick the money up. When Perez got back, he gave Iniguez $2,000. Flor later said that the $100,000 had been divided up among everybody who had been at the house.

D. Statements of Defendant Perez.

Defendant Perez made a series of statements to the police that were admitted before his jury only.

1. Statements at the storage facility.

When interviewed at the storage facility, Perez admitted knowing that the shotgun in the BMW had been used at the Center Street house, "[i]n the kidnapping that led to the homicide."

2. Statements at the police station on July 3.

On July 3, 2009, the police interviewed Perez again.

Perez said that he lived at the Center Street house along with Flor, Flor's children, and Iniguez. Alvarado and Flor were in the drug business.

He admitted that he was at the Center Street house when the victims were there. He also admitted that he personally blindfolded and zip-tied victim Gomez. The other participants in the crimes included Alvarado, defendant Chavez, and defendant Sandoval.

Victim Romero was Perez's "good friend." Romero worked for victim Martin, selling drugs. The victims were driven away in their own pickup. Flor's pickup and a third black pickup were also used in the crimes. He claimed he did not know what happened to the victims after they left the house.

3. Statements at the police station on July 6.

The police interviewed Perez again on July 6, 2009.

This time, Perez explained that Max's boss owed victims Martin and Romero money for some drugs that had been lost. Romero had threatened Max's boss, so Max's boss ordered Max "to kill them."

On Saturday morning (i.e., three days before the shooting), Iniguez told Perez that they were going to "get" all three victims - "they were gonna kill 'em, . . . they were gonna take everything they had."

On Saturday night, the participants assembled at the house on Center Street. Leaving aside Iniguez and Perez, they fell into two groups. One group was led by Alvarado; it included defendant Chavez and one of the unknowns. The other group worked for Max and was led by defendant Sandoval; it included three more unknowns. They had a shotgun and other guns.

According to Perez, "[T]he reason for me to stay there was cuz . . . [Sandoval] and them[,] they wanted to kill him there." Flor, however, did not want the victims killed in her house. She said she would give Perez and Iniguez "a little money" just "for being there." Also, Perez admitted, he was hoping to get work from Sandoval.

On Sunday, victim Romero arrived. Defendant Perez went downstairs and told the others that Romero was there. They ran upstairs, tied him up, and blindfolded him. Defendant Chavez tied him up. He told them where some money was hidden.

On Monday (i.e., one day before the shooting), the participants made victim Romero call victims Martin and Gomez and get them to come to the house.

That afternoon, Iniguez and Perez were outside washing Flor's pickup and two other "guys" were hiding in the garage when victims Martin and Gomez arrived. As they walked upstairs, the two guys ran up behind them, grabbed them, and pushed them inside. Perez and defendant Chavez participated in binding them.

Alvarado forced victim Martin to make phone calls in an effort to get drugs. At some point, the participants took Martin's watch and Gomez's money. Alvarado and defendant Sandoval left to consult with Max, then came back and said that they were going to kill all three of the victims.

Iniguez and Perez drove Flor's pickup around the block to keep a lookout. Meanwhile, defendant Sandoval walked the victims down to the victims' own pickup, one at a time, sat them in the back seat, and tied them up. Sandoval told Perez, "[I]f you say something . . . we're gonna do the same thing we did to them to you and your family."

One of the unknowns drove Sandoval and the victims to Victorville. Alvarado and defendant Chavez followed in Alvarado's pickup. Iniguez and Perez also followed, in Flor's pickup. However, they got lost somewhere in Victorville. Defendant Sandoval then phoned and said "they had already killed 'em." He added that the unknown who was driving shot them first, but Alvarado "went back" and "made sure and shot them again."

Iniguez waited at a Denny's while Perez picked up $5,000 from Flor for both of them.

E. Testimony of Sandraluz Garcia.

Sandraluz Garcia was defendant Chavez's girlfriend at the time of the crimes. Pursuant to a plea agreement, which required her to testify truthfully in this case, she had pleaded guilty to acting as an accessory after the fact, with a gang enhancement.

Chavez told her that he and Alvarado were "involved in the drug business." They worked for the "Chapos" drug cartel in Mexico. He also said that Alvarado had stolen some money from the cartel and was on the run from them.

She testified that, sometime shortly after June 21, 2009, Chavez said he was going dirt bike riding. She did not hear from him for three days. The next time she saw him, he had a lot of money. Later, she saw Alvarado wearing an expensive watch.

After hearing that Alvarado had been arrested, Chavez told her that they had to leave. He explained that Alvarado was in trouble and was going to try to blame him for it. They went to Stockton and then to Utah.

F. Gang Evidence.

1. Iniguez's testimony.

According to Iniguez, "all the dope coming out of Mexico comes through one of the cartels ...." A cartel member is supposed to work only with that cartel, though a lower-level associate might work with another cartel "on the sly."

Max, Martin, and one "Gordo"⁵ were all cartel members. They were each on the same level of the organization; they did not work with each other. Defendant Sandoval reported to Max.

5 This individual went by several nicknames, including Gordo, Wetto, and Skinny.

Alvarado was also a cartel member. Defendant Chavez reported to Alvarado.

At one time, Alvarado worked for Gordo. However, "right before this whole incident happened," they had a falling-out, and Alvarado started getting his drugs from Romero. Alvarado sometimes also got drugs from Max.

Iniguez himself sometimes bought drugs from Gordo and sometimes from Romero. Romero reported to Martin, who reported to Nacho, the "big boss" in Guadalajara.

2. Testimony of the gang expert.

Officer Jeffrey Moran testified as an expert on criminal street gangs. His qualifications are discussed further in part XIII.A, post.

He testified that the Sinaloa drug cartel produces large amounts of methamphetamine, cocaine, and marijuana and transports them into the United States. Its primary purpose is the distribution, transportation, and possession for sale of drugs. The head of the cartel is "El Chapo" Guzman. It has approximately 100,000 to 150,000 participants worldwide. It goes by several alternative names.

According to Officer Moran, the Sinaloa cartel operates like a franchisor, such as McDonald's. It is subdivided into territories, which in turn are subdivided into cells. Each cell "connect[s] up to somebody in the Sinaloa cartel" but works independently of the other cells.

As evidence of a pattern of criminal gang activity, the trial court took judicial notice that Alvarado, Iniguez, and Rodriguez had been convicted of murder, attempted murder, and kidnapping, all committed on June 23, 2009 (i.e., the same crimes as in this case). In Officer Moran's opinion, all three men were either members or associates of the cartel.

As of 2009, Ignacio "Nacho" Coronel, based in Guadalajara, was the number three man in the Sinaloa cartel. Defendant Chavez once told his girlfriend that Alvarado worked for a drug cartel in Mexico called "Chapos." Also, Iniguez told the police that one "Nacho," in Guadalajara, was "the big boss" and, specifically, Martin's boss. Officer Moran concluded that Max and the victims were all members of one cell of the Sinaloa cartel and that Alvarado was a member of a separate cell of the Sinaloa cartel.

In Officer Moran's opinion, defendant Sandoval was also a member of the cartel, based on the fact that he had direct contact with Max and Max was "calling the shots" on the "hit."

Defendant Chavez was either a member or an associate of the cartel, because he worked for Alvarado.

Defendant Perez was a "low level associate" of the cartel. This opinion was based on Perez's own statement that he was "pretty much at the bottom" of the cartel, which Officer Moran took to be an admission that he was, in fact, in the cartel.⁶ It was also based on the fact that Perez wanted to work for Sandoval and saw the crimes as a kind of "audition."

6 Perez complains that the transcript of his July 6 interview does not include such an admission. However, Officer Moran specifically testified that Perez made this statement in his July 3 interview. A transcript of the July 3 interview was not in evidence.

Also in Officer Moran's opinion, the crimes in this case were committed in association with the cartel.

III

PROCEDURAL BACKGROUND

Defendants were tried together, but Perez had a jury separate from Sandoval and Chavez's jury.

Each defendant was found guilty on two counts of murder (§ 187, subd. (a)), one count of premeditated attempted murder (§§ 187, subd. (a), 664)), three counts of kidnapping for ransom (§ 209, subd. (a)), three counts of kidnapping for robbery (§ 209, subd. (b)(1)), and one count of active gang participation (§ 186.22, subd. (a)).

In connection with the murder counts, six special circumstances were found true: financial gain (§ 190.2, subd. (a)(1)), multiple murder (§ 190.2, subd. (a)(3)), lying in wait (§ 190.2, subd. (a)(15)), robbery murder (§ 190.2, subd. (a)(17)(A)), kidnapping murder (§ 190.2, subd. (a)(17)(B)), and gang-related murder (§ 190.2, subd. (a)(22)).

In connection with all counts other than active gang participation, an enhancement for the discharge of a firearm by a principal in a gang-related crime causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)) and a gang enhancement (§ 186.22, subd. (b)) were found true.

Each defendant was sentenced to a total of nine consecutive life terms - five without the possibility of parole, three with a minimum parole period of 25 years, and one with the possibility of parole - plus three years.⁷

7 The trial court's statement of the sentence on a count-by-count basis (nine consecutive life terms) was different from its statement of the total aggregate sentence (three consecutive life terms). The abstracts of judgment are consistent with the count-by-count sentence. Defendants' briefs set forth the count-by-count sentence as the actual sentence. Defendants have not argued that that sentence was erroneous. We therefore accept the count-by-count sentence.

IV

JURY INSTRUCTIONS ON NOW-INVALID THEORIES OF MURDER

Defendants contend that the jury was allowed to find them guilty of murder and attempted murder on theories that have since been legislatively limited or abrogated.

A. Additional Procedural Background.

The jury was instructed on a felony-murder theory of first-degree murder.

(CALCRIM Nos. 540A, 540B.)⁸

8 Chavez asserts that: "The jury instructions allowed jurors to convict Mr. Chavez of attempted murder on a direct aiding-and-abetting theory, a felony-murder theory, and a natural and probable consequences ('NPC') theory." We do not agree that it was instructed on attempted murder on a felony-murder theory. There is no such crime as attempted felony murder. (People v. Wein (1977) 69 Cal.App.3d 79, 92.) The felonymurder instruction here expressly applied only to the two murder counts.

It was also instructed on the natural and probable consequences doctrine - i.e., that if (1) a defendant intended to aid and abet either a kidnapping for ransom or a kidnapping for robbery; (2) a reasonable person in the defendant's position would have known that the commission of murder (or attempted murder) was a natural and probable consequence of the commission of the intended crime; and (3) an accomplice did actually commit murder (or attempted murder), then the defendant was guilty of murder (or attempted murder). (CALCRIM No. 402.)

B. Legal Developments.

1. Senate Bill No. 1437.

While this appeal was pending, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) SB 1437 amended section 189 so as to provide that the felony-murder rule (§ 189, subd. (a)) applies to a person only if:

"(1) The person was the actual killer.

"(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.

"(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life ....

"[(4) T]he victim is a peace officer who was killed while in the course of the peace officer's duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer's duties." (§ 189, subds. (e), (f).) SB 1437 also amended section 188 so as to eliminate the natural and probable consequences doctrine as applied to murder. (§ 188, subd. (a)(3).)

Finally, SB 1437 also enacted former section 1170.95 (now section 1172.6),⁹which allows a person who has been convicted of murder under a felony-murder or natural and probable consequences theory, but who could no longer be so convicted under SB 1437, to petition to have the conviction vacated. If the underlying felony was not charged, the conviction is reduced to the underlying felony, and the petitioner is resentenced. (§ 1172.6, subd. (e).) The petitioner also must be resentenced on any remaining counts. (§ 1172.6, subd. (a).)

9 While this appeal was pending, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6 anachronistically to refer to whichever one of the two statutes was in effect at the relevant time.

2. Senate Bill No. 775.

Later, but while this appeal was still pending, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective January 1, 2022. (Stats. 2021, ch. 551, § 2, pp. 6971-6972.) SB 775 amended section 1172.6 in several respects. First, as relevant here, it extended its application to attempted murder. (§ 1172.6, subds. (a), (d), (e), (g).) Second, it provided that: "A person convicted of murder [or] attempted murder . . . whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437 ...." (§ 1172.6, subd. (g).)

C. Harmless Error.

It follows that the failure to instruct that felony murder required that a defendant either was the actual killer, aided and abetted the murder with the intent to kill, or was a major participant in the underlying felony and acted with reckless indifference to human life must be treated as error. The giving of a natural and probable consequences instruction likewise must be treated as error. And finally, defendants are entitled to contend that these instructions were erroneous.

The People argue, however, that the errors were harmless. When the jury is instructed on two theories of guilt, one legally valid and one legally invalid (or, as here, one subsequently invalidated), we can conclude that the error was harmless if the record demonstrates that the jury based its verdict on the legally valid theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1121-1122, 1128-1129.)

1. Intent to kill.

First, the People argue that, by finding that the attempted murder was premeditated, and by finding the lying-in-wait special circumstance true, the jury necessarily found that defendants acted with the intent to kill. Specifically, the jury found, as to each defendant, that in the commission of the attempted murder, "the defendant acted with willful, deliberate premeditation ...." It had been instructed that, for purposes of attempted murder, "[t]he defendants acted willfully if they intended to kill when they acted. The defendants deliberated if they carefully weighed the considerations for and against their choice, and knowing the consequences, decided to kill. The defendants premeditated if they decided to kill before acting." (CALCRIM No. 601.) An optional paragraph of CALCRIM No. 601, which would have provided that the jury could find the attempted murder was premeditated even if defendants did not personally premeditate, as long as the principal personally premeditated (see ibid.), was not given. Finally, the jury returned separate verdict forms for each defendant, finding that "the defendant acted with willful, deliberate premeditation ...." There was no rational way it could have found that the attempted murder was premeditated but the murders were not.

The jury was also instructed that, to find the lying-in-wait special circumstance true, it had to find that a defendant either was the actual killer or acted with the intent to kill. (CALCRIM No. 702.) It was undisputed that Chavez and Perez were not actual killers. There was some evidence that Sandoval was an actual killer; the jury, however, found personal firearm use enhancements as to Sandoval not true. Thus, once again, by finding this special circumstance true, the jury necessarily found that each defendant intended to kill.

As defendants contend, however, the jury never found that they aided and abetted the murder with the intent to kill. Under the natural and probable consequences instruction, it was allowed to find defendants guilty of attempted murder as long as they aided and abetted a kidnapping or robbery and murder was a natural and probable consequence - even if they did nothing to aid and abet the murder. The additional fact that they intended to kill does not establish the actus reus of aiding and abetting murder.

People v. Pacheco (2022) 76 Cal.App.5th 118, review granted May 18, 2022, S274102, is on point. There, the trial court instructed on the natural and probable consequences doctrine; the defendant was convicted of first degree murder, as an aider and abettor, and a gang special circumstance was found true. (Id. at pp. 121-122.) The defendant petitioned for relief under section 1172.6. (Id. at p. 121.)

The appellate court held that the true finding on the gang special circumstance did not conclusively establish that the defendant was guilty of murder without resort to the natural and probable consequences doctrine. (People v. Pacheco, supra, 76 Cal.App.5th at pp. 127-128.) "[T]he jury's true finding on the gang special circumstance certainly establishes Pacheco intended to kill . . . at the time of [the] killing (the mens rea). But the gang circumstance instruction does not establish - as a matter of law - that Pacheco directly aided and abetted the killing ..... (the actus reus). In other words, without weighing the evidence, it is possible Pacheco intended to kill, but he did nothing to directly 'aid, facilitate, promote, encourage, or instigate' the [non]target crime of murder. [Citation.]" (Id. at p. 128.) "Critical to our analysis is that the court instructed the jurors they could find Pacheco guilty of murder if he aided and abetted one of the three target crimes (assault with a deadly weapon, assault, or disturbing the peace) and the nontarget crime (murder) was a natural and probable consequence of one of the target crimes. [Citation.] Therefore, the jury could have potentially found Pacheco intended to kill . . . under the gang special circumstance enhancement (the mens rea), but under the natural and probable consequence theory, Pacheco only actually aided and abetted the nontarget crime of disturbing the peace (the actus reus). [Citation.]" (Ibid.)

The People respond that Pacheco "was incorrectly decided" because SB 1437 was focused solely on mens rea. In People v. Gentile (2020) 10 Cal.5th 830, however, the Supreme Court rejected this view. There, an amicus argued that SB 1437 created a "hybrid" version of the natural and probable consequences theory of murder, under which the actus reus is aiding and abetting a target crime, and the mens rea is malice. (Id. at pp. 849-851.) The Supreme Court disagreed; it held that SB 1437 wholly eliminated the natural and probable consequences doctrine with respect to murder. (Ibid.)

Accordingly, the finding of premeditation and the true finding on the lying-in-wait special circumstance fall short of establishing that defendants are guilty of murder under SB 1437.

2. Major participant/reckless indifference.

Second, the People argue that, by finding the kidnapping-murder and robberymurder special circumstances true, the jury necessarily found that defendants were major participants in an underlying felony and acted with reckless indifference to human life. The jury was instructed that: "If a defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstances of Murder in the Course of Robbery or Murder in the Course of Kidnapping to be true." (CALCRIM No. 703.)

Defendants respond that these findings are not controlling because the jury made them before the Supreme Court changed the definition of "major participant" and "reckless indifference to human life" in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). We are compelled to agree. In People v. Strong (2022) 13 Cal.5th 698, the Supreme Court held that "[f]indings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437." (Id. at p. 710; see also id. at pp. 715-719.) Accordingly, such findings likewise do not establish that defendants here were convicted on a felony-murder theory that is still valid under SB 1437.

3. The strength of the evidence.

According to the headings in their brief, the People argue only that "the special circumstance and premeditation findings render the instructional errors harmless." Under this heading, however, they also argue that "there was overwhelming evidence that appellants committed murder with the intent to kill or as major participants acting with reckless indifference to human life."

"We must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. [Citation.]" (People v. Merritt (2017) 2 Cal.5th 819, 831.) We must "'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error - for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding - it should not find the error harmless.' [Citation.] On the other hand, instructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' [Citations.]" (People v. Mil (2012) 53 Cal.4th 400, 417.)

The evidence of intent to kill did not meet this standard. Iniguez's testimony was subject to doubt because he was testifying pursuant to a plea bargain, and also because he could have been trying to shift blame away from himself. In any event, Iniguez did not testify that defendants were present during any express discussion of killing the victims.

As Perez's jury heard, Perez did admit knowing that the victims were to be killed. However, knowledge does not necessarily rise to the level of intent. (See CALCRIM No. 401 ["Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime," italics added].) Perez inferably did not want to participate, because victim Romero was his friend. According to him, he participated nevertheless, for three reasons. First, he went to the Center Street house at Flor's request, so the victims would not be killed there. Second, he was hoping to get future work from Sandoval. Third, Sandoval threatened him and his family with death if he did not participate. The jury could rationally have found that the prosecution had not proven beyond a reasonable doubt that Perez had the intent to kill.

The evidence that defendants were major participants in the underlying felonies likewise did not meet the standard. Factors that may be considered in determining whether an aider and abettor is a major participant include: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? No one of these considerations is necessary, nor is any one of them necessarily sufficient." (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)

Defendants did not plan the felonies, supply weapons, lure the victims to the Center Street house, take money or property from them, demand ransom for them, or pick up a ransom. Chavez and Sandoval were at the scene of the killing, but we do not know what they did there. Romero identified only Alvarado and Iniguez as his kidnappers.

Sandoval discussed with Alvarado how to get a ransom; he also discussed with Alvarado and Max how to get rid of the victims. However, it is not clear what, if anything, he contributed to these discussions. It is not even clear that the discussions involved killing the victims; afterward, Alvarado announced that the plan was to drop the victims off. Sandoval sent the unknowns to Bellflower to pick up ransom money. He also rode along with the victims to the eventual murder scene, as a passenger, in a pickup driven by Alvarado.

Chavez and Perez bought latex gloves. Chavez was one of four participants who ran up behind the victims and pushed them into the house, after which Iniguez heard sounds of fighting. Chavez was also one of several participants who took turns guarding the victims. Chavez, too, rode along to the eventual murder scene as a passenger.

Perez notified the others when victim Romero arrived. He helped to bind Martin and Gomez. He washed Flor's truck, to put the victims at ease, and drove around, acting as a lookout. He, too, rode along as passenger in a pickup, but got lost.

On this record, the jury could rationally have found that the prosecution had not proven beyond a reasonable doubt that defendants were major participants.

We therefore cannot deem the failure to instruct in accordance with SB 1437 to be harmless. The murder and attempted murder convictions must be reversed; also, the appurtenant enhancements and special circumstances must be vacated. (See People v. Montes (2014) 58 Cal.4th 809, 898; People v. Hola (2022) 77 Cal.App.5th 362, 377; People v. McDonald (2015) 238 Cal.App.4th 16, 21, fn. 33.)

In light of this conclusion, it is unnecessary to address defendants' contentions (numbered in accordance with our list in the introduction to this opinion) that:

(1)(d) Under newly enacted legislation, defendants are entitled to a remand to allow the trial court to consider whether to strike any of the firearm enhancements.

(1)(e) Under newly enacted legislation, the trial court erred by imposing upper terms.

(1)(f) Under newly enacted legislation, defendants are entitled to a remand so the trial court can consider which terms to stay under section 654.

(4)(a) The jury was erroneously allowed to find defendants guilty of conspiracy to commit attempted murder.

(4)(b) The trial court failed to instruct on the financial-gain special circumstance.

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

(4)(d) The trial court failed to instruct on the escape rule for purposes of felony murder.

(5)(a) The prosecutor committed misconduct in closing argument by advancing felony murder, lying in wait, and conspiracy as theories of attempted murder.

(6) All claims of sentencing error.

V

ASSEMBLY BILL NO. 333'S CHANGES TO THE GANG ALLEGATIONS

Defendants contend that, under newly enacted legislation, the jury was not correctly instructed on the gang allegations and there was insufficient evidence to support the gang allegations.

Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333), effective January 1, 2022, "made several noteworthy changes to the law governing gang enhancements and penalties. First, [AB] 333 'narrows the definition of "'criminal street gang'" to "an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [enumerated criminal acts], having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity." [Citation.]' [Citation.]" (People v. Renteria (2022) __ Cal.5^th __, __ [2022 Cal. LEXIS 5012, *10, fn. 6].)

Second "' . . . imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have "commonly benefited a criminal street gang" where the "common benefit . . . is more than reputational"; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense. [Citation.] With respect to common benefit, the new legislation explains: "[T]o benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." [Citation.]' [Citation.]" (People v. Ramirez (2022) 79 Cal.App.5th 48, 63, review granted Aug. 17, 2022, S275341.)

Third, AB 333 "also includes a provision stating that, as used in the Street Terrorism Enforcement and Prevention Act [citation], 'to benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.' [Citation.]" (People v. Renteria, supra, 2022 Cal. LEXIS 5012 at p. *10, fn. 6.)

As the People concede, defendants are entitled to the ameliorative benefits of AB 333's amendments to section 186.22 because their convictions are not yet final. (People v. E.H. (2022) 75 Cal.App.5th 467, 478.) It follows that, as the People also concede, (1) the instructions on the gang allegations, although correct at the time, must be deemed erroneous, and (2) the evidence was insufficient to satisfy the new requirements of AB 333. Therefore, we must reverse the gang allegations.

VI

SECTION 1109'S REQUIREMENT THAT GANG ALLEGATIONS BE BIFURCATED

Defendants contend that, under newly enacted legislation, the trial court erroneously failed to bifurcate the trial of the gang allegations.

AB 333 (see part V, ante) also enacted section 1109. Subdivision (a) of section 1109, effective January 1, 2022, provides that, on a defendant's request, any gang enhancements must be bifurcated and tried after a guilt phase.

There is a split of authority with respect to whether section 1109 is retroactive. (Cf. People v. Burgos (2022) 77 Cal.App.5th 550, 564-568 [Sixth Dist.] [retroactive], review granted July 13, 2022, S274100; People v. Ramos (2022) 77 Cal.App.5th 1116, 1128-1131 [Fifth Dist.] [retroactive]; with People v. Ramirez, supra, 79 Cal.App.5th at pp. 64-65 [Sixth Dist.] [not retroactive]; People v. Perez (2022) 78 Cal.App.5th 192, 206207 [Second Dist., Div. Three] [not retroactive], review granted August 18, 2022; see also Ramirez, at pp. 67-70 [conc. opn. of Wilson, J.] [retroactive]; Burgos, at pp. 569-575 [dis. opn. of Elia, J.] [not retroactive].)

We conclude that section 1109 is not retroactive, for the reasons stated in Ramirez, Perez, and the dissent in Burgos. We need not set forth those reasons in detail, because those opinions speak for themselves, and also because it seems likely that the Supreme Court will settle this issue in the near future and thus supersede whatever we say.

In brief summary, however, section 1109 is not retroactive because it does not ameliorate punishment.

"(i) [I]n the absence of a contrary indication of legislative intent, (ii) legislation that ameliorates punishment (iii) applies to all cases that are not yet final as of the legislation's effective date." (People v. Esquivel (2021) 11 Cal.5th 671, 675.)

"Notably, section 1109 'does not alter the punishment for an offense, make a lesser punishment possible, or change the elements of an offense or defense.' [Citation.] Rather, '[s]ection 1109 . . . is a prophylactic rule of criminal procedure expressly intended to employ new procedures aimed at enhancing the fairness of future criminal proceedings. It makes no change to any crime or defense and makes no change to any punishment provision, and it does not create the possibility of lesser punishment or any other "ameliorative" benefit from which it could be inferred that failing to extend that benefit retroactively must have been motivated by a "desire for vengeance."' [Citations.]" (Ramirez, supra, 79 Cal.App.5th at p. 65.)

Thus, defendants are not entitled to the benefit of section 1109.

VII

THE SUFFICIENCY OF THE EVIDENCE THAT THE MURDERS WERE OF THE FIRST DEGREE

Perez contends that there was insufficient evidence to support the finding as to him that the murders were in the first degree. If he is correct, he could not be retried for first degree murder. (People v. Eddy (2019) 33 Cal.App.5th 472, 475, fn. 2; see also Burks v. United States (1978) 437 U.S. 1, 18.) Thus, we reach this issue even though we are reversing the murder convictions.

"When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . [T]he relevant inquiry on appeal is whether, in light of all the evidence, 'any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)

A murder may be found to be in the first degree on several alternative grounds, including, as relevant here, if it is: (1) "willful, deliberate, and premeditated"; (2) "committed in the perpetration of, or attempt to perpetrate . . . robbery . . . [or] kidnapping"; or (3) "perpetrated by means of . . . lying in wait." (§ 189.) We consider only the premeditation theory, because it is dispositive.

Perez was an aider and abettor, not an actual killer. An aider and abettor cannot be guilty of first degree murder on a premeditation theory unless he or she personally premeditated. (People v. Chiu (2014) 59 Cal.4th 155, 158-159, 166-167.)

Perez attended the meeting at El Pollo Loco a few days before the shooting. At that meeting, he was told that he was expected to participate in the overall scheme.

Admittedly, at that meeting, at least according to Iniguez, the only plan that was discussed was tying the victims up and robbing them; there was no evidence that there was any discussion at the El Pollo Loco of killing them.

Perez admitted to police, however, that, on Saturday, three days before the shooting, Iniguez told him that the plan was to kill the victims. He also admitted that he and Flor knew that the plan was to kill the victims. Nevertheless, on Saturday night, Perez took up a position, along with the others, at the house. Thereafter, he willingly participated, by buying latex gloves, binding the victims, and acting as a lookout. Finally, Perez admitted that, while the victims were being detained, Alvarado announced that they were going to kill all three of the victims. Perez nevertheless continued to act as lookout as the victims were taken away.

From the combination of his knowledge and his willing participation, it is reasonably inferable that Perez intended to kill. "It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166.) Moreover, here, Perez had three days in which to deliberate and premeditate.

Perez argues that knowledge plus participation are insufficient to prove the necessary intent to kill. He cites People v. Snyder (2003) 112 Cal.App.4th 1200 (Snyder), which stated: "[A]n aider and abettor is chargeable as a principal only to the extent he or she actually knows and shares the full extent of the perpetrator's specific criminal intent, and actively promotes, encourages, or assists the perpetrator with the intent and purpose of advancing the perpetrator's successful commission of the target offense. [Citation.] It is not sufficient if the person simply gives assistance with knowledge of the perpetrator's criminal purpose." (Id. at p. 1220, fn. omitted.)

Snyder stands for the uncontroversial proposition that knowledge plus participation do not establish shared intent as a matter of law. (See also People v. Sully (1991) 53 Cal.3d 1195, 1227.) Nevertheless, a jury can reasonably infer shared intent from knowledge plus participation (at least in the absence of contrary evidence). "The act of encouraging or counseling itself implies a purpose or goal of furthering the encouraged result." (People v. Beeman (1984) 35 Cal.3d 547, 556.)

We recognize that Perez had no personal animus against the victims. In fact, he considered victim Romero to be a good friend. Nevertheless, he stood to gain by participating in the crimes. He worked for Flor; Flor had ordered him to remain at the house and had promised to pay him for being present. He already knew that Max wanted him to participate; in any event, violent, cartel-affiliated drug dealers were not likely to allow him to remain present without participating. Moreover, Perez admitted that he was hoping to get work from defendant Sandoval. Thus, while his own personal goals were to make some money and to please Sandoval, it is inferable that he intentionally furthered the commission of robbery, kidnapping, and murder in order to achieve these goals.

Perez also notes that, according to Iniguez, neither of them knew that the plan was to kill the victims and neither of them participated in binding the victims. He argues that this testimony was more credible than his own admissions, made under the stress of interrogation. However, "it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]" (People v. Hubbard (2016) 63 Cal.4th 378, 392.)

Iniguez had a motive to minimize his own knowledge of the full extent of the plan. Moreover, even though Perez had the same interest, he freely made damaging admissions to the police. There is a reason why statements against one's penal interest are deemed particularly credible. While false confessions do occur, the interrogation here was not particularly coercive.

Accordingly, there was sufficient evidence that Perez premeditated.

VIII

THE SUFFICIENCY OF THE EVIDENCE OF INTENT TO KILL

Chavez and Perez¹⁰ contend that there was insufficient evidence that they had the intent to kill, or, when applicable, that they acted with reckless indifference to human life, to support the special circumstances and the attempted murder conviction.

10 We do not understand Sandoval to be raising this argument. He purports to join in all of Chavez's arguments, "to the extent [Chavez]'s arguments both pertain to and potentially benefit him." However, neither defendant discusses the evidence pertaining specifically to Sandoval. While one appellant is allowed to join in another appellant's argument (Cal. Rules of Court, rule 8.200(a)(5)), "each appellant has the burden of demonstrating error and prejudice [citations]." (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) In any event, there was substantial evidence that Sandoval had the intent to kill. All of the reasons for finding intent to kill as to Chavez and Perez also apply to Sandoval.

As applied to a defendant who is not the actual killer, four of the special circumstances - financial gain (§ 190.2, subd. (a)(1)), multiple murder (§ 190.2, subd. (a)(3)), lying in wait (§ 190.2, subd. (a)(15)), and gang-related murder (§ 190.2, subd. (a)(22)) - require that the defendant have the intent to kill. (§ 190.2, subd. (c).)

The remaining two special circumstances - robbery murder (§ 190.2, subd. (a)(17)(A)) and kidnapping murder (§ 190.2, subd. (a)(17)(B)) - require that the defendant either have the intent to kill or be a major participant and act with reckless indifference to human life. (§ 190.2, subds. (c) &(d).)

As we discussed in part VII, ante, there was substantial evidence that Perez premeditated and, a fortiori, that he had the intent to kill.

There was also substantial evidence that Chavez had the intent to kill. Chavez attended the meeting at Denny's a few weeks before the shooting. Thus, he knew that Max owed a debt to Martin and Romero. He also knew that the plan was to "get" the victims "[s]o the debt wouldn't have to be paid." While the word "get," standing alone, might be ambiguous, in this context, it inferably meant "kill." Chavez willingly aided and abetted the crimes by buying latex gloves and by guarding the victims. He also rode along in one of the pickups to Victorville. As with Perez (see part VII, ante), from the combination of his knowledge and his willing participation, it is reasonably inferable that Chavez had the intent to kill.

Chavez argues that there was no evidence that he knew who took guns to Victorville (or even if anyone did). However, while the participants were in the Center Street house, they had a shotgun and four handguns between them. They kept passing them around, so that whoever was guarding the victims had a gun. Chavez himself held a gun while guarding the victims. Obviously, the participants who rode in the lead pickup with the victims would hardly leave their guns behind at the house. They would hold on to them - at a minimum to keep control of the victims, but also to kill them, as Chavez inferably knew they intended to do.

Finally, both Chavez and Perez also argue that there was insufficient evidence that they intended to aid and abet the attempted murder of Romero. To be guilty of attempted murder, either as a direct perpetrator or as an aider and abettor, they had to have the intent to kill. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) As just discussed, however, there was substantial evidence that both Chavez and Perez did have the intent to kill for purposes of the murder counts. The same evidence was also sufficient to show that they had the intent to kill for purposes of the attempted murder count.

IX

THE SUFFICIENCY OF THE EVIDENCE THAT A FELONY WAS UNDERWAY TO SUPPORT THE FELONY-MURDER SPECIAL CIRCUMSTANCES

Perez also contends that there was insufficient evidence that a kidnapping or a robbery was still underway when the killing occurred to support the kidnap-murder and robbery-murder special circumstances.

A felony-murder special circumstance requires that "[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit," a specified felony. (§ 190.2, subd. (a)(17).)

A crime can be complete, for purposes of distinguishing between a completed crime and an attempt, yet still be ongoing for purposes of felony-murder. (Cf. People v. Heath (1998) 66 Cal.App.4th 697, 707 [when crime is in progress for purposes of aider and abettor liability].) The test for whether the underlying felony is still ongoing is called the "escape rule." "'Under this test . . . the crime continues until the criminal has reached a place of temporary safety.' [Citation.]" (Wilkins, supra, 56 Cal.4th at p. 343, fn. omitted.)

"In the case of robbery, for example, the crime is committed - as distinct from a mere attempt - when the defendant removes the victim's property. [Citations.] The robbery continues, however, until the robber has escaped with his loot to a place of temporary safety. [Citations.] Once the defendant has reached a place of temporary safety, the robbery is at an end. [Citation.]" (People v. Bigelow (1984) 37 Cal.3d 731, 753-754.)

Here, the kidnappings were indisputably still underway when the shooting occurred. There is no need to resort to the escape rule, because the essential elements of kidnapping were still ongoing. Kidnapping is committed by "forcibly, or by any other means of instilling fear, steal[ing] or tak[ing], or hold[ing], detain[ing], or arrest[ing] any person in this state, and carr[ying] the person into another country, state, or county, or into another part of the same county ...." (§ 207, subd. (a), italics added; see also § 209, subd. (a).) Thus, while there must be proof of "carr[ying]," the crime is ongoing even if the carrying is over, as long as "detain[ing]" is still occurring.

For example, in People v. Burney (2009) 47 Cal.4th 203, the defendant and two accomplices pointed a gun at the victim, took his wallet, and forced him to get into the trunk of their car. After driving around for a while, they decided to kill him because he could identify them. They stopped the car, opened the trunk, and shot and killed the victim. (Id. at p. 212.)

The defendant argued that the kidnapping was over when the murder occurred because "movement of the victim had ceased [and] defendant had reached a place of temporary safety ...." (People v. Burney, supra, 47 Cal.4th at p. 233.) The Supreme Court responded, "[D]efendant's claim substantively is without merit. As we previously have recognized, 'the crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and [the defendant] has reached a place of temporary safety ....' [Citations.] . . . 'Because [the victim] was still being detained at the time of his murder, he was killed while defendant was engaged "in the commission of" the kidnapping.' [Citations.]" (Id. at pp. 233-234, italics added.)

Perez seems to think that, because the crimes charged were kidnapping for robbery and kidnapping for ransom, rather than simple kidnapping, they ended once the perpetrators were no longer trying to rob or to obtain ransom. However, there was only one continuous kidnapping of each victim. It cannot be divided into a robbery-and-ransom phase and a murder phase. Even though the kidnapping was originally motivated by robbery and ransom, it could and did continue even after the perpetrators had obtained all available loot.

To determine whether the robberies were still underway when the killings occurred, it is necessary to consider the escape rule. "'In cases involving [both] a kidnapping and robbery, courts have held almost without exception that the evidence supported the conclusion the robber had not yet reached a place of temporary safety so long as the victim remained under the robber's control.' [Citations.]" (People v. Cummins (2005) 127 Cal.App.4th 667, 679.) "[A]s long as a robber holds the victim captive, the robber's safety is 'continuously in jeopardy' during the period of captivity if at 'any unguarded moment, the victim might . . . escape or signal for help.' [Citations.]" (People v. Debose (2014) 59 Cal.4th 177, 205.)

For example, in People v. McLead (1990) 225 Cal.App.3d 906 (McLead), the defendants, who were drug dealers, invaded an apartment occupied by three competing drug dealers. (Id. at p. 910.) They took money and drugs from the victims. (Id. at p. 911.) After holding the victims captive in the apartment for a while, they tied them up, drove them some distance, pulled over to the side of the road, and shot them. (Id. at pp. 911-912.) Two of the victims lived, but victim Frazier died. (Id. at p. 912.)

On appeal, the defendants argued that the trial court erred by instructing on felony murder. (McLead, supra, 225 Cal.App.3d at p. 915.) This court disagreed: "While it is true that the felony-murder rule is inapplicable to situations where the felony is completed prior to the killing, that is not the case here. [Citation.] . . . The elimination of Frazier and the takeover of his business were one continuous transaction. In addition, defendants had not reached a place of temporary safety after the robbery until Frazier was killed. [Citation.] Therefore, the robbery was not completed before the murder." (Id. at p. 916.)

Similarly, in People v. Powell (1974) 40 Cal.App.3d 107 (Powell), disapproved on other grounds in People v. Harris (1984) 36 Cal.3d 36, 53, the defendants "'got[] the drop on'" two police officers during a traffic stop (Powell, at p. 116), forced them to get into the defendants' car, and drove away with them. (Id. at p. 117.) The defendants took the officers' guns and flashlights; they also took cash from one officer. (Ibid.) The defendants drove the officers from Hollywood to a secluded area in Bakersfield. (Id. at pp. 116-117.) Once there, they shot and killed one officer; the other officer ran, and the defendants attempted unsuccessfully to shoot him, too. (Id. at p. 117.)

On appeal, the defendants argued that the trial court erred by instructing on robbery murder because any robbery had ended before the killing occurred. (Powell, supra, 40 Cal.App.3d at p. 163.) The appellate court rejected this argument, stating that, as long as the defendants "were accompanied [by] and saddled with" the victims, they had not reached a place of temporary safety. (Id. at p. 164.)

Here, as in McLead and Powell, the perpetrators had the victims under their continuous control. They bound them with zip ties and watched over them while armed. They "could not reasonably be regarded as having reached a place of temporary safety . . . while they still had the kidnapped victim under their control in a public place. [Citation.]" (In re Malone (1996) 12 Cal.4th 935, 967.) "The crimes were also linked by the fact that [the perpetrators'] motive for killing may have been to prevent the victim of the robbery and kidnapping from identifying [them]. [Citation.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 101; accord, People v. Fields (1983) 35 Cal.3d 329, 368.)

As a fallback argument, Perez asserts that he, individually, had reached a place of temporary safety, because he had gotten separated from the main group. In People v. Cavitt (2004) 33 Cal.4th 187, however, the Supreme Court stated: "There is case support for the proposition that, under the escape rule, a felony continues as long as any one of the perpetrators retains control over the victim or is in flight from the crime scene. [Citations.]" (Id. at p. 209, italics added.)

Shortly thereafter, the Supreme Court applied this principle in People v. Coffman and Marlow (2004) 34 Cal.4th 1. There, codefendants Coffman and Marlow kidnapped victim Novis and took her to a friend's residence. (Id. at pp. 16-17, 23.) Marlow took the victim's purse. (Id. at p. 23.) While Marlow and the victim remained at the house, Coffman drove to a 7-Eleven for soda and cigarettes, then came back. (Id. at pp. 17, 23.) Finally, Coffman drove Marlow and the victim from the house to a vineyard, where Marlow killed the victim and buried her. (Id. at pp. 18, 23-24.)

Coffman argued "that when she . . . took Novis's purse and drove her car to a 7-Eleven store, while Marlow remained at the [friend's] residence with Novis, Coffman had reached a place of temporary safety definitively terminating the prior robbery as to her, even though Novis remained captive under Marlow's control." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 96.) The Supreme Court disagreed: "[T]he robbery [did not] terminate as to Coffman during her temporary absence from the house. Rather, the evidence shows all of defendants' offenses against Novis to have been part of a continuous transaction for purposes of felony-murder liability." (Id. at p. 97.)

Here, identically, all of the participants' offenses against the victims were part of a continuous transaction, consisting of robberies, followed by kidnappings for the purpose of (among other things) killing the victims to eliminate them as witnesses.

We therefore conclude that there was sufficient evidence that the killings occurred in the perpetration of both kidnapping and robbery for purposes of the kidnap-murder and robbery-murder special circumstances.

X

THE SUFFICIENCY OF THE EVIDENCE OF ASPORTATION FOR PURPOSES OF KIDNAPPING FOR ROBBERY

Defendants contend that there was insufficient evidence of "asportation in connection with a robbery" to support the convictions of kidnapping of Martin and Gomez for robbery.

"Kidnapping for robbery requires asportation, i.e., movement of the victim that is not merely incidental to the commission of the robbery and that increases the risk of harm over that necessarily present in the crime of robbery itself. [Citations.]" (People v. Delgado (2013) 56 Cal.4th 480, 487.)¹¹

11 By contrast, kidnapping for ransom does not require asportation (as thus defined). (Bigelow, supra, 37 Cal.3d at p. 755.)

Basically, defendants argue that the only movement of Martin and Gomez that satisfied this requirement consisted of the drive from South Gate to Victorville, which occurred after the robbery was already over.¹² They rely on People v. Isitt (1976) 55 Cal.App.3d 23, which stated: "An element of the crime of kidnap for robbery is the specific intent to rob. [Citations.] That crime, however, is not committed unless the intent is formed before the kidnap commences [citation] and the asportation is undertaken with that intent and purpose in mind [citation]." (Id. at p. 28.)

12 Defendants do not challenge their conviction of kidnapping for robbery with respect to Romero, because there is evidence that some of the participants took Romero with them when they went to Bellflower to get $100,000.

In People v. Laursen (1972) 8 Cal.3d 192, the Supreme Court rejected an essentially identical contention. There, the defendant and an accomplice committed the armed robbery of a grocery store. When they jumped into their getaway car, however, it refused to start. They therefore accosted a bystander in the parking lot and forced him, at gunpoint, to drive them away in his car. (Id. at p. 196.) On appeal, the defendant argued "that the asportation of [the victim] was unrelated to the robbery since it occurred after that crime had been completed." (Id. at p. 198, fn. omitted.)

The Supreme Court acknowledged "the rule that a kidnaping in which a robbery occurs does not constitute kidnaping for the purpose of robbery unless the specific intention to rob is present at the time of the original asportation. [Citation.]" (People v. Laursen, supra, 8 Cal.3d at p. 198.) It continued: "Contrary to defendant's contentions, we have never held that [Penal Code] section 209 requires that the separately defined crimes of robbery and kidnaping be tied together by a coexistence of the elements of intent at the commencement of the criminal transaction; or, to state it in a different fashion, that kidnaping, as well as robbery, must be simultaneously premeditated as a part of a single course of criminal conduct." (Id. at p. 199.)

Rather, "where a kidnaping is in furtherance of a robbery during which the kidnaping occurs, a violation of [Penal Code] section 209 is committed even though the intent to kidnap was formulated after the robbery commenced." (People v. Laursen, supra, 8 Cal.3d at p. 199.) In the case before it, the robbery was still underway when the kidnapping occurred, because the robbers had not yet reached a place of temporary safety. (Id. at pp. 199-200.) Indeed, the asportation "was for the purpose of effecting defendant's escape from the scene where the robbery was perpetrated." (Id. at p. 200.)

Here, similarly, the robbery was still underway when the victims were driven to Victorville. As already discussed in part X, ante, "'[i]n cases involving [both] a kidnapping and robbery, courts have held almost without exception that the evidence supported the conclusion the robber had not yet reached a place of temporary safety so long as the victim remained under the robber's control.' [Citations.]" (People v. Cummins, supra, 127 Cal.App.4th at p. 679.) Even though the participants had finished taking money and other property from the victims, the victims were still under their control until the killing.

Thus, we may assume, without deciding, that the movement of the victims in and around the house on Center Street failed to satisfy the asportation requirement for kidnapping for robbery. Even if so, the movement of the victims during the drive to Victorville did meet the definition. Moreover, it was carried out for purposes of a robbery that was still underway.

XI

THE SUFFICIENCY OF THE EVIDENCE OF LYING IN WAIT

Defendants contend that there was insufficient evidence that the shooting occurred during a period of lying in wait to support the lying-in-wait special circumstance. Again (see part VII, ante), we reach this issue even though we are vacating this special circumstance because, if defendants are correct, it could not be retried. (See People v. Dalton (2019) 7 Cal.5th 166, 249.)

Lying-in-wait murder and the lying-in-wait special circumstance have three elements in common: (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Nelson (2016) 1 Cal.5th 513, 549 [special circumstance]; People v. Russell (2010) 50 Cal.4th 1228, 1244 [first degree murder].)¹³

13 The intent elements, however, differ: "' . . . [T]he lying-in-wait special circumstance requires intent to kill, while lying-in-wait murder requires only a wanton and reckless intent to inflict injury likely to cause death. [Citation.]' [Citation.]" (People v. Nelson, supra, 1 Cal.5th at p. 549.)

"A lying-in-wait special circumstance can apply to a defendant who, intending that the victim would be killed, aids and abets an intentional murder committed by means of lying in wait. [Citations.] In this factual setting, the questions are whether the defendant, with the intent to kill, aided and abetted the victim's killing, and whether the actual killer intentionally killed the victim by means of lying in wait. [Citation.]" (People v. Johnson (2016) 62 Cal.4th 600, 630.)

"[F]irst degree murder by means of lying in wait does not contain a temporal requirement. [Citation.]" (Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 908 [applying California law], cert. den. (2000) 528 U.S. 1159.) It merely requires a killing "by means of" lying in wait. (§ 189.) Prior to 2000, the lying in wait special circumstance did have a temporal requirement; it required a killing "while" lying in wait. In March 2000, however, the voters enacted Proposition 18, which amended the definition of the special circumstance, so now, it, too, merely requires a killing "by means of" lying in wait. (§ 190.2, subd. (a)(15); see generally People v. Johnson, supra, 62 Cal.4th at p. 634.)

"[T]he voters' purpose in amending the lying-in-wait special circumstance was to eliminate the temporal distinction between the special circumstance and lying-in-wait first degree murder, and thereby expand the class of cases in which the special circumstance could be found true ...." (People v. Johnson, supra, 62 Cal.4th at p. 636.)

"The voter information guide shows that voters were informed that the courts had interpreted the special circumstance's reference to a killing 'while' lying in wait to require that the murder have 'occurred immediately upon a confrontation between the murderer and the victim.' [Citation.] According to the Legislative Analyst, this interpretation precluded application of the special circumstance if the defendant watched and waited for the victim, but the killing occurred after the defendant had captured the victim and transported him or her to another location. [Citation.] The Legislative Analyst explained that the passage of Proposition 18 would replace the special circumstance's previous language with reference to a killing '"by means of'" lying in wait, thereby permitting application of the special circumstance in that previously prohibited scenario. [Citations.]" (People v. Johnson, supra, 62 Cal.4th at p. 635.)

In sum, then, now a surprise attack must come immediately after the watching and waiting; however, there is no requirement that the killing must come immediately after the watching and waiting. All that is required is that the killing must be committed by means of the watching and waiting.

Here, the participants started watching and waiting at the Center Street house on Saturday night. On Sunday, they launched a surprise attack on victim Romero, and on Monday, on victims Martin and Gomez. Apparently, the victims were held at the Center Street house overnight, from Monday until Tuesday, to give them an opportunity to round up money and drugs for their captors. However, there was substantial evidence that the plan all along was to kill them after robbing them. And sure enough, on Tuesday night, they were driven to Victorville and shot. The period of watching and waiting that enabled the participants to get the drop on the victims, to capture them, and to bind them, also ultimately enabled the participants to kill them. Thus, the murders were committed by means of the watching and waiting.

XII

THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE FINANCIAL-GAIN SPECIAL CIRCUMSTANCE

Defendants contend that there was insufficient evidence to support the financial-gain special circumstance. Again, although we are vacating this special circumstance on other grounds, we reach this contention because it controls whether the special circumstance can be retried. (See parts VII and XI, ante.)

When a defendant is charged with both a financial-gain special circumstance and a robbery-murder special circumstance, "' . . . the financial gain special circumstance applies only when the victim's death is the consideration for, or an essential prerequisite to, the financial gain sought by the defendant.' [Citation.]" (People v. Ervine (2009) 47 Cal.4th 745, 790.) Some examples include "the killing of a victim in a murder for hire [citation] or in an attempt to secure the proceeds of a life insurance policy covering the victim [citation] or to avoid a debt owing to the victim [citation]." (People v. Mickey (1991) 54 Cal.3d 612, 678, italics added.)

Here, Iniguez testified that Max had dual reasons for ordering the killing. First, Max owed money to Martin and Romero for methamphetamine, and killing them would eliminate that debt. Specifically, Iniguez testified that "they wanted to get them. So the debt wouldn't have to be paid." "By taking care of [Martin] and [Romero], they wouldn't have to pay the debt that was owed." Second, they would "collect extra" by robbing the victims of money and drugs. Because killing the victims was an essential prerequisite of avoiding the debt, which was a financial gain separate and distinct from the robbery, there was sufficient evidence to support the financial gain special circumstance.

Defendants rely on an admission that Iniguez made on cross-examination: "Q . . . If Martin, the chauffeur Gomez, and Romero are all killed, then Max's debt is erased.

"A It will - it won't be 'cause there's still somebody that will be higher than Martin that will try to settle matters with Max.

"Q Sooner or later.

"A Sooner or later."

Iniguez also admitted that Max "probably" had "qualms" about the "risk" that the killings "could possibly lead to cartel wars ...."

Iniguez's admission on cross could be viewed as contradicting his testimony on direct. Alternatively, however, they could be reconciled as meaning that Max could avoid repaying the debt in the short term and also hoped he could avoid repaying the debt in the long term, although, in Iniguez's opinion, this hope was unduly optimistic. It seems the jury took the latter view; if so, there was sufficient evidence to support it.

Finally, defendants argue that, even assuming Max acted for financial gain, there was no evidence that they, personally, stood to gain financially. However, a person who aids and abets a "murder . . . carried out for financial gain" (§ 190.2, subd. (a)(1)) can be subject to the financial-gain special circumstance even if he or she has no personal financial motive. (People v. Battle (2011) 198 Cal.App.4th 50, 84; People v. Singer (1990) 226 Cal.App.3d 23, 43; People v. Freeman (1987) 193 Cal.App.3d 337, 339-340.)

XIII

THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE GANG ALLEGATIONS

Defendants contend that there was insufficient evidence to support the gang allegations, in part because the prosecution gang expert was not qualified and his testimony lacked foundation. Even though we are reversing the gang allegations, we reach this contention, because it controls whether the gang allegations may be retried.

A. Additional Factual and Procedural Background.

Officer Moran had been a member of the Gang Division since 2007. As such, he had taken two 24-hour classes on gangs. In 2008 and again in 2010, he had taken additional 32-hour classes on gangs, which had included information on cartels.

From 2007 through 2011, Officer Moran was assigned to a gang task force; during this time, he talked to gang members "pretty much on a daily basis." He had investigated narcotics trafficking cases. He had worked on "a few cases" in which drug cartels were involved, although he was not the designated gang expert.

Because he had never previously testified as an expert on drug cartels, he felt the need to "do some homework" in this case. Thus, he had spoken to several members of the Drug Enforcement Agency (DEA) and he had taken classes from the California Gang Investigators Association (CGIA). He had carried out additional research on his own using sources available to the public, such as federal State Department and Justice Department websites, articles from Forbes and Newsweek, and Internet translations of articles from Mexican magazines.

B. Forfeiture.

Preliminarily, the People respond that defendants forfeited their present contention by failing to raise it below.

Both sides claim that People v. Dowl (2013) 57 Cal.4th 1079 (Dowl) supports their position on forfeiture. There, a police officer testified, as an expert, that the defendant was in possession of marijuana for the purpose of sale. (Id. at pp. 1082-1083.) The defendant testified that he was in possession for the lawful purpose of personal medical use. (Id. at p. 1083.) On appeal, the defendant argued that the officer's testimony was not substantial evidence sufficient to support a conviction, because he lacked "experience in differentiating those who possess marijuana lawfully for medical purposes from those who possess it unlawfully with the intent to sell." (Id. at p. 1083.)

The Supreme Court held that the defendant had forfeited any contention that the expert's testimony was inadmissible by failing to object on this ground at trial. (Dowl, supra, 57 Cal.4th at pp. 1087-1088.) "Because a party offering expert testimony need not establish the witness's qualifications absent an objection [citations], defendant's failure to object at trial eliminated the incentive of the prosecution 'to provide additional testimony to lay a foundation for [the officer'] testimony' [citation] and of the trial court to 'take steps to prevent error from infecting the remainder of the trial' and to develop an adequate record. [Citation.] He therefore cannot now challenge on appeal the testimony's admissibility based on the officer's qualifications." (Id. at p. 1088, fn. omitted.)

It further held: "It follows from this conclusion, and from other basic principles of California law, that defendant also may not now obtain reversal by having a reviewing court declare on appeal, as a matter of substantial evidence review, that [the officer] was unqualified to render an opinion at trial regarding defendant's intent to sell." (Dowl, supra, 57 Cal.4th at p. 1089; see also id. at p. 1089, fn. 3.)

It did also hold that: "[D]espite his failure to object, defendant may argue on appeal that the evidence put before the jury at trial - including the officer's opinion testimony - was insufficient to establish he possessed the marijuana for purposes of sale. [Citation.]" (Dowl, supra, 57 Cal.4th at p. 1089.) However, it rejected this argument, noting that the officer's opinion was based on specific facts that were supported by the record. (Id. at pp. 1091-1092.)

It is true that, under Dowl, defendants have forfeited any evidentiary objection to Officer Moran's opinions. However, they can still argue that his opinions did not constitute substantial evidence. In this context, they cannot argue that he was not qualified, but they can argue that his opinions lacked necessary support. Even aside from Dowl, it is well-established that "' . . . when an expert bases his or her conclusion on factors that are "speculative, remote or conjectural," or on "assumptions . . . not supported by the record," the expert's opinion "cannot rise to the dignity of substantial evidence" and a judgment based solely on that opinion "must be reversed for lack of substantial evidence."' [Citation.]" (People v. Wright (2016) 4 Cal.App.5th 537, 545.)

C. The Sufficiency of the Gang Expert's Opinions.

Here, Officer Moran specified that his testimony about the Sinaloa cartel was based on the "homework" he had done, which included talking to DEA agents, taking CGIA classes, researching federal websites, and reading magazine articles. He specifically testified that these were all sources of information on which an expert would commonly rely. Thus, his testimony was not speculative or conjectural.

Defendants argue that some of this material was publicly available and hence not a proper subject for expert testimony. An expert's testimony must be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact ...." (Evid. Code, § 801, subd. (a).) However, an expert is not forbidden to rely on publicly available information. Here, the operations of the Sinaloa cartel were sufficiently beyond common experience to be a permissible subject of expert testimony. This is true even assuming that a nonexpert who was sufficiently motivated could manage to bone up on the subject. (See People v. Rodriguez (2014) 58 Cal.4th 587, 639 ["Expert testimony regarding what does and does not cause rubber to fracture is sufficiently beyond common experience to be admissible even if parts of that testimony refer to matters within common knowledge."].)

Finally, defendants argue that there was insufficient evidence of an organizational or associational connection between them and the Sinaloa cartel. Under People v. Prunty (2015) 62 Cal.4th 59, section 186.22 "requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang....[W]hen the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang's alleged subsets, it must prove a connection between the gang and the subsets." (Id. at pp. 67-68.)

Here, one connection to the Sinaloa cartel ran through Alvarado. Defendant Chavez told his girlfriend that both he and Alvarado worked for the "Chapos" drug cartel in Mexico. Officer Moran identified "El Chapo" Guzman as the head of the Sinaloa cartel. Defendant Chavez worked for Alvarado; so did Rodriguez.

Another connection ran through victim Martin. Martin reported to Nacho, the "big boss" in Guadalajara. Officer Moran identified Nacho as Ignacio Coronel, a high-ranking member of the Sinaloa cartel, who was based in Guadalajara. Thus, as he concluded, victim Romero and victim Gomez, who both worked for Martin, also worked for the Sinaloa cartel.

Iniguez identified three men as cartel members who were all at the same level - Gordo, Max, and Martin. Admittedly, Iniguez did not testify that they were members of the same cartel. He even acknowledged that there was more than one Mexican drug cartel. However, he testified that he himself sometimes bought drugs from Gordo and sometimes from Martin. Alvarado likewise used to buy drugs from Gordo but then started buying them from Martin; Alvarado also sometimes obtained drugs from Max. According to Iniguez, a cartel member is supposed to work only with that cartel. It followed that Gordo, Max, and Martin were at the top of different cells of the same cartel - namely, the Sinaloa cartel.

In addition, as the People point out, the crimes in this case arose out of a debt that Max owed Martin for some methamphetamine that had gone missing. This was some evidence that Max and Martin engaged in drug transactions with each other, which in turn was evidence that they were in the same cartel.

Finally, defendant Sandoval reported to Max, and defendant Perez admitted that he participated in the crimes in the hope of getting work from Sandoval. Thus, both of them were affiliated with the Sinaloa cartel.

Defendants place great weight on Iniguez's use of the word "freelance" to describe both himself and Alvarado. In context, however, he was clearly referring to the fact that they bought drugs from both Gordo and Martin. In other words, they were not bound to any one cell of the cartel.¹⁴

14 Defendants also quote Iniguez as testifying that he worked for "'[p]retty much everybody.'" (Italics omitted.) The portions of the reporter's transcript that defendants cite, however, do not contain this quote.

Defendants also rely on Iniguez's testimony that Gordo was "from a different cartel." However, this came in response to a question about where Gordo stood in a particular exhibit that had been created to illustrate the various cells of the Sinaloa cartel. Thus, it appears that Iniguez was using "cartel" to mean "cell." Elsewhere in his testimony, Iniguez similarly used "cartel, or whatever you want to call it" to refer to what, in context, was clearly just a single cell of a cartel.

The gang enhancements (and the gang-related firearm enhancements) required evidence that the crimes were "committed for the benefit of, at the direction of, or in association with" the Sinaloa cartel. (§§ 186.22, subd. (b)(1), italics added, 12022.53, subd. (e)(1)(A).) The fact that defendants (Sandoval, Chavez, and Perez) as well as their accomplices (Max, Alvarado, Iniguez, and Rodriguez)¹⁵ were all affiliated with the Sinaloa cartel was sufficient evidence of this. "A trier of fact can rationally infer a crime was committed 'in association' with a criminal street gang . . . if the defendant committed the offense in concert with gang members. [Citation.]" (People v. Leon (2016) 243 Cal.App.4th 1003, 1021.)

15 Alvarado, Iniguez, and Rodriguez also committed the offenses that were used to show a pattern of criminal gang activity by members of the Sinaloa cartel.

Unlike the gang enhancement, however, the gang special circumstance cannot be satisfied by evidence that the crime was committed in association with a gang. It specifically requires evidence that "the murder was carried out to further the activities of" the relevant gang. (§ 190.2, subd. (a)(22).)¹⁶ Here, the crimes may have furthered the activities of the participants' own cell; however, they could not further the activities of the cartel as a whole, because the victims were part of another cell of the same cartel. Indeed, Iniguez conceded that, in killing Martin and Romero, Max risked retaliation from the cartel. Moreover, the killings would not necessarily "erase[]" Max's debt to Martin, "[be]cause there's still somebody higher than Martin that will try to settle matters with Max." Similarly, Chavez told his girlfriend after the killings that Alvarado was on the run from the cartel. In sum, then, the crimes actually cut against the interests of the overall cartel.

16 The People's discussion of the sufficiency of the evidence to support the gang special circumstance rather conspicuously fails to mention this element.

There was insufficient evidence that the participants' cell was, in itself, a criminal street gang. The statutory definition of a criminal street gang requires, among other things, that the alleged gang must have "a common name or common identifying sign or symbol ...." (§ 186.22, subd. (f).) There was no evidence that the participants' cell had any such common name, sign, or symbol.

We therefore conclude that there was sufficient evidence to support the convictions for active gang participation (§ 186.22, subd. (a)) and to support the gang enhancements (§ 186.22, subd. (b)) and gang-related firearm enhancements. (§§ 12022.53, subd. (e)(1)(A).) However, there was insufficient evidence to support the gang special circumstances. (§ 190.2, subd. (a)(22).)

XIV

THE ADMISSION OF EVIDENCE THAT INIGUEZ HAD BEEN ASSAULTED IN JAIL

Defendants contend that the trial court erred by admitting evidence that Iniguez had been assaulted in jail.

A. Additional Factual and Procedural Background.

Iniguez testified that he was in protective custody. He then testified:

"Q What has happened to you since you're been in custody?

"A I got attacked when I was in general population due to the statements I made."

Sandoval's counsel objected, "This line of questioning is speculation." The trial court overruled the objection. It then stated:

"[THE COURT:] And [Chavez's counsel], [Perez's counsel], I'm going to assume you join in that objection, and the same ruling for your client?

"[CHAVEZ'S COUNSEL]: . . . My only concern is clarification that the fact that he may have been attacked doesn't mean my client did any attacking directly.

"THE COURT: Right. I don't think there is any evidence of that. If there is, that is certainly something that can be brought out if there's a foundational basis for it."

Iniguez then testified that he had been attacked by from seven to nine fellow inmates. "I got cut up with razor blades .... Beat up in a corner." During the attack, these other inmates called him a snitch. He explained that other inmates "check [an inmate's] paperwork," including police reports, to make sure the inmate is not a snitch.

Iniguez confirmed that defendants did not physically participate in the attack. When it occurred, he was housed with Rodriguez, but not with defendants. At one point, he had been housed with Sandoval, but Sandoval had been moved before the attack.

B. Discussion.

1. Forfeiture.

Counsel for Sandoval objected based on speculation. Counsel for Chavez expressly joined this objection. Perez's counsel did not. However, the trial court told him, "I'm going to assume you join in that objection ...." He could reasonably conclude that he did not have to do anything further to preserve the objection on behalf of his client.

In this appeal, defendants argue that this was tantamount to a relevance objection, because the testimony of a witness who is speculating has no "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; see also 1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2018) § 28.56, p. 28-35.) Defendants' present argument, however, is not that the evidence was irrelevant because Iniguez was speculating about why he was attacked, but rather that the evidence was irrelevant to Iniguez's "attitude toward testifying." The speculation objection failed to preserve this argument.

Counsel for Chavez also requested "clarification" that his client did not "directly" attack Iniguez. The trial court observed, in open court, that there was no evidence to that effect. Moreover, Iniguez proceeded to testify that defendants did not physically participate in the attack. This objection, too, failed to preserve defendants' present argument.

Hence, we conclude that this argument has been forfeited.

2. Merits.

Separately and alternatively, we also reject this argument on the merits.

"'Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to [his or] her credibility and is well within the discretion of the trial court. [Citations.]' [Citations.] '[T]here is no requirement to show threats against the witness were made by the defendant personally or the witness's fear of retaliation is "directly linked" to the defendant.' [Citation.]" (People v. McKinnon (2011) 52 Cal.4th 610, 668.)

Defendants acknowledge these principles; however, they argue that the evidence was irrelevant in this case because the assault occurred before Iniguez was convicted, but he decided to testify only after he was convicted, and then only in consideration of a significant sentence reduction.

But this is a non sequitur. Attempts to intimidate a witness are relevant because they show that the witness is testifying despite such attempts, and thus is more likely to be telling the truth. This is true even if the witness is testifying pursuant to a plea bargain. It is also true even if, prior to the plea bargain, the witness was reluctant to testify. A witness who, like Iniguez, has been attacked by seven to nine assailants, beaten, and slashed with razor blades may well be reluctant to testify, even with a plea bargain. And this is particularly true in light of the specifics of Iniguez's plea bargain. A reduction from life without the possibility of parole to life with the possibility of parole after 50 years is arguably not a very compelling incentive (see § 2933.2, subd. (a) [persons convicted of murder are not entitled to postsentence conduct credit]),¹⁷especially when you will have to spend your time in prison with people who are looking to beat you up. Thus, even after his plea bargain, the fact that he had been attacked for snitching remained relevant.

17 Sandoval himself characterizes the incentive as a mere "glimmer of hope that [Iniguez] might someday be released from prison."

Defendants' counsel were free to make the same argument to the jury as defendants argue in this appeal - that Iniguez's real motivation was to obtain the plea bargain, not to tell the truth. However, he could have had both motivations. In any event, the jury was entitled to hear the evidence on both sides so it could make up its own mind.

In their reply briefs, defendants argue that the evidence was more prejudicial than probative because it would have led the jury to suspect that they were behind the attack.

They forfeited this argument by failing to object on this ground at trial. They forfeited it again by failing to raise it in their opening briefs. (Clark, supra, 63 Cal.4th at p. 552.) Even absent forfeiture, we would reject it. Once again, Iniguez testified that defendants did not physically participate in the attack. He also testified that they were not housed with him at the time. Rodriguez, who was housed with him, would seem to be a more likely suspect. Moreover, Iniguez testified that inmates in general are hostile to snitches in general - so much so that they inspect other inmates' "paperwork." Thus, the evidence was not unduly likely to make the jury think defendants were behind the attack.

3. The trial court's admonition to Iniguez.

Shortly after Iniguez took the stand, the trial court interrupted to admonish him, in the presence of the jury, that he had a right to consult with his attorney during questioning, and also that he was subject to possible adverse effects "if the deal doesn't go through ...."

Defendants do not contend that this was, in itself, reversible error. Thus, they have forfeited any such contention. They also forfeited it by failing to object to the admonition below. (See, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038.) However, they do argue that the prejudicial effect of the evidence that Iniguez had been assaulted was compounded by the trial court's admonition, because it "had the unfortunate effect of vouching for [Iniguez]'s credibility." (Fn. Omitted.)

Because we hold that the admission of the challenged evidence was not error and, if error, was forfeited, we have no occasion to consider whether it was prejudicial. A fortiori, we have no occasion to consider whether it was cumulatively prejudicial in combination with the trial court's admonition. Finally, even if we were to hold that the admission of the challenged evidence was error, we would not consider cumulative prejudice from the admonition, because defendants have failed to preserve any claim that the admonition itself was erroneous.

XV

EXPERT TESTIMONY TO CASE-SPECIFIC HEARSAY

Defendants contend that much of the gang expert's testimony consisted of inadmissible case-specific hearsay. They further contend that the admission of this evidence violated the Confrontation Clause.

Defendants did not object on this ground below. Nevertheless, they did not forfeit this contention for purposes of appeal, because it is based on People v. Sanchez (2016) 63 Cal.4th 665 and People v. Valencia (2021) 11 Cal.5th 818, which were decided after they were tried and convicted. (People v. Perez (2020) 9 Cal.5th 1, 7-14.)

We may assume, without deciding, that defendants are correct. Because we are reversing the murder and attempted murder convictions, vacating the appurtenant enhancements and special circumstances (see part IV, ante), and reversing all of the gang allegations (see part V, ante), the assumed error, with respect to them, is harmless and/or moot. The question is whether the assumed error was prejudicial with respect to the convictions for kidnapping for robbery and kidnapping for ransom.

Iniguez testified extensively about defendants' participation in the kidnappings. He also testified that the kidnappings were committed for the express purpose of (among other things) robbing the victims of money and drugs. In statements heard only by his own jury, Perez admitted participating in the kidnappings (and largely corroborated Iniguez's account). In testimony that defendants do not challenge, Iniguez explained how defendants were all connected, directly or indirectly, through the cartel to Max. He added that a cartel member has to do what he or she is told to do.

His testimony was at least partially corroborated. Victim Romero identified the kidnappers as Alvarado and Iniguez; his description of being taken captive at the Center Street house, although lacking detail, matched Iniguez's account. Zip ties and latex gloves were found at the Center Street house. Chavez and Perez were on video buying latex gloves. Iniguez and Perez were both associated with the storage unit in South Gate.

Sandoval's sweatshirt was found in the pickup with the bodies. His cell phone records showed him going from the Center Street house to Victorville and back. Chavez's ex-girlfriend testified that, during the period when the crimes were committed, she did not hear from him, and afterwards, he had an expensive watch, presumably the one taken from victim Martin. She also linked Chavez to Alvarado and to the cartel.

By contrast, the testimony of the gang expert was largely irrelevant to whether defendants were guilty of kidnapping for robbery or kidnapping for ransom. Moreover, the jury was instructed that it could consider the gang evidence only with respect to the gang-related crimes, enhancements, and special circumstances, and with respect to motive. "You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime." (CALCRIM No. 1403.)

The gang expert did not testify that the motive for the crimes was gang-related; for example, he did not testify that they were committed to enhance the gang's reputation or to instill fear in the community. With respect to motive, he did testify that "[t]his was a cartel-ordered hit," but that followed from Iniguez's testimony. He also testified that Perez wanted to work for Sandoval and "s[aw] this as an audition of sorts." However, Perez said himself that he was trying to get work from Sandoval.

We are not saying that the evidence other than the gang expert's testimony was necessarily overwhelming. Nevertheless, based on that evidence, the jury concluded that defendants were guilty of kidnapping for robbery and kidnapping for ransom. We are saying that there is no reasonable probability that, in the absence of the gang expert's testimony, the outcome on these particular charges would have been any different.

XVI

FAILURE TO INSTRUCT ON THE DEFENSE OF DURESS Perez contends that the trial court erred by failing to instruct sua sponte on duress as a defense.

A. Additional Factual and Procedural Background.

Iniguez testified that the other participants trusted him and Perez because "they knew . . . how to get back to us," meaning that they knew how to kidnap, torture, and kill them.

At the meeting at El Pollo Loco, Iniguez and Perez were told that they "would have to go along with it," or else they would meet the same fate as the victims. Perez told the police that, before leaving in the truck containing the victims, Sandoval told him, "[I]f you say something or do something . . . we're gonna do the same thing we did to them to you and your family."

When the police asked Perez why he did not call the police "afterwards," he said he was "scared"; if the others found out that he "snitched," they would "probably get [his] mom ...."

B. Discussion.

"The defense of duress is available to defendants who commit crimes, except murder, 'under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.' [Citations.] Although 'duress is not a defense to any form of murder,' [citation] 'duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.] If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony.' [Citation.] A trial court is required to instruct sua sponte on a duress defense if there is substantial evidence of the defense and if it is not inconsistent with the defendant's theory of the case. [Citation.]" (People v. Wilson (2005) 36 Cal.4th 309, 331.)

"'Duress is an effective defense only when the actor responds to an immediate and imminent danger.' [Citation.] . . .' . . . A "phantasmagoria of future harm" such as a threat of death to be carried out at some undefined time, will not diminish criminal culpability.' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1460; accord, People v. Casares (2016) 62 Cal.4th 808, 844, disapproved on other grounds in People v. Dalton, supra, 7 Cal.5th at p. 214.)

For example, in People v. McKinney (1986) 187 Cal.App.3d 583, the defendant, a prison inmate, hit a fellow inmate in the head with a hammer during metal shop class. (Id. at p. 585.) The trial court excluded evidence, offered to support a duress defense, that other inmates had threatened to kill him if he failed to use violence to settle his dispute with the victim (and also if he went into protective custody). (Id. at pp. 585, 587.) The appellate court upheld this ruling: "The other inmates who had threatened defendant were not present in the shop class at the time. In short, defendant's offer of proof established at most a threat of future harm if he failed to confront [the victim]. Thus, the trial court did not err in excluding the offered evidence." (Id. at pp. 587-588.)

Here, similarly, there was no evidence of any threat of immediate harm. At most, the evidence showed that, if Perez failed or refused to participate, the others would attempt to kill him and/or his family members sometime in the future.

We therefore conclude that the trial court did not err by failing to instruct on duress as a defense.

XVII

PROSECUTORIAL COMMENT ON DEFENDANTS' FAILURE TO TESTIFY

Sandoval and Chavez¹⁸ contend that the prosecutor violated their right to remain silent by commenting on their failure to contradict Iniguez's testimony.

18 We do not understand Perez to be joining in this contention, because it concerns the prosecutor's remarks to Sandoval and Chavez's jury, not to Perez's jury.

A. Additional Factual and Procedural Background.

During his rebuttal argument to Sandoval and Chavez's jury, the prosecutor noted that Chavez's counsel had argued that his client was coerced into participating, citing Iniguez's testimony that he himself felt coerced. He then said:

"But you heard zero evidence that that is what [Chavez] was thinking, or that is what [Chavez] was told, or that's anything that was impressed upon him in his actions in this case."

"And what [Sandoval's counsel] did was stand up here and give you rank speculation as to people's state of mind, inferences from evidence that is not there, and ignored evidence that was there."

"[Y]ou never heard one piece of evidence to contradict anything [Iniguez] said."

"And that credibility of Mr. Iniguez, there was nothing to impeach him. There was nothing to show that anything he said was wrong, inconsistent, contradictory."

"Again, there was no evidence to contradict Mr. Iniguez."

"It's that evidence, the cell phone evidence and the DNA that independently connect . . . Sandoval to these crimes. It's that evidence that then allows you to consider . . . Iniguez's testimony, that uncontradicted, unimpeached, unaltered, unquestioned, testimony.

"Was there any question that was asked of . . . Iniguez on cross-examination by either attorney that changed the scenario, the facts, the parties involved or how it occurred? Nope. Was any independent evidence brought in by them or me from detectives, independent witnesses, prior statements, prior testimony, anything that changed how it went down, who it went down with or by, and the end result? No. Absolutely not."

After the prosecutor finished, outside the presence of the jury, Chavez's counsel objected, "the D.A. during . . . his rebuttal argument place[d] the burden on the defendants to disprove the charge."

The trial court asked, "Is there something . . . that you would like me to do in terms of this jury?" He replied, "I think just . . . stressing the CALCRIM that we don't have any burden of proof here ...." Sandoval's counsel then joined in the objection.

After a lunch break, Chavez's counsel restated his argument. Sandoval's counsel added, "I don't think it's a fair comment for the prosecutor to make a comment as to how we exercise our right of confrontation. And [that] we didn't exercise it ....[¶] That also tramples on the right of self-incrimination."

Again, the trial court asked, "Is there any remedy . . . ?" Chavez's counsel replied, "You've already indicated . . . that you're going to read, you know, the issue of the burden of proof, et cetera. I would submit to that." Sandoval's counsel added, "I'll submit ...."

After the jury retired to deliberate, the trial court stated, "Yesterday there was a comment from both [Chavez's counsel] and [Sandoval's counsel] about the possibility of during his closing argument, [the prosecutor] may have done something to infer that Mr. Chavez . . . and/or Mr. Sandoval should take the stand ...." The court and counsel agreed that this issue invoked Griffin v. California (1965) 380 U.S. 609 (Griffin). The court then stated, "[I]t struck me that you need a ruling ...." Accordingly, it ruled: "I don't find that it was prosecutorial misconduct. I don't find that it was an improper unconstitutional comment on the right of the defendants to remain silent."

B. Discussion.

We assume, without deciding, that counsel for Sandoval and Chavez did not forfeit their clients' present contention.

"'"'[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.'"' [Citations.]" (People v. Jackson (2016) 1 Cal.5th 269, 368.)

Under Griffin, the Fifth Amendment prohibits the prosecution from commenting on a defendant's failure to testify at trial. (Griffin, supra, 380 U.S. at p. 615.) Thus, "[t]he prosecutor's argument cannot refer to the absence of evidence that only the defendant's testimony could provide. [Citation.]" (People v. Brady (2010) 50 Cal.4th 547, 565-566.)

"'Although a prosecutor is forbidden to comment "'either directly or indirectly, on the defendant's failure to testify in his defense,'" the prosecutor may comment "'on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.'" [Citation.]' [Citation.]" (People v. Castaneda (2011) 51 Cal.4th 1292, 1333.) "'"[A]s a general principle, prosecutors may allude to the defense's failure to present exculpatory evidence" [citation], and such commentary does not ordinarily violate Griffin or erroneously imply that the defendant bears a burden of proof."' [Citations.]" (People v. Carr (2010) 190 Cal.App.4th 475, 483.)

The prosecutor's statements to the effect that Iniguez's testimony had not been impeached or contradicted were appropriate comments on the state of the evidence. Defendants themselves were not the only ones who could confirm or deny that testimony. Victim Romero's out-of-court statements describing the crimes corroborated it. Garcia, testifying pursuant to a plea agreement, also corroborated Iniguez. Alvarado's out-ofcourt statements, introduced through Garcia, further corroborated Iniguez. The DNA evidence and cell phone evidence were both consistent with Iniguez's account.

In addition, under People v. Ford (1988) 45 Cal.3d 431 (Ford), the prosecutor could properly comment on the failure of Alvarado and Rodriguez, who had already been separately convicted, to testify in this case. In Ford, defendants Ford, Cooper, and Elder were all charged with committing the same burglary. When Ford went to trial, Cooper had pleaded guilty, and Elder had not yet been tried. (Id. at p. 436.) Ford took the stand and testified that, at various times when prosecution witnesses placed him at the scene of the burglary (id. at pp. 436-437), he was actually somewhere else with Cooper and/or Elder. (Id. at pp. 437-438.) In closing argument, the prosecutor commented on Ford's failure to call Cooper and Elder to support his alibi. (Id. at p. 438.)

The Supreme Court held that there was no "statute, constitutional provision, or rule [that] precludes comment by the prosecutor on defendant's failure to call his former codefendants as witnesses to support his alibi defense." (Ford, supra, 45 Cal.3d at p. 435; see also id. at pp. 442-447.) It noted that, assuming Ford's testimony that he had an alibi was true, the witnesses' testimony would not incriminate them. (Id. at p. 442.) And even if their testimony would incriminate them, they might be willing to waive the privilege in order to give testimony that would exculpate Ford. (Id. at pp. 442-443.) Thus, it was Ford's burden to call these witnesses and thus to force them either to testify or to assert their Fifth Amendment privilege. (Id. at pp. 442-443.) Alternatively, he could have sought a stipulation or a ruling before trial that comment would be impermissible because the witnesses were unavailable. (Id. at pp. 447-448.)

Here, similarly, if Alvarado or Rodriguez could have contradicted Iniguez's testimony, defendants would have called them. Defendants did not show that these witnesses would have claimed the Fifth Amendment¹⁹ and did not seek a ruling or a stipulation that they were unavailable. Hence, the prosecutor could point out that Iniguez was uncontradicted without necessarily alluding to defendants' own failure to testify.

19 Significantly, in Ford, the Supreme Court did not simply assume that Cooper's testimony would incriminate him, even though he had already pleaded guilty.

Finally, defendants did not put on an affirmative case; they did not introduce any evidence, other than that which they elicited from prosecution witnesses on crossexamination. Again, the prosecutor was entitled to point this out.

The prosecutor's statement that there was no evidence of what Chavez was thinking or of what Chavez was told comes closest to a Griffin violation, because obviously Chavez himself could have provided such evidence. However, others, including Iniguez, Alvarado, and Rodriguez, could have testified to what was said in Chavez's presence; they could have testified to what Chavez did; and, subject to hearsay limitations, they could also have testified to what, if anything, Chavez said. (See, e.g., Evid. Code, § 1241 [hearsay exception for statement explaining declarant's conduct].) Thus, the prosecutor could properly argue that there was no evidence that Chavez was coerced into participating.

We therefore conclude that there was no Griffin violation.

XVII

DISPOSITION

The convictions for murder, attempted murder, and gang participation are reversed. The gang-related special circumstance is reversed and cannot be retried. The other special circumstances are vacated. The convictions for kidnapping for ransom and kidnapping for robbery are affirmed. All gang enhancements and gang-related firearm enhancements are reversed.

If the People do not bring a defendant to a new trial in a timely manner (see § 1382, subd. (a)(2)), our remittitur will be deemed to modify that defendant's conviction by reducing the gang-related firearm enhancements (§ 12022.53, subd. (e)) on the kidnapping for robbery and kidnapping for ransom counts to armed-principal enhancements (§ 12022, subd. (a)(1)), and the trial court must resentence that defendant.

We concur: MILLER J., FIELDS J.