Opinion
B230171
02-07-2012
THE PEOPLE, Plaintiff and Respondent, v. PEDRO GABRIEL TREJO et al., Defendants and Appellants.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant Pedro Gabriel Trejo. Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Marquez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA103146)
APPEALS from judgments of the Superior Court of Los Angeles County. Michael M. Johnson, Judge. Affirmed.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant Pedro Gabriel Trejo.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Marquez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Pedro Gabriel Trejo and Jesus Marquez were convicted following a jury trial of conspiracy to commit murder (Pen. Code, § 812, subd. (a)(1)). The jury found true the firearm allegations that a principal personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)), and did so causing death (§ 12022.53, subds. (d), (e)). The jury also found true the criminal street gang allegation (§ 186.22, subd. (b)(1)). The jury acquitted appellants of first degree murder (§ 187, subd. (a)). The court sentenced each appellant to state prison for 50 years to life, consisting of 25 years to life for conspiracy plus 25 years to life for the firearm allegation that a principal personally and intentionally discharged a firearm causing death. The court stayed the remaining firearm and gang enhancements pursuant to section 654. Appellants were ordered to pay jointly and severally $7,500 in victim restitution.
All statutory references shall be to the Penal Code, unless otherwise noted.
Three other defendants were also charged with appellants and acquitted of murder. Only one of these defendants was also found guilty of conspiracy.
Appellants contend (1) the trial court violated their constitutional rights to confront witnesses by admitting the preliminary hearing testimony of the two key witnesses; (2) the victim restitution order constituted an unauthorized sentence in the absence of a murder conviction; and (3) the true findings on the firearm enhancements must be reversed as inconsistent with the jury's verdicts acquitting appellants of murder. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2007, J.J., who was then ten years old, was with his mother in a car on 58th Place in Los Angeles County, when he heard two or three gunshots. He saw people in a small car and the leg of a person who appeared to be getting into the car. The car drove off, followed by a light blue SUV. When the police arrived, they found Ivan Perez lying in a gutter. Perez died from two bullet wounds to his head, including one "close contact shot."
Homicide Detective Jonas Shipe of the Los Angeles County Sheriff's Department investigated the shooting and learned that Perez was a member of the Florencia 13 gang with the moniker "Blackie." On June 21, 2007, about a month before he was killed, Perez had been arrested along with fellow gang member Javier Rangel. According to a statement given to the police by Javier's sister Claudia Rangel, which was recorded and played at trial and the preliminary hearing, during that incident Perez had displayed a gun at a car wash, someone fought with him, and Javier jumped into the fight.
Because they have the same last name, we will refer to the siblings by their first names.
No one from the Rangel family testified at trial. Testimony given at the preliminary hearing by Claudia and her mother, Marta Moreno, was read at trial. Claudia testified at the preliminary hearing that on the day Perez was killed several people came to her house three different times to see Javier, including appellants and Perez. She recognized some of the people as Florencia gang members, and most were much older than Perez and Javier. She heard appellant say that Perez or Javier had "snitched on the gun." At some point, a man holding a gun in the backyard said, "I'm going to shoot both of these fools right here." He was told not to shoot anyone at the house because Claudia and her baby were there. Claudia's other brother Jonathan Rangel was also home at the time.
During the final visit to Claudia's house, appellant Trejo took Perez and Javier to the backyard and told them to fight, which they did for about four minutes. Appellants and others then took Perez to a car where others were waiting, and appellant Trejo placed Perez in the rear middle seat. Several cars, including a light blue SUV, drove away. Javier remained at the house. About 30 minutes later, Trejo returned to the house and told Javier that Perez had been killed, though he did not say who had done the killing. Trejo told Javier to say that a rival gang had killed Perez if anyone asked questions about his death.
Marta Moreno testified at the preliminary hearing that on the day of the killing she returned home to find several people she did not know, either in cars or leaving the back of her house. Her children were at home with Perez, who left with the others. Later that day, she saw Javier with a black eye or injury to his face.
Detective Dean Camarillo of the Los Angeles County Sheriff's Department testified as a gang expert. He was familiar with the Florencia 13 gang, and first met Perez and Javier in 2005 or 2006 when Perez was 12 or 13 years old. Both boys told him they were members of Florencia. Perez was killed in an area claimed by Florencia. Appellants were also Florencia members and had tattoos indicating their gang membership. Appellant Trejo had the gang monikers of "Demon" and "Crash," and appellant Marquez had the monikers of "Chuko" and "Necio." Detective Camarillo testified that in Hispanic gangs, members who are perceived as snitches will generally be killed, if the killing is authorized by more senior members of the gang. Detective Camarillo believed that the fight between Perez and Javier was intended to settle the differences between them arising from their accusing each other of having been the snitch. He opined that the killing was committed for the benefit of, in association with, and at the direction of the Florencia 13 gang.
DISCUSSION
I. Admission of Preliminary Hearing Testimony
Appellants contend the trial court violated their constitutional rights to confront and cross-examine the witnesses against them by admitting the preliminary hearing testimony of Claudia Rangel and her mother Marta Moreno and Claudia's taped police interview. Because we find the prosecution demonstrated due diligence in attempting to locate the witnesses, we conclude this contention lacks merit.
A. Background
On August 25, 2010, a month prior to trial, the prosecutor filed a motion to allow admission of the preliminary hearing testimony of Claudia and Moreno on the ground the witnesses were unavailable, arguing they had both "disappeared" and that Los Angeles County Sheriff's had "diligently searched" for them. Appellant Trejo filed a written opposition to the motion, arguing there was insufficient evidence to show the witnesses were unavailable. The court conducted a hearing on the motion over three days, in which the prosecutor presented two witnesses, Detective Shipe and Gilbert Roldan, an investigator with the Los Angeles County District Attorney's Office.
Detective Shipe, who was the investigating officer on the case, testified that at the preliminary hearing in July 2008, Claudia and Moreno were both in custody as material witnesses and were released without bond after the hearing. On August 1, 2008, the family was relocated to Oxnard because they were "in fear for their lives." At that time, both women were "cooperative" with law enforcement. Shipe and his partner Detective Ferguson, along with the prosecutor, decided the women did not need to be subpoenaed until closer to trial.
Detective Ferguson had telephone contact with Claudia through November 2008. On December 1, 2008, the family's landlord contacted Shipe and informed him the family had "packed up and fled in the middle of the night." Shipe went to the location and spoke to the landlord, who indicated Claudia and Moreno had stated they were going to Mexico. On December 2, 2008, Moreno's boyfriend confirmed that the family had gone to Mexico. The detectives were unsuccessful in later locating Moreno's boyfriend. Shipe never contacted Mexican authorities because he did not know if Claudia or Moreno were actually in Mexico and did not have an address or even know a possible Mexican state in which either woman might be located. According to Shipe, the Mexican government could not assist in locating Claudia or Moreno unless Shipe could identify a particular Mexican state in which the women might be living.
The detectives used Claudia as their "contact person" because Moreno did not speak English. The detectives made contact with Claudia by calling her cell phone, which was eventually disconnected. Shipe acknowledged that he "probably" should have obtained Claudia's cell phone records.
That same day, the prosecution obtained a body attachment order for Claudia, requiring that she post a surety bond in the amount of $100,000 before being released.
Shipe and Ferguson checked "all law enforcement resources," including "warrants, Cal Gangs, CCHRS, Department of Children Services," "Raps," the Los Angeles County booking system, the California Department of Motor Vehicles, Lexis-Nexis, and "inmate locators for surrounding agencies," as well as "every resource" that law enforcement had. Ferguson also checked with hospitals and coroner's offices. Shipe was unsuccessful in identifying the father of Claudia's child, and the probation officer of Jonathan Rangel did not provide any useful information over the telephone.
At some point in either 2008 or 2009, Shipe checked into Claudia's welfare card, "which was used until it was tapped out." The "lead dried up" and she "quit using that card." Shipe did not investigate any bank accounts for the family because he assumed they did not have any accounts "based on their lifestyle." None of the Rangel family had driver's licenses or cars registered to them. As far as Shipe knew, none of the Rangels were citizens or were legally in the United States.
On January 21, 2009, Shipe and Ferguson contacted a "major crimes surveillance team," whose job was to track down witnesses and suspects, and provided the team with all the information they had. At some point, the team contacted the utility companies in an effort to locate the women. On March 12, 2009, Shipe sent an e-mail to Detective Juan Alvarado, a member of the surveillance team, stating that Claudia had been seen by a reliable informant with her child and an aunt at a strip mall in Fontana. The e-mail contained an address in Fontana and a telephone number for the aunt. In the e-mail, Shipe stated, "„I will hook up with her when you have time to go snatch these folks,'" by which Shipe meant that "it would be appreciated" if the team would "go out and look for the witnesses in that area" when the team's schedule was "open." Shipe explained that the team had "a heavy caseload," and that if the team was "hot on a murder suspect's case, that would take precedence over locating a witness." Shipe did not go out to Fontana himself or call the aunt because he believed that Detective Alvarado, who spoke Spanish, should be the one to telephone the aunt.
In May 2009, the team went to four addresses provided by Shipe and Ferguson, "conducted investigations" and "contacted neighbors," but was unable to locate either Claudia or Moreno. That same month, Shipe and Ferguson created a material witness murder investigation special bulletin for Claudia, Moreno, Javier and Jonathan Rangel. They distributed the flier to "several law enforcement investigators out in the Inland Empire." The flyer was also "passed down to Border Patrol."
On a monthly basis, Shipe and Ferguson checked "all the law enforcement resources" to determine if Claudia or Moreno were in custody; they also checked the status of Javier and Jonathan Rangel. Using these resources, they were unable to locate Claudia or Moreno.
Investigator Gilbert Roldan testified that on September 10, 2010, he received a request to investigate Claudia's whereabouts. On September 16, 2010, Roldan spent about an hour checking various databases, including the Justice Data Interface Communication System, Lexis, Prosecution Information Management System, Los Angeles County booking records, outstanding warrants, five area hospitals, 10 coroner's offices in Los Angeles and San Bernardino Counties, approximately four homeless shelters in the Los Angeles area, the United States Postal Service, and the Employment Development Department. The inquires yielded no useful information.
On September 20, 2010, Roldan spent another two to three hours checking the Los Angeles County Sheriff's Department booking records, wants and warrants, and Lexis databases; he also called some hospitals, the coroner's offices in Los Angeles and San Bernardino counties, and some missions. He had not received any response from the postal service.
On September 21, 2010, Roldan spent another hour checking wants and warrants again, the booking records of the Sheriff's Department, and submitted a request to the Employment Development Department. On September 23, 2010, the day of his testimony, Roldan received a request to locate Moreno. He spent about 30 minutes checking wants and warrants, and the booking records of Los Angeles and San Bernardino counties.
The trial court found that Claudia and Moreno were unavailable witnesses and granted the prosecutor's motion. Over objections by all defense counsel, the preliminary hearing testimony of Claudia and Moreno was read to the jury, and portions of Claudia's taped police interview were played at trial.
B. Relevant Law
Under the state and federal Constitutions, a criminal defendant has the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Herrera (2010) 49 Cal.4th 613, 620 (Herrera).) "Although important, the constitutional right of confrontation is not absolute." (Herrera, supra, at p. 621; see also People v. Thomas (2011) 51 Cal.4th 449, 499.) An exception exists when a witness is unavailable, the witness testified against the defendant at a prior proceeding, and the witness was subjected to cross-examination. (Evid. Code, § 1291, subd. (a)(2) ; Herrera, supra, at p. 621; Barber v. Page (1968) 390 U.S. 719, 722.)
Evidence Code section 1291 provides in relevant part: "(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing."
Additionally, Evidence Code section 1294, subdivision (a) provides that "evidence of prior inconsistent statements of a witness properly admitted in a preliminary hearing or trial of the same criminal matter . . . is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291: [¶] (1) A video recorded statement introduced at a preliminary hearing or prior proceeding concerning the same criminal matter. [¶] (2) A transcript, containing the statements, of the preliminary hearing or prior proceeding concerning the same criminal matter."
Appellants assert there were inconsistencies between Claudia's police interview and preliminary hearing testimony, and concede that her taped police interview would be admissible in conjunction with the admissibility of her preliminary hearing testimony.
A witness is unavailable if the prosecution "has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." (Evid. Code, § 240, subd. (a)(5); Herrera, supra, 49 Cal.4th at p. 622.) Due diligence "'"'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.'"'" (Herrera, supra, at p. 622; People v. Valencia (2008) 43 Cal.4th 268, 292.) "Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.'" (Herrera, supra, at p. 622; People v. Thomas, supra, 51 Cal.4th at p. 500.) As long as "'substantial good faith'" efforts are undertaken to locate a witness, the fact that "'additional efforts might have been made or other lines of inquiry pursued'" does not indicate lack of diligence because "'[t]he law requires only reasonable efforts, not prescient perfection.'" (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
"We review the trial court's resolution of disputed factual issues under the deferential substantial evidence standard [citation], and independently review whether the facts demonstrate prosecutorial good faith and due diligence." (Herrera, supra, 49 Cal.4th at p. 623.)
C. Due Diligence Was Exercised
We agree with the trial court that the prosecution sufficiently established reasonable due diligence in attempting to locate Claudia and Moreno. After the preliminary hearing, they were relocated for their safety and protection. Detective Shipe and his partner kept in contact with Claudia for several months, until they were notified the family had fled in the middle of the night to Mexico. The detectives made numerous efforts to locate the women, including checking various databases, the records of various state and local agencies, and "every resource" available to law enforcement. Detectives Shipe and Ferguson asked for assistance from a surveillance team trained to locate witnesses and suspects. The team went to Fontana to investigate a possible sighting of Claudia and visited four different addresses provided by the detectives. The detectives continued to check "law enforcement resources" on a monthly basis, and sent a missing persons bulletin to other law enforcement agencies, including the border patrol. Additionally, investigator Roldan checked numerous databases and records of local agencies on three separate occasions in a separate effort to locate Claudia and Moreno.
There is no dispute these women were critical witnesses; the prosecutor conceded there was no case without their former testimony.
Appellants concede that numerous and sustained efforts were made to locate Claudia and her mother, but argue that the most important leads were either unreasonably delayed or ignored. Appellants assert that the most substantial lead was the information that Claudia was likely living in Fontana with her aunt, and they argue that Detective Shipe should have personally pursued this lead by immediately driving there himself to check it out. But Shipe passed the information on to the surveillance team, and explained that he believed one of the Spanish-speaking members of the team was better suited to contact Claudia's aunt. Appellants complain that the surveillance team took no action on the lead until nearly two months later. But Shipe explained that the team was also assigned to locate murder suspects, which would be of more importance than locating a witness.
Appellants also complain that the prosecution did not place the witnesses in custody or immediately obtain a bond after the preliminary hearing, and did not ask the police in Oxnard to periodically check on the family. But as the trial court aptly noted, due process principles would not have permitted holding Claudia and Moreno in custody during the more than two years that elapsed between the preliminary hearing and the trial. (People v. Hovey (1988) 44 Cal.3d 543, 564; People v. Thomas, supra, 51 Cal.4th at p. 503 ["The risk that a witness might not appear must be weighed against the witness's substantial due process right not to be unreasonably incarcerated"].)
Moreover, after the family was relocated to Oxnard on August 1, 2008, both women were "cooperative." Claudia remained in contact with the detectives for the first four months following the relocation. It was not unreasonable for the prosecution to assume during that time that there was no need to take drastic measures to secure the witnesses' future attendance at trial. As soon as the prosecution learned that the family fled during the night and may have gone to Mexico, the prosecution immediately obtained a body attachment order for Claudia.
Furthermore, it is well-settled that law enforcement is not required to keep "'periodic tabs'" on witnesses because the burdens of doing so would be prohibitive. (People v. Hovey, supra, 44 Cal.3d at p. 564; People v. Diaz, supra, 95 Cal.App.4th at p. 706.) "Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state or simply 'disappear,' long before a trial date is set." (People v. Hovey, supra, at p. 564; People v. Diaz, supra, at p. 706.) Thus, we agree that the failure to hold the women in custody or conduct periodic surveillance does not indicate that the prosecution failed to exercise due diligence securing the witnesses' attendance at trial.
But appellants argue that the detectives should have taken additional steps to locate the women. For example, appellants assert that the detectives should have contacted immigration authorities and the border patrol much sooner than they did. But as the trial court stated, "I think if you want to get across the border, you can do it. Placing [restrictions or holds] would have been helpful but not determinative." Appellants assert that the detectives should have subpoenaed records from the public welfare assistance agency. But Detective Shipe explained that once Claudia stopped using her welfare card, that lead dried up. Appellants also assert that the detectives should have subpoenaed the records of Claudia's brothers' parole agents for possible relative addresses, as well as Claudia's cell phone records. While the detectives could have taken these extra steps, as noted above, so long as "'substantial good faith'" efforts are undertaken to locate a witness, the fact that "'additional efforts might have been made or other lines of inquiry pursued'" does not indicate lack of diligence because "'[t]he law requires only reasonable efforts, not prescient perfection.'" (People v. Diaz, supra, 95 Cal.App.4th at p. 706.) Finally, to the extent appellants complain the detectives did not contact Mexican authorities, Shipe explained that the Mexican government could not offer assistance because the detectives did not know to which state in Mexico, if any, the women had fled.
We are satisfied the prosecution exercised reasonable diligence in attempting to locate Claudia and Moreno. Because the witnesses were unavailable, appellants' constitutional rights were not violated by the admission of Claudia's and Moreno's preliminary hearing testimony and Claudia's prior recorded statement to police.
II. Victim Restitution Order
The trial court ordered appellants to pay $7,500 jointly and severally in direct victim restitution to cover Perez's funeral costs. Appellants contend the restitution order constitutes an authorized sentence, reasoning that because they were acquitted of murder and convicted only of conspiracy to commit murder they did not cause the victim's family to suffer any economic loss. While the People argue that appellants have waived this issue by failing to object below, "an objection may be raised for the first time on appeal where it concerns an 'unauthorized' sentence, i.e., one that 'could not lawfully be imposed under any circumstance in the particular case.'" (People v. Percelle (2005) 126 Cal.App.4th 164, 179, quoting People v. Scott (1994) 9 Cal.4th 331, 354.)
The California Constitution provides that "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const., art. I, § 28.) Likewise, section 1202.4, subdivision (a)(1) provides that "a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." Subdivision (f) of this section further provides that "every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order . . . ." (§ 1202.4, subd. (f).) "'A victim's restitution right is to be broadly and liberally construed.'" (People v. Phu (2009) 179 Cal.App.4th 280, 283.)
Appellants argue that their "conspiracy to commit murder, by itself, did not lead to the incurring of funeral expenses." They rely on People v. Percelle, supra, 126 Cal.App.4th 164, in which the court held that "in the nonprobation context, a restitution order is not authorized where the defendant's only relationship to the victim's loss is by way of a crime of which the defendant was acquitted." (Id. at p. 180.) But Percelle also explained, "[t]hat is not to say that an acquittal on one count will preclude the imposition of a restitution order under all circumstances." (Ibid.)
As the People note, California has "adopted the 'substantial factor' test in analyzing proximate cause." (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321; People v. Jones (2010) 187 Cal.App.4th 418, 425 [there is "no reason why the various principles involved in determining proximate causation . . . should not also apply in awarding victim restitution"].) This standard is "'"relatively broad"'" and requires "'"only that the contribution of the individual cause be more than negligible or theoretical."'" (People v. Holmberg, supra, at p. 1321.) A force that plays only a theoretical or infinitesimal part of causing an injury or loss is not a substantial factor, but a minor force that causes harm or loss is a substantial factor. (Id. at p. 1322.)
In Holmberg, the defendant pled guilty to possession of stolen property and was ordered to pay restitution to the owners of the property. The defendant argued that the restitution award was improper because the victim's losses were caused by the burglary and theft of the property and not by his mere possession. (People v. Holmberg, supra, 195 Cal.App.4th at p. 1818.) The reviewing court rejected this argument, noting "there can be more than one cause of injury and that multiple causes can combine to cause harm." (Id. at p. 1322.) The court found it "significant" that the defendant obtained the property the day it was stolen. (Ibid.) Because he did not turn it over to the police, the "[d]efendant's conduct played far more than a negligible or theoretical part in bringing about the victims' injuries and was a substantial factor in causing the harm they suffered." (Ibid.)
We conclude appellants' conspiracy to commit murder was a substantial factor in causing Perez's death. The jury was instructed that a conspiracy to commit murder required proof of the following: "1. Two or more persons entered into an agreement to kill unlawfully another human being; [¶] 2. Each of the persons specifically intended to enter into an agreement with one or more other persons for that purpose; [¶] 3. Each of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being; and [¶] 4. An overt act was committed in this state by one or more of the persons." (CALJIC No. 8.69.) The jury was also instructed that the overt acts alleged to have been committed were meeting at Javier's house on the day of the murder, bringing Perez to the house, questioning Perez and Javier about their prior arrest, telling them to engage in a fistfight, and placing Perez in the back of a car that "took him" from Javier's house. Thus, the jury necessarily found that appellants agreed to commit murder with the specific intent to commit murder and that at least one conspirator committed an overt act in furtherance of the conspiracy. Appellants suggest that in acquitting them of murder the jury could have found that a rival gang killed Perez. But this inference is not plausible here. The evidence showed that 30 minutes after appellant Trejo placed Perez in a car that drove away from the Rangel house, Trejo returned to the house and told Javier that Perez was dead and to blame his killing on a rival gang if anyone asked about it. Because the conspiracy to commit murder was a substantial factor in causing Perez's death, the restitution order was an authorized sentence.
III. Firearm Enhancements
Appellants contend the jury's true findings on the firearm enhancements must be reversed because such findings are inconsistent with the jury's murder acquittals. We disagree.
First, the verdicts are not necessarily inconsistent. Appellants argue that by acquitting them of murder, the jury found that "it was not proved that any principal to the conspiracy discharged the gun and killed Perez." But given the evidence that there were a number of gang members at the Rangel house immediately before Perez was killed, including one man with a visible gun, the jury could have easily believed that an uncharged principal discharged the gun that killed Perez. The jury's verdicts can therefore be interpreted as consistent. (People v. Lewis (2001) 25 Cal.4th 610, 655 [evidence supported possibility that verdicts were consistent].)
Second, even assuming the verdicts were inconsistent, "[i]t is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand." (People v. Lewis, supra, 25 Cal.4th at p. 656; United States v. Powell (1984) 469 U.S. 57, 67.) The existence of inconsistent verdicts does not imply that the jury must have been confused. (People v. Lewis, supra, at p. 656.) "An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict." (Ibid.) The rule that inconsistent verdicts are allowed to stand "applies equally to inconsistent enhancement findings . . . and to an enhancement finding that is inconsistent with the verdict on a substantive offense." (People v. Miranda (2011) 192 Cal.App.4th 398, 405.)
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________, J.
DOI TODD
We concur:
_________________, P. J.
BOREN
_________________, J.
CHAVEZ